West Coast Home Builders, Inc. v. Clean Bay, Inc. et al

Filing 196

ORDER RE: SEPTEMBER 10, 2009 CASE MANAGEMENT CONFERENCE (SI, COURT STAFF) (Filed on 9/11/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Footnote 3: To the extent plaintiffs can maintain a RCRA claim against TRC/GBF, the claim is limited to the "wedge" of waste. However, it is unclear whether TRC/GBF can be held liable under RCRA for the "wedge" since there is no allegation or evidence that TRC/GBF contributed in any way to the existence of the wedge, and TRC/GBF's only apparent connection to the wedge is in connection with the Markley Creek "blow out"; 1. Footnote 2: The Court agrees with the Garaventa defendants and the City of Pittsburg that their liability regarding plaintiffs' RCRA claim is restricted to the "wedge" of waste located in the southern bank of Markley Creek. v. TRC COMPANIES, INC., et al., Defendants. / SPPI-SOMERSVILLE, INC., et al., Plaintiffs, No. C 04-2648 SI Consolidated with 07-5824 SI ORDER RE: SEPTEMBER 10, 2009 CASE MANAGEMENT CONFERENCE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

AND RELATED CROSS- AND COUNTERCLAIMS / This order memorializes the rulings made at the September 10, 2009 case management conference regarding the disputes over what claims remain in this case. The Court references the footnotes contained in the parties' case management conference statement.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. 3.

that issue can be resolved by separate briefing at the time of trial of the non-jury issues. The Court rejects plaintiffs' assertion made during the case management conference that it can maintain a RCRA claim against TRC/GBF on the ground that waste that was remediated in 2008 poses an imminent and substantial endangerment. Plaintiffs did not argue such a theory in opposition to CCWS's motion for summary judgment on the RCRA claim, to which TRC/GBF joined, and cannot belatedly do so now. See Docket No. 352 (TRC/GBF's joinder); Docket No. 425 at 12-15 (arguing RCRA claim is not moot, and imminent and substantial endangerment remains, because of "wedge" of waste). To the extent plaintiffs wish to seek attorneys' fees and costs under RCRA against TRC/GBF under a "catalyst theory," that question is not before the Court.

Footnotes 4, 7, 10 & 11: The Court agrees with plaintiffs that plaintiffs still have CERCLA claims against TRC/GBF and the Prewetts for surface waste contamination in addition to groundwater contamination; defendants' oppositions to plaintiffs' motion for summary judgment on the CERCLA claims only focused on whether plaintiffs had incurred "response costs" under CERCLA. Relatedly, plaintiffs still have viable federal declaratory relief claims.

Footnote 9: Plaintiffs are correct that their claims for negligence and negligence per se concerning surface contamination north of Markley Creek are still pending.

In addition, the parties and the Court discussed which of the cases should be tried first and/or whether both the SPPI-Somersville and West Coast Home Builders cases should be tried at the same time. The Court previously denied a motion to consolidate the cases (Docket No. 178), noting "numerous" differences between them. Since that time, the narrowing of issues through discovery and

2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the motion process has reduced the significance of the differences between the cases,1 but barring consensus among the parties the Court will not order a joint trial at this time. The more comprehensive case, SPPI-Somersville, will be tried first, with West Coast Home Builders to trail.

IT IS SO ORDERED.

Dated: September 11, 2009

SUSAN ILLSTON United States District Judge

The attorneys involved are the same, there is substantial overlap in the issues presented and the parties involved in both cases, and the same experts will be called to testify on the same or similar issues in both cases. Thus, substantial efficiencies would be created by trying both cases together; see F.R.Civ.P. 42(a). Any prejudice to the Garaventa defendants, who have settled the claims against them in West Coast Home Builders but remain defendants in SPPI-Somersville, could be avoided by appropriate jury instructions 3

1