Filed: Jun. 05, 2017
Latest Update: Jun. 05, 2017
Summary: STIPULATION TO DISMISS MISNAMED DEFENDANTS AND ORDER (Fed. Rules Civ. Proc., Rule 41) JOHN MENDEZ , District Judge . TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS: Plaintiff DAVE WELLER by and through his counsel of record Lawrance A. Bohm, and Robert L. Boucher, and Defendants BROKERAGE CONCEPTS, INC., HEALTHNOW NEW YORK INC., HEALTHNOW ADMINISTRATIVE SERVICES (a DBA of Brokerage Concepts, Inc.), and HEALTHNOW SYSTEMS, INC. (together, "Defendants"), by and through their counsel of reco
Summary: STIPULATION TO DISMISS MISNAMED DEFENDANTS AND ORDER (Fed. Rules Civ. Proc., Rule 41) JOHN MENDEZ , District Judge . TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS: Plaintiff DAVE WELLER by and through his counsel of record Lawrance A. Bohm, and Robert L. Boucher, and Defendants BROKERAGE CONCEPTS, INC., HEALTHNOW NEW YORK INC., HEALTHNOW ADMINISTRATIVE SERVICES (a DBA of Brokerage Concepts, Inc.), and HEALTHNOW SYSTEMS, INC. (together, "Defendants"), by and through their counsel of recor..
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STIPULATION TO DISMISS MISNAMED DEFENDANTS AND ORDER
(Fed. Rules Civ. Proc., Rule 41)
JOHN MENDEZ, District Judge.
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS:
Plaintiff DAVE WELLER by and through his counsel of record Lawrance A. Bohm, and Robert L. Boucher, and Defendants BROKERAGE CONCEPTS, INC., HEALTHNOW NEW YORK INC., HEALTHNOW ADMINISTRATIVE SERVICES (a DBA of Brokerage Concepts, Inc.), and HEALTHNOW SYSTEMS, INC. (together, "Defendants"), by and through their counsel of record, Greenberg Traurig, LLP, stipulate to the dismissal under Federal Rules of Civil Procedure, Rule 41(a)(1)(A)(ii) without prejudice of the following named Defendants: HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. (See, Wilson v. Crouse-Hinds Co., 556 F.2d 870, 873 (8th Cir. 1977) (allowing dismissal under Rule 41(a) of only part of an action per, "a stipulation signed by all the parties or an order of the court").) This stipulation is based on the following grounds:
WHEREAS, Defendant Brokerage Concepts, Inc. timely removed this action to federal court on March 24, 2017. As related entities, Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. join in and consent to the removal.
WHEREAS, on May 22, 2017, the parties met and confer regarding service of process and Plaintiff represented he properly served all parties with process as to the First Amended Complaint. Defendants hereby agree to accept service of the First Amended Complaint as of the date of the filing of this stipulation.
WHEREAS, the Defendants represent to Plaintiff and the Court that:
(1) HEALTHNOW, INC. is not affiliated in any way with Defendants. Defendants believe that HEALTHNOW, INC. is a dissolved California corporation and that, in any event, was never associated with the HealthNow New York Inc. corporate structure.
(2) HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. were never Plaintiff's employer. Instead, Defendant Brokerage Concepts, Inc. employed Mr. Weller. Even though the name "HealthNow New York Inc." may have been on some of Plaintiff's employment forms, HealthNow New York Inc. was included on those forms simply because Defendant Brokerage Concepts, Inc. is a subsidiary of HealthNow Holdings Inc., which in turn is a subsidiary of HealthNow New York Inc.
WHEREAS, without waiving any right to post-trial motions or appeal, Defendants agree to be liable on any verdict or judgment which is entered either against the dismissed Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. or is based on evidence that the dismissed Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. were actually the liable parties.
WHEREAS, without waiving any right to post-trial motions or appeal, Defendant Brokerage Concepts, Inc. agrees to waive its right to defend this suit on the ground that the dismissed Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. were liable in any way.
WHEREAS, if it is later proven that the dismissed Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. were properly named, Defendant Brokerage Concepts, Inc. stipulates to a later amendment to add the dismissed Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. ("Dismissed Defendants") as parties to this lawsuit, notwithstanding the otherwise-applicable statutes of limitations, provided that any otherwise-applicable limitations had not already expired on the date by when Plaintiff filed his Complaint naming the Dismissed Defendants in this lawsuit.
WHEREAS, based on Defendants' representations, Plaintiff agrees that suit against Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. would be futile, and that these dismissed Defendants are not proper Defendants in this action.
WHEREAS, based on Defendants' representations, Plaintiff also agrees that suit against Defendant HealthNow, Inc., which Defendants represent is not affiliated with the HealthNow New York Inc. corporate structure, would be futile.
WHEREAS, this stipulation only dismisses claims against the dismissed Defendants; suit against Defendant Brokerage Concepts, Inc. remains in effect.
WHEREAS, the parties agree to bear their own costs as to suit against the dismissed Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc., and Plaintiff agrees to bear his own costs as to suit against the dismissed Defendant HealthNow, Inc.
IT IS THEREFORE STIPULATED AND AGREED BY the Parties that:
(1) The First Amended Complaint, attached hereto as Exhibit A, be deemed filed and served on Defendants Brokerage Concepts, Inc., HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. on the date the Court enters an order on this stipulation.
(2) Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. be dismissed from this lawsuit without prejudice, and any claims by Plaintiff not already barred against these defendants are tolled during the pendency of this lawsuit.
(3) Plaintiff hereby dismisses Defendant HealthNow, Inc. from this lawsuit without prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(i).
(4) Brokerage Concepts, Inc. shall file a response to the First Amended Complaint within fourteen (14) days from the date the Court enters an order on this stipulation.
ORDER
In view of the parties' Stipulation, the Court orders as follows:
(1) The First Amended Complaint, attached hereto as Exhibit A, is deemed filed and served on Defendants Brokerage Concepts, Inc., HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. as of the date of this Order.
(2) Defendants HealthNow New York Inc., HealthNow Administrative Services (a DBA of Brokerage Concepts, Inc.), and HealthNow Systems, Inc. are hereby dismissed from this lawsuit without prejudice and any claims by Plaintiff not already barred against these defendants are tolled during the pendency of this lawsuit.
(3) Defendant HealthNow, Inc. is hereby dismissed from this lawsuit without prejudice.
(4) Brokerage Concepts, Inc. shall file a response to the First Amended Complaint within fourteen (14) days from the date of this Order.
IT IS SO ORDERED.
