STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT AND GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT, PURSUANT TO FED. R. CIV. P. 41(a)(2) AND FED. R. CIV. P. 15(a)(2) STIPULATION
SAUNDRA BROWN ARMSTRONG, District Judge.
This Stipulation is made by and between William J. Whitsitt ("Plaintiff") and Defendants Industrial Employers Distributors Association ("IEDA"), Distributors Association Warehousemen's Pension Trust (the "Trust") and International Longshoremen and Warehouse Union Local 6 ("Local 6") (together the "Defendants"), with respect to the following facts:
WHEREAS, on September 3, 2013, defendants IEDA and the Trust filed a Notice of Motion and Motion to Dismiss Plaintiff's original Complaint for Failure to Comply with Fed. R. Civ. P. 8(a) and, in the Alternative, Motion for More Definite Statement Under Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(e) (the "Motion to Dismiss") (Dkt. No. 23).
WHEREAS, defendant Local 6 filed a Statement of Non-Opposition and Joinder in the Motion to Dismiss on September 7, 2013 (Dkt. No. 28).
WHEREAS, following a meet and confer between Plaintiff and counsel for IEDA and the Trust on September 9, 2013, Plaintiff agreed to file an amended Complaint in order to cure the defects of his original Complaint as set forth in the Motion to Dismiss, and in order to comply with Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
WHEREAS, on September 11, 2013, Plaintiff and Defendants filed a Stipulation and Proposed Order voluntarily dismissing Plaintiff's Complaint, without prejudice (Dkt. No. 31), and the Court entered an Order to that effect on the same date. (Dkt. No. 33). The Stipulation and Order stated that Plaintiff would file an Amended Complaint on or before September 30, 2013, that cures the defects of the original Complaint as set forth in IEDA and the Trust's Motion to Dismiss (Dkt. No. 23), and that otherwise satisfies the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
WHEREAS, Plaintiff filed an Amended Complaint on September 30, 2013, which was entered onto the Court's electronic docket on October 4, 2013 (Dkt. No. 34), but not served by Plaintiff on Defendants.
WHEREAS, after receiving electronic notification of the filing of an Amended Complaint on October 4, 2013, Defendants reviewed Plaintiff's Amended Complaint and concluded that it did not cure the defects of the original Complaint as set forth in IEDA's and the Trust's Motion to Dismiss, and failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
WHEREAS, on October 7, 2013, in compliance with Judge Armstrong's Standing Order, and before filing a second Motion to Dismiss and Motion for More Definite Statement, Defendants requested a meet and confer with Plaintiff to discuss the shortcomings of his Amended Complaint.
WHEREAS, Plaintiff and counsel for Defendants had a telephonic meet and confer on October 11, 2013 in which the Defendants informed Plaintiff that his Amended Complaint still failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10 and that Defendants intended to move to dismiss Plaintiff's Amended Complaint, with prejudice. Plaintiff agreed to voluntarily dismiss his Amended Complaint without prejudice and re-file a Second Amended Complaint within (30) thirty days, in order to cure the defects of his Amended Complaint as set forth in the Motion to Dismiss, and in order to comply with Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
WHEREAS, Plaintiff filed a Second Amended Complaint on November 12, 2013 (Dkt. No. 38).
WHEREAS, after receiving electronic notification of the filing of a Second Amended Complaint on November 12, 2013, Defendants reviewed Plaintiff's Second Amended Complaint and concluded that it did not cure the defects of the Amended Complaint as discussed in the meet and confer with Plaintiff on October 11, 2013 and as set forth in IEDA's and the Trust's Motion to Dismiss, and failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
WHEREAS, on November 20, 2013, in compliance with Judge Armstrong's Standing Order, and before filing a second Motion to Dismiss and Motion for More Definite Statement, Defendants requested a meet and confer with Plaintiff to discuss the shortcomings of his Second Amended Complaint.
WHEREAS, Plaintiff and counsel for Defendants had a telephonic meet and confer on November 21, 2013 in which the Defendants informed Plaintiff that his Second Amended Complaint still failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10 and that Defendants intended to move to dismiss Plaintiff's Second Amended Complaint, with prejudice. Plaintiff agreed to voluntarily dismiss his Second Amended Complaint without prejudice and re-file a Third Amended Complaint by December 20, 2014, in order to cure the defects of his Second Amended Complaint as discussed in the meet and confer with Plaintiff on November 21, 2013 and as set forth in the Motion to Dismiss, and in order to comply with Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10. Counsel for Defendants informed Plaintiff if the Third Amended Complaint does not correct the defects that have persisted in previously filed complaints, Defendants intended to seek leave to move to dismiss Plaintiff's Third Amended Complaint, with prejudice, without being required to meet and confer and allow further amendment of the complaint.
NOW, THEREFORE, IT IS HEREBY STIPULATED BY AND BETWEEN PLAINTIFF AND DEFENDANTS AS FOLLOWS:
Plaintiff hereby agrees to the voluntary dismissal of his Second Amended Complaint, without prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). Plaintiff will file a Third Amended Complaint, pursuant to Fed. R. Civ. P. 15(a)(2), on or before December 20, 2013, that cures all of the defects discussed in the November 21, 2013 meet and confer and as set forth in the Motion to Dismiss (Dkt. No. 23) and otherwise complies with the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
IT IS SO STIPULATED.
I attest that I have obtained the concurrence of Mr. Whitsitt and Mr. Absalom in the filing of this document.
ORDER
Pursuant to the foregoing Stipulation, and good cause appearing, the Court hereby orders that Plaintiff's Second Amended Complaint is dismissed, without prejudice. Plaintiff shall file a Third Amended Complaint on or before December 20, 2013, that cures the defects of the Second Amended Complaint as discussed in the meet and confer with Plaintiff on November 21, 2013 and as set forth in IEDA and the Trust's Motion to Dismiss (Dkt. No. 23), and that otherwise satisfies the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
PURSUANT TO STIPLUATION, IT IS SO ORDERED.
