Filed: Nov. 03, 2015
Latest Update: Nov. 03, 2015
Summary: STIPULATION AND ORDER TO FILE AMENDED COMPLAINT TROY L. NUNLEY , District Judge . IT IS HEREBY STIPULATED by and between Plaintiff, DAVID E. MCMILLAN, JR. ("Plaintiff"), and Defendants, FLOW INTERNATIONAL CORPORATION and LEWIS-GOETZ AND COMPANY, INC. f/k/a Valley Rubber & Gasket Company, Inc. ("Defendants"), (Plaintiff and Defendants are collectively referred to herein as "the Parties") that Plaintiff should be granted leave to file his First Amended Complaint, a copy of which is attached h
Summary: STIPULATION AND ORDER TO FILE AMENDED COMPLAINT TROY L. NUNLEY , District Judge . IT IS HEREBY STIPULATED by and between Plaintiff, DAVID E. MCMILLAN, JR. ("Plaintiff"), and Defendants, FLOW INTERNATIONAL CORPORATION and LEWIS-GOETZ AND COMPANY, INC. f/k/a Valley Rubber & Gasket Company, Inc. ("Defendants"), (Plaintiff and Defendants are collectively referred to herein as "the Parties") that Plaintiff should be granted leave to file his First Amended Complaint, a copy of which is attached he..
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STIPULATION AND ORDER TO FILE AMENDED COMPLAINT
TROY L. NUNLEY, District Judge.
IT IS HEREBY STIPULATED by and between Plaintiff, DAVID E. MCMILLAN, JR. ("Plaintiff"), and Defendants, FLOW INTERNATIONAL CORPORATION and LEWIS-GOETZ AND COMPANY, INC. f/k/a Valley Rubber & Gasket Company, Inc. ("Defendants"), (Plaintiff and Defendants are collectively referred to herein as "the Parties") that Plaintiff should be granted leave to file his First Amended Complaint, a copy of which is attached hereto as Exhibit "A":
WHEREAS Plaintiff sued Valley Rubber & Gasket Company, Inc. and Lewis-Goetz and Company, Inc. for (1) disability discrimination in violation of California Government Code Section 12940; (2) failure to provide reasonable accommodations in violation of California Government Code Section 12940; (3) failure to engage in interactive process in violation of California Government Code Section 12940; (4) wrongful termination in violation of public policy.
WHEREAS Plaintiff sued Flow International, Inc. for: (1) Strict Product Liability — Design Defect, (2) Strict Product Liability — Failure to Warn, (3) Negligence — Product Liability. Plaintiff's claims against Flow International are based on alleged acts and omissions in connection with the Flow International waterjet cutting machine;
WHEREAS the case was removed from the California Superior Court for the County of Sacramento to this United States District Court based on diversity of citizenship and amount in controversy pursuant to 28 U.S.C. § 1446;
WHEREAS Plaintiff seeks to file his First Amended Complaint only for the purposes of making it clear that Plaintiff is pursuing the disability discrimination claim (First Cause of Action) as the term "disability" is defined under the Fair Employment and Housing Act (codified at California Gov. Code §§ 12926 and 12926.1); that is to say, Plaintiff is pursuing disability discrimination for actual and perceived disability (regarded or treated by the employer as having or having had a mental or physical condition that makes his life activity difficult). The only proposed changes appear in paragraphs 16 and 17. Plaintiff is not adding any new claim or cause of action and is not adding new facts, but is simply making it clear that his existing disability discrimination is consistent with the provisions of the FEHA.
WHEREAS the only changes Plaintiff seeks to make are as follows (underlined):
16. Government Code § 12940(a) requires Defendants to refrain from discriminating against any employee on the basis of disability as that term is defined in Government Code §§ 12926 and 12926.1 which state that the term "disability" includes, but is not limited to, any actual or perceived impairment that is disabling, potentially disabling, or perceived to be disabling.
17. On or about March 25, 2013, Defendants engaged in unlawful employment practices in violation of Government Code § 12940(a) by terminating Plaintiff's employment effective March 21, 2013. On information and belief, Plaintiff alleges that his disabilities, whether actual or perceived, specifically, the work-related injuries to his fingers, mental illness, and psychotic symptoms that he had or was regarded or treated by Defendants as having, were motivating factors in Defendants' decision to terminate Plaintiff's employment in violation of Government Code § 12940(a).
WHEREAS, the Court previously entered an Order striking punitive damages claims against Defendant Flow International Corporation based on their Stipulation (Docket No. 15), and the Parties agree that the Order shall continue to apply to the First Amended Complaint;
IT IS HEREBY STIPULATED, by and between Plaintiff and Defendants, by and through their respective counsel, that:
1. Plaintiff should be granted leave to amend to file his First Amended Complaint, a true and correct copy of which is attached hereto as Exhibit "A";
2. The Court's Order striking punitive damages claims against Flow International Corporation shall apply to the First Amended Complaint;
3. Defendant's responsive pleading shall be due thirty (30) days after the First Amended Complaint is filed.
ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED AS FOLLOWS:
1. Plaintiff is hereby granted leave to amend to file his First Amended Complaint, a true and correct copy of which is attached hereto as Exhibit "A";
2. The Court's Order (Docket No. 15) striking punitive damages claims against Flow International Corporation, which was entered on June 16, 2014, shall apply to the First Amended Complaint;
3. Defendant's responsive pleading shall be due thirty (30) days after the First Amended Complaint is filed.
IT IS SO ORDERED.
