USA v. Sterling Centrecorp Inc. et al

Filing 301

STIPULATION and ORDER signed by District Judge Morrison C. England, Jr. on 10/21/2016 ORDERING that the deadlines in the Court's 9/8/2015 Order are STAYED until 12/21/2016. The stipulated schedule for briefing and discovery related to Plaintiff s' motion for enforcement costs shall commence when the stay ends on 12/21/2016. Accordingly, if the enforcement costs portion of these proceedings remains unresolved at that time, Plaintiffs' deadline for filing a joint motion for such costs is 2/21/2017. Defendant Sterling's response, if any, to that motion must be filed not later than 4/21/2017 and Plaintiffs' reply is due on 5/12/2017. (Zignago, K.)

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PATRICIA L. HURST (DC Bar No. 438882)
PETER KRZYWICKI (MI Bar No. 75723)
DAVIS FORSYTHE (MA Bar No. 667115)
Environmental Enforcement Section
PAUL CIRINO (NY Bar No. 2777464)
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

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Additional Counsel listed on following page.
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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-CKD
STIPULATION AND ORDER STAYING
DEADLINES FOR LITIGATION OF
ENFORCMENT COSTS TO ALLOW FOR
SETTLEMENT DISCUSSIONS
Trial Date: Not Scheduled
Judge:
Hon. Morrison C. England, Jr.
[Complaint Filed: October 27, 2008]

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_________________________________________________________________________________________________
Stipulation and [Proposed] Order Staying Deadlines for Litigation of Enforcement Costs to Allow for Settlement
Discussions; Case No. 2:08-cv-02556-MCE-JFM

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JOHN W. EVERETT (CA Bar No. 259481)
Deputy Attorney General
California Department of Justice
Office of the Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
[phone]
[e-mail]

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Attorneys for Plaintiff
California Department of Toxic Substances Control

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Gary J. Smith (CA Bar No. 141393)
([e-mail])
Kaitlyn D. Shannon (CA Bar No. 296735)
([e-mail])
BEVERIDGE & DIAMOND, P.C.
456 Montgomery Street, Suite 1800
San Francisco, CA 94104-1251
[phone] / [phone]
Attorneys for Defendant
Sterling Centrecorp Inc.

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STIPULATION STAYING DEADLINES FOR LITIGATION OF ENFORCEMENT COSTS

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TO ALLOW FOR SETTLEMENT DISCUSSIONS

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WHEREAS, on March 25, 2009, the Court entered the Bifurcation Order (ECF No. 26)

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separating the discovery and trial of defendants’ liability (“Phase I”) from the discovery and trial on

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plaintiffs’ entitlement to response costs (“Phase II”), and;

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WHEREAS, on September 8, 2015, the Court signed a Stipulation and Order (ECF No. 244)

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providing that (a) on or before 60 days after the conclusion of the Phase II trial, Plaintiffs United

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States of America and California Department of Toxic Substances Control (“Plaintiffs”) shall jointly

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file a motion seeking enforcement costs, which are a subset of the response costs being litigated in

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this Phase II; (b) on or before 60 days after Plaintiffs’ deadline to file a motion seeking enforcement

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costs, if Defendant Sterling Centrecorp Inc. (“Sterling”) decides a response is necessary, Sterling

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shall file a response in opposition to Plaintiffs’ motion for enforcement costs; and (c) on or before 21

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days after Sterling’s deadline to file its response, if Plaintiffs decide a reply is necessary, Plaintiffs

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shall jointly file a reply to any response in opposition filed by Sterling. The Court’s order further

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-2Stipulation and Order Staying Deadlines for Litigation of Enforcement Costs to Allow for Settlement Discussions; Case
No. 2:08-cv-02556-MCE-JFM

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provided that (d) Sterling will have an opportunity to take discovery on Plaintiffs’ enforcement costs
following the Phase II trial until 60 days after Plaintiffs’ deadline to file a motion seeking
enforcement costs, however, Plaintiffs do not waive their right to assert any privilege or any
objection that could apply to any part of Sterling’s discovery request; and (e) 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;

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WHEREAS, on September 19, 20 and 21, 2016, the Court granted all of Plaintiffs’ motions
for summary judgment (ECF Nos. 296, 297, 298), denied all of Defendant Sterling Centrecorp,
Inc.’s motions for summary judgment (ECF Nos. 297, 298), and denied Plaintiffs’ motion in limine
as moot (ECF No. 299), and thus, resolved all matters that could have been tried in Phase II pursuant
to the Parties’ stipulation, leaving only the enforcement costs portion of Plaintiffs’ response costs
unresolved;

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WHEREAS, under the Court’s September 8, 2015 Order, Plaintiffs must file a motion
seeking an award of enforcement costs no later than November 20, 2016, Sterling must file a
response no later than January 19, 2017, and Plaintiffs must file a reply no later than February 9,
2017;
WHEREAS, Plaintiffs and Sterling seek a stay of the briefing deadlines imposed by the
Court’s September 8, 2015 Order so that they may explore a negotiated resolution of Plaintiffs’
enforcement costs; and
WHEREAS, on October 18, 2016, counsel for the United States of America, Patricia Hurst,
contacted Defendant Stephen P. Elder, and explained to him what Plaintiffs and Sterling seek with
this Stipulation and Proposed Order, and Mr. Elder did not oppose relief sought through this
Stipulation and Proposed Order. Ms. Hurst emailed this Stipulation and Proposed Order to Mr. Elder
the same day;
NOW THEREFORE, Plaintiffs and Sterling (collectively “the Parties”) hereby jointly
stipulate and respectfully request that the Court order that the deadlines in the Court’s September 8,
2015 Order are stayed for a period of 60 days from the Court’s entry of this Order. During the stay
-3Stipulation and Order Staying Deadlines for Litigation of Enforcement Costs to Allow for Settlement Discussions; Case
No. 2:08-cv-02556-MCE-JFM

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the Parties shall not put on evidence of, or otherwise dispute, enforcement costs, and shall not seek
or be required to respond to discovery on enforcement costs. The stipulated schedule for briefing and
discovery related to Plaintiffs’ motion for enforcement costs shall commence when the stay ends.
The stay does not alter Plaintiffs’ right to assert any privilege or any objection that could apply to
Sterling's discovery, or Plaintiffs’ right to seek a protective order barring any depositions they deem
objectionable.
SO STIPULATED.

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For Plaintiff Department of Toxic Substances Control

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October 19, 2016
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For Defendant Sterling Centrecorp, Inc.
October 19, 2016

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/s/ John W. Everett
JOHN W. EVERETT
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101

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

Counsel for Plaintiff Department of Toxic Substances Control and Counsel for Defendant
Sterling Centrecorp 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.
For Plaintiff United States of America

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October 19, 2016

/s/ Patricia L. Hurst
PATRICIA L. HURST
PETER KRZYWICKI
DAVIS FORSYTHE
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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Stipulation and Order Staying Deadlines for Litigation of Enforcement Costs to Allow for Settlement Discussions; Case
No. 2:08-cv-02556-MCE-JFM

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ORDER

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In view of this Stipulation, the Court finds that good cause exists for issuance of an Order
that the deadlines in the Court’s September 8, 2015 Order are stayed until December 21, 2016.
During the stay, the Parties shall not put on evidence of, or otherwise dispute, enforcement costs, and
shall not seek or be required to respond to discovery on enforcement costs. The stay does not alter
Plaintiffs’ right to assert any privilege or any objection that could apply to Sterling's discovery, or
Plaintiffs’ right to seek a protective order barring any depositions they deem objectionable.

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The stipulated schedule for briefing and discovery related to Plaintiffs’ motion for
enforcement costs shall commence when the stay ends on December 21, 2016. Accordingly, if the
enforcement costs portion of these proceedings remains unresolved at that time, Plaintiffs’ deadline
for filing a joint motion for such costs is February 21, 2017. Defendant Sterling’s response, if any,
to that motion must be filed not later than April 21, 2017 and Plaintiffs’ reply is due on May 12,
2017.

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IT IS SO ORDERED.
Dated: October 21, 2016

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-5Stipulation and Order Staying Deadlines for Litigation of Enforcement Costs to Allow for Settlement Discussions; Case
No. 2:08-cv-02556-MCE-JFM