KFD Enterprises Inc v. City of Eureka

Filing 558

ORDER APPROVING STIPULATION TO CONTINUE PENDING COURT DATES. Pursuant to stipulation, the dates are continued as requested, with the exception that the deadline for hearing on dispositive motions is continued to April 5, 2013, and the Pretrial Conference is continued to May 28, 2013. Signed by Judge Maxine M. Chesney on October 16, 2012. (mmclc2, COURT STAFF) (Filed on 10/16/2012)

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1 2 3 4 5 GREBEN & ASSOCIATES 125 E. DE LA GUERRA ST., STE. 203 SANTA BARBARA, CA 93101 TELEPHONE: (805) 963-9090 FACSIMILE: (805) 963-9098 Jan A. Greben, State Bar No. 103464 jan@grebenlaw.com Jeff G. Coyner, State Bar No. 233499 jeff@grebenlaw.com 6 7 8 Attorneys for Plaintiff, Cross Defendant, Third Party Defendant, Counter Defendant and Counter Claimant KFD Enterprises, Inc., a California corporation dba Norman’s Dry Cleaner, and Third Party Defendant Kenneth Daer 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 KFD ENTERPRISES, INC., a California corporation dba Norman’s Dry Cleaner, 14 15 16 17 18 19 Case No.: 3:08-CV-04571 MMC Plaintiff, vs. CITY OF EUREKA, et al. SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER Defendants. ______________________________________ AND RELATED COUNTER AND CROSS CLAIMS 20 21 22 23 24 25 26 27 28 -1- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER 1 IT IS HEREBY STIPULATED by and between Plaintiff KFD Enterprises, Inc. (“KFD”), 2 Cross-Defendant Kenneth Daer, Defendant, Cross-Claimant, Counter-Claimant, and Cross- 3 Defendant City of Eureka, Defendant, Cross-Defendant, and Cross-Claimant Winzler & Kelly, 4 Defendants and Cross-Defendants Union Oil Company of California, Unocal Corporation, and 5 Chevron Corporation (“Union Oil entities”), Defendant, Cross-Defendant, and Cross-Claimant 6 Environmental Resolutions, Inc./Cardno USA (“ERI/Cardno”), and Defendants and Cross- 7 Defendants Multimatic LLC and the Kirrberg Corporation (“Multimatic Entities”) as follows: 8 RECITALS 9 1. This stipulation is entered into between the parties to continue all pending court dates 1 for 10 approximately three (3) months to allow the parties to pursue settlement negotiations that 11 have commenced and continue before private mediator Timothy Gallagher. 12 2. On October 1, 2008, the Complaint was filed in this action, seeking relief under CERCLA 13 and pendent state claims. Numerous cross and counter claims followed. 14 3. The action arises out of solvent and petroleum contamination in Eureka, California. The 15 issues of liability and allocation are complex, and the claimed damages approach $10 16 million. 17 4. The parties commenced their initial mediation on October 4, 2012 with Mr. Gallagher. Mr. 18 Gallagher has determined that it would be appropriate for the parties to continue all pending 19 court dates while he determines if the case can be resolved. Mr. Gallagher has determined 20 that a resolution might be possible but requires additional information concerning the extent 21 of contamination and its costs to correct, as well as related insurance coverage and allocation 22 issues. To this end, Mr. Gallagher has scheduled the following subsequent mediation dates: 23 a. October 16, 2012: Meeting with City of Eureka insurers 24 b. October 18, 2012: Meeting with KFD insurers 25 c. October 19, 2012: Meeting with City of Eureka consultants 26 d. October 22, 2012: Meeting with KFD consultants 27 1 28 The mediator has indicated a preference to keep the pending dispositive motions on calendar. ERI/Cardno concurs with this assessment. Thus, this stipulation does not affect pending motions for summary judgment currently scheduled for hearing on November 16, 2012, and which are pursued by the Multimatic entities and ERI/Cardno. -2- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER 1 e. November 9, 2012: 2 f. November 27, 2012: Meeting with all parties 3 g. December 20, 2012: Meeting with all parties 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Meeting with all parties 5. This 90-day period will give the parties the best opportunity to resolve complex, technical, and remediation cost issues that have prevented settlement. STIPULATION NOW THEREFORE, the parties stipulate and agree, subject to Court approval, as follows: A. The last day to complete expert discovery is hereby continued from November 16, 2012 to February 15, 2013. B. The deadline to file motions to compel expert discovery is hereby continued from November 23, 2012 to February 22, 2013. C. The deadline to file dispositive motions is hereby continued from November 30, 2012 to March 1, 2013. D. The Case Management Conference is hereby continued from December 21, 2012 to March 22, 2013. E. The deadline for hearing on dispositive motions is hereby continued from January 11, 2013 to April 12, 2013. F. The deadline for lead counsel to meet and confer for Pretrial Conference purposes is hereby continued from January 22, 2013 to April 22, 2013. 20 G. The deadline for jury instructions, voir dire and verdict forms, exhibit exchange with other 21 parties, and motions in limine is hereby continued from February 11, 2013 to May 3, 2013. 22 H. The Joint Pretrial Conference Statement filing deadline is hereby continued from February 23 24 25 26 27 28 19, 2013 to May 13, 2013. I. The deadline for filing oppositions to motions in limine is hereby continued from February 19, 2013 to May 13, 2013. J. The deadline for filing exhibits lists with stipulations and objections is hereby continued from February 25, 2013 to May 17, 2013. K. The Pretrial Conference is hereby continued from February 26, 2013 to June 4, 2013. -3- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER L. The Trial is hereby continued from March 11, 2013 to June 10, 2013. 2 1 2 3 4 The parties also request a conference call with Court should the Court deem it necessary to discuss the proposed dates. 5 6 Dated: October 12, 2012 GREBEN & ASSOCIATES 7 /s/ Jan A. Greben JAN A. GREBEN JEFF COYNER Plaintiff, Cross Defendant, Third Party Defendant, Counter Claimant KFD ENTERPRISES INC., a California corporation dba Norman’s Dry Cleaner; and Third Party Defendant KENNETH DAER 8 9 10 11 12 Dated: October 12, 2012 GORDON & REES, LLP 13 /s/ George A. Acero KRISTIN N. REYNA GEORGE A. ACERO Defendant and Third Party Defendant ENVIRONMENTAL RESOLUTIONS, INC. 14 15 16 17 Dated: October 12, 2012 DAVIDOVITZ & BENNETT LLP 18 /s/ Charles Bolcom MORIS DAVIDOVITZ CHARLES BOLCOM Defendant, Third Party Plaintiff, Counterclaimant CITY OF EUREKA 19 20 21 22 Dated: October 12, 2012 GLYNN & FINLEY LLP 23 /s/ Andrew T. Mortl ANDREW T. MORTL MORGAN LOPEZ Attorneys for Defendants and Cross-Defendants UNION OIL CO. OF CALIFORNIA, UNOCAL CORP. AND CHEVRON CORP. 24 25 26 27 28 2 Counsel for ERI has a trial on July 15, 2013. The parties have advised that this trial can be tried within 3-4 weeks. Based on this understanding, ERI consents to continuing the trial to June 10, 2013. -4- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER 1 Dated: October 12, 2012 SEVERSON & WERSON PC 2 /s/ Peter C. Lyon PETER C. LYON NANNETTE DE LARA Attorneys for Defendant, Cross-Defendant, and CrossClaimant WINZLER & KELLY 3 4 5 6 7 Dated: October 12, 2012 DONGELL LAWRENCE FINNEY LLP 8 9 10 11 12 /s/ Thomas F. Vandenburg THOMAS F. VANDENBURG CHRISTOPHER W. SMITH Attorneys for Defendants and Cross-Defendants MULTIMATIC LLC and THE KIRRBERG CORPORATION 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER 1 2 DECLARATIONOF TIMOTHY GALLAGHER I, TIMOTHY GALLAGHER, hereby declare and state: 3 1. I am an attorney at law duly licensed to practice before the United States District Court for 4 the Northern District of California, and I am a partner in the law firm of Gallagher and 5 Gallagher, a Professional Corporation, and acting as mediator in the above-reference action. 6 2. On October 4, 2012, the parties, including their insurance carriers, participated in a 7 8 9 mediation with me in San Francisco. Existing information concerning contamination and potential liability was presented. Each party and the insurance carriers were provided an 10 opportunity to present their information confidentially to me. I determined that a resolution 11 was possible but required additional information concerning the extent of contamination and 12 its cost to remediate. I also determined that both an allocation of each party’s liability as well 13 as establishing the respective insurer’s potential duty to their insureds was necessary. 14 3. The parties have scheduled additional mediation dates with me on October 16, 18, 19, 22, 15 16 November 9 and 27, and December 20. These mediation sessions will involve discussions of 17 environmental conditions, identification of incidents when contaminants were released into 18 the environment, identification of additional insurers, analysis of future environmental 19 assessment and remediation potential costs, allocation evaluations and discussions on 20 potential resolutions methods and terms. 21 4. The parties are hopeful that they can continue their mediation without incurring additional 22 pre-trial costs. The parties desire to continue all pending court dates, including the trial, for a 23 24 period of approximately three (3) months. 25 5. Over the next three months, I intend to determine a path forward that will identify the extent 26 of contamination to my satisfaction, allocate liability and determine the level of involvement 27 necessary from each of the identified insurance carriers of the respective parties. Because of 28 the complexity of the issues associated with the environmental data as well as the -6- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER 1 involvement of the insurance carriers and the length of time normally required for final 2 approval and any settlement and final determination of any insurance coverage issues, at the 3 conclusion of the three months, it is my expectation that a written and execute agreement in 4 principle will have been reached. The agreement in principle would be subject to a 5 finalization of the terms and conditions among the parties as well as final approval from the 6 insurance carriers involved in funding the remedial measures. 7 8 9 6. I respectfully submit that, based on the foregoing, good cause exists to approve the instant Stipulation inasmuch as the parties have been working diligently with regard to conducting 10 site investigations and conducting and responding to discovery and have likewise been 11 working diligently in an effort to resolve this matter without the parties incurring additional 12 fees in further litigation. 13 7. I respectfully request the Court to continue the pending court dates for a period of 14 approximately three months because it will allow the parties to avoid additional, significant 15 16 17 attorneys’ fees and will foster the parties’ ability to potentially resolve this matter and fund the necessary environmental remediation. 18 19 20 21 I DECLARE, UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA, THAT THE FOREGOING IS TRUE AND CORRECT. Executed this 12th day of October, 2012 at Los Angeles, California 22 23 24 /s/ Timothy Gallagher TIMOTHY GALLAGHER, Declarant 25 26 27 28 -7- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER 2 PURSUANT TO STIPULATION, IT IS SO ORDERED , with the exception that the deadline for hearing on dispositive motions is hereby CONTINUED to April 5, 2013, and the Pretrial Conference is hereby CONTINUED to May 28, 2013. 3 DATED: October __, 2012 16 1 MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- SECOND AMENDED STIPULATION TO CONTINUE ALL PENDING COURT DATES; DECLARATION OF TIMOTHY GALLAGHER; [PROPOSED] ORDER

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