Sacramento Suburban Water District v. Elementis Chromium Inc. et al

Filing 77

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 4/10/2018 ORDERING that the Court will treat Non-Government Defendants' #27 , #45 Rule 12(b)(6) motions to dismiss as if filed in response to Plaintiff's SAC. The schedule for subsequent briefing, including Plaintiff's opposition to Non-Government Defendant's motions to dismiss and Non-Government Defendants' replies, will be determined pursuant to the #73 Stipulation to Stay Actions and File Amended Complaint, filed on 3/20/2018, once the further stay has been lifted. (Zignago, K.)

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GENNARO A. FILICE III (State Bar No. 061112)
[e-mail]
NICHOLAS D. KAYHAN (State Bar No. 129878)
[e-mail]
AMBER M. TRINCADO (State Bar No. 260186)
[e-mail]
MEGAN R. NISHIKAWA (State Bar No. 271670)
[e-mail]
BAILEY J. LANGNER (State Bar No. 307753)
[e-mail]
KING & SPALDING LLP
101 Second Street, Suite 2300
San Francisco, CA 94105
Telephone: [phone]
Facsimile:
415-318-1300
Attorneys for Defendant
BASF CORPORATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO SUBURBAN WATER
DISTRICT,

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Plaintiff,
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v.
ELEMENTIS CHROMIUM
INCORPORATED, ET AL.,

Case No. 2:17-cv-01353 KJM GGH
STIPULATION TO TREAT NONGOVERNMENT DEFENDANTS’ RULE
12(b)(6) MOTIONS TO DISMISS AS
APPLICABLE TO PLAINTIFF’S
SECOND AMENDED COMPLAINT; AND
ORDER

Defendants.

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STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS
AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER

Plaintiff Sacramento Suburban Water District (“Sacramento Suburban” or “Plaintiff”)

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and Defendants Elementis Chromium Incorporated, Occidental Chemical Corporation,

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Honeywell International, Inc., BASF Corporation, PPG Industries, Inc. sued as PPG

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Incorporated, E.I. Du Pont de Nemours and Company, Univar Inc., Univar USA, Inc., Luxfer

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Holdings PLC, Sigma-Aldrich Corporation, and The Dow Chemical Company (together the

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“Non-Government Defendants”), in the above-captioned matter, through their undersigned

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counsel, hereby stipulate and agree to the following:

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I.

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Recitals
1.

Whereas Plaintiff Sacramento Suburban filed its First Amended Complaint

10 (“FAC”) in the above-captioned matter on July 12, 2017 (see Dkt. No. 4).
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2.

Whereas the Non-Government Defendants filed a Rule 12(b)(6) Motion to

12 Dismiss the Nuisance, Trespass, and Utility Tampering Causes of Action in Plaintiff’s FAC on
13 September 18, 2017 (see Dkt. No. 27).
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3.

Whereas Defendants Honeywell International Inc. and Univar USA Inc. filed a

15 Rule 12(b)(6) Motion to Dismiss Plaintiff’s FAC for failure to state a claim on September 25,
16 2017 (see Dkt. No. 45).
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4.

Whereas Plaintiff subsequently filed its Second Amended Complaint (“SAC”) on

18 March 20, 2018 after obtaining the consent of all defendants (see Dkt. No. 74; see also Dkt. No.
19 73, Stipulation and Proposed Order for Staying Actions and to File Amended Complaint by
20 Sacramento Suburban Water District).
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5.

Whereas Plaintiff’s SAC as to the Non-Government Defendants is identical to

22 Plaintiff’s FAC. Plaintiff did not include any additional causes of action against the Non23 Government Defendants in its SAC, nor did Plaintiff modify or amend any of its causes of action
24 previously asserted in its FAC.
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6.

Whereas Defendants’ deadline to respond to Plaintiff’s SAC is April 3, 2018. See

26 Fed. R. Civ. P. 15(a)(3).
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7.

Whereas this Court may, in its discretion, treat Non-Government Defendants’

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STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS
AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER

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motions to dismiss as to Plaintiff’s FAC (Dkt. Nos. 27 and 45) as if they were filed in response

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to Plaintiff’s SAC. See DeFrees v. Kirkland, No. CV 11-4272 GAF (SPX), 2012 WL 12885114,

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at *13 (C.D. Cal. July 20, 2012), aff'd in part, remanded in part, 579 F. App'x 538 (9th Cir.

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2014) (“[D]efendants should not be required to file a new motion to dismiss simply because an

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amended pleading was introduced while their motion was pending. If some of the defects raised

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in the original motion remain in the new pleading, the court simply may consider the motion as

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being addressed to the amended pleading.”).
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Whereas Plaintiff and the Non-Government Defendants agree that there are no

differences between Plaintiff’s FAC and SAC as they relate to the Non-Government Defendants.
9.

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Whereas Plaintiff and the Non-Government Defendants agree it is permissible and

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appropriate for the Court to treat Non-Government Defendants’ motions to dismiss as if they

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were filed in response to Plaintiff’s SAC.

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II.

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[Proposed] Order Treating Non-Government Defendants’ Rule 12(b)(6) Motions to
Dismiss as Applicable to Plaintiff’s Second Amended Complaint
1.

The Court will treat Non-Government Defendants’ Rule 12(b)(6) motions to

dismiss (Dkt. Nos. 27 and 45) as if filed in response to Plaintiff’s SAC.
2.

The schedule for subsequent briefing, including Plaintiff’s opposition to Non-

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Government Defendant’s motions to dismiss and Non-Government Defendants’ replies, will be

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determined pursuant to the Stipulation to Stay Actions and File Amended Complaint, filed on

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March 20, 2018, once the further stay has been lifted (see Dkt. No. 73, at 5).

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3.

Alternatively, if the Court declines to enter the Stipulation to Stay Actions and

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File Amended Complaint, the briefing schedule will be governed by the October 16, 2017

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Stipulation and Order to Stay Actions setting forth a briefing schedule. (Dkt. No. 55 at 4).

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Pursuant to that Stipulation and Order, the following dates apply:

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a.

12 motions is due April 30, 2018.

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Plaintiff’s opposition to the Non-Government Defendants’ pending Rule

b.

Non-Government Defendants’ replies to Plaintiff’s opposition is due May

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STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS
AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER

14, 2018.

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c.

Non-Government Defendants’ pending Rule 12 motions will be heard on

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June 1, 2018, pursuant to the Court’s February 13, 2018 Minute Order

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(Dkt. No. 68).

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Pursuant to Local Rule 131(e), all undersigned counsel have authorized BASF

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Corporation’s counsel, Amber M. Trincado, to sign and submit this Stipulation on their behalf.

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Dated: April 3, 2018

SHER EDLING, LLP

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By:

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/s/Timothy R. Sloane
(as authorized on 4/3/18)
Timothy R. Sloane

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Attorneys for Plaintiff
SACRAMENTO SUBURBAN WATER DISTRICT

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Dated: April 3, 2018

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KING & SPALDING LLP

By:

/s/Amber M. Trincado
Amber M. Trincado

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Attorneys for Defendant
BASF CORPORATION

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Dated: April 3, 2018

BARG COFFIN LEWIS & TRAPP, LLP

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By:

/s/John F. Barg
(as authorized on 3/29/18)
John F. Barg

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Attorneys for Defendant
OCCIDENTAL CHEMICAL CORPORATION

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STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS
AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER

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Dated: April 3, 2018

MORGAN, LEWIS & BOCKIUS, LLP

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By:

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/s/Ellie F. Chapman
(as authorized on 4/2/18)
Ellie F. Chapman

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Attorneys for Defendant
ELEMENTIS CHROMIUM INCORPORATED

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Dated: April 3, 2018

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ARNOLD PORTER KAYE SCHOLER LLP

By:

/s/Stephanie B. Weirick
(as authorized on 3/30/18)
Stephanie B. Weirick

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Attorneys for Defendant
HONEYWELL INTERNATIONAL INC.

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Dated: April 3, 2018

BEVERIDGE & DIAMOND, P.C.

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By:

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/s/Gary J. Smith
(as authorized on 3/29/18)
Gary J. Smith

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Attorneys for Defendant
PPG INDUSTRIES, INC., sued as PPG
INCORPORATED

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Dated: April 3, 2018

GLYNN & FINLEY, LLP

By:

/s/Andrew T. Mortl
(as authorized on 3/29/18)
Andrew T. Mortl

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Attorneys for Defendant
E.I. DU PONT DE NEMOURS AND COMPANY

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STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS
AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER

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Dated: April 3, 2018

ARCHER & GREINER P.C.

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By:

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/s/Carlos M. Bollar
(as authorized on 4/3/18)
Carlos M. Bollar

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Attorneys for Defendant
LUXFER HOLDINGS PLC

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Dated: April 3, 2018

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ALEXANDER & ASSOCIATES PC

By:

/s/Alisyn J. Palla
(as authorized on 4/3/18)
Alisyn J. Palla

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Attorneys for Defendant
UNIVAR USA INC. and UNIVAR INC.

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Dated: April 3, 2018

STEPTOE & JOHNSON, LLP

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By:

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/s/Jay E. Smith
(as authorized on 4/2/18)
Jay E. Smith

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Attorneys for Defendant
SIGMA-ALDRICH CORPORATION

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Dated: April 3, 2018

MITCHELL CHADWICK, LLP

By:

/s/Clifton McFarland
(as authorized on 3/30/18)
Clifton McFarland

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Attorneys for Defendant
THE DOW CHEMICAL COMPANY

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STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS
AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER

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The court adopts the parties’ stipulation and orders as follows:

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1.

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The Court will treat Non-Government Defendants’ Rule 12(b)(6) motions to

dismiss (Dkt. Nos. 27 and 45) as if filed in response to Plaintiff’s SAC.
2.

The schedule for subsequent briefing, including Plaintiff’s opposition to Non-

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Government Defendant’s motions to dismiss and Non-Government Defendants’ replies, will be

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determined pursuant to the Stipulation to Stay Actions and File Amended Complaint, filed on

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March 20, 2018, once the further stay has been lifted (see Dkt. No. 73, at 5).

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IT IS SO ORDERED.
DATED: April 10, 2018

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UNITED STATES DISTRICT JUDGE

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STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS
AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER