Team Enterprises, LLC v. Western Investment Real Estate Trust et al

Filing 387

ORDER adopting 385 FINDINGS AND RECOMMENDATIONS signed by District Judge Lawrence J. O'Neill on 12/22/2011. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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TEAM ENTERPRISES, LLC,

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CASE NO. 1:08-cv-00872-LJO-SMS

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS RECOMMENDING
THE DETERMINATION OF GOOD FAITH
SETTLEMENT PURSUANT TO
CALIFORNIA CODE OF CIVIL
PROCEDURE § 877.6 AND ISSUANCE OF
AN ORDER BARRING CONTRIBUTION
PURSUANT TO 42 U.S.C. § 9613(f)
(CERCLA § 113(f)(2))

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v.
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WESTERN INVESTMENT REAL
ESTATE TRUST, et al.,

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Defendants.
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(Doc. 385)
/

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On or about October 7, 2011, three groups of parties to this litigation (the “Settling

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Parties”) agreed to final settlement of this matter. The first group (“Team”) included Plaintiff

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Team Enterprises, LLC; and Third-Party Defendants Team Enterprises, Inc.; Thomas Jones;

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Frederic Jones; and Eric Jones. The second group (“MCI”) included Defendants Modesto Center

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Investors, LP; MC II, LP; John A. Branagh; Lynette Branagh; Gaylon C. Patterson; and Marla J.

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Patterson. The third group (“PK II”) included Defendants PK II Century Center LP; Kimco

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Realty Company; Pan Pacific Retail Properties, LLC; Pan Pacific Realty Properties, Inc.; and

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Prudential Real Estate Investors. The Settling Parties stipulated and moved the Court to

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determine that their settlement agreement (1) was made in good faith pursuant to California Code

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of Civil Procedure §§ 877 and 877.6; (2) satisfied the requirements for a contribution bar,

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regardless of when or by whom such claims are asserted, including all claims for litigation costs

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and attorneys’ fees, by any party to the lawsuit that is not a party to the settlement agreement (a

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“Non-Settling Party”), pursuant to 42 U.S.C. § 9613(f) (CERCLA § 113(f)(2)); (3) is

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encompassed by a settlement agreement that constitutes a judicially approved settlement for

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purposes of 42 U.S.C. § 113(f)(2) (CERCLA § 113(f)(2)), and barred claims under any other

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federal or state statute or common law.

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The Magistrate Judge heard argument on the motion on December 6, 2011, and
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recommended that the District Court grant the Settling Parties’ motion and make certain findings

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and determinations. The Findings and Recommendations provided fourteen days for the filing of

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objections. The fourteen-day period has passed, and no party has objected.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted

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a de novo review of this case. Having carefully reviewed the entire file, the Court finds the

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Findings and Recommendations to be supported by the record and proper analysis.

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Accordingly, the Court hereby adopts the Findings and Recommendations and orders that
the Settling Parties’ motion be granted. In addition, the Court

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1.

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Finds that the Settling Parties entered into the settlement in good faith as
defined by California Code of Civil Procedure §§ 877 and 877.6;

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2.

Approves the Settlement as a good faith settlement;

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3.

Pursuant to 42 U.S.C. § 9613(f) (CERCLA § 113 (f)(2)) and California

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Code of Civil Procedure § 877.6, bars all claims by any Non-Settling Party

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for contribution or indemnity against the Settling Parties arising out of

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facts alleged in Team’s Third Amended Complaint (Doc. 211), and as

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further identified and provided for in the settlement agreement, regardless

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of when or by whom such claims are asserted. The barred claims include

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any and all claims for litigation costs, attorneys’ fees, or both, by any Non-

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Settling party. The claims are barred whether they are brought pursuant to

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CERCLA or pursuant to any other federal or state law;

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4.

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Orders the Settling Parties to dismiss this action according to the process
outlined in paragraph 13 of the settlement agreement; and

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5.

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Orders that the settlement constitutes a judicially approved settlement for
purposes of 42 U.S.C. § 9613 (f)(2) ( CERCLA § 113(f)(2)).

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IT IS SO ORDERED.

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Dated:
b9ed48

December 22, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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