USA v. Sterling Centrecorp Inc. et al

Filing 244

STIPULATION and ORDER signed by Chief Judge Morrison C. England, Jr. on 9/8/2015 ORDERING that on or before sixty days after the conclusion of the Phase II trial, Plaintiffs shall jointly file a motion seeking enforcement costs; On or before sixty days after Plaintiffs' deadline to file a motion seeking enforcement costs, if Sterling decides a response is necessary, Sterling shall file a response in opposition to Plaintiffs' motion for enforcement costs; Sterling will have an opp ortunity to take discovery on Plaintiffs' enforcement costs following the Phase II trial until sixty days after Plaintiffs' deadline to file a motion seeking enforcement costs, however, Plaintiffs do not waive their right to assert any p rivilege or any objection that could apply to any part of Sterling's discovery request; Plaintiffs do not agree to submit their attorneys for depositions in this matter and do not waive their right to seek a protective order barring any depos itions they deem objectionable; and On or before twenty-one days after Sterling's deadline to file its response, if Plaintiffs decide a reply is necessary, Plaintiffs shall jointly file a reply to any response in opposition filed by Sterling. (Zignago, K.)

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PATRICIA L. HURST (DC Bar No. 438882)
Senior Counsel
GABRIEL ALLEN (GA Bar No. 740737)
Trial Attorney
PETER KRZYWICKI (MI Bar No. P75723)
Trial Attorney
Environmental Enforcement Section
PAUL CIRINO (NY Bar No. 2777464)
Trial Attorney
Environmental Defense Section
Environment & Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, DC 20044
[phone] / [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
United States of America
Additional Counsel listed on following page.
UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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UNITED STATES OF AMERICA, and
CALIFORNIA DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,

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Plaintiffs,
vs.
STERLING CENTRECORP, INC., STEPHEN
P. ELDER, and ELDER DEVELOPMENT,
INC.,
Defendants.

Case No. 2:08-cv-02556- MCE-JFM
STIPULATION AND ORDER TO
LITIGATE ENFORCMENT COSTS
AFTER THE CONCLUSION OF THE
PHASE II TRIAL ON OTHER RESPONSE
COSTS
Trial Date: July 18, 2016
Judge:
Hon. Morrison C. England, Jr.
[Complaint Filed: October 27, 2008]

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_________________________________________________________________________________________________
Stipulation and Order To Litigate Enforcement Costs After the Conclusion of the Phase II Trial on Response Costs; Case
No. 2:08-cv-02556-MCE-JFM

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KAMALA D. HARRIS
Attorney general of California
SUSAN FIERING
Supervising Deputy Attorney General
TIMOTHY E. SULLIVAN (CA Bar No. 197054)
Deputy Attorney General
California Department of Justice
Office of the Attorney General
1515 Clay St., 20th Fl.,
Oakland, CA 94612
[e-mail]
Attorneys for Plaintiff
California Department of Toxic Substances Control
Gary J. Smith (State Bar No. 141393)
([e-mail])
Andrew C. Mayer (State Bar No. 287061)
([e-mail])
BEVERIDGE & DIAMOND, P.C.
456 Montgomery Street, Suite 1800
San Francisco, CA 94104-1251
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
Sterling Centrecorp, Inc.
STIPULATION TO LITIGATE ENFORCEMENT COSTS AFTER THE CONCLUSION OF THE
PHASE II TRIAL ON OTHER RESPONSE COSTS
WHEREAS, on March 25, 2009, the Court entered the Bifurcation Order (ECF No. 26)
separating the discovery and trial for defendants’ liability (“Phase I”) from the discovery and trial on
plaintiffs’ entitlement to response costs (“Phase II”), and;
WHEREAS, on September 29, 2014, the Court entered the Phase II Pretrial Scheduling
Order (ECF No. 229) setting the deadline for Phase II discovery, except expert discovery, for
September 18, 2015 and setting Phase II trial for July 18, 2016; and
WHEREAS, on August 19, 2015, the Court entered an Order (ECF No. 241) setting the
designation of experts and exchange of expert reports for October 2, 2015; and
WHEREAS, Plaintiffs United States of America, on behalf of the Environmental Protection
Agency (“EPA”), and the California Department of Toxic Substances Control (“DTSC”)

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-2Stipulation and Order To Litigate Enforcement Costs after Response Costs; Case No. 2:08-cv-02556-MCE-JFM

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(collectively “Plaintiffs”) seek their response costs, including enforcement costs, through dates

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certain, in Phase II; and

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WHEREAS, enforcement costs refer to all costs incurred by the United States Department of

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Justice, the costs of EPA attorneys’ direct labor on this litigation, all costs incurred by the California

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Attorney General’s Office representing DTSC in this matter, the cost of DTSC attorneys’ direct

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labor on this litigation, EPA and DTSC attorneys’ travel expenses related to this litigation, and

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Plaintiffs’ indirect costs associated with all of this direct labor;1 and

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WHEREAS, enforcement costs do not refer to any work by non-legal staff of EPA, DTSC, or
their contractors related to this litigation; and

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WHEREAS, enforcement costs are a subset of the response costs currently scheduled to be
litigated in Phase II; and

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WHEREAS, the exercise of proving the enforcement costs might disrupt Phase II because it

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may necessitate discovery of the actions of the attorneys who are litigating Phase II on behalf of

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Plaintiffs; and

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WHEREAS, Plaintiffs and Sterling Centrecorp, Inc. (“Sterling”) (collectively “the Parties”)

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agree that the most efficient means of resolving issues related to Plaintiffs’ claims for enforcement

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costs is to litigate those claims through motions practice after the Phase II trial has concluded; and

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WHEREAS, on August 24, 2015, counsel for the United States of America, Patricia Hurst,

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contacted Stephen P. Elder, and explained to him what Plaintiffs seek with this Stipulation, and Mr.

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Elder, on behalf of himself and Elder Development, Inc., stated that he did not oppose the relief

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sought through this Stipulation and Proposed Order, but Mr. Elder has not seen a copy of the

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Stipulation and Proposed Order and claims he has no means to review the Stipulation and Proposed

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Order.

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The Department of Justice intends to seek all enforcement costs it incurred through the close
of Phase II trial. EPA plans to seek all enforcement costs it incurred through November 30, 2012.
DTSC plans to seek all enforcement costs attributable to DTSC attorneys through November 4,
2014. In addition, DTSC intends to seek all enforcement costs attributable to the representation of
DTSC in this matter by the California Attorney General’s Office that are incurred through the close
of Phase II trial. The Department of Justice, EPA, the California Attorney General’s Office, and
DTSC will seek the costs incurred after those dates in a subsequent proceeding as provided for by 42
U.S.C. § 9613(g)(2).
-3Stipulation and Order To Litigate Enforcement Costs after Response Costs; Case No. 2:08-cv-02556-MCE-JFM

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NOW THEREFORE, the Parties hereby jointly stipulate and respectfully request that the

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Court order that the Parties shall not put on evidence of, or otherwise dispute, enforcement costs

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during Phase II trial or pre-trial preparations, and shall not seek or be required to respond to

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discovery on enforcement costs during Phase II proceedings; instead, all issues relating to

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enforcement costs shall be addressed by motions practice after the Phase II trial has concluded, and

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according to the schedule that follows:

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On or before sixty days after the conclusion of the Phase II trial, Plaintiffs shall jointly file a
motion seeking enforcement costs;
On or before sixty days after Plaintiffs’ deadline to file a motion seeking enforcement costs,

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if Sterling decides a response is necessary, Sterling shall file a response in opposition to Plaintiffs’

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motion for enforcement costs;

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Sterling will have an opportunity to take discovery on Plaintiffs’ enforcement costs following

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the Phase II trial until sixty days after Plaintiffs’ deadline to file a motion seeking enforcement

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costs, however, Plaintiffs do not waive their right to assert any privilege or any objection that could

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apply to any part of Sterling’s discovery request;

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Plaintiffs do not agree to submit their attorneys for depositions in this matter and do not
waive their right to seek a protective order barring any depositions they deem objectionable;
On or before twenty-one days after Sterling’s deadline to file its response, if Plaintiffs

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decide a reply is necessary, Plaintiffs shall jointly file a reply to any response in opposition filed by

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Sterling; and

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If the Court does not enter the proposed order, the Parties agree that Plaintiffs will have the

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right to disclose documentation of their enforcement costs after the September 18, 2015 close of fact

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discovery deadline and Plaintiffs’ experts will have the opportunity to supplement their reports on

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enforcement costs after the October 2, 2015 deadline for exchange of reports.

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SO STIPULATED.

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-4Stipulation and Order To Litigate Enforcement Costs after Response Costs; Case No. 2:08-cv-02556-MCE-JFM

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For Plaintiff Department of Toxic Substances Control
KAMALA D. HARRIS
Attorney General of California
SUSAN FIERING
Supervising Deputy Attorney General

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09/03/2015
DATED

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For Defendant Sterling Centrecorp, Inc.
09/03/2015
DATED

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/s/ Timothy E. Sullivan
TIMOTHY E. SULLIVAN
Deputy Attorney General
1515 Clay St., 20th Floor
P.O. Box 70550
Oakland, CA 94612

/s/ Gary J. Smith
GARY J. SMITH
Beveridge & Diamond, P.C.
456 Montgomery Street, Suite 1800
San Francisco, CA 94104

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Counsel for Plaintiff Department of Toxic Substances Control and Counsel for Defendant
Sterling Centrecorp, Inc. have authorized Plaintiff the United States of America to file this
Stipulation on behalf of these Parties. Plaintiff the United States of America will retain documents
evidencing this authorization.

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For Plaintiff United States of America

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09/03/2015
DATED

/s/ PETER KRZYWICKI
PATRICIA L. HURST
GABRIEL ALLEN
PETER KRZYWICKI
Environmental Enforcement Section
PAUL CIRINO
Environmental Defense Section
Environment and Natural Resources Division
United States Department of Justice
P.O. Box 7611
Washington, DC 20044

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-5Stipulation and Order To Litigate Enforcement Costs after Response Costs; Case No. 2:08-cv-02556-MCE-JFM

ORDER

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In view of this Stipulation, the Court finds that good cause exists for issuance of an Order

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that the Parties shall not put on evidence of, or otherwise dispute, enforcement costs during Phase II

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trial and pre-trial preparation, and shall not seek or be required to respond to discovery on

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enforcement costs during Phase II proceedings; and instead, all issues relating to enforcement costs

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shall be addressed by motions practice after the Phase II trial has concluded, and according to the

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schedule that follows:

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On or before sixty days after the conclusion of the Phase II trial, Plaintiffs shall jointly file a
motion seeking enforcement costs;
On or before sixty days after Plaintiffs’ deadline to file a motion seeking enforcement costs,

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if Sterling decides a response is necessary, Sterling shall file a response in opposition to Plaintiffs’

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motion for enforcement costs;

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Sterling will have an opportunity to take discovery on Plaintiffs’ enforcement costs following

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the Phase II trial until sixty days after Plaintiffs’ deadline to file a motion seeking enforcement

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costs, however, Plaintiffs do not waive their right to assert any privilege or any objection that could

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apply to any part of Sterling’s discovery request;

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Plaintiffs do not agree to submit their attorneys for depositions in this matter and do not
waive their right to seek a protective order barring any depositions they deem objectionable; and
On or before twenty-one days after Sterling’s deadline to file its response, if Plaintiffs

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decide a reply is necessary, Plaintiffs shall jointly file a reply to any response in opposition filed by

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Sterling.

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IT IS SO ORDERED.
Dated: September 8, 2015

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