In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 4219

LETTER addressed to Judge Shira A. Scheindlin from PETER J. SACRIPANTI dated 6/10/15 re: 6/18/15 STATUS CONFERENCE. Document filed by Exxon Mobil Corporation. (Attachments: # 1 JOINT AGENDA)(Sacripanti, Peter)

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BY HAND DELIVERY AND ELECTRONIC MAIL

Peter John Sacripanti
Chairman
[e-mail]
[phone]

June 10, 2015

The Honorable Shira A. Scheindlin
United States District Judge
Southern District of New York
Daniel Patrick Moynihan Courthouse
500 Pearl Street, Room 1620
New York, New York 10007-1312
Re:

Master File C.A. No. 1:00-1898 (SAS), M21-88, MDL No. 1358
Defendants’ Pre-Conference Letter for June 18, 2015 Status Conference

Dear Judge Scheindlin:
Defendants respectfully submit this letter in advance of the June 18, 2015 conference.
JOINT AGENDA ITEMS
I.

Commonwealth of Pennsylvania: Proposed CMOs Covering Initial Disclosures

In advance of the last status conference, held on April 24, the parties met-and-conferred
regarding a CMO covering exchange of initial disclosures. While agreement was reached on a
number of issues, certain items remained in dispute, requiring the parties to submit competing
proposals. The Court addressed the disputed provisions on April 24. Therefore, following the
conference, Defendants sent Plaintiff a redline of Defendants’ initial proposed CMO, which
Defendants had edited to reflect all of the Court’s rulings at the April conference. 1 See Email
from A. Bongiorno to M. Axline, with Defs.’ CMO Redline (May 14, 2015) (at Ex. A).
Plaintiff responded with a redline of their own which, Defendants respectfully suggest, is
an improper attempt to seek reconsideration of certain of the Court’s April 24 bench rulings. In
fact, it is Plaintiff’s position that the Court did not resolve the disputed CMO issues at all, but
rather only intended the parties to meet and confer further.

1

See Status Conf. Tr. (Apr. 24, 2015), at 18-19 (ruling on Defs.’ proposed Section II regarding
site and well lists and MTBE data); id. at 20 (ruling on Pl.’s proposed Section V regarding
opening of general liability discovery); id. at 20-25 (ruling on Pl.’s proposed Section III.C
regarding subpoenas to environmental consultants); id. at 25-30 (ruling on Pl.’s proposed
Sections III.A.9-11); id. at 30-33 (ruling on Defs.’ proposed Sections III.A.8-12).

U.S. practice conducted through McDermott Will & Emery LLP.

340 Madison Avenue New York New York 10173-1922 Telephone: [phone] Facsimile: [phone] www.mwe.com

The Honorable Shira A. Scheindlin
June 10, 2015
Page 2
While Defendants are continuing to confer with Plaintiff in advance of the June 18
conference, and are hopeful that a number of the open issues will be resolved, the parties have
reached an impasse regarding Section II of the proposed CMO. That section, as drafted by
Defendants in advance of the last conference, and adopted by the Court on April 24, required
Plaintiff to produce a list of MTBE release sites, a list of wells within the Commonwealth where
MTBE has been detected, and data showing the highest and most recent MTBE detections at
each such location. See Ex. A, § II.A – II.C.
Specifically, discussing Defendants’ CMO Section II, the Court agreed that Plaintiff
should produce the requested information, but found that Defendants’ suggested date was
unrealistic. Instead, the Court ordered Plaintiff to produce the information by December 31,
2015, stating:
So the date proposed by the defendants is unrealistic, by the end of
August. I don’t think the plaintiff can do the list of all sites and
wells at which MTBE has been detected, and sampling. It’s
beyond what they could possibly achieve in that amount of time.
… So I think the right date is no later than the end of 2015. So the
identification of sites and sampling results and everything for all
the sites in issue needs to be December 31st, 2015.
Apr. 24, 2015 Status Conf. Tr. at 19:9-22 (at Ex. B). Nonetheless, Plaintiff now proposes to
strike Sections II.B and II.C – requiring the list of wells at which MTBE has been detected and
the MTBE highest and most-recent-detect data for each site and well – arguing that the Court did
not “rule” on these issues. Defendants respectfully request that the Court confirm its adoption of
Defendants’ Section II with the amended date.
II.

New Jersey: Record on Remand

Pursuant to JPML Rule 10.4(a), the parties have met and conferred regarding the record
to be sent to the District of New Jersey on remand of the Trial Sites. The parties have identified
a number of materials, including CMOs, PTOs and letter briefs, that were never docketed in the
New Jersey matter. Therefore, the parties will provide these materials to the Court and jointly
request that they be docketed in Case No. 08-cv-00312.
III.

OCWD: Suggestion of Remand

As the parties indicated at the last status conference, the focus stations are ready for
remand to the Central District of California. With the exception of the BP/Shell issue discussed
below, the only issue that remains is finalizing the Suggestion of Remand. The parties have met
and conferred about the content of the Suggestion of Remand and have resolved all issues except
for the issue of declaratory relief. On this issue, the parties are at an impasse and request
guidance from the Court.

The Honorable Shira A. Scheindlin
June 10, 2015
Page 3
The crux of the dispute is the distinction between declaratory relief as a cause of action
and declaratory relief as a remedy. Despite clear adjudication and guidance from this Court
years ago, OCWD insists that declaratory relief is still an available cause of action that should be
remanded to California for trial. Accordingly, OCWD insists that the Suggestion of Remand list
declaratory relief as a remaining cause of action for each focus station. This approach is
improper and contrary to the Court’s prior orders. Defendants, therefore, object to all reference
to declaratory relief as a remaining cause of action in the Suggestion of Remand.
In 2006, this Court dismissed the declaratory relief cause of action. The Court explained
that:
Defendants argue that OCWD’s claim for declaratory relief should
be denied because it is duplicative of the other relief sought in this
action. Defendants’ point is well taken. Such relief is identical to
that sought under OCWD’s common law claims for products
liability, negligence, trespass, and nuisance. Declaratory relief is
generally inappropriate where duplicative of other claims in the
action as the ‘object of the statute is to afford a new form of relief
where needed and not to furnish a litigant with a second cause of
action for the determination of identical issues.’ Accordingly,
defendants’ motion to dismiss plaintiff’s claims for declaratory
relief is granted.
In re MTBE Prods. Liab. Litig., 457 F. Supp. 2d 455, 466-67 (S.D.N.Y. 2006) (emphasis added).
In 2007, the Court clarified the ruling in response to OCWD’s request, noting that the
cause of action had been adjudicated against OCWD but that, if the remaining causes of action
supported a remedy of declaratory relief, the prior adjudication would not bar pursuit of that
remedy. (March 6, 2007 Opinion and Order, p. 11, n.26 (“If any of OCWD’s remaining causes
of action, such as those for nuisance or trespass, are determined to require declaratory relief, such
relief remains available under those causes of action.”)) Notwithstanding this, OCWD claims
that the declaratory relief cause of action is still at issue and should be remanded for trial.
Defendants’ position is consistent with the Court’s orders that the free-standing
declaratory relief cause of action has been dismissed from the case leaving only the issue of
remedy to be decided by the trial judge. At the time of the March 2007 ruling, both permanent
nuisance and continuing nuisance causes of action remained in the complaint. Now—at 14 of
the 16 sites 2—they do not. All that remains at those sites is continuing nuisance. The time for
the “determination” referenced by the Court is at trial because all motions have been decided.
Thus, if the trial judge determines at trial that the remedy of declaratory relief: (1) is allowed
under the doctrine of “continuing nuisance” in California—an issue on which the parties
2

If BP & Shell-related stations are included in this count, 25 of the 27 stations only have
continuing nuisance at issue.

The Honorable Shira A. Scheindlin
June 10, 2015
Page 4
disagree—and (2) is warranted based on the evidence, that judge can issue an appropriate order.
The Suggestion for Remand is not the place to decide what remedies are available. Rather, it is
the place to state which causes of action the Court is suggesting be remanded for trial.
Accordingly, Defendants request that declaratory relief be removed from the Suggestion of
Remand.
DEFENDANTS’ AGENDA ITEMS
I.

Commonwealth of Puerto Rico II: Report on Status of Rule 12 Motions

Defendants will report to the Court on the status of the Rule 12 motions discussed on the
May 7th teleconference and the parties’ meet-and-confer discussions regarding the need for the
same.
Defendants believe that the island-wide or non-site specific claims asserted in PRII are
duplicative of those same claims asserted in PRI, and are barred pursuant to either the prior
pending action doctrine or the statute of limitations. Defendants have attempted to engage in a
meet-and-confer with Plaintiffs to avoid unnecessary motion practice on this issue (see Ltr. from
M. Dillon to S. Kauff (June 8, 2015), at Ex. C), but, to date, Plaintiffs have taken the position that
they will not discuss this matter until after June 15, when the Commonwealth’s opposition briefs
are due to unrelated statute of limitations motions filed in PRI. Defendants believe that this issue
should be addressed now, particularly given the June 29 deadline for filing briefs in support of
Rule 12 motions directed to PR II.
Similarly, Defendants have also attempted to initiate meet-and-confer discussions with
Plaintiffs in response to their “bill of particulars” served on May 22, with various Defendants
having identified particular inaccuracies in this amplification of Plaintiffs’ pleading. Plaintiffs
have, again, stated that they will respond only “a reasonable time after” filing their opposition
brief on June 15 in the separate PRI action.
II.

OCWD: Shell and BP Defendants’ Request for Rule 54(b) Certification

Having considered the Court’s discussion of Rule 54(b) certification at the April 24, 2015
Status Conference, the Shell and BP Defendants believe that Rule 54(b) certification is the most
appropriate method for resolving any perceived issues arising from the Court’s September 16,
2014 Opinion and Order on the BP and Shell Defendants’ res judicata summary judgment
motion and join OCWD’s April 16, 2015 request that the Court certify that Opinion and Order as
a final judgment. See Pl.’s April 16, 2015 Pre-Conference Ltr., at 5-7. 3

3

The Shell and BP Defendants have been meeting and conferring about possible agreement on
procedural measures to address the issues raised by OCWD at the April 24, 2015 Status
Conference. The parties are continuing to meet and confer and will inform the Court of any
progress either in advance of or at the June 18 Status Conference.

The Honorable Shira A. Scheindlin
June 10, 2015
Page 5
The Shell and BP Defendants believe that Rule 54(b) certification provides the most
expedient and appropriate method to challenge the Court’s September 16, 2014 Order, should
OCWD so desire. Rule 54(b) certification would also eliminate the need for the Shell and BP
Defendants to expend time and resources on remand to and a trial in the Central District of
California, when this Court has already granted summary judgment on all claims against those
defendants.
***
As always, we appreciate your Honor’s attention to this matter and ask that this letter be
docketed by the Clerk’s Office so that it is part of the Court’s file.

Sincerely,

Peter John Sacripanti
Peter John Sacripanti
cc: All Counsel of Record by LNFS, Service on Plaintiffs’ Liaison Counsel

EXHIBIT A

Gerson, Lisa
From:
Sent:
To:

Subject:
Attachments:

Bongiorno, Anthony
Thursday, May 14, 2015 6:38 PM
[e-mail]; Pardo, James; Riccardulli, Stephen; Gerson, Lisa;
[e-mail]; [e-mail]; [e-mail];
[e-mail]
'Tyler Wren'; 'Michael Coren'; [e-mail]; [e-mail]; 'Miller &
Axline'
RE: PA CMO
2015-05 PA Proposed CMO With Bench Rulings v.2.docx

Follow Up Flag:
Flag Status:

Follow up
Flagged

Cc:

Mike: I hope this email finds you well. Please see the CMO defendants have put together, embodying the Court’s rulings 
from the status conference.  We intend to submit the same to the Court by Wednesday of next week. If you would like 
to discuss, please advise at your earliest convenience.  

Best  ‐‐  Tony 

Anthony A. Bongiorno
Partner

McDermott Will & Emery LLP | 28 State Street | Boston, MA 02109-1775
Tel [phone] | Mobile [phone] | Fax [phone]
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1

DEFENDANTS’ 5/14/15 REDLINE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE METHYL TERTIARY BUTYL ETHER
(“MTBE”) PRODUCTS LIABILITY
LITIGATION

Master File No. 1:00-1898
MDL 1358 (SAS) M21-88

This document relates to:
Commonwealth of Pennsylvania, et al. v. Exxon
Mobil Corporation, et al., Case No. 1:14-cv06228 SAS

SHIRA A. SCHEINDLIN, U.S.D.J.
[PROPOSED] CASE MANAGEMENT ORDER NO.
This Case Management Order (“CMO”) defines the scope of initial disclosures in
the above-captioned case (hereinafter the “Pennsylvania case”). Additional discovery
will be addressed in subsequent CMOs.
I.

IDENTIFICATION OF COVERED PERSONS
By May 29, 2015, parties who have not yet done so in MDL 1358 shall identify

“covered persons” in accordance with Sections 2(b) and 2(c) of the Court’s 2005 Order
for Preservation of Documents.
II.

INITIAL DISCLOSURES BY PLAINTIFFS:
A.

By December 31, 2015, Plaintiffs shall identify every “release” site (by

Deleted: August 30

name, address and site identification number) within the Commonwealth at which
Plaintiffs contend neat MTBE or gasoline with MTBE was released.
B.

By December 31, 2015, Plaintiffs shall identify every potable well (by

name, address, GIS coordinates, and Public Well System identification number) within
the Commonwealth where MTBE was detected.

1

Deleted: August 30

DEFENDANTS’ 5/14/15 REDLINE
C.

By December 31, 2015, for each site or well identified in response to

Sections II.A and II.B above, Plaintiffs shall identify:
1.

2.
D.

The most recent date MTBE was detected in groundwater at each
site or well, and the concentration of MTBE detected on such date;
and
The maximum concentration of MTBE detected, at any time, at
each site or well, and the date of such detection.

In responding to Sections II.A through II.C, Plaintiffs shall not limit their

responses to information contained in readily accessible electronic data (as defined
below).
III.

INITIAL PRODUCTION OF SITE FILES AND ELECTRONIC DATA
A.

By July 30, 2015, Plaintiffs shall produce to Defendants any and all

readily accessible electronic data (i.e., databases or other files created for the purpose of
centralizing or aggregating storage of information) in their possession, custody or control,
or in the possession, custody or control of any agency or department of the
Commonwealth, regarding the following:
1.

The presence and concentration of MTBE or TBA in any public
water supply wells in Pennsylvania, including, but not limited to,
any detections reported in any Safe Drinking Water Information
System (SDWIS) database;

2.

The presence and concentration of MTBE or TBA in any
groundwater or surface waters in Pennsylvania;

3.

The presence and concentration of MTBE or TBA in any private
water supply well(s) or potable spring(s) in Pennsylvania,
including, but not limited to, data (if any) in the Commonwealth’s
possession compiled by Bucks, Chester, Delaware, Montgomery
and Philadelphia Counties (and all other counties which may also
compile such data);

4.

The payment of public funds for the investigation, removal,
remediation, monitoring or treatment of MTBE or TBA in
Pennsylvania (to the extent that data related to the payment of

2

Deleted: August 30

DEFENDANTS’ 5/14/15 REDLINE
public funds is not maintained so as to identify MTBE and/or
TBA, Plaintiffs shall produce such data for reformulated gasoline
or gasoline containing MTBE);
5.

6.

The concentration of gasoline constituents in groundwater at any
release site identified in response to Section II.A above including,
but not limited to, MTBE or TBA; and

7.

B.

The amount of public funds used to pay for the remediation,
cleanup or treatment of MTBE or TBA in Pennsylvania, the
locations at which such public funds were expended, and any costs,
damages or injury allegedly sustained by Plaintiffs as a result of
the presence of MTBE or TBA in Pennsylvania (to the extent that
data related to the expenditure of public funds is not maintained so
as to identify MTBE and/or TBA, Plaintiffs shall produce such
data for reformulated gasoline or gasoline containing MTBE);

Any site remediation reports related to releases of MTBE, TBA or
gasoline containing MTBE or TBA where such releases allegedly
caused impacts to soils and/or groundwater in the Commonwealth.

By the June 18, 2015 status conference, Plaintiffs will report to the Court

regarding (i) the number of sites implicated by the below categories and (ii) the
availability of information on the below categories in readily accessible electronic format.
The Court will then set a date for production of such readily accessible electronic data (to
the extent so maintained by the Commonwealth).
1.

The location and ownership interest, including leases, that the
Commonwealth, including any agency or department thereof, has
or had in any underground storage tank which stored gasoline and
any terminal or refinery which was engaged in the refining,
distribution, storage or sale of neat MTBE, reformulated gasoline,
or gasoline containing MTBE;

2.

The location and ownership interest, including leases, that the
Commonwealth, including any agency or department thereof, has
or had in any pipeline or delivery system (e.g., railcar, barge,
tanker or tank truck) engaged in the delivery of neat MTBE,
reformulated gasoline, or gasoline containing MTBE for
distribution or sale in Pennsylvania;

3.

The identity of parties with whom the Commonwealth, including
any agency or department thereof, had supply contracts to deliver

3

DEFENDANTS’ 5/14/15 REDLINE
gasoline containing MTBE, reformulated gasoline, or neat MTBE
to Pennsylvania, including exclusive supply contracts, and
contracts with delivery services, franchisees, lessees, lessors,
jobbers, common carriers (including, but not limited to, pipelines),
distributors, terminals, other refiners, or any other entities;
4.

5.

C.

The location, dates, volumes, sources and causes of any releases of
gasoline containing MTBE, reformulated gasoline, or neat MTBE,
by the Commonwealth, including any agency or department
thereof, into soil, ground water or surface water within
Pennsylvania; and
Any site remediation reports related to releases of MTBE,
reformulated gasoline, or gasoline containing MTBE at sites that
are or were owned and/or operated by the Commonwealth,
including any agency or department thereof, at the time of release
and where such releases caused MTBE impacts to soils and/or
groundwater.

Production of the electronic data described in Section III.A shall be made

on a “rolling” or continuing basis starting no later than May 29, 2015.
D.

If any of the foregoing electronic data or files also contains data or

information about chemicals or substances other than MTBE, such data or information
shall be produced and not withheld or redacted.
E.

For each site that Plaintiffs do or may contend is implicated in this matter,

Plaintiffs shall produce to Defendants any site files from the Underground Storage Tank
Indemnity Fund (USTIF) on or before July 30, 2015.
IV.

INITIAL DISCLOSURES BY DEFENDANTS
A.

By July 30, 2015, each Defendant shall produce to Plaintiffs any and all

readily accessible electronic data (i.e., databases or other files created for the purpose of
centralizing or aggregating storage of information) in its possession, custody or control
regarding the following:
1.

The location and ownership interest, including leases, that
responding Defendant has or had in any service station,

4

DEFENDANTS’ 5/14/15 REDLINE
underground storage tank system (“USTs”) motor fuel terminal or
refinery in Pennsylvania which was engaged in the refining,
distribution, storage or sale of neat MTBE, reformulated gasoline,
or gasoline containing MTBE;
2.

3.

The identity of parties with whom the responding Defendants had
supply contracts to deliver gasoline containing MTBE,
reformulated gasoline, or neat MTBE to Pennsylvania, including
exclusive supply contracts, and contracts with delivery services,
franchisees, lessees, lessors, jobbers, common carriers (including,
but not limited to, pipelines), distributors, terminals, other refiners,
or any other entities;

4.

The name, grade, product codes, blend information and other
identifying information for gasoline containing MTBE,
reformulated gasoline, or neat MTBE that was distributed by the
responding Defendant in Pennsylvania;

5.

The location, dates, volumes, sources and causes of any releases of
gasoline containing MTBE, reformulated gasoline, or neat MTBE,
by Defendant, into soil, ground water or surface water within
Pennsylvania;

6.

Any site remediation reports related to releases of MTBE,
reformulated gasoline, or gasoline containing MTBE at sites that
are or were owned and/or operated by the responding Defendants
at the time of release and where such releases caused MTBE
impacts to soils and/or groundwater;

7.

The volumes of neat MTBE, reformulated gasoline, and gasoline
containing MTBE that the responding Defendant refined,
distributed, stored, blended, supplied to or sold in the
Commonwealth of Pennsylvania; and

8.
B.

The location and ownership interest, including leases, that
responding Defendant has or had in any pipeline or delivery
system (e.g., railcar, barge, tanker or tank truck) engaged in the
delivery of neat MTBE, reformulated gasoline, or gasoline
containing MTBE for distribution or sale in Pennsylvania;

Lists of Pennsylvania MTBE release sites.

Plaintiffs will provide to Defendants the list of sites at which Plaintiffs

contend gasoline was released. (Apr. 24, 2015 Tr. at 30). Within sixty (60) days after that
production by Plaintiffs, each Defendant shall produce to Plaintiffs any and all readily

5

DEFENDANTS’ 5/14/15 REDLINE
accessible electronic data (i.e., databases or other files created for the purpose of
centralizing or aggregating storage of information) in its possession, custody or control
regarding licensing branding and franchise agreements for gasoline sales in Pennsylvania
for every site (by name, address and site identification number) within the
Commonwealth at which Plaintiffs contend gasoline was released.
C.

In responding to paragraphs (A)(1)-(A)(7), above, Defendants need

produce readily accessible electronic data for “reformulated gasoline” only where the
requested information is not available specifically for gasoline containing MTBE.
D.

Production of the electronic data described in Section IV.A above shall be

made on a “rolling” or continuing basis starting no later than May 29, 2015.
E.

Plaintiffs intend to serve subpoenas on Defendants’ current or former

environmental consultants to obtain readily available electronic data concerning: (1)
concentrations of MTBE and/or BTEX in soil and groundwater at release sites, and (2)
consulting reports regarding release sites. Plaintiffs shall provide all Defendants with an
advance courtesy copy of any such subpoena two (2) weeks prior to service on a
Defendant’s current or former environmental consultant. Any Defendants’ consent for a
current or former consultant to respond to such subpoena does not prejudice Defendants’
or consultants’ right to assert attorney-client privilege, attorney work product or any other
privileges or objections in responding to Plaintiffs’ subpoena(s).
V.

ELECTRONIC LOOSE FILES
A.

With respect to the readily accessible electronic data to be produced

pursuant to Parts III and IV of this Order, the parties need not produce Electronic Loose
Files (“ELF”).

6

DEFENDANTS’ 5/14/15 REDLINE
B.

For purposes of this Order, ELF includes any electronic files that do not

consist of files or data from systems created to centralize or aggregate storage of a party’s
information (i.e. databases).

Discrete word processed documents (e.g. memoranda,

correspondence), PDFs, images, emails and their attachments, and the like are considered
ELF.
VI.

OTHER DISCOVERY PERMITTED
Beginning on May 29, 2015, the parties may engage in written discovery, subject

to any and all appropriate objections, as to the following:
A.
B.

General liability discovery; and

C.
VII.

Damages Plaintiffs allege;

Discovery related to Defendants’ affirmative defenses.

FUTURE DISCOVERY
The parties shall meet and confer after August 30, 2015 to discuss:
A.

The timing for completion of the production of electronic files that are not

readily available pursuant to Parts III and IV, and any further discovery the parties
propose, taking account of the electronic data the parties produce pursuant to section III
and IV of this CMO;
B.

Production of paper or non-electronic site remediation files; and

C.

Methods for management of future discovery.

SO ORDERED

DRAFT
DATED: New York, New York
May ___, 2015

_____________________________
Shira A. Scheindlin
U.S.D.J.

7

Deleted: April

EXHIBIT B

1
F4OAMTBCps

1
2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x

3
4

IN RE: METHYL TERTIARY BUTYL
ETHER ("MTBE") PRODUCTS
LIABILITY LITIGATION

5
6

00 MDL 1358
00-cv-01898
04-cv-04968
07-cv-10470
14-cv-06228

(SAS)
(SAS)
(SAS)
(SAS)

------------------------------x

7

April 24, 2015
2:30 p.m.

8
Before:
9
HON. SHIRA A. SCHEINDLIN,
10
District Judge
11
APPEARANCES
12
13
14
15
16

MILLER, AXLINE & SAWYER
Attorneys for Plaintiffs
BY: MICHAEL D. AXLINE, ESQ.
DUANE MILLER, ESQ.
JACKSON GILMOUR & DOBBS, PC
Attorneys for Plaintiffs
BY: JOHN D.S. GILMOUR, ESQ.
WILLIAM J. JACKSON, ESQ.

17
18

WEITZ & LUXENBERG, P.C.
Plaintiffs' Liaison Counsel
BY: ROBIN GREENWALD, ESQ.

19
20
21
22
23
24

McDERMOTT, WILL & EMERY
Attorneys for Defendants Exxon Mobil Corp.
and Defendants' Liaison Counsel
BY: JAMES A. PARDO, ESQ.
ANTHONY A. BONGIORNO, ESQ.
STEPHEN J. RICCARDULLI, ESQ.
SEDGWICK LLP
Attorneys for Defendant Mobil Oil Corporation
BY: PETER C. CONDRON, ESQ.

25

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

18
F4OAMTBCps

1

Court.

2

next conference.

3
4

If there are any issues with it, we'll raise it at the

THE COURT:

All right.

But we've managed to do this

in New Jersey.

5

MR. PARKER:

6

THE COURT:

7

but we got it done.

8

MR. PARKER:

9

THE COURT:

Yes.
It took some work, it took some thinking,

I'm very hopeful that will happen here.
And the MDL panel went along with it.

So

10

there's a corrective in this MDL for splitting the case between

11

the portion that can be remanded and the portion that

12

remains -- which of course raises another issue in the OCWD

13

case, and that is, what is the mechanism for continuing to move

14

the remainder of the case along, here in the district court?

15

MR. AXLINE:

We're meeting and conferring on that

16

topic also, your Honor.

17

suggestion or a reply and dispute to present to you at the next

18

conference.

19

THE COURT:

20

MR. AXLINE:

21

THE COURT:

And I think we'll have either a

But that's not ready for today.
No.
OK.

Well, that takes us to the

22

Pennsylvania matter.

And this is a real problem because it has

23

to do with identifying the site at issue.

24

plaintiffs have an obligation to do it and plaintiff should do

25

it, plaintiff should do it very promptly and certain other

And defendants say

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

19
F4OAMTBCps

1

discovery shouldn't proceed until plaintiff has done it.

2

plaintiffs say, well, it may be our burden, but it's always

3

required us to obtain information from defendants before we are

4

able to identify all of the sites.

5

for both sides on this.

6

but plaintiff can't do it until they get the cooperation of

7

defendants in providing the material they need to identify all

8

those sites.

9

And

So I have sort of sympathy

I realize it's plaintiff's obligation

So the date proposed by the defendants is unrealistic,

10

by the end of August.

I don't think the plaintiff can do the

11

list of all sites and wells at which MTBE has been detected,

12

and sampling.

13

that amount of time.

It's beyond what they could possibly achieve in

14

(Pause)

15

THE COURT:

16
17

I think somebody hung up on us.

Some of

you are still on the phone, though, I assume.
So in any event, I think there has to be a date, but

18

there has to be a schedule within the time frame as to what

19

plaintiff will need in order to get to that goal.

20

the right date is no later than the end of 2015.

21

identification of sites and sampling results and everything for

22

all the sites in issue needs to be December 31st, 2015.

23

within the months remaining, May through whatever, November, to

24

be ready to put it all together in December is to identify what

25

is still needed from defendants to make this viable.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

So I think
So the

But

EXHIBIT C

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Michael J. Dillon
Attorney at Law
[e-mail]
[phone]

June 8, 2015
BY ELECTRONIC MAIL AND LNFS

Scott E. Kauff, Esq.
Law Offices of John K. Dema
11300 Rockville Pike, Suite 112
Rockville, MD 20852
Re:

Commonwealth of Puerto Rico, et al. v. Shell Oil Co., et al.: No. 14-cv-01014 (SAS)
Defendants’ Motion to Dismiss Island-Wide Claims for Relief

Dear Scott:
Defendants in the above-referenced action write pursuant to Rule IV.B of Judge
Scheindlin’s Individual Rules and Procedures. As discussed at the May 7, 2015 teleconference
with the Court, all Defendants intend to move for dismissal of Plaintiffs’ claims for “islandwide” relief in this second Puerto Rico action, if necessary. However, Defendants respectfully
submit that there is no need to burden the Court with this motion. Plaintiffs’ island-wide claims
are duplicative of those presented in their first action, and are therefore barred by the “prior
pending action” doctrine, the relevant statute of limitations, and this Court’s prior rulings.
Accordingly, based on the reasons below, Plaintiffs’ island-wide claims should be voluntarily
dismissed, with prejudice, and left for resolution in the first Puerto Rico action.1
As you know, in this second Puerto Rico action concerning MTBE (the “Puerto Rico II
action”), Plaintiffs allege a generalized “island-wide” harm due to MTBE and seek island-wide
relief for the same. However, these claims mirror those raised in their 2007 complaint, i.e., the
“Puerto Rico I action.” See Ex. A (comparing allegations in the 2007 and 2013 complaints).
This duplication is inappropriate. This Court has not authorized seriatim actions designed to
recover generalized, non-site-specific relief already sought in a prior action (which action is still
pending before this Court). Rather, the Court has only allowed for the possibility of a
subsequent lawsuit premised on new detections of MTBE at specific sites not previously known
to Plaintiffs. See, e.g., July 12, 2012 Status Conf. Tr. at 55-57. In other words, Plaintiffs’ second
Puerto Rico action concerning MTBE should be limited solely to claims concerning allegedly
“new” site-specific injuries due to MTBE, and cannot re-hash general issues or claims that have
been or will be decided in the first action. Indeed, Plaintiffs’ counsel appears to have previously
1

Defendants do not concede that the Commonwealth’s island-wide claims in that action are
valid, and reserve the right to contest such claims if and when they are litigated in Puerto Rico I.

U.S. practice conducted through McDermott Will & Emery LLP.

340 Madison Avenue New York New York 10173-1922 Telephone: [phone] Facsimile: [phone] www.mwe.com

Scott Kauff
June 8, 2015
Page 2

acknowledged this fact. See Ltr. From M. Axline to P. Hanebutt (Mar. 17, 2014) (“The
PRMTBE II litigation asserts claims with respect to specific sites that were dismissed without
prejudice from PRMTBE I by CMO 109.”) (emphasis added); May 1, 2014 Status Conf. Tr. at 21
(Ms. O’Reilly: “Puerto Rico could not have had notice of the injury that is alleged in PR II, the
second cause of action, second case, until those wells were contaminated.”).
Further, this Court has already sided with Defendants on this matter. With regard to
Plaintiffs’ duplicative island-wide claims in the Puerto Rico II action, the Court stated:
THE COURT: I have already ruled on that in the first case. You can’t, Ms.
O’Reilly, ignore the Court’s rulings, refile, and pretend we are starting all over
again on a clean slate. We are not. The only part of the new case I’m interested
in is the 53 site-specific places where there is new evidence of new injury. The
rest is res judicata, it’s done. The motion is going to be granted on anything
except for the 53 new sites.
See May 1, 2014 Status Conf. Tr. at 24. This conclusion as to the inappropriateness of Plaintiffs’
reintroduction of broad, island-wide allegations and/or claims for relief in a second action was
unequivocal. Indeed, during the same 2014 hearing, the Court reiterated:
THE COURT: To the extent that the 2013 complaint purports to bring islandwide claims – I see. I already dismissed in the July 2013 opinion?
MS. HANEBUTT: Right.
THE COURT: Then that’s res judicata.
MS. HANEBUTT: No, they haven’t been dismissed in that. They are either
barred in the 2013 action on the grounds of statute of limitations because surely
they knew by the time they brought the case in 2007, or by a prior pending case
that is being litigated.
THE COURT: I agree. That’s what I’m saying. It really is covered by my July
2013 opinion because it did talk in general terms about the waters of Puerto Rico,
generally speaking. If it is not site-specific, I have already ruled and I dismissed
it.
MS. HANEBUTT: Thank you.
THE COURT: I agree with you again. I think that given the issues we discussed
at this conference, and you of course will have this record, this briefing should be
quite limited. It really comes down to the individual motions I heard and then
possibly, if you need to – and I don’t think you do, because you have already won

Scott Kauff
June 8, 2015
Page 3

it on the defense side, the repetitive ones, that’s the 17, the island-wide damage to
the water or whatever, that was done on the first Puerto Rico case.
Id. at 27-28.
The Court’s directive is well-supported by the relevant law. The “prior pending action”
principle – which derives from a district court’s general power to administer its docket – prompts
a district court to stay or dismiss a suit that is duplicative of another suit in federal court. Curtis
v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). The Second Circuit has determined that this
power should be exercised by giving priority to the first-filed suit absent a showing of “special
circumstances” or the “balance of convenience” that merits giving priority to the second. See
First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989). No such
circumstances exist here – in fact, these considerations counsel in favor of the application of the
prior pending action doctrine.
Importantly, this doctrine bars duplicative claims for relief as against all Defendants in
the Puerto Rico II action – not solely those Defendants named in the Puerto Rico I action.
Identical defendants are not requisite for the application of the doctrine. See Howard v. Klynveld
Peat Marwick Goerdeler, 977 F. Supp. 654, 664 (S.D.N.Y. 1997) (“For a second action to be
duplicative, it is not necessary that the parties be identical.”); Dragon Capital Partners L.P. v.
Merrill Lynch Capital Servs. Inc., 949 F. Supp. 1123, 1127 (S.D.N.Y. 1997) (“Courts have
repeatedly ruled that parties and issues need not be identical in order for one action to be stayed
or dismissed in deference to an earlier action.” (internal quotations omitted)). Rather, the parties
need only represent the same interests. Howard, 977 F. Supp. at 664 (citing The Haytian
Republic, 154 U.S. 118, 124 (1894)). This is exactly the case here. With regard to Plaintiffs’
claims for island-wide relief, the newly added Defendants (most of which are subsidiaries,
predecessors or affiliates of Defendants named in the Puerto Rico I action) do not present any
different activity or interest than those presented by the Defendants named in Puerto Rico I (most
of whom are named again in this second action).
The relevant one-year statute of limitations bars Plaintiffs’ duplicative island-wide claims
as well. Indeed, prescription serves as an alternative basis for dismissal – Plaintiffs’ non-sitespecific claims (which do not require any site-specific detection) are untimely under well-settled
Puerto Rico law. To wit: under Puerto Rico law the limitations period begins to run from the
time the aggrieved party has “notice of the injury, plus notice of who caused it.” In re MTBE
Prods. Liab. Litig. 2013 U.S. Dist. LEXIS 181837 at *10 (S.D.N.Y. Dec. 30, 2013). The Court
has already decided that the Puerto Rico I complaint, filed on June 12, 2007, demonstrates that
the Commonwealth had notice as of that date “of the injury that MTBE had allegedly caused.”
In re MTBE Prods. Liab. Litig., 959 F. Supp. 2d 476, 496 (S.D.N.Y. 2013). Notably, that initial
complaint alleges that the Commonwealth believes MTBE to be widespread in the “waters of the
Commonwealth,” and therefore seeks damages for testing throughout the Commonwealth – the
very same relief that is sought again in PR II. Compare, e.g., Puerto Rico I Compl. ¶ 5, Request
for Relief ¶ B (June 12, 2007) with Puerto Rico II First Am. Compl. Request for Relief ¶ C(1)-

Scott Kauff
June 8, 2015
Page 4

(2). Further, Plaintiffs obviously had notice on June 12, 2007 of the alleged involvement of the
original Defendants that were named in the Puerto Rico I complaint.2 Thus, at minimum, islandwide claims against these twice-named Defendants are time-barred. Common sense dictates that
the Court need not wait until it rules on Defendants’ site-specific summary judgment motion on
limitations in Puerto Rico I to find Plaintiffs’ island-wide claims in the Puerto Rico II action
untimely or impermissibly duplicative with regard to the twice-named Defendants.
As to the Defendants named for the first time in the Puerto Rico II action, if those entities
can establish Plaintiffs had “notice” of their participation in the Puerto Rico gasoline market
more than a year before Plaintiffs filed their second complaint on September 4, 2013, then all
island-wide claims against those Defendants should be dismissed as well, just as the Court did
for certain newly added Defendants in Puerto Rico I. See In re MTBE Prods. Liab. Litig., 959 F.
Supp. 2d at 497-99, reconsideration denied, 2013 WL 4008632 (Aug. 2, 2013); In re MTBE
Prods. Liab. Litig., No. 07 CIV, 10470, 2013 WL 6869410, at *4 (S.D.N.Y, Dec. 30, 2013). At
least the following newly-added Defendants will provide Plaintiffs with such evidence:






CITGO International Latin America;
Colonial Caribbean, Inc.;
Chevron Texaco Global Trading;
Texaco International Trading Inc.;
ExxonMobil Sales & Supply LLC.

In sum, Defendants respectfully submit that no motion should be necessary to address
Plaintiffs’ repetitive allegations. However, if Plaintiffs do not stipulate to a voluntary dismissal,
with prejudice, of these island-wide claims, Defendants will file our motion pursuant to Fed. R.
Civ. P. 12 on the schedule set by the Court.
Finally, Defendants must address Mr. Short’s June 5, 2015 letter to Defendants, wherein
Plaintiffs state that they will only engage in a meet-and-confer with Defendants on issues
pertaining to possible Fed. R. Civ. P. 12 motions in the Puerto Rico II action “within a
reasonable time” after the Commonwealth files its opposition to Defendants’ summary judgment
motion (in the Puerto Rico I action) on June 15, 2015. There is no reason for such delay,
particularly given the June 29 deadline for Defendants to file Rule 12 motions. The Puerto Rico
II action is a separate case, and the summary judgment briefing schedule in Puerto Rico I should
not impede a dialogue on the issues raised above (or in Defendants’ letters responding to
Plaintiffs’ bill of particulars). Plaintiffs have engaged numerous outside counsel to assist them in
the above-referenced lawsuit, and there is no reason at least one of those counsel cannot meetand-confer with Defendants on these issues in a more timely fashion.
2

Plaintiffs also had notice prior to September 4, 2013 (when Puerto Rico II was filed) of the
Defendants named in the Puerto Rico I Third Amended Complaint that have been dismissed on
extinctive prescription grounds, e.g., Defendants Peerless, Trammo, Vitol, Petrobras America
Inc., and Idemitsu – as evidenced in the Court’s limitations rulings in the prior action.

Scott Kauff
June 8, 2015
Page 5

As always, Defendants are available to discuss the above with you.

Sincerely,

Michael J. Dillon
Michael J. Dillon
cc:

All Counsel via LNFS

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