Free Order on Motion to Dismiss - District Court of California - California

Case 3:07-cv-05030-MMC

Document 20

Filed 01/04/2008

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1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 OPERATION DIGNITY, INC., et al., 15 Defendants 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is defendants' "Motion to Dismiss, or in the Alternative, to Stay," filed December 4, 2007. Plaintiff, proceeding pro se, has filed a response, which, although denominated an opposition, includes a request that the Court stay the above-titled action. Having read and considered the papers filed in support of and in response to the motion, the Court finds the matter suitable for decision on the papers, VACATES the hearing scheduled for January 11, 2008, and rules as follows: 1. Defendants and plaintiff agree that Foster v. Operation Dignity, Inc., et al., No. RG06302322, the consolidated state court action filed by plaintiff, raises issues "identical" to those presented herein. (See Defs.' Mot. at 5:6; Pl.'s Opp. at 3:2.) Further, as noted, plaintiff agrees that a stay is warranted, specifically, "until a conclusion has been reached regarding the complaints in state court." (See Pl.'s Opp. at 4:7-8.) Under such / v. MARK ANTOINE FOSTER, Plaintiff, No. 07-5030 MMC ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY; STAYING ACTION; DIRECTIONS TO PARTIES; VACATING CASE MANAGEMENT CONFERENCE United States District Court IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case 3:07-cv-05030-MMC

Document 20

Filed 01/04/2008

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circumstances, and given that plaintiff seeks damages herein, the Court hereby GRANTS defendants' motion to the extent defendants seek a stay, and, accordingly, hereby STAYS the instant action pending entry of final judgment in the state court proceedings. See Kirkbride v. Continental Casualty Co., 933 F. 2d 729, 734 (9th Cir. 1991) (holding abstention under "Colorado River" doctrine is appropriate "in situations involving the contemporaneous exercise of concurrent jurisdiction"); see also Gilbertson v. Albright, 381 F. 3d 965, 968 (9th Cir. 2004) (holding, where abstention doctrine is properly invoked, district court may not "dismiss actions where damages are at issue; rather, damages actions should be stayed until the state proceedings are completed"). 2. The parties are hereby DIRECTED to file, no later than Friday, August 1, 2008, a Joint Status Report, setting forth therein the status of the consolidated state court proceeding. 3. The Case Management Conference scheduled for January 11, 2008 is hereby VACATED. IT IS SO ORDERED.

Dated: January 4, 2008 MAXINE M. CHESNEY United States District Judge

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