Rio Linda Elverta Community Water District v. USA, et al.,

Filing 43

STIPULATION AND ORDER TO STAY Plaintiff's counts against the United States of America and Scheduling order for Defendant United States of America signed by District Judge Kimberly J. Mueller on 9/25/17. (Mena-Sanchez, L)

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1 MICHAEL L. WILLIAMS (D.C. Bar 471618) Trial Attorney 2 3 BETHANY J. HENNEMAN (MD Atty # 1512150313) Trial Attorney 4 5 6 7 8 9 10 11 12 13 14 15 U.S. Department of Justice Civil Division, Environmental Tort Litigation Section P.O. Box 340, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-3839 Facsimile: (202) 616-4473 THOMAS J. ALFORD (MN Bar No. 0388221) Trial Attorney U.S. Department of Justice Environmental and Natural Resources Division, Environmental Defense Section Washington, D.C. 20044 Telephone: (202) 514-0165 Facsimile No.: 202-514-8865 Attorneys for United States of America 16 UNITED STATES DISTRICT COURT 17 EASTERN DISTRICT OF CALIFORNIA 18 19 20 RIO LINDA ELVERTA COMMUNITY WATER DISTRICT, Plaintiff, 21 22 23 24 25 26 27 28 No. 2:17-cv-01349 KJM GGH v. THE UNITED STATES OF AMERICA, ELEMENTIS CHROMIUM INCORPORATED, OCCIDENTAL CHEMICAL STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -1 1 2 3 4 5 CORPORATION, HONEYWELL INCORPORATED, BASF CORPORATION, PPG INCORPORATED, E.I. DU PONT DE NEMOURS AND COMPANY, UNIVAR INCORPORATED, LUXFER HOLDINGS PLC, SIGMAALDRICH CORPORATION, and DOW CHEMICAL COMPANY, 6 Defendants. 7 __________________________________ 8 SACRAMENTO SUBURBAN WATER DISTRICT, 9 Plaintiff, 10 11 12 13 14 15 16 17 v. ELEMENTIS CHROMIUM INCORPORATED, OCCIDENTAL CHEMICAL CORPORATION, HONEYWELL INCORPORATED, BASF CORPORATION, PPG INCORPORATED, E.I. DU PONT DE NEMOURS AND COMPANY, UNIVAR INCORPORATED, LUXFER HOLDINGS PLC, SIGMAALDRICH CORPORATION, DOW CHEMICAL COMPANY, and THE UNITED STATES OF AMERICA, 18 19 20 No. 2:17-cv-01353 KJM GGH Defendants. STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND PROPOSED SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA 21 22 23 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES AND PROPOSED SCHEDULING ORDER FOR DEFENDANT UNITED STATES 24 25 26 27 28 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -2 1 2 Plaintiffs, Rio Linda Elverta Community Water District and Sacramento Suburban Water District, and Defendant, United States of America, in the above-captioned related matters, through their undersigned counsel hereby stipulate and agree to the following: 3 4 5 A. PLAINTIFFS’ FIRST-FILED SUITS IN THE UNITED STATES COURT OF FEDERAL CLAIMS 1. Plaintiffs, Rio Linda Elverta Community Water District and Sacramento Suburban 6 Water District, filed actions against the United States of America and the United 7 States Department of the Air Force in the United States Court of Federal Claims on 8 June 23, 2017. The Court of Federal Claims case numbers are: Rio Linda Elverta 9 Community Water District vs. The United States of America, et al., Case No. 1:17-cv- 10 11 12 00859-VJW; and Sacramento Suburban Water District vs. The United States of America, et al., Case No. 1:17-cv-00860-RHH. 2. Plaintiffs subsequently filed lawsuits in the Eastern District of California against the United States, Rio Linda Community Water District v. United States, et al., Case No. 13 14 2:17-cv-01349-WBS-GGH on June 30, 2017 and Sacramento Suburban Water District v. Elementis Chromium Inc., et al., Case No. 2:17-cv-01353-TLN-AC on July 15 12, 2017. Service on the United States has been effectuated pursuant to Federal Rule 16 of Civil Procedure 4. The default deadline for the United States to answer or 17 otherwise plead for the two District Court lawsuits is September 25, 2017. 18 3. Counsel for the United States in the above-captioned actions and separate Counsel for 19 the United States in the parallel actions in the Court of Federal Claims met and 20 conferred with Plaintiffs’ counsel on September 14 and 20, 2017, concerning the 21 22 overlapping issues in each case, means of litigating the matters efficiently without duplicating issues or needlessly burdening judicial resources. Counsel discussed the application of 28 U.S.C. section 1500 and the Supreme Court’s most recent 23 24 interpretation of that section in U.S. v. Tohono O’Odham Nation, 563 U.S. 307 (2011), as it related to parallel actions pending in the Court of Federal Claims and in 25 26 27 28 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -3 1 2 District Court. See, e.g. Tecon Engineers, Inc. v. U.S., 170 Ct.Cl. 389, 343 F.2d 943 (1965) , cert. denied 382 U.S. 976 (announcing rule); Hardwick Bros. Co. II v. U.S., 72 F.3d 883 (Fed.Cir. 1995) (confirming Tecon after Federal Circuit and Supreme 3 4 Court review of the order of filing rule); Brandt v. U.S., 710 F.3d 1369 (Fed.Cir. 2013) (interpreting Tecon’s order of filing rule in context of post-judgment period 5 before opportunity to appeal has expired). Counsel also discussed Ninth Circuit 6 authority related to the first-to-file rule and federal comity. Alltrade v. Uniweld 7 Prods., Inc., 946 F.2d 622, 625 (9th Cir. 1991); Pacific Coast Breaker, Inc. v. 8 Connecticut Elec., Inc., Civ. No. 10-3134 KJM EFB, 2011 WL 2073796 (E.D. Cal. 9 May 24, 2011). 10 11 12 4. Though Plaintiffs characterize their claims for relief as non-duplicative, Plaintiffs and Defendant, United States, have agreed that the United States Court of Federal Claims cases against the United States and Eastern District of California counts against the United States raise common core issues and should not proceed concurrently. 13 14 5. Plaintiffs proposed a joint stipulation to stay the Court of Federal Claims cases in favor of the District Court action for, among other reasons, the non-Government 15 defendants would not have an opportunity to participate in the Court of Federal 16 Claims proceedings and to avoid multiple proceedings on common issues 17 recommending that the District Court action proceed first. The Government declined 18 to stipulate. As such, Plaintiffs intend to file a motion to stay the Court of Federal 19 Claims cases. 20 21 22 6. The United States has not agreed to join a request from Plaintiffs to stay the Court of Federal Claims cases. 7. The Court of Federal Claims has not yet received or ruled upon a request to stay the Court of Federal Claims cases. 23 24 25 26 27 28 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -4 1 B. CASE MANAGEMENT DEADLINES FOR DEFENDANT UNITED STATES IN THE EASTERN DISTRICT OF CALIFORNIA 2 3 4 5 6 1. Plaintiffs and Defendant, United States, have agreed that Plaintiffs’ counts against the United States in the Eastern District of California should be stayed at least for the period of time that may be required for Plaintiffs to obtain a ruling from the United States Court of Federal Claims on Plaintiffs’ anticipated motions to stay Plaintiffs’ concurrently pending United States Court of Federal Claims cases. 7 2. Plaintiffs and Defendant, United States, have agreed that if the United States Court of 8 Federal Claims enters orders staying the United States Court of Federal Claims cases 9 against the United States and the United States Air Force, then Plaintiffs’ cases 10 11 12 13 14 15 against the United States in the Eastern District of California should proceed. 3. Plaintiffs and Defendant, United States, have agreed upon and request that this Court order the following schedule: a. Plaintiffs’ counts against the United States in the Eastern District of California are stayed at least for the period of time that may be required for Plaintiffs to obtain a ruling from the United States Court of Federal Claims on Plaintiffs’ anticipated motions to stay Plaintiffs’ concurrently pending United States Court of Federal Claims cases. 16 17 18 19 b. If the United States Court of Federal Claims enters orders staying or dismissing Plaintiffs’ United States Court of Federal Claims lawsuits against the United States and the United States Department of Air Force, then Plaintiffs’ counsel will file a notice with the Eastern District of California of the orders. 20 21 22 c. If the United States Court of Federal Claims enters orders staying Plaintiffs’ United States Court of Federal Claims lawsuits against the United States and the United States Department of Air Force, then the following filing deadlines will apply to Plaintiffs’ counts against the United States: 23 24 i. Defendant, United States, will plead to or otherwise file a responsive pleading to any counts alleged against it in the District Court cases 25 26 27 28 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -5 within 60 days of Plaintiffs’ notification that its United States Court of Federal Claims cases have been stayed. 1 2 3 4 5 6 ii. Plaintiffs will respond to any pleading motion by 28 days thereafter. iii. Defendant, United States, will file a reply brief in support of any pleading motion within 14 days thereafter. 4. So stipulated. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -6 1 Pursuant to Local Rule 131(e), the undersigned Plaintiffs’ counsel in the above-captioned 2 related matters has authorized counsel for the United States, Michael L. Williams, to sign and 3 submit this STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED 4 STATES OF AMERICA AND PROPOSED ORDER FOR DEFENDANT UNITED STATES 5 OF AMERICA on his behalf. 6 7 Dated: September 21, 2017 8 9 10 11 12 13 14 /s/ Michael L. Williams MICHAEL L. WILLIAMS (D.C. Bar 471618) Trial Attorney U.S. Department of Justice Civil Division, Environmental Tort Litigation P.O. Box 340, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-3839 Facsimile: (202) 616-4473 Email: Michael.L.Williams@usdoj.gov Attorney for the UNITED STATES OF AMERICA 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: September 21, 2017 /s/ Matthew K. Edling As authorized on September 21, 2017 Matthew K. Edling SHER EDLING LLP 100 Montgomery St., Ste. 1410 San Francisco CA 94104 Telephone: (628) 231-2500 Facsimile: (628) 231-2929 Email:Matt@sheredling.com Attorney for Plaintiffs, RIO LINDA ELVERTA COMMUNITY WATER DISTRICT and SACRAMENTO SUBURBAN WATER DISTRICT STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -7 1 2 3 4 5 6 7 8 ORDER Pursuant to the above stipulation, and good cause appearing, the court orders the following: Plaintiffs’ counts against the United States in the Eastern District of California are stayed at least for the period of time that may be required for Plaintiffs to obtain a ruling from the United States Court of Federal Claims on Plaintiffs’ anticipated motions to stay Plaintiffs’ concurrently pending United States Court of Federal Claims cases. If the United States Court of Federal Claims enters orders staying or dismissing 9 Plaintiffs’ United States Court of Federal Claims lawsuits against the United States and the 10 11 12 13 14 United States Department of Air Force, then Plaintiffs’ counsel will file a notice with the Eastern District of California of the orders within 48 hours, or 72 hours if the orders are issued on a Friday. If the United States Court of Federal Claims enters orders staying Plaintiffs’ United 15 States Court of Federal Claims lawsuits against the United States and the United States 16 Department of Air Force, then the following filing deadlines will apply to Plaintiffs’ counts 17 against the United States: 18 1) Defendant, United States, will plead to or otherwise file a responsive pleading 19 to any counts alleged against it in the District Court cases within 60 days of Plaintiffs’ 20 notification that its United States Court of Federal Claims cases have been stayed. 21 2) Plaintiffs will respond to any pleading motion by 28 days thereafter. 22 3) Defendant, United States, will file a reply brief in support of any pleading 23 motion within 14 days thereafter. 24 25 26 27 28 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -8 1 2 IT IS SO ORDERED. Date: September 25, 2017. 3 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION TO STAY PLAINTIFFS’ COUNTS AGAINST THE UNITED STATES OF AMERICA AND SCHEDULING ORDER FOR DEFENDANT UNITED STATES OF AMERICA -9

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