Gilhuly
v.
Kmart Corp.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISIONJan 23, 2012
Case No. 4:10-cv-0360-PJH (DMR) (N.D. Cal. Jan. 23, 2012)

Case No. 4:10-cv-0360-PJH (DMR)

01-23-2012

MICHAEL GILHULY, individually, and on behalf of all others similarly situated, Plaintiff, v. KMART CORPORATION., and DOES 1 through 100, inclusive, Defendants.

SCOTT COLE & ASSOCIATES, APC Molly A. DeSario, Esq. Attorneys for the Plaintiff ROGERS JOSEPH O'DONNELL Gayle M. Athanacio, Esq. Attorneys for Defendant Kmart Corporation


Matthew R. Bainer, Esq. (S.B. #220972)


Molly A. DeSario, Esq. (S.B. #230763)


SCOTT COLE & ASSOCIATES, APC


Oakland, California 94612


Attorneys for Representative Plaintiff


and the Plaintiff Class


ROGERS JOSEPH O'DONNELL


GAYLE M. ATHANACIO (State Bar No. 130068)


SHARON O. ROSSI (State Bar No. 232725)


San Francisco, California 94104


Attorneys for Defendant


KMART CORPORATION


CLASS ACTION


STIPULATION AND [PROPOSED] ORDER

GRANTING LEAVE TO FILE FIRST

AMENDED COMPLAINT

Plaintiff Michael Gilhuly ("Plaintiff') and Defendant Kmart Corporation ("Defendant"), by and through their respective counsel of record, hereby agree and stipulate as follows:

WHEREAS, Plaintiff has filed a Motion For Leave to File First Amended Complaint "(Motion For Leave") which would add a claim under the Private Attorney General Act, but otherwise is based upon the exact same parties, claims, and time period as contained in Plaintiff's operative complaint;

WHEREAS, Plaintiff has requested that Defendant stipulate to the filing of the proposed First Amended Complaint attached to Plaintiff's Motion For Leave as Exhibit A;

WHEREAS, Defendant has agreed to stipulate to the filing of the First Amended Complaint with the express understanding that by so stipulating, Defendant does not waive any argument, right or defense with regard to the allegations and claims asserted in the First Amended Complaint;

WHEREFORE, IT IS STIPULATED AND AGREED:

1. Plaintiff may file and serve his First Amended Complaint, a copy of which is set forth as Exhibit A, hereto.
2. In accordance with Federal Rule of Civil Procedure 15(a)(3), Defendant shall have 14 days from the service of Plaintiff's First Amended Complaint in which to file its response to Plaintiff's First Amended Complaint. This Stipulation will not limit in any manner whatsoever Defendant's ability to raise defenses or file motions regarding the content of the First Amended Complaint.


IT IS SO STIPULATED.

SCOTT COLE & ASSOCIATES, APC

By: _________________


Molly A. DeSario, Esq.


Attorneys for the Plaintiff


ROGERS JOSEPH O'DONNELL

By: _________________


Gayle M. Athanacio, Esq.


Attorneys for Defendant


Kmart Corporation


[PROPOSED
l ORDER

UPON GOOD CAUSE APPEARING, AND PURSUANT TO THE STIPULATION BETWEEN PARTIES, THE COURT HEREBY ORDERS AS FOLLOWS:

1. Plaintiff may file and serve his First Amended Complaint, a copy of which is set forth as Exhibit A, hereto.
2. Defendant shall have 14 days from service of the First Amended Complaint in which to file its response to Plaintiff's First Amended Complaint. This Order does not limit in any manner whatsoever Defendant's ability to raise defenses or file motions regarding the content of the First Amended Complaint.


IT IS SO ORDERED.

_________________


Honorable Phyllis J. Hamilton


United States District Judge