STIPULATION AND ORDER TO MODIFY ORDER FOR RESPONSE TO THIRD AMENDED COMPLAINT

TROY L. NUNLEY, District Judge.

Defendant Lamb and his attorney of record, John A. Lavra, and Plaintiff James Edward Cupp by and through his attorneys of record, submit the following Stipulation and Order.

1. On October 3, 2018, Defendants Lamb and Baerresen submitted a Stipulation and Order to permit response to the Plaintiff's Third Amended Complaint, instead of responding to the remaining allegations of the Second Amended Complaint (Docket No.: 62). Pursuant to the court's ruling on the Motion to Dismiss, the court granted the motion in its entirety on behalf of Defendants City of Citrus Heights and its Police Chief, William Boyd, but left in place against claims against individual officers of the Citrus Heights Police Department under the Third Cause of Action. (Docket No. 60). The court accepted the stipulation and issued an order that the individual officers could respond to the Third Amended Complaint within 14 days of its filing. (Docket No. 64).

2. At the time of filing that stipulation and order, John Lavra, counsel for Defendant City of Citrus Heights and William Boyd, mistakenly believed that individual officers with Citrus Heights Police Department, Defendants Baerresen and Lamb, had been served with the original summons and complaint, and that he had authority to enter a response to the complaint. As a result, the stipulation and order referred to above was filed on behalf of those individual officers.

3. Upon discovery of the mistake regarding service of the summons and complaint, counsel for Defendant has contacted Defendant Lamb, and received authority to enter an appearance on his behalf and respond to the Third Amended Complaint.

4. The parties have agreed that Defendant Lamb will respond by filing an Answer to the Third Amended Complaint on or before November 5, 2018, as required by the order.

5. The parties further acknowledge that there is a disagreement whether Defendant Baerresen has been properly served pursuant to the Federal Rules. Plaintiff's counsel alleges that said Defendant was served by substitute service and counsel for Defendant Citrus Heights disputes and/or cannot confirm that service, and believe Defendant Baerresen has not been legally served. However, until that is resolved, the parties stipulate that the Court's Order requiring Defendant Baerresen to respond to the Third Amended Complaint be rescinded to exclude Defendant Baerresen from the Order. Further, the parties agree that his legal requirement to respond is not required until it is determined if proper service has effectuated upon him.

IT IS SO STIPULATED.

ORDER

Based upon the Stipulation of the plaintiff and the Defendant Lamb, and good cause appearing, the Order of October 11, 2018 (Docket No. 64) is rescinded, in part, to require only Defendant Lamb, and not Defendant Baerresen to respond to the Third Amended Complaint no later than November 5, 2018, and that the previous order is rescinded as to Defendant Baerresen.