Sisters of Notre Dame DeNamur California Province v. Mrs. Owen J. Garnett-Murrary et al

Filing 69

ORDER (1) GRANTING 57 Technichem's motion to dismiss second cause of action in First Amended Third Party Complaint, (2) GRANTING IN PART and DENYING IN PART 59 Tabatabai and Fesahati's motion to dismiss second and third causes of action in First Amended Third Party Complaint, and (3) DENYING 62 Tabatabai and Fesahati's motion to dismiss cross-claims. The May 24, 2011 hearing is VACATED. 58 Tabatabai and Fesahati's motion to join is DENIED AS MOOT. 68 Garnett-Murray and Fremont Corners' motion to appear by telephone is DENIED AS MOOT. Signed by Magistrate Judge Howard R. Lloyd on 5/20/2011. (hrllc1, COURT STAFF) (Filed on 5/20/2011)

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** E-filed May 20, 2011 **

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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SISTERS OF NOTRE DAME DE NAMUR,
CALIFORNIA PROVINCE,

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Plaintiff,
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v.
MRS. OWEN J. GARNETT-MURRAY, et
al.,

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Defendants.
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MRS. OWEN J. GARNETT-MURRAY, et
al.
Third Party Plaintiff and
Cross-Claimant,

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No. C10-01807 HRL
ORDER (1) GRANTING
TECHNICHEM’S MOTION TO
DISMISS SECOND CAUSE OF
ACTION IN FIRST AMENDED
THIRD PARTY COMPLAINT, (2)
GRANTING IN PART AND DENYING
IN PART TABATABAI AND
FESAHATI’S MOTION TO DISMISS
SECOND AND THIRD CAUSES OF
ACTION IN FIRST AMENDED
THIRD PARTY COMPLAINT, AND
(3) DENYING TABATABAI AND
FESAHATI’S MOTION TO DISMISS
CROSS-CLAIMS
[Re: Docket Nos. 57, 58, 59, 62, 68]

v.

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MANLEI CHIAO, et al.,

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Third Party Defendants and
Cross-Defendant
____________________________________/

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BACKGROUND

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This action involves the alleged contamination and resulting clean-up of land. Plaintiff

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Sisters of Notre Dame de Namur, California Province (the “Sisters”) own property located at 1330

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Saratoga-Sunnyvale Road in Sunnyvale, California (the “Mardesich Property”). Together,

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defendants Mrs. Owen J. Garnett-Murray (“Garnett-Murray”) and Fremont Corners, Inc. (“Fremont

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Corners”) own the Fremont Corners shopping center adjacent to the Mardesich Property (the

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“Fremont Corners Property”), and defendant Manlei Chiao (“Chaio”) has owned and operated

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Angela’s Dry Cleaning, located on the Fremont Corners Property, since October 2003.
The Sisters allege that chlorinated solvents, including perchloroethylene (“PCE”), have been

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released by Angela’s Dry Cleaning since at least November 2006 and that these releases have

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contaminated the soil and possibly the groundwater on the Mardesich Property. In 2007, the Sisters

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collected soil vapor samples on their property, which revealed concentrations of PCE about 15 times

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greater than the level considered presumptively acceptable for residential use. Clean-up efforts have

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begun.

For the Northern District of California

United States District Court

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The Sisters filed suit against Garnett-Murray, Fremont Corners, and Chaio for violations of

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the Resource Conservation and Recovery Act (“RCRA”), 42, U.S.C. §§ 6901 et seq., and for state

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law continuing nuisance and trespass violations. Docket No. 17.

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Garnett-Murray and Fremont Corners then cross-claimed against Chiao and also sued third

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party defendants Technichem, Inc. (“Technichem”), Mohsen Tabatabai (“Tabatabai”), and Shahin

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Fesahati (“Fesahati”) for, among other things, the necessary clean-up costs, contribution, and

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declaratory relief under three provisions of the Comprehensive Environmental Response,

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Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607 §§ 9607(a), 9613(f),

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9613(g). Docket No. 53. Tabatabai and Fesahati are alleged to have owned and operated Angela’s

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Dry Cleaning prior to Chaio, and Technichem is alleged to have provided containers to Chiao for

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storing PCE and to have removed and transported PCE from Angela’s Dry Cleaning to disposal

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sites.

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After that, Chiao cross-claimed against Garnett-Murray, Fremont Corners, Tabatabai, and

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Fesahati for equitable indemnity, contribution, rescission, negligent misrepresentation, and

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declaratory relief. Docket No. 60. She alleges that it was Tabatabai and Fesahati who released the

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chlorinated solvents, that Garnett-Murray and Fremont Corners knew about it, but that none of them

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did anything about it or told her about it before she took over Angela’s Dry Cleaning.

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Now, Technichem, Tabatabai, and Fesahati have moved to dismiss certain causes of action
in Garnett-Murray and Fremont Corners’ First Amended Third Party Complaint, and Tabatabai and

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Fesahati have moved to dismiss Chiao’s cross-claims. Pursuant to Civil Local Rule 7-1(b), the Court

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finds the matter suitable for determination without oral argument, and the May 24, 2011 hearing is

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vacated.1

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DISCUSSION

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A. Third Party Defendant Technichem’s Motion to Dismiss Second Cause of Action in First

Technichem moved to dismiss the second cause of action in Garnett-Murray and Fremont

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Corners’ First Amended Third Party Complaint for contribution under CERCLA. Docket No. 57.

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Private parties may seek contribution from other “potentially responsible parties” under CERCLA,

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For the Northern District of California

Amended Third Party Complaint

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United States District Court

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but only if they have been first been sued under CERCLA §§ 106 or 107(a). 42 U.S.C. § 113(f)(1);

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United States v. Atlantic Research Corp., 551 U.S. 128, 131 n.1 (2007). Here, neither Garnett-

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Murray nor Fremont Corners have been sued under those sections. See Docket Nos. 17, 60.
Garnett-Murray and Fremont Corners also failed to oppose Technichem’s motion.2 “The

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failure to file an opposition to a motion to dismiss in a manner consistent with the court’s rules is

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grounds for granting the motion.” Wiley v. Macy’s, No. C10-1188 SBA, 2010 WL 2636029, at *1

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n.1 (N.D. Cal. June 30, 2010) (citing Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (holding that

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a pro se litigant’s failure to follow a court’s local rules and file a timely opposition to a motion to

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dismiss is proper grounds for dismissal)).
Accordingly, Technichem’s motion is GRANTED. The second cause of action in Garnett-

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Murray and Fremont Corners’ First Amended Third Party Complaint is dismissed without prejudice

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as to all defendants.3

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Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, all parties have expressly
consented that all proceedings in this matter may be heard and finally adjudicated by the
undersigned. In addition, Garnett-Murray and Fremont Corners’ administrative motion to appear at
the hearing (Docket No. 68) is DENIED AS MOOT.
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According to correspondence provided by Technichem, it appears that Garnett-Murray and
Fremont Corners informed Technichem that they did not oppose its motion. Docket No. 65-1, Ex.
A. They did not, however, inform the Court of this, as they should have. See Civ. L.R. 7-3(b).
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“A District Court may properly on its own motion dismiss an action as to defendants who have not
moved to dismiss where such defendants are in a position similar to that of moving defendants or
where claims against such defendants are integrally related.” Silverton v. Dep’t of Treasury, 644
F.2d 1341, 1345 (9th Cir. 1981), cert. denied, 454 U.S. 895, 102 S.Ct. 393, 70 L.Ed.2d 210 (1981)
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B. Third Party Defendants Mohsen Tababatai’s and Shahin Fesahati’s Motion to Dismiss First

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Amended Third Party Complaint

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Like Technichem, Tabatabai and Fesahati moved to dismiss the second cause of action in

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Garnett-Murray and Fremont Corners’ First Amended Third Party Complaint. Docket No. 59. For

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the reasons explained above, their motion is GRANTED in this respect.

CERCLA. Id. They argue that Garnett-Murray and Fremont Corners “are precluded from seeking

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any remedy under CERCLA because [Garnett-Murray and Fremont Corners] are not defending any

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causes of action under CERCLA nor [have they] incurred any costs of removal or remedial actions

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For the Northern District of California

However, they also moved to dismiss the third cause of action for declaratory relief under

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United States District Court

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under [CERCLA § 107].” Id. at 3. But as Garnett-Murray and Fremont Corners correctly point out

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in their opposition brief, they have incurred clean-up costs and, regardless, this limitation does not

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apply to “any remedy under CERCLA”; rather, it only applies to claims for contribution. 42 U.S.C.

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§ 113(f)(1); Atlantic Research Corp., 551 U.S. at 131 n.1. Tabatabai and Fesahati did not reply to

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Garnett-Murray and Fremont Corners’ argument.

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Tabatabai and Fesahati’s argument fails, so their motion to dismiss the third cause of action
in Garnett-Murray and Fremont Corners’ First Amended Third Party Complaint is DENIED.
C. Third Party Defendants Mohsen Tababatai’s and Shahin Fesahati’s Motion to Dismiss

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Chiao’s Cross-Claims

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Tabatabai and Fesahati also moved to dismiss Chiao’s cross-claims against them. Docket

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No. 62. They argue that the Court lacks subject-matter jurisdiction because Chiao’s cross-claims are

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all based on California law, but this argument ignores that her cross-claims are related to the Sisters’

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federal law-based claims, so this Court has supplemental jurisdiction over them. They also argue

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that because Chiao alleged that “no contamination of ground water has been found or is reasonably

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likely given the depth to ground water at Fremont Corners” and because Chiao stated in a case

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(citing Rogers v. Fuller, 410 F.Supp. 187, 192 (M.D.N.C. 1976); Walner v. Friedman, 410 F.Supp.
29, 34 (S.D.N.Y. 1975); Piemonte v. Chicago Board Options Exchange, Inc., 405 F.Supp. 711, 718
(S.D.N.Y. 1975)). All four parties named as defendants in Garnett-Murray and Fremont Corners’
First Amended Third Party Complaint are in similar positions with respect to the second cause of
action. For this reason, Tabatabai and Fesahati’s motion to join Technichem’s motion (Docket No.
58) is DENIED AS MOOT.

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management statement that she “believes the impact of PCE, if any, on the Sisters’ property is de

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minimus,” she has failed to state a claim against them. But this case involves soil contamination as

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well as water contamination. Further, although Chiao contends that any contamination has been de

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minimus, other parties (including the Sisters) disagree.

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Tabatabai and Fesahati’s motion to dismiss Chiao’s cross-claims is DENIED.
CONCLUSION

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Based on the foregoing: (1) Technichem’s motion to dismiss the second cause of action in

Tabatabai and Fesahati’s motion to dismiss the second and third causes of action in Garnett-Murray

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For the Northern District of California

Garnett-Murray and Fremont Corners’ First Amended Third Party Complaint is GRANTED; (2)

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United States District Court

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and Fremont Corners’ First Amended Third Party Complaint is GRANTED IN PART and DENIED

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IN PART; and (3) Tabatabai and Fesahati’s motion to dismiss Chiao’s cross-claims is DENIED.

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IT IS SO ORDERED.
Dated: May 20, 2011
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C10-01807 HRL Notice will be electronically mailed to:

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Christopher D. Jensen
Douglas A. Berry
Eleanor Wiley Knight
Kwi Yong Lee
Nicole Marie Martin
Noel Edlin

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[e-mail], [e-mail]
[e-mail], [e-mail]
[e-mail], [e-mail]
[e-mail]
[e-mail]
[e-mail], [e-mail], [e-mail],
[e-mail], [e-mail]
[e-mail]
[e-mail], [e-mail]
[e-mail]
[e-mail], [e-mail], [e-mail],
[e-mail], [e-mail]
[e-mail]

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R. Morgan Gilhuly
Ralph Wells Robinson
Stephen W. Wilson
Thomas H. Clarke, Jr

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Timothy A. Dolan

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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