Sacramento Suburban Water District v. Elementis Chromium Incorporated 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 sch edule 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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1 2 3 4 5 6 7 8 9 10 11 GENNARO A. FILICE III (State Bar No. 061112) gfilice@kslaw.com NICHOLAS D. KAYHAN (State Bar No. 129878) nkayhan@kslaw.com AMBER M. TRINCADO (State Bar No. 260186) atrincado@kslaw.com MEGAN R. NISHIKAWA (State Bar No. 271670) mnishikawa@kslaw.com BAILEY J. LANGNER (State Bar No. 307753) blangner@kslaw.com KING & SPALDING LLP 101 Second Street, Suite 2300 San Francisco, CA 94105 Telephone: 415-318-1200 Facsimile: 415-318-1300 Attorneys for Defendant BASF CORPORATION 12 UNITED STATES DISTRICT COURT 13 EASTERN DISTRICT OF CALIFORNIA 14 15 SACRAMENTO SUBURBAN WATER DISTRICT, 16 Plaintiff, 17 18 19 20 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. 21 22 23 24 25 26 27 28 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”) 1 2 and Defendants Elementis Chromium Incorporated, Occidental Chemical Corporation, 3 Honeywell International, Inc., BASF Corporation, PPG Industries, Inc. sued as PPG 4 Incorporated, E.I. Du Pont de Nemours and Company, Univar Inc., Univar USA, Inc., Luxfer 5 Holdings PLC, Sigma-Aldrich Corporation, and The Dow Chemical Company (together the 6 “Non-Government Defendants”), in the above-captioned matter, through their undersigned 7 counsel, hereby stipulate and agree to the following: 8 I. 9 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). 11 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). 14 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). 17 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). 21 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. 25 6. Whereas Defendants’ deadline to respond to Plaintiff’s SAC is April 3, 2018. See 26 Fed. R. Civ. P. 15(a)(3). 27 7. Whereas this Court may, in its discretion, treat Non-Government Defendants’ 28 2 STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER 1 motions to dismiss as to Plaintiff’s FAC (Dkt. Nos. 27 and 45) as if they were filed in response 2 to Plaintiff’s SAC. See DeFrees v. Kirkland, No. CV 11-4272 GAF (SPX), 2012 WL 12885114, 3 at *13 (C.D. Cal. July 20, 2012), aff'd in part, remanded in part, 579 F. App'x 538 (9th Cir. 4 2014) (“[D]efendants should not be required to file a new motion to dismiss simply because an 5 amended pleading was introduced while their motion was pending. If some of the defects raised 6 in the original motion remain in the new pleading, the court simply may consider the motion as 7 being addressed to the amended pleading.”). 8. 8 9 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. 10 Whereas Plaintiff and the Non-Government Defendants agree it is permissible and 11 appropriate for the Court to treat Non-Government Defendants’ motions to dismiss as if they 12 were filed in response to Plaintiff’s SAC. 13 II. 14 15 16 17 [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- 18 Government Defendant’s motions to dismiss and Non-Government Defendants’ replies, will be 19 determined pursuant to the Stipulation to Stay Actions and File Amended Complaint, filed on 20 March 20, 2018, once the further stay has been lifted (see Dkt. No. 73, at 5). 21 3. Alternatively, if the Court declines to enter the Stipulation to Stay Actions and 22 File Amended Complaint, the briefing schedule will be governed by the October 16, 2017 23 Stipulation and Order to Stay Actions setting forth a briefing schedule. (Dkt. No. 55 at 4). 24 Pursuant to that Stipulation and Order, the following dates apply: 25 a. 12 motions is due April 30, 2018. 26 27 Plaintiff’s opposition to the Non-Government Defendants’ pending Rule b. Non-Government Defendants’ replies to Plaintiff’s opposition is due May 28 3 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. 1 2 c. Non-Government Defendants’ pending Rule 12 motions will be heard on 3 June 1, 2018, pursuant to the Court’s February 13, 2018 Minute Order 4 (Dkt. No. 68). 5 Pursuant to Local Rule 131(e), all undersigned counsel have authorized BASF 6 Corporation’s counsel, Amber M. Trincado, to sign and submit this Stipulation on their behalf. 7 8 Dated: April 3, 2018 SHER EDLING, LLP 9 By: 10 /s/Timothy R. Sloane (as authorized on 4/3/18) Timothy R. Sloane 11 12 Attorneys for Plaintiff SACRAMENTO SUBURBAN WATER DISTRICT 13 14 15 Dated: April 3, 2018 16 KING & SPALDING LLP By: /s/Amber M. Trincado Amber M. Trincado 17 Attorneys for Defendant BASF CORPORATION 18 19 20 Dated: April 3, 2018 BARG COFFIN LEWIS & TRAPP, LLP 21 22 By: /s/John F. Barg (as authorized on 3/29/18) John F. Barg 23 24 25 Attorneys for Defendant OCCIDENTAL CHEMICAL CORPORATION 26 27 28 4 STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER 1 Dated: April 3, 2018 MORGAN, LEWIS & BOCKIUS, LLP 2 By: 3 /s/Ellie F. Chapman (as authorized on 4/2/18) Ellie F. Chapman 4 5 Attorneys for Defendant ELEMENTIS CHROMIUM INCORPORATED 6 7 8 Dated: April 3, 2018 9 ARNOLD PORTER KAYE SCHOLER LLP By: /s/Stephanie B. Weirick (as authorized on 3/30/18) Stephanie B. Weirick 10 11 Attorneys for Defendant HONEYWELL INTERNATIONAL INC. 12 13 14 Dated: April 3, 2018 BEVERIDGE & DIAMOND, P.C. 15 By: 16 /s/Gary J. Smith (as authorized on 3/29/18) Gary J. Smith 17 18 Attorneys for Defendant PPG INDUSTRIES, INC., sued as PPG INCORPORATED 19 20 21 22 23 Dated: April 3, 2018 GLYNN & FINLEY, LLP By: /s/Andrew T. Mortl (as authorized on 3/29/18) Andrew T. Mortl 24 25 26 Attorneys for Defendant E.I. DU PONT DE NEMOURS AND COMPANY 27 28 5 STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER 1 Dated: April 3, 2018 ARCHER & GREINER P.C. 2 By: 3 /s/Carlos M. Bollar (as authorized on 4/3/18) Carlos M. Bollar 4 5 Attorneys for Defendant LUXFER HOLDINGS PLC 6 7 8 Dated: April 3, 2018 9 ALEXANDER & ASSOCIATES PC By: /s/Alisyn J. Palla (as authorized on 4/3/18) Alisyn J. Palla 10 11 Attorneys for Defendant UNIVAR USA INC. and UNIVAR INC. 12 13 14 Dated: April 3, 2018 STEPTOE & JOHNSON, LLP 15 By: 16 /s/Jay E. Smith (as authorized on 4/2/18) Jay E. Smith 17 18 Attorneys for Defendant SIGMA-ALDRICH CORPORATION 19 20 21 22 Dated: April 3, 2018 MITCHELL CHADWICK, LLP By: /s/Clifton McFarland (as authorized on 3/30/18) Clifton McFarland 23 24 25 Attorneys for Defendant THE DOW CHEMICAL COMPANY 26 27 28 6 STIPULATION TO TREAT NON-GOVERNMENT DEFENDANTS’ RULE 12(b)(6) MOTIONS TO DISMISS AS APPLICABLE TO PLAINTIFF’S SECOND AMENDED COMPLAINT; AND ORDER 1 The court adopts the parties’ stipulation and orders as follows: 2 1. 3 4 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- 5 Government Defendant’s motions to dismiss and Non-Government Defendants’ replies, will be 6 determined pursuant to the Stipulation to Stay Actions and File Amended Complaint, filed on 7 March 20, 2018, once the further stay has been lifted (see Dkt. No. 73, at 5). 8 9 IT IS SO ORDERED. DATED: April 10, 2018 10 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 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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