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

Filing 4454

OPINION of USCA as to (4301 in 1:00-cv-01898-VSB, 467 in 1:04-cv-04968-VSB) Notice of Appeal, filed by Orange County Water District. USCA Case Number 15-3934-cv. Plaintiff-Appellant Orange County Water District appeals from a judgment in consolidated multi-district litigation in the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge). The district court granted summary judgment to Defendants-Appellees BP and Shell on the ground that the Orange County Water District's suit was barred by res judicata as a consequence of earlier consent judgments entered in California state court resolving similar suits against BP and Shell brought by the Orange County District Attorney. Because we conclude that the record does not sufficiently establish that the Orange County District Attorney and the Orange County Water District were in privity, we vacate the district court's res judicata determination and remand the claims against BP and Shell to the Southern District of New York for further proceedings consistent with this opinion.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 06/12/2017. Filed In Associated Cases: 1:00-cv-01898-VSB, 1:04-cv-04968-VSB(nd)

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15-3934-cv
In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation

N.Y.S.D. Case #
04-cv-4968(SAS)
00-cv-1898(SAS)
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In the

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United States Court of Appeals

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For the Second Circuit

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August Term, 2016

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No. 15-3934-cv
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
_________________
DATE FILED: June 12, 2017
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IN RE METHYL TERTIARY BUTYL ETHER (“MTBE”) PRODUCTS LIABILITY
LITIGATION
________
ORANGE COUNTY WATER DISTRICT,
Plaintiff-Appellant,

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v.

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TEXACO REFINING AND MARKETING, INC., EQUILON ENTERPRISES LLC,
SHELL OIL COMPANY, d/b/a SHELL OIL PRODUCTS US, ATLANTIC
RICHFIELD COMPANY, f/k/a ARCO PETROLEUM COMPANY, d/b/a ARCO
PRODUCTS COMPANY, a/k/a ARCO, BP PRODUCTS NORTH AMERICA,
INC., BP WEST COAST LLC, (DOE 3),
Defendants-Appellees;

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UNOCAL CORPORATION, CONOCOPHILLIPS COMPANY, CHEVRON
U.S.A., INC., d/b/a CHEVRON PRODUCTS COMPANY, D/B/A CHEVRON
CHEMICAL COMPANY, UNION OIL COMPANY OF CALIFORNIA, INC.,
TOSCO CORPORATION, EXXON MOBIL CORPORATION, F/K/A EXXON
CORPORATION, D/B/A EXXONMOBIL REFINING AND SUPPLY COMPANY,
EXXONMOBIL CHEMICAL, CORPORATION, EXXON, CHEMICAL U.S.A.,
MOBILE CORPORATION, ULTRAMAR, INC., VALERO REFINING AND
MARKETING COMPANY, VALERO REFINING COMPANY-CALIFORNIA,
VALERO REFINING, TESORO PETROLEUM CORPORATION, (DOE 4),

CERTIFIED COPY ISSUED ON 06/12/2017

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TESORO REFINING AND MARKETING COMPANY, INC., PETRO-DIAMOND,
INC., (DOE 6), SOUTHERN COUNTIES OIL CO., (DOE 7), ARCO CHEMICAL
COMPANY, (DOE 201), LYONDELL CHEMICAL COMPANY, F/K/A ARCO
CHEMICAL COMPANY G&M OIL COMPANY, INC., 7-ELEVEN, INC., USA
GASOLINE CORPORATION, DOES, 9-200, AND DOES 202-1000, INCLUSIVE,
CHEVRON CORPORATION, EXXON MOBILE OIL CORPORATION, TMR
COMPANY, CHEVRONTEXACO CORPORATION,
Defendants.
________

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Appeal from the United States District Court
for the Southern District of New York.
No. 04-cv-4968 ¯ Shira A. Scheindlin, Judge.

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Argued: December 5, 2016
Decided: June 12, 2017
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Before: PARKER, RAGGI AND HALL, Circuit Judges.
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Plaintiff-Appellant Orange County Water District appeals
from a judgment in consolidated multi-district litigation in the
United States District Court for the Southern District of New York
(Shira A. Scheindlin, Judge).1 The district court granted summary
judgment to Defendants-Appellees BP and Shell on the ground that
the Orange County Water District’s suit was barred by res judicata
as a consequence of earlier consent judgments entered in California
state court resolving similar suits against BP and Shell brought by
the Orange County District Attorney.

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This case has since been reassigned to Judge Vernon S. Broderick.

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Because we conclude that the record does not sufficiently
establish that the Orange County District Attorney and the Orange
County Water District were in privity, we vacate the district court’s
res judicata determination and remand the claims against BP and
Shell to the Southern District of New York for further proceedings
consistent with this opinion.
________
MICHAEL D. AXLINE , Miller & Axline, A
Professional Corporation, Sacramento, CA, for
Plaintiff-Appellant.

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MATTHEW T. HEARTNEY, Arnold & Porter LLP,
Los Angeles, CA, STEPHANIE B. WEIRICK, Arnold
& Porter LLP, Washington, D.C., PETER C.
CONDRON, Sedgwick LLP, Washington, D.C., for
Defendants-Appellees.
________

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BARRINGTON D. PARKER, Circuit Judge:
This appeal arises from contamination of groundwater in
Orange County, California, from various oil companies’ use of the
gasoline additive methyl tertiary butyl ether (“MTBE”). This case,
initially brought in 2003 in California state court, was removed to the
Central District of California and transferred in 2004 to the Southern
District of New York by the Judicial Panel on Multidistrict
Litigation. See 28 U.S.C. § 1407. The district court transferred to the
Central District of California all claims except those against BP and
Shell.2 The district court granted the defendants summary judgment
on those claims. Those claims are the subject of this appeal.
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Defendants Atlantic Richfield Company, BP West Coast Products LLC, and BP Products
North America, Inc. are collectively referred to as “BP.” Defendants Shell Oil Company,
Equilon Enterprises LLC, and Texaco Refining and Marketing Inc. are collectively referred
to as “Shell.”

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Plaintiff-Appellant Orange County Water District (the
“District”), which is responsible for groundwater quality in the
Orange County basin, alleged that the addition of MTBE to gasoline
sold by BP and Shell and other defendants that leached from
underground storage tanks contaminated, or threatens to
contaminate, groundwater at more than four hundred sites within
the District’s jurisdiction. The District sued in 2003. Claims against
BP and Shell for MTBE contamination had been brought by the
Orange County District Attorney (“OCDA”) in 1999 and were
settled in 2002 and 2005 respectively.
In 2015, BP and Shell moved for summary judgment on the
ground that res judicata arising from the 2002 and 2005 settlements
barred the District’s 2003 lawsuit. The district court granted the
motion, dismissed the District’s claims against BP and Shell, and
remanded the claims against the remaining defendants to the
Central District of California for trial. See 28 U.S.C. § 1407(a).

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On appeal, the District challenges the lower court’s
application of res judicata on the ground that it was not in privity
with the OCDA. Because, based on the record before us, we cannot
conclude that the District and OCDA are in privity, we vacate the
judgment and remand the district’s claims against BP and Shell to
the Southern District of New York for further proceedings.

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I. BACKGROUND3

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A.

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The Orange County Water District

The District is a public corporation created by the California
state legislature under the Orange County Water District Act (“the
District Act”) to manage, regulate, replenish, and protect the
groundwater basin generally covering the northern half of Orange
County. See District Act §§ 1(a); 2(6). The District provides water to
more than two million users, but it is not a water retailer and does
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Unless otherwise noted, the facts recited below are undisputed and derive from the parties’
submissions on summary judgment.

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not provide water directly to the public. See Orange County Water
District, What We Do, http://www.ocwd.com/what-we-do/ (last
visited May 26, 2017). Nineteen water producers, including cities,
other water districts, and private water companies, obtain water
from the District’s groundwater basin and sell it to the public. See
O r a n g e C o u n ty Wa te r D istr ic t, M e mb e r Age n c i e s ,
http://www.ocwd.com/working-with-us/member-agencies/ (last
visited May 26, 2017).
The District also protects various rights to water from the
Santa Ana River, which is the primary source of water in the basin.
See Orange County Water District, About,
http://www.ocwd.com/about/ (last visited May 26, 2017). Pursuant
to that obligation, the District may bring claims on behalf of the
public, that is, the water users in its service areas. Orange County
Water Dist. v. City of Riverside, 173 Cal. App. 2d 137, 167 (1959); see
also District Act § 2(9).4 The District also may bring claims on its own
behalf under the District Act to recover costs it paid, or will pay, to
remediate groundwater contamination. See District Act § 8. Finally,
the District is authorized to “act jointly with or cooperate with the
United States or any agency thereof, the State of California or any
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Section 2(9) of the District Act provides:
To carry out the purposes of this act, to commence, maintain, intervene in,
defend, and compromise, in the name of the district, or otherwise, and to
assume the costs and expenses of any and all actions and proceedings now
or hereafter begun to prevent interference with water or water rights used
or useful to lands within the district, or diminution of the quantity or
pollution or contamination of the water supply of the district, or to prevent
unlawful exportation of water from the district, or to prevent any
interference with the water or water rights used or useful in the district
which may endanger or damage the inhabitants, lands, or use of water in
the district; provided, however, that the district shall not have power to
intervene or take part in, or to pay costs or expenses of, actions or
controversies between the owners of lands or water rights all of which are
entirely within the boundaries of the district and which do not involve
pollution or contamination of water within the district or exporting water
outside of the district's boundaries or any threat thereof.
Cal. Water Code App § 40-(2)9.

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agency thereof, [and] any county of the State of California . . . to
carry out the provisions and purposes of [the District Act].” Id. at
§ 2(11).
B. The Orange County District Attorney
The OCDA represents the people of California. Its mission is
to “enhance public safety and welfare and create a sense of security
in the community through the vigorous enforcement of criminal and
civil laws in a just, honest, efficient and ethical manner.” See Mission
Statement, http://orangecountyda.org/office/mission.asp (last visited
May 26, 2017). With respect to water, the OCDA is charged with
protecting the people’s “primary interest in the conservation,
control, and utilization of the water resources of the state.” Joint
Appendix on Appeal (“App.”) 4246 (quoting Cal. Water Code
§ 13000). Pursuant to this charge, the OCDA is authorized to sue on
behalf of the public “to protect the public from health and safety
hazards” and “prevent destruction of Orange County’s groundwater
resources and otherwise protect the environment.” App. 4240.
However, the OCDA may not prosecute a cause of action on behalf
of a different public agency, such as the District. See People v. Superior
Court, 224 Cal. App. 4th 33, 41–44 (Cal. Ct. App. 2014).
C.

Prior MTBE Litigation

In 1999, the OCDA sued BP and Shell in Orange County
Superior Court. Both suits asserted claims based on releases of
MTBE from underground storage tanks at BP and Shell gas stations
resulting in the contamination of adjacent soil and groundwater.
Both suits alleged that the MTBE releases constituted continuing and
permanent nuisances. See Cal. Civ. Code §§ 3479 and 3480. The
OCDA sought damages and injunctive relief requiring the
investigation, abatement and cleanup of contaminated areas as well
as steps to control the potential migration of MTBE plumes. The
OCDA’s complaints specifically alleged that it was not representing
any water district. See App. 4241, 4339.
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Though not a party to the OCDA’s lawsuits, the District knew
about them. On July 14, 2000, the District’s general manager wrote to
the Orange County Director of Environmental Health regarding the
suits, stating:
The Orange County Water District has appreciated the
opportunity to provide technical assistance to your
department and to the Orange County District Attorney
to help in the enforcement of cleanup of MTBE and
other petroleum contaminants from leaking gasoline
storage tanks in Orange County.

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App. 4306.

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In 2002, the OCDA and BP agreed to settle. Accordingly, the
Orange County Superior Court entered a consent judgment settling
all of the OCDA’s claims against BP. The settlement constituted “a
release from any known or unknown past or present claims,
violations, or causes of action that were or could have been asserted
in the First Amended Complaint” with regard to MTBE
contamination. App. 4220. Pursuant to the terms of the settlement,
BP agreed to reimburse OCDA’s investigation costs and to fund and
implement a “plume delineation” program to combat MTBE
migration. BP also became subject to injunctive relief prohibiting it
from adding MTBE to gasoline produced in California.
Subsequently, in 2003, the District sued several oil companies,
including BP and Shell, for MTBE contamination.

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In January 2005, Shell also agreed to settle with the OCDA and
a hearing was scheduled to consider the settlement. The District
appeared and opposed the settlement on the ground that its 2003
suit against Shell was pending. The District also requested the
opportunity to formally move to intervene. Shell opposed
intervention on the ground that the motion was untimely. The
OCDA also opposed intervention, contending that:

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The Water District’s claims are common-law based; they
are damage based; they are independent of our claims;
and we have always taken the position, and the Court
has read in the document we have taken the position,
that there’s nothing we’re doing in this settlement that
has anything to do with precluding the Water District
from pursuing their case in Federal Court.
App. 4420. The court denied the District’s motion to intervene and
entered a consent judgment settling all claims against Shell. The
relief provided in the consent judgment with Shell was similar to
that provided in the consent judgment with BP, including
compensation to the OCDA for investigation costs, the funding of a
plume delineation program, and other injunctive relief.
Although, as noted, the OCDA was compensated for its
investigation costs and for the funding of a plume delineation
program, neither settlement awarded the District reimbursement for
its cleanup costs, or compensation for BP and Shell’s contamination
of the groundwater in the District, something the OCDA was not
authorized to recover. In its suit, the District alleges that following
the OCDA settlements, MTBE plumes have migrated from BP and
Shell’s stations toward the District’s water production wells. See
App. 4506.
D.

The District’s Lawsuit against BP and Shell

In the 2003 suit that was filed in California state court against
a number of oil companies, including BP and Shell, the District
alleged that it suffered injury as a consequence of being required to
expend funds “to investigate, clean up, abate, and/or remediate the
MTBE . . . contamination caused by Defendants.” App. 4365. The
District asserted common law claims, primarily sounding in public
nuisance, and a claim under the District Act “to recover
compensatory and all other damages, including all necessary funds
to investigate, monitor, prevent, abate, or contain any contamination
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of, or pollution to, groundwaters within the District from MTBE.”
App. 4364. (In a subsequent filing, the District alleged that its
remedial-action costs totaled over $3 million and estimated it would
take “additional millions of dollars and decades before MTBE is
cleaned up.” App. 4108.) The District also sought injunctive relief “to
protect the quality of the common water supplies of the District; to
prevent pollution or contamination of that water supply; and to
assure that the responsible parties—and not the District nor the
public—bear the expense.” App. 4364.
Defendants removed the case to federal court on grounds of
diversity and the case was transferred to the Southern District of
New York by the MDL Panel. After more than ten years of discovery
and pre-trial proceedings, BP and Shell moved for summary
judgment, contending that the District’s claims were barred by the
OCDA Consent Judgments under the doctrine of res judicata.
The district court agreed and granted the motion. Specifically,
the court concluded that the Consent Judgments constituted final
judgments on the merits; that the OCDA’s prior lawsuits and the
District’s lawsuit contained identical causes of action; and “[b]ecause
the District and the OCDA were both acting on behalf of the public
to enforce the same primary right, the parties are in privity.” In re
Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 46 F. Supp. 3d
440, 450 (S.D.N.Y. 2014), judgment entered sub nom. In re Methyl
Tertiary Butyl Ether (“Mtbe”) Prod. Liab. Litigation, No. 1358 (SAS),
2015 WL 7758530 (S.D.N.Y. Dec. 1, 2015). What makes this case a
close one is that both the OCDA and the District have broad
mandates under California law to protect the Orange County water
supply.
With no claims remaining against BP and Shell, the district
court remanded the District’s suit to the Central District of California
excluding BP and Shell as defendants. Before the remand order went
into effect, the District moved to include BP and Shell as defendants
in the order, contending that the district court’s res judicata
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r u l i n g did not bar the District’s continuing nuisance claims. The
district court denied that motion, holding that the language of the
Consent Judgments indicated an intention on behalf of the parties to
resolve all such claims. The district court then entered a final
judgment pursuant to Federal Rule of Civil Procedure 54(b)
dismissing the District’s suit against BP and Shell.

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The District appeals the res judicata ruling and three prior
orders of the district court against all defendants, including BP and
Shell. Those orders granted summary judgment on the District’s
trespass claim; dismissed some of the District’s common-law claims
as time-barred, and denied the District’s partial summary judgment
motion seeking to recover its investigation costs under the District
Act. We disagree with the district court’s conclusion that the
District’s suit against BP and Shell is barred by res judicata.
Accordingly, we vacate the grant of summary judgment on res
judicata grounds and remand to the Southern District of New York
for further proceedings. Because, as discussed below, the district
court’s Rule 54(b) order did not adequately certify the prior three
orders, we lack jurisdiction to review them. Those orders can also be
addressed on remand, either in the Southern District of New York or
after any return of this action to the Central District of California.

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II. DISCUSSION

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We review a district court’s grant of summary judgment de
novo. Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 705 (2d Cir.
2007).

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A.

Res judicata

The central issue in this appeal is whether the Consent
Judgments have res judicata effect. California law governs our res
judicata analysis. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 470
U.S. 373, 380 (1985). Res judicata “gives certain conclusive effect to a
former judgment in subsequent litigation involving the same
controversy.” Boeken v. Philip Morris USA, Inc., 48 Cal. 4th 788, 797
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(2010) (citation and quotation marks omitted) (emphasis in original).
The doctrine “rests upon the ground that the party to be affected, or
some other with whom [it] is in privity, has litigated, or had an
opportunity to litigate the same matter in a former action in a court
of competent jurisdiction, and should not be permitted to litigate it
again to the harassment and vexation of [its] opponent.” Villacres v.
ABM Indus. Inc., 189 Cal. App. 4th 562, 575 (Cal. Ct. App. 2010)
(citation and quotation marks omitted).
In California, res judicata applies when three elements are
satisfied: “1) the issues decided in the prior adjudication are
identical with those presented in the later action; 2) there was a final
judgment on the merits in the prior action; and 3) the party against
whom the plea is raised was a party or was in privity with a party to
the prior adjudication.” Citizens for Open Access to Sand & Tide, Inc. v.
Seadrift Assoc. (“COAST”), 60 Cal. App. 4th 1053, 1065 (Cal. Ct. App.
1998) (citations omitted). We conclude that the third element is not
met because the current record does not support a finding of privity
between the OCDA and the District.
B.

Privity

Under California law, parties are in privity where “the
nonparty has an identity of interest with, and adequate
representation by, the party in the first action and the nonparty
should reasonably expect to be bound by the prior adjudication.”
City of Martinez v. Texaco Trading & Transp., Inc., 353 F.3d 758, 764
(9th Cir. 2003) (quoting Helfand v. Nat'l Union Fire Ins. Co., 10 Cal.
App. 4th 869, 902 (Cal. Ct. App. 1992)).
California law tracks the Supreme Court’s federal common
law definition of “adequacy” for purposes of the privity inquiry. See
Arias v. Superior Court, 46 Cal. 4th 969, 989 (2009). Thus, “[a] party’s
representation of a nonparty is ‘adequate’ . . . only if, at a minimum:
(1) The interests of the nonparty and her representative are aligned;
and (2) either the party understood herself to be acting in a
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representative capacity or the original court took care to protect the
interests of the nonparty.” Taylor v. Sturgell, 553 U.S. 880, 900 (2008)
(citations omitted).
The district court found the OCDA and District to be in privity
because they are “so identified in interest with [each other] that
[they] represent[ ] the same legal right.” In re MTBE, 46 F. Supp. 3d
at 451-52 (quoting Lerner v. Los Angeles City Bd. of Educ., 59 Cal.2d
382, 398 (1963)). The district court compared the OCDA and
District’s complaints and concluded that the District sought to
enforce the same rights as the OCDA did in its prior suits, namely, to
“prevent destruction of Orange County’s groundwater resources
and otherwise protect the environment.” App. 4240.
The District argues that privity did not exist because its
interests are distinct from the public’s and that the OCDA was not
an adequate representative of the District in the prior suits. BP and
Shell, on the other hand, contend that the OCDA and the District are
agents of the same government and therefore in privity. We agree
with the District for the following reasons.
First, the record before us does not establish that the District
and the OCDA are agents of the same government. Indeed, as
acknowledged by the district court, this question is not
determinative. The relevant question for privity analysis is whether
“the interests of the District and the OCDA are aligned.” In re MTBE,
46 F. Supp. 3d at 451. Here, it is clear that, on the one hand, the
District and the OCDA have significant overlapping interests in
protecting Orange County’s groundwater resources and that the
harm that the suits address and the relief sought are similar. On the
other hand, it is clear that the District and the OCDA also have
asserted interests in this case that diverge.
In Orange County Water District v. Arnold Engineering Company,
196 Cal. App. 4th 1110 (Cal. Ct. App. 2011), the only case that
appears squarely to address the District’s privity with the California
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public, the District sued various entities that owned, operated, or
leased industrial facilities for contaminating groundwater within the
District’s jurisdiction. The defendants moved to disqualify the
District’s counsel on the ground that California law prohibited a
public entity from paying a private attorney a contingency fee to
prosecute a public nuisance abatement action. The trial court denied
the motion, holding that the District was not pursuing the action on
the public’s behalf. Rather, the trial court found that the District
brought the action on its own behalf to recover remediation costs
and other damages it suffered distinct from any damages the public
suffered. The California Court of Appeals affirmed the trial court,
holding:

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Although the Water District represents the water users
in its service area, and may bring litigation on their
behalf, the Water District did not bring this action in a
representative capacity or on its users' behalf. This
action does not seek to enforce any rights the Water
District's users may have in the groundwater or to
recover any damages its users may have suffered from
the contamination

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....

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We conclude the trial court correctly determined the
Water District's lawsuit is essentially an action seeking
to recover the costs to investigate and remediate the
contaminated groundwater, not a public nuisance
abatement action prosecuted on the public's behalf.

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Id. at 1125. While the issue of res judicata was not before the court,
the holding lends significant support to the District’s argument that
it does have interests distinct from those of the public or those of the
OCDA.
We next consider whether the District and the public’s distinct
interests are “aligned” for purposes of privity. First, there is no
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dispute that the OCDA is not empowered to bring lawsuits on the
District’s behalf; or, conversely, that the District cannot do so on
behalf of the OCDA. Further, there is no indication from the record
that the OCDA shared in the District’s distinct right to recover its
costs to investigate and remediate groundwater contamination, a
right the District Act confers exclusively on the District. See District
Act § 8; People v. Superior Court, 224 Cal. App. 4th at 41–44. Indeed,
the district court itself found it compelling that the parties were not
aligned given their assurances to that effect. See In re MTBE, 46 F.
Supp. 3d at 452. The OCDA explicitly represented in its complaints
against BP and Shell that it did “not represent[ ] any water district or
other municipality,” App. 4241, 4339, and the Shell consent
judgment specifically states that it was “not intend[ed] . . . to legally
bar, estop, release, alter, or supersede any investigation, action,
order, request, demand or directive of . . . the Orange County Water
District,” App. 4403–04. Finally, if this were not dispositive, the
OCDA then stated on the record at the motion to intervene hearing
that its claims were distinct from those of the District and that its
lawsuit did not have “anything to do” with the District’s suit in
federal court. App. 4420. See, e.g., City of Martinez, 353 F.3d at 764
(concluding, under California law, that City not aligned with
interests of state agency where City was “informed that the
settlement would not preclude it from later raising its civil claims”).
Finally, we do not believe that the OCDA adequately
protected the District’s interests. The OCDA successfully opposed
the District’s attempt to intervene in the OCDA’s suits. Neither
settlement reimbursed the District’s clean up costs or afforded it
other compensation. The injunctive relief in the OCDA Consent
Judgments has expired and the District alleges that MTBE plumes
from BP and Shell stations continue to migrate toward the District’s
water production wells. These are interests unique to the District
that were not adjudicated in the prior suits. Their existence means
that the District’s interests are not sufficiently aligned with those of
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the OCDA. And the record does not establish that in the prior suits
the trial court took special care to protect the District’s interests.
Taken together, these factors do not permit a finding of privity. See
City of Martinez, 353 F.3d at 764. (“As [the City’s] interests were not
adequately represented by the [state] and it was told not to
participate, it would be patently unfair to bar the City’s claims based
on res judicata.”).
C.

Prior district court orders

The District asks that we review the district court’s prior
orders dismissing some of its claims against all defendants. We lack
jurisdiction to do so.
Rule 54(b) requires the court to “expressly determine” the
claims to which it is directing a final judgment. Fed. R. Civ. P. 54(b).
Here, the district court’s Rule 54(b) certification was limited solely to
the claims that survived against BP and Shell at the time of the res
judicata decision. The surviving claims were so much of the
District’s claims as had not already been dismissed as to all
defendants based upon a failure (a) to comply with the statute of
limitations, (b) to state a claim in trespass or (c) to state a claim
under the District Act. While the district court did not explicitly limit
the arguments that the District might raise on appeal, it plainly did
not certify for appeal claims, common to all defendants, that had
previously been dismissed for independent reasons. Indeed, it stated
that the Rule 54(b) certification was granted as to the claims against
BP and Shell dismissed on grounds of res judicata, which it
concluded were the only ones that were properly “the focus of [an]
appeal” because they were “discrete and separable issues that are
appropriated decided by the circuit on a 54(b) certification.” In re
MTBE, 1358 (SAS), 2015 WL 7758530, at *4 (S.D.N.Y. Dec. 1, 2015); see
generally Novick v. AXA Network LLC, 642 F.3d 304, 311 (2d Cir. 2011)
(“[A] district court generally shall not grant a Rule 54(b) certification
if the same or closely related issues remain to be litigated.” (internal
quotation marks omitted)). Because the previously dismissed claims
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were not mentioned, and thus not adequately certified by the district
court’s Rule 54(b) order, we may not review them here. See id. at 314
(explaining that Rule 54(b) certification that fails to “expressly
determine” claim for appeal or provide “reasoned, even if brief,
explanation” to that effect “is insufficient to confer appellate
jurisdiction” (internal quotation marks and citations omitted)).

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CONCLUSION

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For the foregoing reasons, we vacate the district court’s grant
of summary judgment on res judicata grounds and remand the
District’s action against BP and Shell to the Southern District of New
York for further proceedings consistent with this opinion. See 28
U.S.C. § 1407(a).

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