KFD Enterprises Inc v. City of Eureka

Filing 213

STIPULATION AND ORDER FOR FILING AMENDED THIRD-PARTY COMPLAINT BY DEFENDANT CITY OF EUREKA AS TO THIRD PARTY DEFENDANT ENVIRONMENTAL RESOLUTIONS, INC. Signed by Judge Maxine M. Chesney on March 24, 2010. (mmclc2, COURT STAFF) (Filed on 3/24/2010)

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MORIS DAVIDOVITZ, ESQ. (State Bar #70581) CHARLES BOLCOM, ESQ. (State Bar #193762)

DAVIDOVITZ & BENNETT LLP
One Embarcadero Center, Suite 750 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone]

Attorneys for Defendant and Third-Party Plaintiff CITY OF EUREKA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

KFD ENTERPRISES, INC., a California Corporation dba Norman's Dry Cleaner,

) ) ) Plaintiff, ) ) v. ) ) CITY OF EUREKA, ) ) Defendant. ) ) _____________________________________ ) ) CITY OF EUREKA, ) ) ) Counter-Claimant and Third-Party Plaintiff ) ) vs. ) ) KFD ENTERPRISES, INC., a California ) Corporation dba Norman's Dry Cleaner, ) Unocal Corporation, ) ) Cross-Defendant and Third Party ) Defendant ) _____________________________________ )

CASE NO. CV-08-4571 MMC STIPULATION AND PROPOSED ORDER FOR FILING AMENDED THIRD-PARTY COMPLAINT BY DEFENDANT CITY OF EUREKA AS TO THIRD PARTY DEFENDANT ENVIRONMENTAL RESOLUTIONS, INC. [CIVIL C.R. 7-12]

Third-Party Defendant, Counter-Claimant and Cross-Defendant Environmental Resolutions, Inc. and Defendant, Third Party Plaintiff, and Counter Defendant City of Eureka hereby stipulate as follows:

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STIPULATION AND PROPOSED ORDER FOR FILING AMENDED THIRD-PARTY COMPLAINT OF CITY, Case No. CV-08-4571 MMC

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Whereas Environmental Resolutions, Inc. has filed a Motion for Judgment on the pleadings inter alia to the Third-Party Complaint of City of Eureka, scheduled for hearing on April 9, 2010;

Whereas the City of Eureka and Environmental Resources, Inc. have conferred about said motion and the response thereto by the City of Eureka;

Whereas City of Eureka believes that in addition to the stipulation herein, a number of issues raised by said motion can be resolved or otherwise addressed by amendment of said Third Party Complaint;

Whereas City of Eureka believes that the court's ruling on said motion as to the Complaint filed by KFD Enterprises, Inc. will provide guidance with respect to the viability of the City of Eureka's claims against Environmental Resources, Inc. under CERCLA and the HSAA;

Therefore, Environmental Resolutions, Inc. and City of Eureka hereby stipulate to each of the following: (1) City of Eureka may have to and including April 30, 2010 to file its Third Amended Complaint as to Environmental Resolutions, Inc.; (2) Environmental Resolutions, Inc. may have to and including May 28, 2010 to file a

22 responsive pleading to said Third Amended Complaint; 23 24 25 26 27 28 (3) said Third Amended Complaint shall not add any additional claims for relief against Environmental Resolutions, Inc.; (4) said Third Amended Complaint shall not seek the recovery of punitive damages against Environmental Resolutions, Inc.; (5) said Third Amended Complaint shall not seek against Environmental Resolutions, Inc. the recovery of the attorneys fees of the City of Eureka's attorneys but may seek the ___________ 2

STIPULATION AND PROPOSED ORDER FOR FILING AMENDED THIRD-PARTY COMPLAINT OF CITY, Case No. CV-08-4571 MMC

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recovery of attorneys fees liability which may be imposed on the City of Eureka. In agreeing to this stipulation, Environmental Resolutions, Inc. does not concede that any type of indemnity is proper, but only that the City of Eureka may seek such indemnity in the Third Amended Complaint subject to any future legal challenges by Environmental Resolutions, Inc.

7 DATED: March 16, 2010 8 9 10 11 12 13 DATED: March 16, 2010 14 15 16 17 18 19

DAVIDOVITZ & BENNETT LLP

By: /s/ Moris Davidovitz MORIS DAVIDOVITZ Attorneys for CITY OF EUREKA
(The filer hereby attests that concurrence in the filing of this document has been obtained from the signatory below.)

GORDON & REES LLP

By: /s/ George A. Acero GEORGE A. ACERO Attorneys for Environmental Resolutions, Inc.

20 PURSUANT TO STIPULATION, IT IS SO ORDERED. 21 22 __, 23 DATED: March 24 2010 24 25 26 27 28 ___________ 3 __________________________________ MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE

STIPULATION AND PROPOSED ORDER FOR FILING AMENDED THIRD-PARTY COMPLAINT OF CITY, Case No. CV-08-4571 MMC