City of San Diego v. National Steel & Shipbuilding Company et al

Filing 547

ORDER Confirming Good Faith Settlement Between BAE Systems San Diego Ship Repair Inc., Southwest Marine, Inc., And The San Diego Unified Port District And Barring And Dismissing Claims Against The Port District (Re Dkt # 528 ): The Motion is granted , and the Settlement Agreement is approved. Signed by Judge William Q. Hayes on 11/13/2015. (All non-registered users served via U.S. Mail Service.) (mdc) Modified docket text on 11/13/2015 to correct minor typographical error re Dkt # 528. NEF was not regenerated. (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CITY OF SAN DIEGO, Plaintiff, 13 14 15 v. NATIONAL STEEL AND SHIPBUILDING COMPANY; et al., 16 Defendants. 17 18 CASE NO. 09-CV-2275 WQH (JLB) ORDER CONFIRMING GOOD FAITH SETTLEMENT BETWEEN BAE SYSTEMS SAN DIEGO SHIP REPAIR INC., SOUTHWEST MARINE, INC., AND THE SAN DIEGO UNIFIED PORT DISTRICT AND BARRING AND DISMISSING CLAIMS AGAINST THE PORT DISTRICT AND RELATED CROSS-ACTIONS AND COUNTERCLAIMS 19 20 21 The Joint Motion of BAE Systems San Diego Ship Repair Inc., Southwest 22 Marine, Inc. (collectively, "BAE Systems") and San Diego Unified Port District 23 ("Port District") for Order Confirming Settlement and Barring and Dismissing 24 Claims came on regularly for hearing before this Court on October 5, 2015, the 25 Honorable William Q. Hayes presiding. 26 27 After considering the moving and opposition papers, declarations submitted by the parties, the Settlement Agreement submitted to the Court for approval 28 -1WEST\259154482.2 09-CV-2275 WQH (JLB) 1 (attached to the Declaration of Michael S. Tracy) (the “Settlement Agreement”) and 2 the record as a whole, the COURT HEREBY FINDS THAT the Settlement 3 Agreement entered into by and between BAE Systems and the Port District is in the 4 public interest, is fair and reasonable, both procedurally and substantively, 5 consistent with the purposes of the Comprehensive Environmental Response, 6 Compensation and Liability Act ("CERCLA"), 42 U.S.C. section 9601, et seq., and 7 the Uniform Comparative Fault Act ("UCFA"), 12 U.L.A. 147, and was entered 8 into in good faith under California Code of Civil Procedure sections 877 and 877.6 9 and the rule of Tech-Bilt, Inc. v. Woodward-Clyde & Associates, 38 Cal.3d 488 10 (1985), and that the Port District is entitled to contribution and indemnity protection 11 under federal and state law theories for the apportionment of liability among 12 alleged joint tortfeasors. 13 14 15 16 This matter having been briefed and submitted for decision, and good cause appearing, IT IS HEREBY ORDERED that the Motion is GRANTED, and the Settlement Agreement is APPROVED. 17 IT IS FURTHER ORDERED that: 18 1. The Settlement Agreement is hereby approved as a good faith 19 settlement and shall be afforded all the rights and protections that accompany this 20 determination. 21 2. The Court further finds and determines that Section 6 of the UCFA is 22 adopted in this case for purposes of determining the legal effect of the Settlement 23 Agreement, which means the proportionate share rule (and not the pro tanto rule of 24 the Uniform Comparative Fault Among Tortfeasors Act ("UCATA")) shall apply to 25 reduce BAE Systems' claims against non-settling parties. 26 3. Pursuant to Section 6 of the UCFA, Section 877.6 of the California 27 Code of Civil Procedure, and CERCLA section 113(f), any and all claims for 28 contribution or equitable indemnity against the Port District arising out of the facts -2WEST\259154482.2 09-CV-2275 WQH (JLB) 1 alleged in the Complaint, counterclaims, and cross-claims in this Action, regardless 2 of when such claims are asserted or by whom, relating to Covered Matters under 3 the Settlement Agreement are hereby BARRED. Such claims are barred regardless 4 of whether they are brought pursuant to any federal or state statute, common law, or 5 any other theory, as any such claims against the Port District arising out of the facts 6 alleged in this Action are in the nature of contribution claims arising out of a 7 common liability, whether framed in terms of federal or state statute or common 8 law. 9 4. Subject to Paragraph 9 of this Order and this Order becoming final and 10 effective, all claims, cross-claims and counterclaims by and between BAE Systems 11 and the Port District in the Action with respect to "Covered Matters" under the 12 Settlement Agreement (which expressly does not include "Excluded Matters") are 13 hereby dismissed with prejudice. 14 5. Subject to Paragraph 6(a), below, any and all claims by the Port 15 District and BAE Systems, and each of them, against each other, whether in claims, 16 cross-claims or counterclaims, relating to "Excluded Matters" shall be reserved and 17 not deemed barred by entry of judgment or dismissal pursuant to the Settlement 18 Agreement. 19 6. Subject to this Order becoming final and effective: (a) All claims made by the Port District against BAE Systems and by 20 21 BAE Systems against the Port District, and by each of them against any other 22 party, whether alleged in a counterclaim or cross-claim, relating to Polygon 23 SW-29 and the Tidelands Property, including, without limitation, contract- 24 related claims, shall be dismissed WITHOUT prejudice, subject to the terms 25 of the Tolling and Standstill Agreement previously entered into by and 26 between BAE Systems, the Port District, San Diego Gas and Electric 27 Company ("SDG&E"), the City, Star & Crescent Boat Company, and 28 Campbell Industries; -3WEST\259154482.2 09-CV-2275 WQH (JLB) 1 (b) All cross-claims by the Port District against Campbell Industries 2 and against National Steel and Shipbuilding Company ("NASSCO") (to the 3 extent any such claims remain against NASSCO) with respect to the 4 following matters are hereby dismissed with prejudice: (1) any and all 5 claims that were, that could have been, that could now be, or that could 6 hereafter be asserted by the Port District against Campbell Industries or 7 NASSCO as of the Effective Date of the Settlement Agreement arising out of 8 or in connection with alleged COC contamination of the sediments within the 9 Remedial Footprint; (2) any and all costs incurred by the Port District that 10 have arisen out of, or that arise out of, or in connection with, the 11 investigation and remediation required to comply with all legally enforceable 12 requirements imposed by the Agency in connection with the implementation 13 of the CAO, including all reasonably necessary measures required to satisfy 14 the requirements of the CAO or any amendments thereto; and (3) all claims 15 asserted by the Port District against Campbell Industries in this Action and 16 accruing prior to the execution of the Settlement Agreement for breach of 17 contract or express contractual indemnity relating to the alleged COC 18 contamination of the sediments within the Remedial Footprint, but not as to 19 the remainder of the Shipyard Sediment Site or the Tidelands 20 Property. Subject to paragraph 6(a), above, all other claims by the Port 21 District against Campbell Industries in this Action are hereby dismissed 22 without prejudice. Any and all claims the Port District has or may have in 23 the future against Campbell Industries and/or NASSCO relating to any 24 Excluded Matters are expressly reserved and not deemed barred by any 25 dismissals in this Order. As to all dismissals in this paragraph 6(b), each 26 party shall bear its own attorney's fees, costs and expenses; (c) Except with respect to (1) Polygon SW-29 and (2) the Tidelands 27 28 Property, the Port District’s Twentieth Claim for Relief (Express Contractual -4WEST\259154482.2 09-CV-2275 WQH (JLB) 1 Indemnity) and Twenty-First Claim for Relief (Breach of Contract) against 2 SDG&E are dismissed WITH prejudice to the extent they relate to the marine 3 sediment contamination existing at the Site; and (d) With respect to (1) Polygon SW-29 and (2) the Tidelands Property, 4 5 the Port District's Twentieth Claim for Relief and Twenty-First Claim for 6 Relief against SDG&E are dismissed WITHOUT prejudice subject to the 7 terms of the Tolling Agreement. 8 For purposes of this Order, the terms "Agency," "CAO," "COCs," "Excluded 9 10 11 Matters," "Remedial Footprint," "Polygon SW-29," "Site," and "Tidelands Property" shall have the same meaning as in the Settlement Agreement. 7. Pursuant and subject to the Agreement for Dismissals and Tolling 12 Agreement entered into by and between the Port District and the City of San Diego 13 ("City"), upon entry of an order in this Action dismissing (i) Plaintiff's First Cause 14 of Action of the Complaint for "cost recovery" pursuant to Section 107(a)(4) of 15 CERCLA, and (ii) Plaintiff's Seventh Cause of Action of the Complaint for "cost 16 recovery" pursuant to Section 13304 of the California Water Code, against the Port 17 District for "Covered Matters" (as said term is defined in the settlement agreement 18 between the City and BAE Systems), and this Order becoming final and effective, 19 then, and only then: (a) The Port District's First and Sixth Claims for Relief of its 20 21 Counterclaim [Dkt. No. 11-1] and its First and Sixth Claims for Relief of its 22 Third Amended and Supplemental Cross-Claims ("TACC") [Dkt. No. 308] 23 against the City are dismissed WITH prejudice solely to the extent they relate 24 to "Covered Matters" under the Settlement Agreement (which expressly does 25 not include "Excluded Matters"); and (b) The Port District's Forty-First Claim for Relief and Forty-Second 26 27 Claim for Relief of its TACC against the City for Express Contractual 28 -5WEST\259154482.2 09-CV-2275 WQH (JLB) 1 Indemnity and Implied Contractual Indemnity, respectively, are dismissed 2 WITHOUT prejudice. 3 8. Any other claims expressly reserved under the Settlement Agreement 4 shall be reserved and not deemed barred by entry of judgment or dismissal pursuant 5 to the Settlement Agreement. 6 9. The Court shall retain jurisdiction over both the subject matter of the 7 Settlement Agreement and the parties to the Settlement Agreement for the duration 8 of the performance of the terms and provisions of the Settlement Agreement for the 9 purpose of enabling BAE Systems and the Port District, and each of them, to apply 10 to the Court at any time for such further order, direction, and relief as may be 11 necessary or appropriate to construe, implement, or enforce compliance with the 12 terms of the Settlement Agreement or for any further relief as the interest of justice 13 may require. 14 10. BAE Systems and the Port District shall each bear their own costs and 15 expenses, including attorneys' fees in this Action, as between BAE Systems and the 16 Port District, through the date of this Order but shall retain their respective right to 17 seek costs and expenses, including attorneys' fees, from other parties to this Action 18 to the extent such claims have not been dismissed or barred. 19 20 IT IS SO ORDERED. Dated: November 13, 2015 21 22 23 24 25 26 27 28 -6WEST\259154482.2 09-CV-2275 WQH (JLB)

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