Exxonmobil Oil Corporation, a New York Corporation
Filing
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NOTICE OF SETTLEMENT; STIPULATION AND ORDER APPROVING SETTLEMENT AGREEMENT ORDER - Telephonic Status Conference set for 4/10/2017 at 03:30 PM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii, signed by District Judge Anthony W. Ishii on 2/13/2017. (Kusamura, W)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EXXONMOBIL OIL CORPORATION,
Plaintiff,
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No. 1:09-cv-01498-AWI-SAB
NOTICE OF SETTLEMENT;
STIPULATION AND ORDER
APPROVING SETTLEMENT
AGREEMENT
v.
NICOLETTI OIL, INC. et al.,
Defendants.
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Pursuant to Local Rule 160, Plaintiff ExxonMobil Oil Corporation (“ExxonMobil”) and
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Defendants Nicoletti Oil, Inc., Floretta A. Nicoletti, personal representative of Dino J. Nicoletti,
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deceased, and John A. Nicoletti (collectively, the “Nicolettis” or “Defendants”) hereby notify the
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Court that, subject to approval by this Court, they have settled this matter on the terms
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memorialized in the Purchase and Sale and Settlement Agreement and Mutual Release attached
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hereto as Exhibit A (the “Agreement”). ExxonMobil and the Nicolettis (collectively, the
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“Parties”) respectfully request that the Court approve the Agreement, vacate the upcoming trial
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date, and set a telephonic status conference regarding dismissal in late April.
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In support of these requests, the Parties, by and through their counsel, stipulate and agree
as follows:
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ExxonMobil filed the Complaint in this action on August 24, 2009, seeking
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injunctive relief under the citizen suit provisions of the Resource Conservation and Recovery Act
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(“RCRA”), 42 U.S.C. § 6972(a)(1)(B), equitable contribution and unjust enrichment under
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California law, and declaratory relief in connection with the investigation and remediation of
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environmental contamination at the Nicoletti Oil fuel terminal in Dos Palos, California (the
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“Site”). Defendants denied the allegations and asserted affirmative defenses.
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This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331,
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42 U.S.C. § 6972(a) and 28 U.S.C. § 1367(a). This Court also has subject matter jurisdiction
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pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the
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parties and the amount in controversy is alleged to exceed $75,000.
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3.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c) and
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42 U.S.C. § 6972(a) because a substantial part of the events or omissions giving rise to the action
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occurred in this District.
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4.
From approximately 1946 to 1980, ExxonMobil’s predecessors-in-interest owned
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a portion of the Site, and Dino J. Nicoletti conducted business at that portion of the Site, which
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business included selling and distributing gasoline and diesel products.
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5.
On or about August 25, 1980, Dino J. Nicoletti and his wife, Floretta Nicoletti,
purchased a portion of the Site and continued to conduct business at that portion of the Site.
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From 1982 to the present day, Nicoletti Oil, Inc. has operated the business at the
Site, which business includes selling and distributing gasoline and diesel products.
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On or about May 17, 1991, the Merced County Department of Public Health
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issued a Notice and Order to Nicoletti Oil, Inc. and Mobil Oil Corporation, which required
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investigation of soil and groundwater contamination at the Site.
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In 2005 and 2006, the Central Valley Regional Water Quality Control Board
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(“Regional Board”) issued Cleanup and Abatement Orders requiring the development and
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implementation of an interim remedial action plan, further site assessment, and submission of a
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full corrective action plan for the Site.
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ExxonMobil has been investigating and/or remediating the Site for more than ten
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The Parties have been attempting to reach a resolution of their dispute over
years.
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responsibility for the investigation and remediation of the Site for more than ten years. The
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Parties engaged mediator Timothy Gallagher, Esq. in 2010 and have continued to work with Mr.
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Gallagher through the present. The Parties conducted several multi-day, in-person mediations
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and countless telephone discussions, many of which involved Mr. Gallagher, over the course of
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many years to attempt to reach a settlement. In addition, the Parties participated in a settlement
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conference before Hon. Dennis L. Beck on September 5, 2012.
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As a result of these lengthy and complex negotiations, subject to approval by this
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Court, the Parties have settled this matter on the terms memorialized in the Agreement.
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Following is a summary of some of the terms of the Agreement:1
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A settlement payment of $4.25 million by the Nicolettis’ insurers to ExxonMobil.
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Purchase of certain properties from the Nicolettis by ExxonMobil for $2.5
million.
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The Nicolettis are to permanently vacate the properties by February 21, 2017.
The purchase and sale of the properties is to close by March 31, 2017.
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ExxonMobil will remediate the Site at its sole cost and expense to the condition
required by the Regional Board.
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Future use of the properties for petroleum-related activities or sensitive uses, such
as residences, health care facilities, schools or senior citizen centers, is prohibited.
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To the extent there is any conflict between the Agreement and the description of the Agreement
herein, the terms of the Agreement control.
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Releases by the Nicolettis in favor of ExxonMobil, and releases by ExxonMobil
in favor of the Nicolettis.
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No admission of any liability or fault by ExxonMobil or the Nicolettis as to any
allegation or matter in this action.
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Dismissal of this action following receipt of the settlement payment by
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ExxonMobil, with the Court retaining jurisdiction to enforce the provisions of the
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Agreement and to resolve any disputes arising thereunder or relating thereto.
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action and the Agreement and its implementation.
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Each party shall bear its own costs and attorneys’ fees in connection with this
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The Parties believe the Agreement is fair and equitable and will facilitate the
remediation of the Site. Therefore, the Parties respectfully request that the Court enter an Order:
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(i) approving the Agreement;
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(ii) retaining jurisdiction to enforce the provisions of the Agreement and to
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resolve any disputes arising thereunder or relating thereto;
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(iii) vacating the upcoming trial date; and
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(iv) setting a telephonic status conference regarding dismissal in late April.
Respectfully Submitted,
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DATED: February 13, 2017
LEWIS BRISBOIS BISGAARD & SMITH LLP
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By:
/s/ Berj K. Parseghian
Berj K. Parseghian
Attorneys for Plaintiff
ExxonMobil Oil Corporation
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TATRO TEKOSKY SADWICK LLP
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By:
/s/ Steven R. Tekosky (as authorized
on February 13, 2017)
Steven R. Tekosky
Attorney for Defendants
Nicoletti Oil, Inc., Floretta A. Nicoletti, personal
representative of Dino J. Nicoletti, deceased,
and John A Nicoletti
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ORDER
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Having reviewed the stipulation of the parties and good cause appearing therefor,
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IT IS ORDERED, ADJUDGED AND DECREED THAT:
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The Purchase and Sale and Settlement Agreement and Mutual Release attached
hereto as Exhibit A is approved in its entirety;
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This Court shall retain jurisdiction to enforce the provisions of the Purchase and
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Sale and Settlement Agreement and Mutual Release and to resolve any disputes arising
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thereunder or relating thereto;
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3.
The March 21, 2017 trial date in this matter is VACATED; and
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4.
A telephonic status conference is set for April 10, 2017 at 3:30 p.m. in Courtroom
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2 before Hon. Anthony W. Ishii.
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IT IS SO ORDERED.
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Dated:
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February 13, 2017
SENIOR DISTRICT JUDGE
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