Gomez v. J. Jacobo Farm Labor Contractor, Inc. ( 2023 )

1 Michael J.F. Smith, #109426 John L. Migliazzo, #272066 2 jmigliazzo@mjfsmith.com Michael J.F. Smith, A Professional Corporation 3 1391 West Shaw Avenue, Suite D 4 Fresno, California 93711 (559) 229-3900 5 Fax (559) 229-3903 Attorneys for Defendant, J JACOBO FARM LABOR CONTRACTOR, INC. 6 STAN S. MALLISON (Bar No. 184191) 7 StanM@TheMMLawFirm.com 8 HECTOR R. MARTINEZ (Bar No. 206336) HectorM@TheMMLawFirm.com 9 HEATHER HAMILTON (Bar No. 332545) HHamilton@TheMMLawFirm.com 10 MALLISON & MARTINEZ 11 1939 Harrison Street, Suite 730 Oakland, CA 94612 12 Telephone: (510) 832-9999 Facsimile: (510) 832-1101 13 14 Attorneys for Plaintiffs, MARISOL GOMEZ and IGNACIO OSORIO 15 16 UNITED STATES DISTRICT COURT 17 EASTERN DISTRICT OF CALIFORNIA 18 MARISOL GOMEZ and IGNACIO ) Case No.: 1:15-cv-01489 AWI-BAM OSORIO, on behalf of themselves and all ) 19 others similarly situated; ) STIPULATION AND ORDER ) CONSTRUING IT AS A 20 Plaintiffs; ) STIPULATIONTO AMEND THE 21 ) FIRST AMENDED COMPLAINT v. ) TO OMIT THE PAGA CLAIMS 22 ) (Doc. 159) J JACOBO FARM LABOR ) 23 CONTRACTOR, INC.; and DOES 1through ) 20, inclusive, 24 ) ) 25 Defendants. ) _______________________________________ 26 27 /// 28 1 THE PARTIES, BY AND THROUGH THEIR RESPECTIVE ATTORNEYS OF 2 RECORD, HEREBY STIPULATE AS FOLLOWS: 3 1. On September 9, 2015, Plaintiff, MARISOL GOMEZ, filed a Complaint in this 4 action. Among other things, the Complaint included representative claims under the California 5 Private Attorney General Act of 2004 (Ninth Cause of Action). (Labor Code §§ 2698 et. seq.) 6 2. On August 28, 2018, Plaintiffs, MARISOL GOMEZ and IGNACIO OSORIO, 7 filed a First Amended Complaint in this action. Among other things, the First Amended 8 Complaint included representative claims under the California Private Attorney General Act of 9 2004. (Labor Code §§ 2698 et. seq.) 10 3. Plaintiffs wish to dismiss the State of California claims without prejudice to and 11 their personal PAGA claims with prejudice. 12 NOW THEREFORE, Plaintiffs and Defendant hereby stipulate and agree that the 13 State’s PAGA claims are dismissed without prejudice. Plaintiffs individual PAGA claims are 14 dismissed with prejudice. 15 MALLISON & MARTINEZ 16 Dated: February 17, 2023 By: /s/Heather Hamilton Stan S. Mallison, 17 Heather Hamilton 18 Attorney for Plaintiffs 19 MICHAEL J.F. SMITH, APC 20 Dated: February 17, 2023 By: /s/John L. Migliazzo 21 John L. Migliazzo, 22 Attorney for Defendant 23 ATTESTATION 24 Concurrence in the filing of this document has been obtained from each of the 25 individual(s) whose electronic signature is attributed above. 26 27 Dated: February 17, 2023 By: /s/John L. Migliazzo John L. Migliazzo, 28 Attorney for Defendant een ene enn ne nn nn oe nn OS I OI EE OD EE 1 ORDER 2 On proof made to the satisfaction of the Court and good cause appearing, the Court 3 |} ORDERS: 4 1. The stipulation (Doc. 159) is construed as a joint request to amend the First 5 ||Amended Complaint under Fed.R.Civ.P. Rule 15, to delete the PAGA claims and all references 6 ||to it.! 7 2. As construed, the Court GRANTS the stipulation (Doc. 159) and deems the 8 ||First Amended Complaint (Doc. 95) to be amended to delete the PAGA claim set forth in the 9 ||Ninth Claim for Relief and to delete all references to PAGA made throughout the complaint. 10 3. The operative answers to the First Amended Complaint are deemed responsive 11 ||to the amendments described above. 12 || Dated: November 28, 2023 B Jennyfer L. Thurston US. District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ! Although the stipulation does not invoke a Federal Rule of Civil Procedure, the Court assumes the parties 28 intended it to be a Rule 41(a)(1)(A)(ii) stipulated dismissal of certain claims. However, Rule 41(a) is not the appropriate mechanism to dismiss claims from a case, where other claims remain against the same defendants. See Gen. Signal Corp. v. MCI Telecommunications Corp, 66 F.3d 1500, 1513 (9th Cir. 1995) (“[W]e have held that Rule 15, not Rule 41, governs the situation when a party dismisses some, but not all, of its clatms.”). The Court does not suggest that how it has addressed the stipulation here is an ideal model, but takes this action in the interest of expediency.