Atchison Topeka, et al v. Hercules Inc, et al

Filing 511

STIPULATION OF DISMISSAL AND ORDER, signed by District Judge Lawrence J. O'Neill on 02/02/2012. Burlington Northern Santa Fe, Burlington Northern Santa Fe, Burlington Northern Santa Fe, Hercules Incorporated, Hercules Incorporated, Hercules Incorporated, Hercules Incorporated, Hercules Incorporated, Hercules Powder Co, Hercules Powder Company, Hercules Powder Company, Burlington Northern Santa Fe and Burlington Northern Santa Fe terminated. (Martin-Gill, S)

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CHRISTIAN VOLZ (SBN 139352)
[e-mail]
REBECCA L. WOODSON (SBN 194191)
[e-mail]
MCKENNA LONG & ALDRIDGE LLP
101 California Street
41st Floor
San Francisco, CA 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
HERCULES INCORPORATED

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEPARTMENT OF TOXIC SUBSTANCES
CONTROL,
Plaintiff,

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STIPULATION OF DISMISSAL AND
ORDER

vs.
FRCP 41(a)(1); Local Rule 143
HERCULES INCORPORATED, et al.,
Defendants.

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CASE NO. CV F 96-5879 LJO DLB
(Consolidated Shafter Cases)

TO THE HONORABLE COURT AND ALL PARTIES OF RECORD please take
notice of the following stipulation and order:

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WHEREAS, on January 14, 1998, the California Department of Toxic Substances

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Control (“DTSC”) filed its original complaint in the action DTSC v. Brown & Bryant, Inc., et

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al., Case No. CIV-F-98-5050 (“DTSC Action”) against BNSF Railway Company (formerly The

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Atchison Topeka & Santa Fe Railway Company) (“BNSF”), Hercules Incorporated

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(“Hercules”), and others pursuant to the Comprehensive Environmental Response,

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Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601, et seq.

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WHEREAS, the Court consolidated the DTSC Action with two earlier CERCLA actions

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which had been filed concerning the Brown & Bryant Shafter site: Atchison Topeka & Santa Fe

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Railway Co., et al. v. Brown & Bryant, Inc., et al., Case No. CIV-F-92-5068; and Atchison

SF:27505984.1

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Topeka & Santa Fe Railway Co. v. Hercules Incorporated, et al., Case No. CIV-F-96-5879

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(“ATSF v. Hercules Action”), and directed that “all future pleadings should contain ONLY the

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LEAD CASE NUMBER OF CIV-F-96-5879 OWW DLB (member case 98-5050 OWW).”

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(These consolidated actions are referred to herein as the “Consolidated Shafter Cases”).

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WHEREAS, on or about May 6, 1998, BNSF filed its answer and cross-claim in the

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DTSC Action, and on or about November 9, 1998, BNSF filed its answer to DTSC’s Second

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Amended Complaint and an amended cross-claim. BNSF’s amended cross-claim asserted

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claims against a number of individuals and entities, but not against Hercules.

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WHEREAS, on or about October 30, 1998, Hercules filed its answer in the DTSC

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Action, a counterclaim against DTSC, and a cross-claim against BNSF. DTSC answered the

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counterclaim on November 20, 1998; BNSF answered the cross-claim on November 23, 1998.

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WHEREAS, on or about July 23, 1996, BNSF filed its original complaint against

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Hercules in the ATSF v. Hercules Action, and on or about July 21, 1998 filed a First Amended

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Complaint.

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WHEREAS, on or about August 11, 1998, Hercules filed its answer to the First

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Amended Complaint in the ATSF v. Hercules Action, and on or about October 30, 1998, filed a

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cross-claim against BNSF.

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WHEREAS, on January 5, 2012, a Consent Decree entered in the above-entitled matter

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among DTSC, BNSF, and Hercules was approved by the Honorable Lawrence J. O’Neill,

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United States District Judge. A true and correct copy of this Consent Decree is attached hereto

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and incorporated by reference herein as Exhibit A.

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WHEREAS, pursuant to the terms of Exhibit A, section 11.2.3 BNSF and Hercules

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Dismissal of Claims, “Upon the Effective Date of this Consent Decree [January 5, 2012], the

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Court shall dismiss with prejudice: (1) all claims asserted by BNSF against Hercules in the

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Consolidated Shafter Cases; and (2) all claims asserted by Hercules against BNSF in the

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Consolidated Shafter Cases.”

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NOW THEREFORE, IT IS HEREBY STIPULATED by and between BNSF and

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Hercules, through their designated counsel, that the claims asserted by Hercules against BNSF
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in the Consolidated Shafter Cases be and hereby are dismissed with prejudice pursuant to

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Federal Rule of Civil Procedure Rule 41(a)(1) and Local Rule 143, with BNSF and Hercules

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each to bear its own costs and attorneys’ fees; and

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IT IS HEREBY FURTHER STIPULATED by and between BNSF and Hercules,

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through their designated counsel, that the claims asserted by BNSF against Hercules in the

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Consolidated Shafter Cases be and hereby are dismissed with prejudice pursuant to Federal Rule

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of Civil Procedure Rule 41(a)(1) and Local Rule 143, with BNSF and Hercules each to bear its

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own costs and attorneys’ fees.

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Dated: January 31, 2012

MCKENNA LONG & ALDRIDGE LLP

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By: /s/ Christian Volz
CHRISTIAN VOLZ
Attorneys for
HERCULES INCORPORATED

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Dated: January 31, 2012

BARG COFFIN LEWIS & TRAPP LLP

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By: /s/ Mark Zeppetello _
MARK ZEPPETELLO
Attorneys for
BNSF RAILWAY COMPANY

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

February 2, 2012

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

66h44d

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