Atchison Topeka, et al v. Hercules Inc, et al
Filing
492
FINAL JUDGMENT In Favor of BNSF Railway Company and The Dow Chemical Company Against Brown & Bryant, Inc. and John H. Brown, signed by Judge Oliver W. Wanger on 06/08/2011. (Martin-Gill, S)
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JOHN F. BARG (State Bar No. 60230)
(jfb@bcltlaw.com)
MARC A. ZEPPETELLO (State Bar No. 121185)
(maz@bcltlaw.com)
BARG COFFIN LEWIS & TRAPP, LLP
350 California Street, 22nd Floor
San Francisco, California 94104-1435
Telephone: (415) 228-5400
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Attorneys for BNSF RAILWAY COMPANY,
as successor to THE ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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THE ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY, et al.,
Case No.: 1:96-cv-05879 OWW DLB
(CONSOLIDATED SHAFTER CASES)
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Plaintiffs,
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v.
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HERCULES INCORPORATED, et al.,
JUDGMENT FOR BNSF RAILWAY
COMPANY AND THE DOW
CHEMICAL COMPANY AGAINST
BROWN & BRYANT, INC. AND JOHN
H. BROWN
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Defendants.
[Fed. R. Civ. P. 54(b)]
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THE HONORABLE OLIVER W.
WANGER
__________________________________
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On July 26, 2010, the Court issued Order Adopting Findings and Recommendations and
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Imposing Terminating Sanctions Against the Brown & Bryant Parties (Brown & Bryant, Inc., John
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H. Brown, an individual, and Ed. A. Brown, an individual) for their willful failure to comply with
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the Court’s discovery orders (“Order Imposing Terminating Sanctions”). The Order Imposing
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Terminating Sanctions provides, inter alia, that default judgment be entered against the Brown &
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Bryant Parties in favor of BNSF Railway Company (“BNSF”) and The Dow Chemical Company
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(“Dow”) as to their remaining claims in this action against the Brown & Bryant Parties.
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JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL
COMPANY AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN
Case No. CIV-F-96-5879 OWW/DLB
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852768.1
On March 29, 2011, Dow filed a Motion for Determination of Recoverable Response Costs
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and Entry of Judgment Against the Brown & Bryant Parties (“Dow Motion”). On April 15, 2011,
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BNSF filed a Motion for Entry of Judgment Against the Brown & Bryant Parties (“BNSF
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Motion”). David R. Griffin, counsel of record for the Brown & Bryant Parties, was given notice of
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the BNSF Motion, and on April 29, 2011, Mr. Griffin filed a written non-opposition to the granting
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of the Dow Motion and the BNSF Motion on behalf of Brown & Bryant Inc. and John H. Brown.
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On May 20, 2011, the Court granted Dow’s Motion and BNSF’s Motion as to Brown and Bryant,
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Inc. and John H. Brown.1
In accordance with Federal Rule of Civil Procedure 52(c), the Court hereby makes the
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following findings of fact and conclusions of law:
a. On July 26, 2010, default was entered against the Brown & Bryant Parties pursuant to
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the Court’s Order Imposing Terminating Sanctions for the Brown & Bryant Parties’
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willful failure to comply with discovery orders. (Document No. 460)
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b. In accordance with Federal Rule of Civil Procedure 55 and Adriana Int’l Corp. v.
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Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990)(citing Geddes v. United Financial
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Group, 559 F.2d 557, 560 (9th Cir. 1977), the factual allegations contained in BNSF’s
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Second Amended Complaint against the Brown & Bryant Parties and Dow’s
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Counterclaim for Cost Recovery and Contribution against the Brown & Bryant Parties
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are presumed to be true in assessing the damages to which BNSF and Dow are entitled.
c. BNSF and Dow have established a prima facie case of CERCLA liability against the
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Brown & Bryant Parties, as shown by the following facts:
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i.
the 15-acre site located at 135 Commercial Street in Shafter, California (“the B&B
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Shafter Site”) is a “facility” within the meaning of that term under CERCLA, 42
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U.S.C. Sections 9601(9);
ii. there has been a “release” or threatened release of a “hazardous substance” at or
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from the facility within the meaning of those terms under CERCLA, 42 U.S.C. §§
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Ed Brown is deceased and judgment is not entered against his estate.
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JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY
AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN
Case No. CIV-F-96-5879 OWW/DLB
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852768.1
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9601(22) and (14), respectively;
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iii. the release or threatened release of hazardous substances at the B&B Shafter Site
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has caused BNSF and Dow to incur response costs that were “necessary” and
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“consistent with the national contingency plan,” 40 C.F.R. Part 300; and
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iv. the Brown & Bryant Parties, and each of them, are within the classes of persons
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subject to liability under CERCLA Section 107(a), 42 U.S.C. § 9607(a), as owners,
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former owners and operators at the time of disposal, and “arrangers” as they own a
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portion of the B&B Shafter Site and/or formulated, stored and handled agricultural
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chemicals and hazardous substances at the B&B Shafter Site.
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d. BNSF has incurred damages in the sum of $3,721,868.23 for response costs, exclusive
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of interest and costs, incurred from June 14, 1991 though April 1, 2011, at the B&B
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Shafter Site. See Declaration of David C. Clark in Support of BNSF Railway
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Company’s Motion for Entry of Default Judgment Against The Brown & Bryant
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Parties, filed on April 15, 2011 (Document No. 479).
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e. Dow has incurred damages in the sum of $917,606.39 for response costs, exclusive of
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interest and costs, incurred from December 1993 though October 2009, at the B&B
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Shafter Site. See Declaration of Dr. Larry Bone in Support of Motion of The Dow
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Chemical Company for Determination of Recoverable Response Costs and Entry of
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Judgment (Rule 55(B), Fed.R.Civ.Proc.), filed on March 29, 2011 (Document No. 472),
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and Declaration of Stephen McKae in Correction of Motion of The Dow Chemical
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Company for Determination of Recoverable Response Costs and Entry of Judgment
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(Rule 55(B), Fed.R.Civ.Proc.) for Post-Filing Partial Return of Funds, filed on May 13,
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2011 (Document No. 488).
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f. These costs incurred by BNSF and Dow are necessary and consistent with the national
contingency plan.
Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
a. That BNSF recover from Brown & Bryant, Inc. and John H. Brown, jointly and
severally, the sum of $3,721,868.23 for response costs incurred from June 14, 1991
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JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY
AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN
Case No. CIV-F-96-5879 OWW/DLB
PDF created with pdfFactory trial version www.pdffactory.com
852768.1
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through April 1, 2011, at the B&B Shafter Site.
b. That Dow recover from Brown & Bryant, Inc. and John H. Brown, jointly and
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severally, the sum of $917,606.39 for response costs incurred from December 1993
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through October 2009 at the B&B Shafter Site.
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c. That BNSF recover costs of suit from Brown & Bryant, Inc. and John H. Brown, jointly
and severally.
d. That Dow recover costs of suit from Brown & Bryant, Inc. and John H. Brown, jointly
and severally.
e. The matter having been fully adjudicated, the Court finds no just reason for delaying
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entry of final judgment for BNSF and Dow, and final judgment pursuant to Federal
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Rule of Civil Procedure 54(b) hereby is and shall be entered in favor of BNSF and Dow
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and against Brown & Bryant, Inc. and John H. Brown.
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IT IS SO ORDERED.
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Dated: June 8, 2011
/s/ OLIVER W. WANGER
United States District Court Judge
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JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY
AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN
Case No. CIV-F-96-5879 OWW/DLB
PDF created with pdfFactory trial version www.pdffactory.com
852768.1
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