California Sportfishing Protecting Alliance v. Forever Resorts, LLC et al.

Filing 44

ORDER signed by District Judge Morrison C. England, Jr., on 10/30/17, ORDERING that the Court REJECTS the parties' 43 Stipulation to Dismiss Plaintiff's Claims With Prejudice. Plaintiff may file a third motion to approve the pending settlement agreement (or any further revised agreement) for the Court's consideration. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTING ALLIANCE,
Plaintiff,

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v.

No. 2:16-cv-01595-MCE-EFB

ORDER

FOREVER RESORTS, LLC; LAKE
OROVILLE MARINA, LLC; REX
MAUGHAN; and BILL HARPER,
Defendants.

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Presently before the Court is the parties’ Stipulation to Dismiss Plaintiff’s Claims

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With Prejudice and Proposed Order Granting Dismissal With Prejudice under Federal

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Rule of Civil Procedure 41(a)(2). ECF No. 43. Dismissal under Rule 41(a)(2) requires a

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court order. For the reasons set forth below, the parties’ request is DENIED.

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Plaintiff filed its original Complaint on July 12, 2016, asserting violations of

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33 U.S.C. §§ 1311 and 1342. ECF No. 1. Thereafter, on August 5, 2016, Plaintiff filed a

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First Amended Complaint (“FAC”) adding a claim for violations of California Health &

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Safety Code § 25249.5. ECF No. 5. The FAC was the operative complaint in this matter

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from August 2016 until—as discussed further below—Plaintiff filed a Second Amended

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Complaint on July 28, 2017. ECF No. 39.
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On December 2, 2016, Plaintiff filed a Notice of Settlement with the Court. ECF

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No. 9. As acknowledged in that notice, California’s Safe Drinking Water and Toxic

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Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.5–.13, otherwise known

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as Proposition 65, requires parties to submit settlements between private parties to the

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court for approval. Cal. Health & Safety Code § 25249.7(f)(4). Pursuant to that

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requirement, Plaintiff filed a Motion to Approve Proposition 65 Settlement on

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December 6, 2016. ECF No. 10. The Court denied that motion in a memorandum and

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order electronically filed on February 10, 2017, finding that the attorney’s fees sought in

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the settlement were unreasonably high. ECF No. 20.

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The parties thereafter reached a revised settlement and Plaintiff filed a Second

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Motion to Approve Proposition 65 Settlement on April 17, 2017. ECF No. 25. The Court

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denied that motion in a second memorandum and order electronically filed on June 5,

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2017. ECF No. 35. There, the Court found that while Plaintiff’s counsel claimed to have

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reduced his rate, he increased his hours and sought the same total award of attorney’s

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fees. Understandably, the Court rejected this proposal.

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Less than two months later, the parties filed a stipulation to amend the FAC along

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with Plaintiff’s Second Amended Complaint (“SAC”), ECF Nos. 38-39, and—on the same

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day—a Notice of Settlement, ECF No. 40. Plaintiff’s SAC is substantially similar to the

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FAC, but removes the fifth claim for relief brought under Proposition 65, and deletes all

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references to Proposition 65 throughout the complaint. The proposed settlement

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likewise removes the Proposition 65 civil penalties. As such, the parties’ proposed

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settlement of the matter—a matter which no longer arises under Proposition 65—

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theoretically no longer requires court approval to the same extent as a Proposition 65

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settlement.

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Even so, the Clean Water Act itself contemplates some level of review of consent

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judgments such as this one, whether captioned as private settlements or as consent

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decrees.1 Further, as indicated in the September 20, 2017, letter filed by the United

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States Department of Justice (ECF No. 42), in an action such as this between private

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parties intended to vindicate public interests, court review is especially appropriate.

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Moreover, in this matter, if the Court were more cynical, it might interpret the

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parties’ sudden agreement to amend the FAC to remove the Proposition 65 claim as an

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attempt to avoid judicial oversight. Indeed, the factual background of the case that gave

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rise to the Proposition 65 claim has not changed. It therefore appears to the Court that,

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at the very least, the parties determined it would just be easier or more efficient to simply

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amend the complaint, drop the Proposition 65 claim, and file a notice of settlement and

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stipulation for dismissal, rather than to entertain the Court’s demand for a renewed

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motion with a revised attorneys’ fees request.2

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Accordingly, the Court REJECTS the parties’ Stipulation to Dismiss Plaintiff’s

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Claims With Prejudice and Proposed Order Granting Dismissal With Prejudice under

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Federal Rule of Civil Procedure 41(a)(2). ECF No. 43. Plaintiff may file a third motion to

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approve the pending settlement agreement (or any further revised agreement) for the

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Court’s consideration.

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IT IS SO ORDERED.
Dated: October 30, 2017

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As the parties acknowledge in their notice of settlement, the proposed settlement is still subject
to agency review under the Clean Water Act.
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The Court notes that the proposed settlement purports to reduce the total award for
“investigative, expert, consultant, and attorneys’ fees and costs” from $67,500 (which amount the Court
twice rejected) to $47,500 (which reduced request the Court would be likely to approve). However,
because Plaintiff has not filed a motion to approve the settlement, the Court has no way of knowing how
that figure was reached.

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