United States of America v. Sierra Pacific Industries et al

Filing 216

ORDER signed by District Judge Kimberly J. Mueller on 6/14/11 re 215 ORDERING that the third-party complaint shall be DISMISSED in its entirety with prejudice. Caterpillar Inc. shall bear its own attorney's fees and costs to the extent those fees and costs were incurred in defense of this action and are unrelated to its defense of the pending state court lawsuits based on the Moonlight Fire. (Duong, D)

1 SEDGWICK LLP
STEVEN DI SAIA (State Bar No.158119)
2 [e-mail]
FREDERIC GRANNIS (State Bar No.185119)
3 [e-mail]
MATTHEW STEIN (State Bar No.236912)
4 [e-mail]
801 South Figueroa Street, 19th Floor
5 Los Angeles, CA 90017-5556
Telephone:
213.426.6900
6 Facsimile:
213.426.6921
7 Attorneys for Third-Party Defendant
CATERPILLAR INC.
8 (Erroneously sued as Caterpillar, Inc.)
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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12 UNITED STATES OF AMERICA,

Case No. 2:09-CV-02445-KJM (EFB)

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STIPULATION AND ORDER FOR
DISMISSAL OF THIRD-PARTY
COMPLAINTS AGAINST
CATERPILLAR INC.

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Plaintiff,
v.

15 SIERRA PACIFIC INDUSTRIES, et al.,
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Defendants.

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AND RELATED CROSS-ACTIONS.
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Plaintiff the United States of America, Third-Party Defendant Caterpillar Inc., and

21 Defendants Eunice E. Howell, W.M. Beaty and Associates, Inc. and Ann McKeever Hatch, et al.
22 (collectively “Defendants”), by and through their respective counsel of record, recite and
23 stipulate as follows:
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RECITALS
1.

WHEREAS, on May 26, 2010, the United States of America filed its Second

26 Amended Complaint against Defendants, asserting claims for negligence, liability under
27 California Health and Safety Code §§ 13007-13009.1 and Civil Code §§ 3287 and 3288,
28 negligence per se, trespass by fire, negligent supervision, and negligent hiring. The United States
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1 did not sue third party defendant Caterpillar Inc. and did not include any product liability cause
2 of action in its complaint. Instead, the United States of America’s claims are based on the
3 theories asserted in the complaint including, without limitation, that the September 3, 2007
4 Moonlight Fire was ignited by contact between the tracks of a Caterpillar Model 527 Track
5 Skidder, serial number 4NS00150, and rocks in the origin that caused friction, heat, sparks
6 and/or metal fragments.
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2.

WHEREAS, Defendants Eunice E. Howell, W.M. Beaty and Associates, Inc. and

8 Ann McKeever Hatch, et al., have filed third-party complaints against Caterpillar Inc., the
9 manufacturer of the subject track skidder, alleging claims for implied equitable indemnity,
10 contribution, and declaratory relief;
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3.

WHEREAS, the basis for these third-party complaints is the concern by the third-

12 party complainants that the United States of America might allege as a basis for its claims that a
13 defect in the track skidder contributed to the Moonlight Fire’s ignition; and
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4.

WHEREAS, in order to facilitate Caterpillar Inc.’s dismissal as a third-party

15 defendant to this action, all parties wish to clarify that no allegation is being made that the
16 Moonlight Fire was ignited by a defect in the design, manufacture, or warnings of the subject
17 track skidder.
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STIPULATION
WHEREFORE, it is hereby stipulated by and between the parties, by and through their

20 respective counsel of record, that:
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1.

Plaintiff United States of America is not alleging wrongdoing by Caterpillar Inc.

22 and nor is it asserting a claim that a defect in the design, manufacture, or warnings of Caterpillar
23 Model 527 Track Skidder, serial number 4NS00150, contributed to the ignition of the Moonlight
24 Fire;
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2.

The third-party complaint attached hereto as Exhibit “A,” which was filed against

26 Caterpillar Inc. on or about December 23, 2009, by Eunice E. Howell , individually and doing
27 business as Howell’s Forest Harvesting, shall be dismissed in its entirety, with prejudice;
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1

3.

The third-party complaint attached hereto as Exhibit “B”, which was filed against

2 Caterpillar Inc. on or about January 15, 2010, by W.M. Beaty and Associates, Inc. shall be
3 dismissed in its entirety, with prejudice;
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4.

The third-party complaint attached hereto as Exhibit “C”, which was filed against

5 Caterpillar Inc. on January 15, 2010, by Ann McKeever Hatch, as Trustee of the Hatch 1987
6 Revocable Trust, et al., shall be dismissed in its entirety, with prejudice; and
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5.

Caterpillar Inc. shall bear its own attorney’s fees and costs to the extent those fees

8 and costs were incurred in defense of this action and are unrelated to its defense of the pending
9 state court lawsuits based on the Moonlight Fire.
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IT IS SO STIPULATED THROUGH COUNSEL OF RECORD

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12 DATED: June 10, 2011

OFFICE OF THE UNITED STATES ATTORNEY

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By: /s/ Kelli L. Taylor
Kelli L. Taylor
Todd A. Pickles
Attorneys for Plaintiff
UNITED STATES OF AMERICA

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18 DATED: June 10, 2011

MATHENY SEARS LINKERT & JAIME, LLP

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By:/s/ Richard Stone Linkert
Richard Stone Linkert
Attorneys for Defendant
W.M. BEATY AND ASSOCIATES, INC., ANN
MCKEEVER HATCH, AS TRUSTEE OF THE
HATCH 1987 REVOCABLE TRUST, ET AL.

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24 DATED: June 10, 2011

LAW OFFICES OF RUSHFORD & BONOTTO LLP

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DATED: June 10, 2011

By: /s/ Phillip R. Bonotto
Phillip R. Bonotto
Attorneys for Defendant
EUNICE E. HOWELL, INDIVIDUALLY AND DBA
HOWELL’S FOREST HARVESTING
SEDGWICK LLP

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By: /s/ Steven D. Di Saia
Steven D. Di Saia
Frederic F. Grannis
Matthew G. Stein
Attorneys for Third-Party Defendant
CATERPILLAR INC.

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ORDER
IT IS SO ORDERED.

3 Dated: June 14, 2011.
4
UNITED STATES DISTRICT JUDGE

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