USA v. Sterling Centrecorp Inc. et al
Filing
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ORDER signed by Chief Judge Morrison C. England, Jr. on 2/4/2014 ORDERING that Sterling's 215 Motion for Certification for Immediate Appeal is DENIED. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA and
CALIFORNIA DEPARTMENT OF
TOXIC SUBSTANCES CONTROL,
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Plaintiffs,
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No. 2:08-cv-02556-MCE-DAD
ORDER
v.
STERLING CENTRECORP INC.,
STEPHEN P. ELDER and ELDER
DEVELOPMENT, INC.,
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Defendants.
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Through the present motion, Defendant Sterling Centrecorp, Inc. (“Sterling”)
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requests that this Court certify for interlocutory appeal its June 20, 2013 Findings of Fact
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and June 24, 2013 Conclusions of Law entered in this matter following a four-day bench
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trial conducted between October 31, 2012 and November 6, 2012. See ECF Nos. 211,
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213.
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Plaintiffs’ lawsuit seeks contribution for remedial clean-up costs incurred at a
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Superfund site, the former Lava Cap Mine located in Nevada County, California.
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Elevated levels of arsenic were disseminated at that site through tailings and waste
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materials generated by mine operations.
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Plaintiffs seek contribution for the costs of necessary remediation both from former
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owners of the site and from operators responsible for mining activities. The Court
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bifurcated adjudication of the matter into two phases, with liability being determined
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before damages would be addressed.
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Stephen Elder and Elder Development Company were found liable for clean-up
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costs by this Court’s Memorandum and Order filed December 8, 2011, which granted
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Plaintiffs’ summary judgment as to the Elder Defendants’ liability (ECF No. 153). By a
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second Memorandum and Order filed December 22, 2011 (ECF No. 154), the Court
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granted in part and denied in part Plaintiffs’ request for summary adjudication as to
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Sterling’s liability. That led to the aforementioned bench trial, and the Court’s
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preparation of a lengthy Findings of Fact and Conclusions of Law thereafter that totaled
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some 145 pages.
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Given the fact that liability has now been established against both Sterling and the
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Elder Defendants, the next step is the second phase of the trial in which Plaintiffs’
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allowable damages for clean-up costs will be assessed. The current motion asks the
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Court to certify its liability findings as to Sterling for interlocutory appeal prior to the
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remainder of the case being tried.
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Interlocutory appeal is a special mechanism representing a departure from the
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usual policy of postponing appellate review until after the entry of final judgment. It is
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warranted only upon a showing of exceptional circumstances. Coopers & Lybrand v.
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Livesay, 437 U.S. 463, 475 (1978). The Court may certify a non-final decision for
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interlocutory review only if all the statutory elements are met: 1) the order “involves a
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controlling question of law”; 2) there is “substantial ground for difference of opinion”; and
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3) “an immediate appeal from the order may materially advance the ultimate termination
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of the litigation. 28 U.S.C. § 1292(b); In re Cement Antitrust Litigation, 673 F.2d 1020,
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1026 (9th Cir. 1982). The moving party, here Sterling, bears the burden of establishing
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each element of the statute, which should be “narrowly construed.”
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Coopers & Lybrand, 437 U.S. at 475; James v. Price Stern Sloan, Inc., 283 F.3d 1064,
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1068 n.6 (9th Cir. 2002).
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Certifying an issue for interlocutory appeal is a matter squarely within the court’s
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discretion. Swint v. Chambers County Comm’n, 514 U.S. 35, 47 (1995). Having
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considered the moving papers submitted on behalf of Sterling in this regard, along with
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the opposition and reply, the Court declines to grant interlocutory appeal of its liability
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finding as to Sterling.
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The Court’s decision in this matter, as indicated above, was a lengthy one which
found liability against Sterling on three different bases, any one of which was sufficient
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alone to establish liability for response costs under § 107(a) of CERCLA, 42 U.S.C.
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§ 9607(a). Specifically, the Court found 1) that Sterling expressly and/or impliedly
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assumed the liability of the former owner operator Lava Cap Gold Mining Corporation
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(“LCGMC”); 2) that Sterling was the successor to LCGMC by de facto merger; and
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3) that Sterling operated the Lava Cap Mine at the time of a disposal of a hazardous
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substance. See Conclusions of Law, ECF No. 211, ¶ 6.
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Rather than seeking review of a discrete controlling issue as contemplated by the
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interlocutory appeal process, Sterling’s present request seeks review on virtually every
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aspect of the Court’s liability assessment. This scattershot approach falls short, in the
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Court’s estimation, of the specific, fine-tuned objection that a proper interlocutory appeal
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request should encompass. Instead, Sterling’s request here differs little from the
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commonplace appellate practice of appealing a final judgment on every conceivable
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basis. That is not the place of an interlocutory appeal, which should not become the
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vehicle for a party merely dissatisfied with an adverse ruling. Such dissatisfaction does
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not constitute the exceptional circumstances necessary for interlocutory review.
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Coopers & Lybrand, 437 U.S. at 475; Helman v. Alcoa Global Fasteners, Inc., 2009 WL
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2058541 at *5 (C.D. Cal. 2009). (“It is not sufficient that the party seeking immediate
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appellate review simply disagrees with the district court’s ruling.”).
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By taking issue with virtually every facet of the Court’s ruling, the Court finds that
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no specific controlling legal question has been identified.1 This shortcoming is
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compounded by the fact that the Court’s ruling, as stated above, rests on three
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independent grounds, any one of which is enough to establish liability on Sterling’s
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behalf. That makes the very concept of “controlling question” a nebulous one under the
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facts of this case, because even if a controlling issue could be identified as to one
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liability alternative, the other two bases for finding Sterling responsible still stand. This
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posture also causes the Court to determine that the litigation will not be materially
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advanced through submission of an interlocutory appeal, as § 1292 requires.
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Interlocutory appeal is only appropriate where immediate appellate review will
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avoid protracted and expensive litigation. In re Cement Antitrust Litigation, 673 F.2d at
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1026. Here, as Plaintiffs point out, the liability phase of this trial will still go forward
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against the Elder Defendants. The remaining litigation, as to the amount and nature of
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clean-up costs incurred by Plaintiffs, will not involve the issues Sterling seeks to raise
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through immediate appeal, and is not specific to a particular Defendant as was the case
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with liability. These circumstances make it hard to imagine how the interlocutory appeal
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advanced by Sterling will advance the ultimate termination of this litigation. Instead, the
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most expeditious course in this Court’s view is to complete the remainder of trial at this
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juncture, after which time Sterling will be free to pursue the wide-reaching appeal it asks
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the Court to now approve as an interim measure.
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The court rejects Sterling’s argument that where liability and damages are bifurcated, the
determination of liability itself should constitute a controlling question of law. If Sterling’s position in that
regard was correct, every adverse liability ruling would give rise to an immediate interlocutory appeal.
That cannot be the law.
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Because the Court finds that Sterling has not identified any single controlling
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issue of law that could affect the outcome of this entire litigation, and because the
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wholesale liability appeal it advocates will offer little if any time savings in adjudicating
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the remainder of this matter at trial, the Court finds this matter inappropriate for
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interlocutory appeal on two of the three grounds that Sterling, in advocating interlocutory
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appeal, has the burden of establishing. Consequently, while Sterling devotes substantial
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effort in its Motion to show that there is a substantial ground for difference of opinion as
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to many of the issues resolved against it, in the absence of a positive showing on the
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other two statutory facts required under 28 U.S.C. § 1292(b), the Court need not revisit
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its entire findings in that regard, and it declines to do so.
Sterling’s Motion for Certification for Immediate Appeal (ECF No. 215) is
DENIED.2
IT IS SO ORDERED.
Dated: February 4, 2014
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Because oral argument was not of material assistance, the Court ordered this matter submitted
on the briefs. E.D. Cal. Local Rule 230(g).
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