Exxonmobil Oil Corporation, a New York Corporation

Filing 206

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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1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA 15 16 EXXONMOBIL OIL CORPORATION, Plaintiff, 17 18 19 20 No. 1:09-cv-01498-AWI-SAB NOTICE OF SETTLEMENT; STIPULATION AND ORDER APPROVING SETTLEMENT AGREEMENT v. NICOLETTI OIL, INC. et al., Defendants. 21 22 23 Pursuant to Local Rule 160, Plaintiff ExxonMobil Oil Corporation (“ExxonMobil”) and 24 Defendants Nicoletti Oil, Inc., Floretta A. Nicoletti, personal representative of Dino J. Nicoletti, 25 deceased, and John A. Nicoletti (collectively, the “Nicolettis” or “Defendants”) hereby notify the 26 Court that, subject to approval by this Court, they have settled this matter on the terms 27 memorialized in the Purchase and Sale and Settlement Agreement and Mutual Release attached 28 hereto as Exhibit A (the “Agreement”). ExxonMobil and the Nicolettis (collectively, the 1 1 “Parties”) respectfully request that the Court approve the Agreement, vacate the upcoming trial 2 date, and set a telephonic status conference regarding dismissal in late April. 3 4 5 In support of these requests, the Parties, by and through their counsel, stipulate and agree as follows: 1. ExxonMobil filed the Complaint in this action on August 24, 2009, seeking 6 injunctive relief under the citizen suit provisions of the Resource Conservation and Recovery Act 7 (“RCRA”), 42 U.S.C. § 6972(a)(1)(B), equitable contribution and unjust enrichment under 8 California law, and declaratory relief in connection with the investigation and remediation of 9 environmental contamination at the Nicoletti Oil fuel terminal in Dos Palos, California (the 10 11 “Site”). Defendants denied the allegations and asserted affirmative defenses. 2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 12 42 U.S.C. § 6972(a) and 28 U.S.C. § 1367(a). This Court also has subject matter jurisdiction 13 pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the 14 parties and the amount in controversy is alleged to exceed $75,000. 15 3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c) and 16 42 U.S.C. § 6972(a) because a substantial part of the events or omissions giving rise to the action 17 occurred in this District. 18 4. From approximately 1946 to 1980, ExxonMobil’s predecessors-in-interest owned 19 a portion of the Site, and Dino J. Nicoletti conducted business at that portion of the Site, which 20 business included selling and distributing gasoline and diesel products. 21 22 23 24 25 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. 6. 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. 7. On or about May 17, 1991, the Merced County Department of Public Health 26 issued a Notice and Order to Nicoletti Oil, Inc. and Mobil Oil Corporation, which required 27 investigation of soil and groundwater contamination at the Site. 28 2 8. 1 In 2005 and 2006, the Central Valley Regional Water Quality Control Board 2 (“Regional Board”) issued Cleanup and Abatement Orders requiring the development and 3 implementation of an interim remedial action plan, further site assessment, and submission of a 4 full corrective action plan for the Site. 9. 6 ExxonMobil has been investigating and/or remediating the Site for more than ten 10. 5 The Parties have been attempting to reach a resolution of their dispute over years. 7 8 responsibility for the investigation and remediation of the Site for more than ten years. The 9 Parties engaged mediator Timothy Gallagher, Esq. in 2010 and have continued to work with Mr. 10 Gallagher through the present. The Parties conducted several multi-day, in-person mediations 11 and countless telephone discussions, many of which involved Mr. Gallagher, over the course of 12 many years to attempt to reach a settlement. In addition, the Parties participated in a settlement 13 conference before Hon. Dennis L. Beck on September 5, 2012. 11. 14 As a result of these lengthy and complex negotiations, subject to approval by this 15 Court, the Parties have settled this matter on the terms memorialized in the Agreement. 16 Following is a summary of some of the terms of the Agreement:1 17  A settlement payment of $4.25 million by the Nicolettis’ insurers to ExxonMobil. 18  Purchase of certain properties from the Nicolettis by ExxonMobil for $2.5 million. 19  20 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. 21  22 ExxonMobil will remediate the Site at its sole cost and expense to the condition required by the Regional Board. 23  24 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. 25 26 27 1 28 To the extent there is any conflict between the Agreement and the description of the Agreement herein, the terms of the Agreement control. 3  1 Releases by the Nicolettis in favor of ExxonMobil, and releases by ExxonMobil in favor of the Nicolettis. 2  3 No admission of any liability or fault by ExxonMobil or the Nicolettis as to any allegation or matter in this action. 4  5 Dismissal of this action following receipt of the settlement payment by 6 ExxonMobil, with the Court retaining jurisdiction to enforce the provisions of the 7 Agreement and to resolve any disputes arising thereunder or relating thereto.  8 action and the Agreement and its implementation. 9 10 11 Each party shall bear its own costs and attorneys’ fees in connection with this 12. 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: 12 (i) approving the Agreement; 13 (ii) retaining jurisdiction to enforce the provisions of the Agreement and to 14 resolve any disputes arising thereunder or relating thereto; 15 (iii) vacating the upcoming trial date; and 16 (iv) setting a telephonic status conference regarding dismissal in late April. Respectfully Submitted, 17 18 DATED: February 13, 2017 LEWIS BRISBOIS BISGAARD & SMITH LLP 19 20 By: /s/ Berj K. Parseghian Berj K. Parseghian Attorneys for Plaintiff ExxonMobil Oil Corporation 21 22 TATRO TEKOSKY SADWICK LLP 23 24 25 26 27 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 28 4 1 ORDER 2 Having reviewed the stipulation of the parties and good cause appearing therefor, 3 IT IS ORDERED, ADJUDGED AND DECREED THAT: 1. 4 5 The Purchase and Sale and Settlement Agreement and Mutual Release attached hereto as Exhibit A is approved in its entirety; 2. 6 This Court shall retain jurisdiction to enforce the provisions of the Purchase and 7 Sale and Settlement Agreement and Mutual Release and to resolve any disputes arising 8 thereunder or relating thereto; 9 3. The March 21, 2017 trial date in this matter is VACATED; and 10 4. A telephonic status conference is set for April 10, 2017 at 3:30 p.m. in Courtroom 11 2 before Hon. Anthony W. Ishii. 12 13 IT IS SO ORDERED. 14 Dated: 15 February 13, 2017 SENIOR DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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