Palmtree Acquisition Corporation v. Neely et al

Filing 23

ORDER approving stipulation to reset CMC re 22 filed by Gary Neely. Signed by Judge Edward M. Chen on 9/14/09. (bpf, COURT STAFF) (Filed on 9/14/2009)

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Paul Kozachenko, Esq., SBN: 104601 Selena P. Ontiveros, Esq., SBN: 211790 GONSALVES & KOZACHENKO 1133 Auburn Street Fremont, CA 94538 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Stark Investment Company, a California general partnership

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA PALMTREE ACQUISITION CORPORATION, a Delaware corporation, Plaintiff, vs. MICHAEL R. NEELY, an individual, PERRY J. NEELY, an individual; GARY NEELY, an individual; MICHAEL R. NEELY, PERRY J. NEELY and GARY NEELY dba MIKE`S ONE HOUR CLEANERS; CHARLES FREDERICK HARTZ dba PAUL'S SPARKLE CLEANERS; CHARLES F. HARTZ, an individual; MULTIMATIC CORPORATION, a New Jersey corporation; WESTERN STATES DESIGN, a California corporation; MCCORDUCK PROPERTIES LIVERMORE, LLC, a Delaware limited liability company individually and as the successor to JOHN MCCORMICK, KATHLEEN MCCORDUCK, PAMELA MCCORDUCK, SANDRA MCCORDUCK MARONA, and IMA FINANCIAL CORPORATION, a California corporation; STARK INVESTMENT COMPANY, a California general partnership; GRUBB & ELLIS REALTY INCOME TRUST, LIQUIDATING TRUST, a California trust; and DOES 1-20, inclusive, Defendants. Case No. CV 08 3168 EMC JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED ORDER] OF RESPONDING PARTIES Hon. Edward M. Chen Date: September 16, 2009 Time: 1:30 p.m. Courtroom: C, 15th Floor

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JOINT CASE MANAGEMENT STATEMENT OF RESPONDING PARTIES 2009-09-04 Joint Case Management Statement (4).DOC

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The parties to the above captioned action, with the exception of Grubb & Ellis Realty Income Trust, Liquidating Trust ("Responding Parties"), jointly submit the following Joint Case Management Statement and request that the Court reschedule this matter for a further Case Management Conference in six months to allow the parties to continue mediation efforts and add potential new parties. 1. This action is a "reopener" of a prior action that was conditionally settled. The prior

action was filed on February 3, 1993 in the United States District Court for the Northern District of California and entitled Grubb & Ellis Realty Income Trust, Liquidating Trust v. Catellus Development Corp., et al., and related cross-actions, Case No. C93-0383 SBA ("Prior Action"). The Prior Action concerned the alleged release of dry cleaning solvent perchloroethylene ("PCE") by dry cleaning establishments in two shopping centers in Livermore, California. The California Regional Water Quality Control Board ("RWQCB") had issued an Order to the potentially responsible parties consisting of dry cleaning operators and property owners to remediate the soil and groundwater impacted by PCE contamination from the centers. Following settlement of the Prior Action, certain parties requested, and the RWQCB granted the establishment of a Containment Zone with a Contingency Plan and the RWQCB issued a new order in 1996 to that effect. 2. On March 17, 2008, the RWQCB issued a Directive requiring specified parties (the

"1994 PRPs") to submit a Technical Report to address the contamination outside of the Containment Zone and ordered further investigation work to define the leading edge of the plume. On March 21, 2008, the RWQCB issued another Directive requiring the 1994 PRPs to continue groundwater monitoring and revise the "Contingency Plan." 3. On February 4, 2009, this Court entered a stipulation (Document 17 in the Court's

docket) signed by all parties to the action to continue the Initial Case Management Conference to September 16, 2009 to (1) allow the Responding Parties' joint environmental consultant to complete investigative work and technical analysis and to submit an environmental report to the RWQCB in response to the RWQCB's Directives; and (2) engage in mediation. The order issued by the Court on February 4, 2009 also left in effect all provisions of the parties' Stipulation entered
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by this Court on September 15, 2008 (Document 13 in the Court's docket) not affected by the February 4, 2009 order, including the stay on discovery. 4. The Responding Parties' joint environmental consultant submitted a Draft Interim

Groundwater Investigation Report to the RWQCB on July 20, 2009. It is expected that the Responding Parties' consultant will submit additional data and addenda to the RWQCB within the next month or two to complete the Report. 5. On August 18 and 19, 2009, the Responding Parties attended mediation before

Timothy Gallagher, Esq. Also in attendance was counsel for the Grubb & Ellis Realty Income Trust, Liquidating Trust and three additional entities who may be named in this action. The Responding Parties believe that substantial progress was and is being made in attempting to amicably resolve this matter; however, more work is required by all interested parties. The Responding Parties anticipate participating in further mediation activities over the next 3-6 months, in an effort to resolve this matter. 5. The Responding Parties are continuing to work together jointly through a

coordinating counsel group to supervise the joint environmental consultant. In addition, most of the Responding Parties are working together to pursue a contribution from additional responsible parties who participated in the mediation. The Responding Parties anticipate adding these responsible parties to this action within the next 30-60 days unless the parties agree to a tolling agreement. The Responding Parties' goal is still to resolve this complex environmental case through alternative dispute resolution and they have been working diligently to position the matter for such resolution. In light of the foregoing, the Responding Parties request that the Court schedule a further Case Management Conference in April 2010 and that in all other respects the Stipulation entered by the Court on September 15, 2008 remains in effect. DATED: September 9, 2009 GONSALVES & KOZACHENKO By: /s/ Selena P. Ontiveros Selena P. Ontiveros

Attorneys for Defendant Stark Investment Company, a California general partnership
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JOINT CASE MANAGEMENT STATEMENT OF RESPONDING PARTIES 2009-09-04 Joint Case Management Statement (4).DOC

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DATED: September 9, 2009

The Costa Law Firm By: /s/ Daniel P. Costa Daniel P. Costa

Attorneys for Defendant Stark Investment Company, a California general partnership DATED: September 9, 2009 Cox, Castle & Nicholson, LLP

By:

/s/ Peter M. Morrisette Peter M. Morrisette

Attorneys for Plaintiff Palmtree Acquisition Corporation DATED: September 9, 2009 Wendel, Rosen, Black & Dean, LLP

By:

/s/ Christine K. Noma Christine K. Noma

Attorneys for Defendants Michael R. Neely, Perry J. Neely, and Gary Neely, dba Mike's One Hour Cleaners DATED: September 9, 2009 Dongell Lawrence Finney, LLP By: /s/ Thomas A. Vandenberg Thomas A. Vandenberg

Attorneys for Defendant Multimatic Corporation DATED: September 9, 2009 Rogers Joseph O'Donnell By: /s/ Robert C. Goodman Robert C. Goodman

Attorneys for Defendant Charles Frederick Hartz, dba Paul's Sparkle Cleaners
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DATED: September 9, 2009

Foley Mcintosh Frey & Claytor

By:

/s/ James D. Claytor James D. Claytor

Attorneys for Defendant Western State Design DATED: September 9, 2009 Gordon, Watrous, Ryan, Langley, Bruno & Paltenghi

By:

/s/ Bruce C. Paltenghi Bruce C. Paltenghi

Attorneys for Defendant McCorduck Properties Livermore, LLC ORDER The Case Management Conference scheduled for September 16, 2009 at 1:30 p.m. is April 7 continued to _______________, 2010 at 1:30 p.m. The Stipulation and Order entered by the Court on September 15, 2008 remains in effect, including the stay on discovery. September 14, 2009 Dated: ______________________

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D _________S ______R_____________ _ ICT TE _ C EdwarA M. Chen Td Magistrate Judge of the United States District Court ED

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