Maxim I Properties v. Krohn et al

Filing 146

ORDER by Judge Lucy H. Koh granting 145 Stipulation (lhklc2, COURT STAFF) (Filed on 9/14/2012)

1
2
3
4
5
6

Francis M. Goldsberry II, SBN 063737
Francis M. Goldsberry III, SBN 178739
GOLDSBERRY, FREEMAN & GUZMAN LLP
777 12th Street, Suite 250
Sacramento, CA 95814
Tele: [phone]; Fax: [phone]
E-MAIL: [e-mail]
E-MAIL: [e-mail]
Attorneys for Defendant
Moyer Products, Inc.

7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19

)
)
)
)
Plaintiff,
)
)
vs.
)
)
)
A.M. BUD KROHN, ET AL,
)
)
)
Defendants.
)
___________________________________ )
)
)
AND RELATED CROSS-ACTIONS.
)
____________________________________
MAXIM I PROPERTIES, a general
partnership,

Case No. 5: 12-CV-00449 LHK

STIPULATION AND PROPOSED ORDER
TO AMEND SCHEDULING ORDER TO
EXTEND PLEADING DEADLINE

Action Filed: January 27, 2012
Trial Date: February 18, 2014

20

Following the July 11, 2012, Initial Case Management Conference in this matter, this

21
22

Court issued a Case Management Order on July 13, 2012, which includes a September 17,

23

2012, deadline for defendants to file pleadings. The Case Management Order also set a further

24

Case Management Conference on October 3, 2012. For the reasons set forth below, the parties

25

to this action stipulate to extend the deadline for filing or amending responsive pleadings,

26

cross-claims, counterclaims, and third-party complaints by defendants until October 12, 2012,

27

and seek an order from this Court extending that deadline.

28

///

STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
1
\

1

I.

2

DEVELOPMENTS SINCE CASE MANAGEMENT CONFERENCE

3

Several things have happened since the Case Management Conference, and other

4

developments are anticipated but have yet to come to fruition. Foremost was plaintiff Maxim I

5

Properties’ decision to dismiss all defendants but Moyer Products, Inc. (“Moyer”). The case

6

now consists of plaintiff’s complaint against Moyer, and Moyer’s cross-claims against the co-

7

defendants originally named by plaintiff. Nearly all of the original defendants need to file

8

pleadings in response to Moyer’s cross-claims, and those pleadings are likely to include cross-

9

claims for contribution against all of the other parties. In other words, once the parties file

10

responsive pleadings, there is likely to be a landslide of contribution claims that will result in

11

the need to file literally dozens of responsive pleadings. In total, the cross-claims and

12

responses to those cross-claims that are likely to be filed by the September 17, 2012, deadline

13

will exceed 100 distinct pleadings.

14

Furthermore, DTSC has recently indicated that it intends to amend its Enforcement

15

Order by, among other things, dropping some of the named respondents and adding others.

16

DTSC has indicated that it will issue such an amended order by October 1, 2012. The total

17

number of respondents that will be named in the amended order is at least 66, and, depending

18

on how many current respondents DTSC decides to drop from the order, as many as 75. If the

19

September 17 deadline remains in place, Moyer intends to join as third-party defendants to this

20

litigation the entities named by DTSC as respondents that are not already parties to this action.

21

Another significant development is Moyer’s efforts to organize a group of parties under

22

an interim cost sharing agreement in order to conduct the site investigation required by the

23

California Department of Toxic Substances Control (“DTSC”). Moyer, through its consultant,

24

Roux Associates, Inc., has developed a proposed scope of work to accomplish the site

25
26
27

investigation. (This scope of work covers the tasks required to gather the necessary data and
writing a report to present the analysis of that data. DTSC’s requirements are not limited to
investigatory work - DTSC will require further reports that analyze remediation options, etc.)

28

STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
2
\

1

Moyer has used this scope of work, which has been discussed with DTSC, to prepare a cost

2

estimate.
Moyer invited representatives from all parties for whom Moyer had contact information

3
4

(a list that included current defendants as well as entities named in DTSC’s enforcement order

5

but not currently named as parties to this litigation) to a telephone conference that was

6

conducted on September 5, 2012. During that telephone conference, Moyer proposed the

7

formation of a cost-sharing group to conduct the required site investigation. Moyer asked each

8

party that participated in the telephone conference to respond to the proposal by September 14,

9

2012.

10

If a sufficient number of parties respond that they are willing to enter into an agreement

11

to conduct the required site investigation, Moyer intends to circulate a draft agreement by

12

September 21, 2012, and hopes to finalize such an agreement by September 28, 2012 (this

13

agreement would provide for an interim allocation of costs, which would not be binding on the

14

parties for purposes of final settlement or in the event that allocation was litigated to

15

judgment).

16

Furthermore, if such a group can be formed, Moyer anticipates that the parties will ask

17

this Court to stay this litigation. Participation in the cost sharing agreement and the site

18

investigation effort will likely only make sense to many or all of the parties if they are not

19

simultaneously incurring litigation expenses. Nonetheless, as discussed at the Initial Case

20

Management Conference, the pending litigation is necessary to trigger what insurance

21

coverage exists. Therefore, a stay of the litigation would allow parties participating in a cost

22

sharing agreement to avoid litigation costs, but insurance carriers would not withdraw from

23

participating in resolution of this matter.

24
25
26
27

II.
REQUESTED RELIEF
The current Case Management Order requires all parties to file responsive pleadings or
to amend their pleadings, including the filing of third-party complaints, by September 17,

28

STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
3
\

1

2012. That date does not allow the parties sufficient time to determine if a cost sharing

2

agreement can be worked out before filing a significant volume of pleadings.

3

Amending the deadline for filing responsive pleadings will allow the parties to

4

determine if an agreement can be reached on conducting the initial site investigation required

5

by DTSC without the need for filing responsive pleadings. If such an agreement cannot be

6

reached and therefore the parties face no choice but to litigate this dispute, changing the

7

deadline from September 17 to October 12 will have no significant impact on the course of this

8

litigation, as the parties are not seeking to have any other date in the Case Management Order

9

changed at this time.

10

If, on the other hand, an agreement can be reached, the parties anticipate discussing

11

with the Court at the October 3 Case Management Conference how to keep the parties’

12

litigation expenses to a minimum, which would likely take the form of a stay of the litigation.

13

Such a stay would allow the parties to conduct the site investigation, which is necessary for the

14

parties to negotiate a final settlement, because without the site investigation, no analysis of a

15

remedial strategy can occur, and without the selection of a remedial strategy, there is no way to

16

even estimate the total amount of response costs that will be necessary.

17

An extension to October 12, 2012, will also allow the defendants to align the parties

18

named as respondents by DTSC to its enforcement order with the parties to be joined as third-

19

party defendants to this litigation.

20

Therefore, pursuant to this stipulation, the parties respectfully request this Court to

21

amend the current Case Management Order’s September 17, 2012, deadline for further

22

pleadings to provide that responsive pleadings, amendments, and third-party complaints must

23

be filed no later than October 12, 2012.

24

////

25
26
27
28

////
////
////
////
STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
4
\

1

DATED: September 11, 2012

NIXON PEABODY LLP

2

By: ___/s/ Lisa Cole_______________________
GREGORY P. O’HARA
LISA A. COLE
ALISON B. TORBITT
Attorneys for MAXIM I
PROPERTIES

3
4
5
6
7

DATED: September 11, 2012

ABDALAH LAW OFFICES

8
9

By: ___/s/ Richard K. Abdalah______________
RICHARD K. ABDALAH
MIRIAM WEN-LEBRON
Attorneys for TELEWAVE, INC.

10
11
12

DATED: September 11, 2012

ROUSSO & JACKEL

13
14

By: ___/s/ Jonathan Jackel__________________
JONATHAN JACKEL
Attorneys for MAC CAL
COMPANY, INC.

15
16
17
18

DATED: September 11, 2012

CROWELL & MORING LLP

19
20
21
22

By: ___/s/ M. Kay Martin_______________
M. KAY MARTIN
THOMAS F. KOEGEL
Attorneys for GREYHOUND
LINES, INC.

23
24
25
26
27
28

STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
5
\

1

DATED: September 11, 2012

DOWLING AARON INCORPORATED

2
3

By: ___/s/ Daniel Jamison__________________
DANIEL OLIVER JAMISON
Attorneys for MC&L, INC., named herein
as MADERA CLEANERS & LAUNDRY,
INC. 1

4
5
6
7

DATED: September 11, 2012

BARG COFFIN LEWIS & TRAPP LLP

8
9

By: ___/s/ Joshua Bloom___________________
JOSHUA BLOOM
DAVINA PUJARI
Attorneys for SPACE
SYSTEMS/LORAL, INC.

10
11
12
13

DATED: September 11, 2012

ARCHER NORRIS

14
15

By: ___/s/ Probal G. Young_________________
PROBAL G. YOUNG
Attorneys for CENTRAL
COATING CO. INC.

16
17
18
19

DATED: September 11, 2012

BURNHAM BROWN

20
21

By: ___/s/ Kimberly Chew_________________
KIMBERLY CHEW
ERIC R. HAAS
Attorneys for A.M. BUD KROHN
NATIONAL AUTO RECOVERY
BUREAU, INC.

22
23
24
25
26
27
28

1

This Stipulation shall not be considered an appearance of MC&L, Inc., formerly known as Madera Cleaners &
Laundry, Inc. (“Madera Cleaners) on plaintiff’s complaint, on any cross-claim, on any third-party complaint, or in
the action. Madera Cleaner’s contends that it has not been served with any cross-claim or third-party complaint
and that its appearances at court ordered events such as ADR Conferences or Case Management Conferences did
not constitute an appearance in this action and will not until and unless proper service is effected and a responsive
pleading filed. The parties agree that by executing this Stipulation, Madera Cleaners has not waived this
contention, nor has the analysis of that contention been affected by agreeing to this Stipulation.
STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
6
\

1

DATED: September 11, 2012

DUANE MORRIS LLP

2
3

By: __ /s/ Jess Raymond Booth_______________
JESS RAYMOND BOOTH
Attorneys for BURKE INDUSTRIES,
INC.

4
5
6
7

DATED: September 11, 2012

LAW OFFICES OF STEVEN A. ELLENBERG

8
9

By: __/s/ Steven A. Ellenberg_______________
STEVEN A. ELLENBERG
MARK V. BOENNIGHAUSEN
Attorneys for BR & F SPRAY,
COMPONENT FINISHING, INC. &
SERRA CORPORATION

10
11
12
13

DATED: September 11, 2012

SILICON VALLEY LAW GROUP

14
15

By: ___/s/ Jeffrey Scott Lawson_____________
JEFFREY SCOTT LAWSON
Attorneys for NU-METAL, INC. &
THERMIONICS LABORATORY, INC.

16
17
18
19

DATED: September 11, 2012

PAHL & McCAY

20
21

By: ___/s/ Servando R. Sandoval____________
SERVANDO R. SANDOVAL
Attorneys for SPRAYTRONICS, INC.

22
23
24

DATED: September 11, 2012

LEWIS, BRISBOIS BISGAARD & SMITH

25
26
27
28

By: ___/s/ Glenn Friedman_________________
GLENN FRIEDMAN
ROBERT FARRELL
Attorneys for THE SHERWINWILLIAMS CO.
STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
7
\

1

DATED: September 11, 2012

LATHAM & WATKINS LLP

2
3

By: __/s/ Andrea M. Hogan______________
KARL S. LYTZ
ANDREA M. HOGAN
Attorneys for INTEGRATED DEVICE
TECHNOLOGY, INC.

4
5
6
7

DATED: September 11, 2012

GOLDSBERRY, FREEMAN & GUZMAN LLP

8
9

By:_/s/ Francis M. Goldsberry III_____________
Francis M. Goldsberry III
Attorney for MOYER
PRODUCTS, INC.

10
11
12
13

IT IS SO ORDERED.

14
15
16
17

Dated: September 14, 2012
_______________________________
LUCY H. KOH
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

STIPULATION AND PROPOSED ORDER TO AMEND SCHEDULING ORDER - Case No.: 5: 12-CV-00449 LHK
8
\