Larry Boecken Jr v. Gallo Glass Company
Filing
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STIPULATION and ORDER Granting Defendant Gallo Glass Company Leave to File First Amended Answer, signed by Judge Oliver W. Wanger on 6/1/2011. (Attachments: # 1 Exhibit A - Defendant Gallo Glass Company's First Amended Answer to Plaintiff's Complaint and Demand for Jury Trial)(Gaumnitz, R)
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NANCY L. ABELL (SB# 088785)
nancyabell@paulhastings.com
PAUL, HASTINGS, JANOFSKY & WALKER LLP
515 South Flower Street, Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attorneys for Defendant
GALLO GLASS COMPANY
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY BOECKEN, JR.,
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Plaintiff,
v.
GALLO GLASS COMPANY, and
DOES 1 THROUGH 50,
INCLUSIVE,
CASE NO. 1:05-CV-00090 OWW DLB
STIPULATION AND ORDER GRANTING
DEFENDANT GALLO GLASS COMPANY
LEAVE TO FILE FIRST AMENDED ANSWER
Judge:
Hon. Oliver W. Wanger
Defendant.
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Case No. 1:05-cv-00090 OWW DLB
STIPULATION AND [PROPOSED] ORDER GRANTING
DEFENDANT LEAVE TO FILE FIRST AM. ANSWER
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BACKGROUND
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1.
This action was filed in 2004.
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2.
On May 5, 2011, Nancy L. Abell of Paul, Hastings, Janofsky & Walker
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LLP entered an appearance of counsel on behalf of Defendant Gallo Glass Company. At the time
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she was retained by Gallo Glass Company, Ms. Abell discovered that Plaintiff Larry Boecken, Jr.
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(“Plaintiff”) had filed on August 21, 2008 a Voluntary Petition for bankruptcy under Chapter 7 of
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the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of California,
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Case No. 08-15050-B-7. On or about December 30, 2008, the United States Bankruptcy Court
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granted Plaintiff a discharge under section 727 of title 11, United States Code. Ms. Abell
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apprised Plaintiff’s counsel of these facts on May 5, 2011.
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3.
Defendant submits that (i) Plaintiff’s claims are the property of the
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bankruptcy estate; (ii) Plaintiff has no standing to pursue them in this Court for any purpose,
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including settlement; and (iii) Plaintiff is judicially estopped from litigating this lawsuit.
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4.
Therefore, Defendant requests leave to file its DEFENDANT GALLO
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GLASS COMPANY’S FIRST AMENDED ANSWER TO PLAINTIFF’S COMPLAINT AND
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DEMAND FOR JURY TRIAL, attached hereto as Exhibit A, to assert two new affirmative
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defenses on the basis of this newly-discovered evidence: The Twelfth Affirmative Defense
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(paragraph 42, page 7, lines 14-26) (lack of standing) and the Thirteenth Affirmative Defense
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(paragraph 43, page 8, lines 1-15) (judicial estoppel).
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5.
Plaintiff’s counsel advises the Court that it was unaware of Plaintiff’s
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bankruptcy proceeding until Ms. Abell brought it to counsel’s attention.
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//
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Case No. 1:05-cv-00090 OWW DLB
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STIPULATION AND ORDER GRANTING
DEFENDANT LEAVE TO FILE FIRST AM. ANSWER
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STIPULATION
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Therefore, the parties stipulate that Defendant Gallo Glass Company be granted
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leave to file DEFENDANT GALLO GLASS COMPANY’S FIRST AMENDED ANSWER TO
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PLAINTIFF’S COMPLAINT AND DEMAND FOR JURY TRIAL, attached hereto as Exhibit A.
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Dated: May 20, 2011
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LAW OFFICES OF MINA L. RAMIREZ
By:
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Dated: May 20, 2011
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PAUL, HASTINGS, JANOFSKY & WALKER LLP
By:
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/s/ Noah W. Kanter
Noah W. Kanter
Counsel for Plaintiff
Larry Boecken, Jr.
/s/ Nancy L. Abell
Nancy L. Abell
Counsel for Defendant
Gallo Glass Company
ORDER
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IT IS SO ORDERED.
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Dated:
June 1, 2011
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:
emm0d64h
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Case No. 3:10-cv-2833 RS
-2-
STIPULATION AND ORDER GRANTING
DEFENDANT LEAVE TO FILE FIRST AM. ANSWER
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