Enns et al v. Flores et al

Filing 146

MEMORANDUM Decision Regarding 124 Motion to Amend signed by Judge Oliver W. Wanger on 4/20/2011. (Proposed Order Consistent with Memorandum Decision Deadline: 4/27/2011) (Figueroa, O)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:07-cv-01043-OWW-DLB 9 ENNS PONTIAC, BUICK, & GMC TRUCK, et al., 10 Plaintiffs, 11 12 MEMORANDUM DECISION REGARDING MOTION TO AMEND (Doc. 124) v. ORELIA FLORES, et al., 13 Defendants. 14 I. INTRODUCTION. 15 On July 19, 2007, Plaintiffs filed their original complaint in 16 17 this action. (Doc. 2). Plaintiffs filed a first amended complaint 18 (“FAC”) on November 7, 2007. (Doc. 13). Plaintiffs filed a motion to amend the FAC on February 17, 19 20 2011. (Docs. 123, 124). Defendants Mabel Lee, Reedley Dry 21 Cleaning Works, Reedley Steam Laundry, and the Estate of Herbert 22 Lee filed opposition to Plaintiffs’ motion on April 4, 2011. (Doc. 23 128). 24 April 4, 2011; Defendant John Pierce also filed opposition to the 25 motion to amend on April 4, 2011. 26 filed replies on April 11, 2011. 27 /// 28 /// Defendant the Estate of Sieto Yamaguchi filed opposition on (Docs. 132, 135). Plaintiffs (Docs. 138, 139, 140). 1 II. FACTUAL BACKGROUND. 1 2 FAC’s Allegations 3 This case concerns the alleged release of various hazardous 4 substances, namely solvents used in the dry cleaning industry, into 5 a groundwater plume underlying part of Reedley, California. 6 FAC includes two federal claims for (1) recovery of “response” 7 costs under the Comprehensive Environmental Response, Compensation, 8 and Liability Act (“CERCLA”) §§ 107(a)(1-4)(B), and (2) declaratory 9 relief under federal law, as well as five additional state law 10 claims for (3) negligence per se, (4) negligence, (5) public and 11 private nuisance, (6) trespass, and (7) equitable indemnity, and 12 (8) declaratory relief under state law. 13 The FAC sets forth the following general The background 14 information. Plaintiffs own real property located at 1319 G. 15 Street, Reedley, California (“Plaintiffs’ Site”). (FAC ¶2.) Prior 16 to Plaintiffs taking ownership of 1319 G. Street, Mabel and Herbert 17 Lee (the “Lee Defendants”) owned and/or operated a dry cleaning 18 business at that location from approximately the 1940s through the 19 1970s. (FAC ¶4.) Herbert Lee is now deceased. 20 Orelia Florez and Sieto Yamaguchi (the “Flores/Yamaguchi” 21 defendants) owned and/or operated real property at 1340 G. Street, 22 Reedley, California, which is across the street from Plaintiff’s 23 Site. (FAC ¶¶ 4, 7.). 24 John Pearce (“Pearce”) and Patty and Louie Martinez (“Martinez”) 25 “each owned and/or operated real property nearby and/or adjacent to 26 the 27 properties either currently or previously owned by these Defendants 28 “caused Plaintiffs’ Sieto Yamaguchi is now deceased. Site.” Plaintiffs (FAC and ¶4.) The Plaintiffs’ 2 FAC alleges Site Finally, that the environmental 1 2 contamination.” (Id.) Plaintiffs allege that Defendants and Defendants’ properties 3 “generated disposed of or released ... hazard[ous] substances or 4 wastes that caused contamination and pollution of structures, 5 soils, subsoils, surface water and groundwater at and in the 6 vicinity of the Plaintiffs’ Site (both on-site and off-site) 7 through the handling, generation, usage, storage, disposal of 8 and/or release of hazardous substances at, onto and from the 9 Plaintiffs’ Site and Defendants’ Sites.” (FAC ¶5.). The FAC’s 10 allegations regarding the nature of the contamination at issue are 11 very generic, alleging that Defendants, beginning in the 1940s, 12 while operating either on Plaintiffs’ Site or other sites, released 13 hazardous substances including chlorinated hydrocarbon compounds 14 (“CHCs”). (FAC ¶¶ 37-38.) These CHC releases allegedly caused and 15 contributed to the contamination of soil and groundwater underlying 16 Plaintiffs’ 17 properties. (FAC ¶37.) Site, Defendants’ properties, and surrounding 18 In the First Claim for Relief, for recovery of response costs 19 under CERCLA §§ 107(a)(1-4)(B), Plaintiffs allege that they “have 20 incurred, and will continue to incur, substantial Response Costs 21 ... to fully characterize the Plaintiffs’ Site, including, but not 22 limited to, soil sampling; installation of groundwater monitoring 23 wells; sampling such wells and having all samples analyzed....” 24 (FAC ¶42.) In addition, Plaintiffs anticipate that they will incur 25 additional 26 contamination. (Id.) The FAC specifically alleges that Defendants 27 “caused and continue to cause Plaintiffs to incur Response Costs on 28 their property and for the underlying groundwater.” (FAC ¶49.) The costs to address existing 3 and future groundwater 1 FAC contains no further details about the nature of Defendants’ 2 releases or contribution to any contamination. III. LEGAL STANDARD. 3 4 Rule 15(a), Federal Rules of Civil Procedure, provides that 5 "leave [to amend] shall be freely given when justice so requires." 6 "The purpose of pleading is 'to facilitate a proper decision on the 7 merits' … and not erect formal and burdensome impediments to the 8 litigation process. 9 will result, a trial judge should ordinarily permit a party to 10 amend its complaint." Howey v. United States, 481 F.2d 1187, 1190 11 (1973). 12 amendment of pleadings … must be tempered with considerations of 13 'undue delay, bad faith or dilatory motive on the part of the 14 movant, 15 previously allowed, undue prejudice to the opposing party by virtue 16 of allowance of the amendment, futility of amendment, etc.' Foman 17 v. Davis, 371 U.S. 178, 182 (1962)." Schlacter-Jones v. General 18 Telephone of California, 936 F.2d 435, 443 (9th Cir. 1991). "These 19 factors, however, are not of equal weight in that delay, by itself, 20 is insufficient to justify denial of leave to amend." DCD Programs, 21 833 F.2d at 186; see also Jones, 127 F.3d at 847 n.8. However, repeated Unless undue prejudice to the opposing party "[t]his failure strong to policy cure toward deficiencies permitting by the amendments 22 "[I]t is the consideration of prejudice to the opposing party 23 that carries the greatest weight … Absent prejudice, or a strong 24 showing of any of the remaining Foman factors, there exists a 25 presumption under Rule 15(a) in favor of granting leave to amend." 26 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th 27 Cir.2003). "The party opposing leave to amend bears the burden of 28 showing prejudice." Serpa v. SBC Telecommunications., Inc., 318 F. 4 1 Supp. 2d 865, 870 (N.D.Cal.2004). 2 Plaintiffs’ Proposed Amendments 3 Plaintiffs seek to amend the complaint in order to (1) join 4 additional parties, including the administrators for the estates of 5 deceased 6 Defendants’ names; and (3) add a claim pursuant to the Resource 7 Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”). 8 Plaintiffs allege that the necessity for the proposed amendments 9 was revealed during discovery. (2) correct the spelling of certain IV. DISCUSSION. 10 11 Defendants; A. Amendment to Add RCRA Claims 12 RCRA is a comprehensive environmental statute that governs the 13 treatment, storage, and disposal of solid and hazardous waste. 14 Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citing Chicago 15 v. Envtl. Def. Fund, 511 U.S. 328, 331-32 (1994)). 16 to minimize the present and future threat to human health and the 17 environment, not effectuate the clean-up of toxic waste sites or 18 allocate those costs. 42 U.S.C. § 6902(b); Meghrig, 516 U.S. at 19 483. 20 injunction, i.e., one that orders a responsible party to 'take 21 action' by attending to the cleanup and proper disposal of toxic 22 waste, or a prohibitory injunction, i.e., one that 'restrains' a 23 responsible party from further violating RCRA." Id. at 484. 24 Its purpose is RCRA provides for citizen suits to obtain a "mandatory Citizen suits under RCRA require proof of notice. E.g., 25 Covington v. Jefferson County, 358 F.3d 626, 636 (9th Cir. 2004). 26 For suits alleging present violations of RCRA, the plaintiff must 27 provide notice to the relevant parties sixty-days before filing 28 suit. Id. (citing 42 U.S.C. § 6972(b)(1)(A)). For actions alleging 5 1 "contribution" to present or past violations of RCRA, a ninety-day 2 notice is required. Id. (citing § 6972(b)(2)(A)). Both notice 3 provisions are jurisdictional: absent compliance with a required 4 notice 5 jurisdiction to hear the RCRA claims. Id. (citing inter alia Ascon 6 Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) 7 (holding 8 jurisdictional)). 9 take provision, a that a district the court ninety-day lacks notice subject matter requirement is The Supreme Court has held that courts may not “flexible or pragmatic” approach to RCRA’s notice 10 requirements; if a citizen commences an action under RCRA without 11 complying 12 6972(b)(1), the action must be dismissed. 13 Tillamook County, 493 U.S. 20, 31 (1989). 14 15 16 17 18 19 20 21 22 23 with the notice requirements embodied in section E.g., Hallstrom v. The EPA has promulgated a regulation detailing the contents of the RCRA notice requirement: Notice regarding an alleged violation of a standard, regulation, condition, requirement, or order (including any provision of an agreement under section 120 of the Act, relating to Federal facilities) which has become effective under this Act shall include sufficient information to allow the recipient to identify the specific standard, regulation, condition, requirement, or order (including any provision of an agreement under section 120 of the Act, relating to Federal facilities) which has allegedly been violated; the activity or failure to act alleged to constitute a violation; the name and address of the site and facility alleged to be in violation, if known; the person or persons responsible for the alleged violation; the date or dates of the violation; and the full name, address, and telephone number of the person giving notice. 24 40 C.F.R § 374.3(a). 25 Defendants contend that Plaintiffs have not complied with 26 RCRA’s notice requirements because the notices Plaintiffs provided 27 do not contain sufficient information to afford Defendants an 28 6 1 opportunity to identify the basis for the notices. 2 Defendants assail Plaintiffs’ notices on the grounds that they do 3 not (1) specify the nature of the activity on the property that 4 allegedly contributed to contamination; (2) identify the hazardous 5 waste released; or (3) provide any dates or a range of dates for 6 the alleged releases. 7 were not served in compliance with the applicable regulation. 8 9 Specifically, Defendants also contend that the notices RCRA’s notice provision is designed to strike a balance between encouraging avoiding enforcement 10 regulations 11 excessive numbers of citizen suits. 12 and citizen burdening the of federal environmental courts with Hallstrom, 493 U.S. at 29. Requiring citizens to comply with notice and delay requirements serves this congressional goal in two ways. First, notice allows Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits. First, notice allows Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits. In many cases, an agency may be able to compel compliance through administrative action, thus eliminating the need for any access to the courts. See 116 Cong. Rec. 33104 (1970) (comments of Sen. Hart). Second, notice gives the alleged violator "an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit." 13 14 15 16 17 18 19 20 Id. The legislative objectives identified by the Supreme Court in 21 Hallstom cannot be met if citizen plaintiffs are excused from 22 providing adequate information in the pre-suit notice to enable the 23 recipients 24 violations. Friends of the Earth, Inc. v. Gaston Copper Recycling 25 Corp., 629 F.3d of such notices 387, 399 to identify (4th 26 27 28 7 Cir. the 2011) specific alleged (discussing notice 1 requirements under similar provision of the Clean Water Act).1 2 The key language in RCRA’s notice regulation is the phrase 3 “sufficient information to allow the recipient to identify the 4 specific standard, regulation, condition, requirement, or order... 5 which has allegedly been violated.” 6 Inc., v. Tosco Corp., 309 F.3d 1153, 1158 (9th Cir. 2002) (noting 7 that similar phrase contained in parallel regulation promulgated 8 under the CWA is the key component of that regulation). 9 sufficient if it is specific enough “to give the accused company See San Francisco Baykeeper, Notice is 10 the opportunity to correct the problem.” 11 As a general matter, a notice should include information sufficient 12 to permit the recipient to identify dates or a range of dates 13 applicable to the alleged violations. San Francisco Baykeeper, 309 14 F.3d at 1158-59; California Sportfishing Protection Alliance v. 15 City of W. Sacramento, 905 F. Supp. 792, 799 (E.D. Cal. 1995) 16 (“Ideally plaintiff will identify the precise date. But at the 17 least plaintiff should give a range as to date that is reasonably 18 limited.”). 19 Id. (citation omitted). The notice should also identify the types of pollutants 20 allegedly discharged. See WaterKeepers N. Cal. v. AG Indus. Mfg., 21 375 F.3d 913, 917 (9th Cir. 2004). 22 identify a suspected source of the alleged problem, such as debris, 23 manufacturing materials, activities, or practices possibly leading 24 to the discharge of contamination. 25 recipient of the notice must understand from the notice what the At a minimum, the notice should See id. at 917-18 n.2. “[T]he 26 27 28 1 As numerous courts have noted, because of the close similarity between the respective notice regulations applicable to RCRA and CWA, case law construing one regulation is generally applicable to the other. 8 1 citizen is alleging.” 2 The boilerplate City of W. Sacramento, 905 F. Supp. at 799. and conclusory RCRA notices provided by 3 Plaintiffs are insufficient. 4 information to enable the recipient to ascertain a range of dates 5 for the alleged violations. 6 mechanism for contamination; to the contrary, the notices say 7 nothing about what operations on the site are alleged to have 8 caused contamination. 9 the types of contaminants at issue. In short, the notices are 10 devoid sufficient 11 recipient 12 conditions, requirements, or orders which have allegedly been 13 violated. of any to The notices do not provide any The notices do not suggest the The notices do not even generally identify specific identify information the specific to standards, allow the regulations, 40 C.F.R § 374.3(a). 14 Because Plaintiffs notices fail to satisfy statutory notice 15 requirements, permitting amendment to add RCRA claims is futile 16 absent a legally sufficient notice; this reason alone justifies 17 denial of Plaintiffs’ motion to Amend the complaint to add RCRA 18 claims.2 19 B. Amendment to Join Additional Parties 20 Plaintiffs’ motion to amend to add RCRA claims is DENIED. Plaintiffs seek to join five additional individuals as 21 Defendants: Ethel Warnock, Bruce Warnock, Jesse Williams, Reynaldo 22 Betancourt, and Floyd Morse (“New Parties”). 23 to name the administrators of the estates of two Defendants already 24 named in this action: Sachiko Yamaguchi for the Estate of Sieto 25 Yamaguchi, and Patricia Clothier and Carolyn Whitesides for the 26 Estates of Mabel and Herbert Lee (“Administrator Defendants”). Plaintiffs also seek 27 2 28 Because Plaintiffs’ RCRA notices are deficient, the court does not reach the parties additional contentions. 9 1 2 Plaintiffs also seek to amend the complaint to correct the spelling of the names of two Defendants, John Pearce and Patsy Martinez. 1. Addition of New Parties 3 a. Undue Delay 4 On May 14, 2010, the court granted the parties’ request for a 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 twelve-month extension of all deadlines set forth in the January 12, 2009 Scheduling Order. Scheduling Order) (“Stipulation”). 24 25 It is beyond question that at the time the court granted the parties request to extend all deadlines in May 2010, Plaintiffs knew they needed to amend the complaint to add the New Parties as defendants; each of them was identified by name in the Stipulation.3 Plaintiffs motion does not explain why the New Parties are being added at this late stage in the litigation. See, e.g., AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 953.n9, 954 (9th Cir. 2006) (finding district court did not abuse discretion in denying motion to amend that did not “allege any newly discovered facts” or explain the plaintiff’s delay in filing the motion); Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (noting that unexplained delay in filing motion weighs against permitting amendment). Joinder will require that the New Parties be given sufficient 22 23 (Doc. 122, Stipulated Amendment to time to retain counsel, propound discovery, and file dispositive motions, leading to yet another modification of the Scheduling Order. (See Doc. 122). This action has been pending on the 26 3 27 28 In fact, Plaintiffs’ motion suggests that they have known of the need to add the New Parties since December of 2008: “all Parties have been aware of Enns’ intent to add the additional parties since the first Scheduling Conference held on December 18, 2008.” (Motion to Amend at 5) (emphasis added). 10 1 court’s docket for almost four years. 2 Further delay must be explained. b. Prejudice 3 4 Prejudice to the opposing party is the most critical factor in 5 determining whether to grant leave to amend. Howey v. U.S., 481 6 F.2d 1187, 1190 (9th Cir. 1973). 7 period and therefore delay the proceedings supports a district 8 court's finding of prejudice from a delayed motion to amend the 9 complaint. E.g., Lockheed Martin Corp., 194 F.3d at 986 (citing 10 Solomon v. North Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th 11 Cir. 1998) (affirming the district court's denial of motion to 12 amend pleadings filed on the eve of the discovery deadline)); 13 Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) 14 (affirming denial of motion to amend filed shortly before discovery 15 cutoff because "amended pleading would have prejudiced defendant, 16 which would then have had a very limited amount of time to 17 respond"); see also Goolsby v. Carrasco, 2010 U.S. Dist. LEXIS 18 111510 19 deadlines, the Court concludes that these new defendants would be 20 significantly prejudiced by the amendment”). 21 * 13 (E.D. Cal. A need to extend the discovery 2010) (“Given the looming discovery The hearing on Plaintiffs’ motion is set for April 18, 2011. 22 If Plaintiffs’ motion 23 approximately 24 currently scheduled deadlines. Even if the discovery deadlines are 25 extended sixth months, New Parties will be required to accelerate 26 their defense. 27 eight months of discovery remained, requiring the parties to 28 scramble and attempt to ascertain whether the Procrit purchased by seven is weeks granted, to New propound Parties discovery will have within the AmerisourceBergen, 465 F.3d at 953 (“Even though 11 1 AmerisourceBergen 2 potentially high, additional litigation costs”). 3 4 was tainted, would have unfairly imposed Amendment to add New Parties may cause undue delay and serious prejudice to the nonmovants. 5 2. Addition of Administrator Defendants 6 Plaintiffs seek to add the administrators of the estates of 7 deceased Defendants currently named in this action: Sachiko 8 Yamaguchi for the Estate of Sieto Yamaguchi, and Patricia Clothier 9 and Carolyn Whitesides for the Estates of Mabel and Herbert Lee. a. Lee Defendants 10 11 The Lee Defendants contend that amendment to add Patricia 12 Clothier and Carolyn Whitesides as administrators would be futile 13 because 14 injunctive relief; (2) Mabel Lee’s estate contains no assets; and 15 (3) Plaintiffs lack any legal means of compelling either woman to 16 serve in the estate administration they seek. Lee Defendants also 17 contend that 18 prejudiced because they are not California residents. 19 (1) they Ms. are incapable Clothier and of Ms. satisfying any Whitesides will order be for unduly Lee Defendants’ initial disclosures represent that Mabel Lee 20 is the executrix of Herbert Lee’s estate, and that Patricia 21 Clothier is the executrix of Mabel Lee’s estate. 22 3). 23 “Plaintiffs shall name the individual personal representatives for 24 the Estates of all deceased parties who are Defendants in this 25 action.” 26 Whitesides as the personal representatives of deceased Defendants 27 is appropriate, as the proposed amended complaint alleges that Ms. 28 Whitesides and Ms. Clothier are the administrators of the Estates (Doc. 141, Ex. The court’s January 14, 2009 scheduling order provides that (Doc. 97). Amendment to add Ms. Clothier and Ms. 12 1 of Mabel Lee and Herbert Lee. Defendants have not established that 2 Ms. 3 representatives of the Lee estates, or that amendment would be 4 futile. Whitesides and Ms. Clothier are not the personal 5 Lee Defendants assertion of prejudice is insufficient, as 6 their argument that they would be prejudiced due to the fact that 7 they do not live in California misapprehends the prejudice inquiry 8 applicable under Rule 15. 9 representatives for deceased parties. The law requires addition of personal The prejudice that the Lee 10 Defendants identify is no more than the inconvenience every party 11 suffers when they are sued in a state other than the state of their 12 residence. 13 amendment under Rule 15's liberal policy favoring amendments. Such inconvenience does not suffice to foreclose 14 b. Yamaguchi Defendants 15 Yamaguchi Defendants’ opposition is directed almost 16 exclusively to the alleged impropriety of naming “the Estate of 17 Sieto Yamaguchi” as a Defendant in this action, however, the Estate 18 of Sieto Yamaguchi is already a named Defendant. 19 proposed amended complaint seeks to add Sachiko Yamaguchi as Sieto 20 Yamaguchi’s 21 requires. 22 23 24 25 26 27 28 The personal only representative. argument advanced with This is respect Plaintiffs’ what to the Plaintiffs’ proposed amendment to add Sachiko Yamaguchi is the following: in order to sue a decedent’s estate for damages exceeding available liability insurance, the claimant must have filed a timely claim in the probate proceedings and join the personal representative in the action. (See Cal. Probate Code §554, 9390(b)). The statute of limitations on such a claim is one year from the decedent’s death. (See Cal. Civ. Code § 366.2)...However, by the time the court hears the [Motion to Amend], it will have been over four years since Dr. Yamaguchi passed away. Failure to 13 law 1 2 3 name Dr. Yamaguchi’s personal representative within one year of his death is fatat to all claims alleged by Plaintiffs against Dr. Yamaguchi’s personal administrator for damages exceeding available liability insurance coverage in this action. Consequently, Plaintiffs’ Motion is futile. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (Doc. 132, Opposition at 12). Defendants’ argument is scattered. Under California law, there are two methods for recovering damages from a deceased tortfeasor: If the decedent's property has been distributed through a probate administration in the probate court, the plaintiff must first filed a claim in probate court. See CAL. PROB. CODE § 9351 ("An action may not be commenced against a decedent's personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part"); see also Boyle v. County of Kern, CV 03-5162 OWW GSA, 2008 U.S. Dist. LEXIS 5592, 2008 WL 220413, *7 (E.D. Cal. Jan. 25, 2008) ("Before a creditor may commence a lawsuit against an estate, the creditor must file a claim. . . . Filing a lawsuit against an estate is not the equivalent of filing a probate claim," citing Van Ort v. Estate of Stanewich, 92 F.3d 831, 841 (9th Cir. 1996)). Where the decedent's property is distributed without probate, however, the recipients of the decedent's property are personally liable for his debts. See CAL. PROB. CODE § 13109 ("A person to whom payment, delivery, or transfer of the decedent's property is made under this chapter is personally liable, to the extent provided in Section 13112, for the unsecured debts of the decedent. Any such debt may be enforced against the person in the same manner as it could have been enforced against the decedent if the decedent had not died. In any action based upon the debt, the person may assert any defenses, cross-complaints, or setoffs that would have been available to the decedent if the decedent had not died") 22 23 Pelayo v. City of Downey, 570 F. Supp. 2d 1183, 1192 (N.D. Cal. 24 2008). 25 record establishes that Sieto Yamaguchi’s property was distributed 26 through probate administration in the probate court. 27 sections of the California Probate Code cited by Defendants, 28 sections 550-555, apply "in any case where there is a claim for Nothing in the FAC, the proposed amended complaint, or the 14 Further, the 1 damages for which the decedent was insured." 2 Substances Control v. Interstate Non-Ferrous Corp., 298 F. Supp. 2d 3 930, 949 4 Yamaguchi had no such insurance. 5 The filing of a claim in probate is jurisdictional. (E.D. Cal. 2003). 6 Plaintiffs represent that Sieto (Doc. 132, Opposition at 12). C. Spelling Corrections 7 Defendants Cal. Dep't of Toxic seek to change the spelling of the name of 8 Defendant “John Pierce” to “John Pearce” and of Defendant “Patty 9 Martinez” to “Patsy Martinez.” Defendants do not oppose this minor 10 correction. ORDER 11 12 For reasons stated, IT IS ORDERED: 13 1) Plaintiffs’ Motion to Amend is DENIED with respect to the 14 addition of RCRA claims; 15 2) Plaintiffs’ Motion to Amend id DENIED with respect to 16 joining Ethel Warnock, Bruce Warnock, Jesse Williams, Reynaldo 17 Betancourt, and Floyd Morse as Defendants; 18 3) Plaintiffs’ motion to amend is GRANTED with respect to 19 adding the personal representatives of deceased Defendants and 20 with respect to correction of spelling errors; 21 4) Plaintiffs shall file an amended complaint within five days 22 of receiving electronic service of this decision; 23 5) Defendants shall file responsive pleading within twenty 24 days of receiving electronic service of an amended complaint; 25 and 26 6) Plaintiffs shall file a form of order consistent with this 27 decision within five days of receiving electronic service of 28 this decision. 15 1 2 3 IT IS SO ORDERED. 4 Dated: hkh80h April 20, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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