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

Filing 4462

MEMORANDUM OF LAW in Opposition re: 4460 MOTION to Remand Phase 1 Claims Against Shell and BP Defendants. . Document filed by Atlantic Richfield Company, BP Products North America, Inc.(formerly known as Amoco Oil Company), BP West Coast LLC. (Heartney, Matthew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re: Methyl Tertiary Butyl Ether (“MTBE”)
Products Liability Litigation

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This Document Relates To:
Orange County Water District v. Unocal
Corporation, et al., Case No. 04 Civ. 4968
(VSB)

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Master File No. 1:00-1898
MDL No. 1358 (VSB)
M21-88
The Honorable Vernon S. Broderick

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THE BP AND SHELL DEFENDANTS’ OPPOSITION
TO PLAINTIFF ORANGE COUNTY WATER DISTRICT’S
“MOTION TO REMAND” PHASE I CLAIMS
AND REQUEST FOR A SCHEDULING ORDER

TABLE OF CONTENTS
Page
BACKGROUND .................................................................................................................3
ARGUMENT.......................................................................................................................3
I.

THE SECOND CIRCUIT’S OPINION SPECIFICALLY
CONTEMPLATES ADDITIONAL RECORD DEVELOPMENT AND
PROCEEDINGS ON THE PRIVITY ISSUE..........................................................3

II.

THIS COURT IS THE APPROPRIATE FORUM FOR ADDITIONAL
PROCEEDINGS ON RES JUDICATA IN ACCORDANCE WITH THE
SECOND CIRCUIT’S OPINION, BECAUSE ONLY THIS COURT
HAS JURISDICTION OVER ALL CLAIMS THAT WOULD BE
AFFECTED BY A RES JUDICATA RULING....................................................11

CONCLUSION..................................................................................................................12

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TABLE OF AUTHORITIES
Pages
FEDERAL CASES
Allen v. Bayer Corp.,
460 F.3d 1217 (9th Cir. 2006) .................................................................................................12
E-Pass Techs., Inc. v. 3Com Corp.,
343 F.3d 1364 (Fed. Cir. 2003)..................................................................................................5
E-Pass Techs., Inc. v. 3Com Corp.,
473 F.3d 1213 (Fed. Cir. 2007)..............................................................................................2, 5
Knuth v. Erie-Crawford Dairy Coop. Ass’n,
395 F.2d 420 (3d Cir. 1968).......................................................................................................5
McAlister v. Essex Prop. Trust,
504 F. Supp. 2d 903 (C.D. Cal. 2007) .......................................................................................2
In re MTBE Prods. Liab. Litig.,
2015 U.S. Dist. LEXIS 162416 (S.D.N.Y. Dec. 1, 2015) .........................................................3
In re MTBE Prods. Liab. Litig.,
279 F.R.D. 131 (S.D.N.Y. 2011) ...............................................................................................9
In re MTBE Prods. Liab. Litig.,
46 F. Supp. 3d 440 (S.D.N.Y. 2014)......................................................................................3, 6
In re MTBE Prods. Liab. Litig.,
67 F. Supp. 3d 619 (S.D.N.Y. 2014)......................................................................................6, 9
U.S. ex rel. Oliver v. Philip Morris USA, Inc.,
101 F. Supp. 3d 111 (D.D.C. 2015) ...................................................................................2, 4, 5
Orange Cty. Water Dist. v. Texaco Ref. & Mktg., Inc.,
859 F.3d 178 (2d Cir. 2017)............................................................................................. passim
Orange Cty. Water Dist. v. Texaco Ref. & Mktg., Inc.,
No. 15-3934-cv, slip op. (2d Cir. June 12, 2017) ......................................................................4
Pekin v. Cty. of San Benito,
2008 WL 440581 (N.D. Cal. Feb. 15, 2008) ...........................................................................10
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994).....................................................................................................................5

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In re Welding Fumes Prods. Liab. Litig.,
2010 U.S. Dist. LEXIS 146067 (N.D. Ohio June 4, 2010)........................................................1
STATE CASES
Nguyen v. Superior Court,
49 Cal. App. 4th 1781 (1996) ..................................................................................................10
People v. Dawkins,
195 Cal. App. 3d Supp. 1 (1987) ...............................................................................................2
People v. Sims,
32 Cal. 3d 468 (1982) ................................................................................................................8
Zapata v. Dep’t of Motor Vehicles,
2 Cal. App. 4th 108 (1991) ....................................................................................................8, 9
STATUTES, RULES AND REGULATIONS
28 U.S.C. § 1447(c) .........................................................................................................................1
Cal. Bus. & Prof. Code § 17204 ....................................................................................................10
Cal. Civ. Proc. Code § 731 ............................................................................................................10
Cal. Civ. Proc. Code § 3480 ..........................................................................................................10
Cal. Fish & Game Code § 5650.1 ..................................................................................................10
Cal. Gov’t Code § 16271(d) ............................................................................................................7
Cal. Gov’t Code § 56036 .................................................................................................................7
Cal. Health & Safety Code § 25299.02..........................................................................................10
Fed. R. Civ. P. 60(b) ........................................................................................................................9
Fed. R. Civ. P. 54(b) ........................................................................................................................3

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Defendants Atlantic Richfield Company, BP Products North America Inc., and BP West
Coast Products LLC (the “BP Defendants”), and Shell Oil Company, Equilon Enterprises LLC,
and Texaco Refining and Marketing Inc. (the “Shell Defendants”), submit this opposition to the
motion filed by plaintiff Orange County Water District (the “District” or “OCWD”) requesting
this Court to issue a suggestion of remand to the Judicial Panel on Multidistrict Litigation
(“JPML”) for the BP and Shell Defendants’ “Phase I Trial Sites.”1 The District’s motion is
premature and not consistent with the mandate and opinion issued by the U.S. Court of Appeals
for the Second Circuit in this matter, Orange County Water District v. Texaco Refining and
Marketing, Inc., 859 F.3d 178 (2d Cir. 2017) (the “Opinion”). It should be denied.
The District erroneously claims that the Opinion “found that settlements entered into in
2003 [sic]2 and 2005 between defendants Shell and BP and the Orange County, California
District Attorney (OCDA) did not bar claims asserted against Shell and BP by the [District].”
OCWD Mot. at 1. The Opinion, which vacated but did not reverse a grant of summary judgment
to the BP and Shell Defendants on res judicata grounds, did not find that the OCDA settlements

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The District did not comply with this Court’s rule requiring a pre-motion letter and a
pre-motion conference prior to seeking substantive relief. Hon. Vernon S. Broderick, Individual
Rules & Practices in Civil Cases § 4.A (June 5, 2017). Although the District styles its pleading
as a “motion to remand,” it is not. Rather, it is a motion asking this Court to issue a suggestion
of remand to the JPML. Only the JPML has authority to remand claims to a transferor court, as
the District acknowledges. Pl. OCWD’s Mot. to Remand Phase 1 Claims Against Defs. at 1
(filed July 25, 2017) (“OCWD Mot.”); see also In re Welding Fumes Prods. Liab. Litig., 2010
U.S. Dist. LEXIS 146067, at *34 n.14 (N.D. Ohio June 4, 2010) (“the [MDL] statute makes clear
that it is the MDL Panel, and not this MDL transferee court, that remands a transferred case to
the originating transferor court”). “Motions to remand” are exempt from the Court’s pre-motion
letter and pre-motion conference rule, but the Court no doubt intended that exception to apply to
motions to remand removed cases back to state court, because those motions have strict time
limits under 28 U.S.C. § 1447(c), and not to motions for issuance of a suggestion of remand to
the JPML. The Court can deny the District’s motion for this reason alone.
2

The BP consent judgment with the Orange County District Attorney (the “OCDA”) was
entered in 2002, not 2003. 859 F.3d at 183.

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did not bar the District’s claims. Rather, the Opinion held that, on the current record before it
(859 F.3d at 185), the panel could not find privity – a necessary element of res judicata –
between the District and the OCDA, and therefore it vacated the judgment and remanded this
matter to this Court for “further proceedings consistent with this opinion.” Id. at 188; see also id.
at 181 (“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 [D]istrict’s claims against BP and Shell to
the Southern District of New York for further proceedings.”). See, e.g., E-Pass Techs., Inc. v.
3Com Corp., 473 F.3d 1213, 1218 (Fed. Cir. 2007) (holding that prior opinion that “vacated the
grant of summary judgment and remanded” for further proceedings before district court did not
bar subsequent summary judgment motion on same ground) (“E-Pass II”); U.S. ex rel. Oliver v.
Philip Morris USA, Inc., 101 F. Supp. 3d 111, 119-20 (D.D.C. 2015) (same). Thus, the Opinion
contemplates additional record development and proceedings on whether privity existed between
the District and the OCDA – a pure legal issue to be decided by the Court under California law.
People v. Dawkins, 195 Cal. App. 3d Supp. 1, 6 (1987); McAlister v. Essex Prop. Trust, 504 F.
Supp. 2d 903, 912 (C.D. Cal. 2007). The BP and Shell Defendants seek precisely the further
proceedings that the Opinion contemplated – no more, and no less.
Those “further proceedings” unquestionably should take place in this Court, which
currently has jurisdiction over all the claims against the BP and Shell Defendants that the District
asserts in this case, rather than in the Central District of California, which would only have
jurisdiction over a handful of claims against the BP and Shell Defendants if the Phase I trial sites
were to be remanded, and therefore could not provide complete relief. A proposed scheduling
order, which would govern those further proceedings, including a renewed motion for summary

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judgment, is attached as Exhibit 1 to the Declaration of Matthew T. Heartney in support of this
Opposition (the “Heartney Declaration” or “Heartney Decl.”).
BACKGROUND
On September 16, 2014, Judge Scheindlin issued an opinion granting summary judgment
in favor of the BP and Shell Defendants and dismissed all claims against them based on res
judicata, finding that prior consent judgments entered into between the BP and Shell Defendants
and the OCDA barred the District’s claims in this action. In re MTBE Prods. Liab. Litig., 46 F.
Supp. 3d 440 (S.D.N.Y. 2014). Subsequently, Judge Scheindlin entered a Rule 54(b) final
judgment on all claims against the BP and Shell Defendants. In re MTBE Prods. Liab. Litig.,
2015 U.S. Dist. LEXIS 162416 (S.D.N.Y. Dec. 1, 2015). The District appealed from that
judgment. On June 12, 2017, the Second Circuit vacated the judgment, finding that “the current
record does not support a finding of privity,” a factor necessary to support the res judicata
judgment. 859 F.3d at 185. The Second Circuit therefore “remand[ed] the District’s action
against BP and Shell to the Southern District of New York for further proceedings consistent
with [its] opinion.” Id. at 188. A mandate issued on July 19, 2017. The BP and Shell
Defendants have until September 11, 2017, to decide whether to petition the U.S. Supreme Court
for a writ of certiorari.
ARGUMENT
I.

THE SECOND CIRCUIT’S OPINION SPECIFICALLY CONTEMPLATES
ADDITIONAL RECORD DEVELOPMENT AND PROCEEDINGS ON THE
PRIVITY ISSUE.
Following this Court’s prior Suggestion To Remand in this case, dated September 29,

2015, the Multidistrict Panel remanded the District’s claims relating to 16 service stations sites
operated by four defendants to the Central District of California. Still pending before this Court

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are scores of remaining station sites, some operated by defendants not included in the September
2015 Suggestion To Remand apart from BP and Shell.
The District argues that because certain of BP’s and Shell’s station sites likely would
have been remanded to the Central District of California with the other defendants’ “focus
plume” sites had BP and Shell not been dismissed from the case through their res judicata
motion, this Court should simply issue a suggestion of remand now that the Second Circuit
vacated the grant of summary judgment. In doing so, the District ignores both the plain language
of the Second Circuit’s decision and the current posture of this case.
The Second Circuit ordered the BP and Shell claims remanded to this Court for further
proceedings consistent with that court’s Opinion. That Opinion said, no fewer than four times,
that it was vacating the res judicata ruling “based on the record before us.” 859 F.3d at 181; see
also id. at 185 (“the current record does not support a finding of privity”); id. at 186 (“the record
before us does not establish that the District and the OCDA are agents of the same government”);
Orange Cty. Water Dist. v. Texaco Ref. & Mktg., Inc., No. 15-3934-cv, slip op. at 3 (2d Cir. June
12, 2017) (“we conclude that the record does not sufficiently establish that the Orange County
District Attorney and the Orange County Water District were in privity”) (Heartney Decl.,
Ex. 2).
Courts of appeals “vacate,” rather than “reverse,” a judgment when they find that it rests
on insufficient or erroneous grounds which require further proceedings before the district court
to resolve the matter at issue. See, e.g., U.S. ex rel. Oliver, 101 F. Supp. 3d at 119 (“[T]he
Circuit did not reverse this Court’s order dismissing for lack of subject matter jurisdiction, but
rather vacated the order and ‘remanded for further proceedings consistent’ with its opinion.
‘[V]acatur “clears the path for future relitigation of the issues between the parties....”’” (quoting

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U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 22 (1994))); Knuth v. ErieCrawford Dairy Coop. Ass’n, 395 F.2d 420, 429 (3d Cir. 1968) (directing that “the district
court’s judgment dismissing [class action allegations] be vacated rather than reversed” to “make
... clear” that further proceedings on these allegations would proceed following remand).
This rule is fully applicable to summary judgment orders of the kind at issue here. In EPass Technologies, Inc. v. 3Com Corp., 343 F.3d 1364 (Fed. Cir. 2003) (“E-Pass I”), the Federal
Circuit vacated and remanded the district court’s order granting summary judgment based on
patent non-infringement, finding that “issues of material fact remain in dispute.” Id. at 1365.
After further proceedings, including consideration of additional factual matters, the district court
again granted summary judgment on the same issue. E-Pass II, 473 F.3d at 1217. On the
subsequent appeal, plaintiff argued that this second summary judgment order “violated [the]
mandate” in the prior appeal. Id. The Federal Circuit disagreed, explaining:
[W]e vacated the grant of summary judgment and remanded to the
district court for further proceedings. By vacating, we signaled
that, although the district court’s prior decision rested on
erroneous grounds, a proper claim construction might support a
judgment (summary or otherwise) in favor of either party,
depending on the evidence and argument submitted to the district
court on remand ....
Id. at 1218 (citation omitted; emphases added); see also id. (“the district court correctly
concluded that it had the authority to entertain the defendants’ motions for summary judgment on
remand”). Similarly, in United States ex rel. Oliver, through proceedings following remand after
an appeal in which summary judgment based on lack of subject matter jurisdiction was vacated,
the district court considered new evidence submitted by both parties, and again granted summary
judgment on the same ground. 101 F. Supp. 3d at 119-20.

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The Second Circuit plainly anticipated “further proceedings” on the privity issue. Indeed,
the Opinion specifically contemplates further proceedings in this Court, specifically remanding
the BP and Shell claims for further proceedings “to the Southern District of New York.” In
contrast, the Second Circuit did not address three other orders issued by this Court that the
District raised on its appeal. In discussing those three orders, the Second Circuit stated that they
“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.” 859 F.3d at 184 (emphases added).
The Second Circuit, therefore, plainly differentiated between the res judicata issue, which it
remanded for further proceedings in this Court, and the other orders it did not address, which it
determined could be decided either in this Court or, if necessary, in the Central District of
California. The District entirely ignores this language.
The District seeks to make much of CMO 116, in which it claims Judge Scheindlin
indicated that “BP’s and Shell’s ‘focus sites’ are ready to be remanded to the transferor court for
trial.” OCWD Mot. at 3. CMO 116 says nothing at all about remand and it did not terminate
proceedings in this Court. Indeed, as the District acknowledges, additional proceedings took
place in this MDL court after CMO 116 was entered, including the summary judgment briefing
that resulted in the res judicata order, 46 F. Supp. 3d 440, as well as an additional order granting
partial summary judgment and dismissing a substantial number of the District’s claims. In re
MTBE Prods. Liab. Litig., 67 F. Supp. 3d 619 (S.D.N.Y. 2014). See OCWD Mot. at 2 & n.1.
Importantly, it was not until after these additional summary judgment motions had been fully
decided that Judge Scheindlin concluded that “the consolidated pretrial proceedings” before her
had “run their course” as to the Phase I focus sites, making these sites ripe to include in her
Suggestion To Remand.

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But even if CMO 116 said what the District claims it does – and it does not – the District
completely ignores the fact that when vacating Judge Scheindlin’s order granting summary
judgment on res judicata grounds, the Second Circuit merely found that the “current record”
before it was not sufficient for a finding of privity – not that privity did not exist. 859 F.3d at
185 (emphasis added). Thus, the court ordered this matter remanded to this Court “for further
proceedings consistent with [its] opinion.” Id. at 188. The Second Circuit’s Opinion would
supersede any prior finding by this Court that the District’s claims against BP and Shell were
ready to be remanded to the Central District of California
And such “further proceedings” on privity are fully appropriate and will shed further light
on the privity issue. For example, the Second Circuit vacated the judgment in part because it
stated that “the record before us does not establish that the District and the OCDA are agents of
the same government.” Id. at 186. The BP and Shell Defendants, therefore, should be permitted
to address this concern expressed by the Second Circuit, which likely was caused in no small
part by misrepresentations by the District regarding its status as a “Special District of the State of
California.” In its Rule 56.1 statement, for example, the District expressly denied that it was a
California “special district,” which by California statute (Cal. Gov’t Code §§ 16271(d), 56036) is
defined to be an “agency of the state.” See Pl. OCWD’s Local R. 56.1 Statement at 3 (“The
District is not a ‘special district,’ or ‘state agency.’”) (Heartney Decl., Ex. 3). The District’s
denial was unsupported by any evidence; instead, as Judge Scheindlin found, it was based on a
“murky analysis of statutory schemes and legislative intent.” 46 F. Supp. 3d at 451. It is also
demonstrably untrue based on the District’s own admissions in recent budgeting and other
documents. In its 2017-18 Draft Budget, for example, the District explicitly admits it is a
“Special District of the State of California.” OCWD Budget Report FY 2017-18 (under “District

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Vital Statistics,” admitting that the District’s “Form of Government” is a “Special District of the
State of California”) (Heartney Decl., Ex. 4); see also OCWD Draft Budget Report FY 2015-16
(same) (Heartney Decl., Ex. 5); OCWD Press Kit (“The Orange County Water District (OCWD;
the District) is a special district formed in 1933 by an act of the California State Legislature.”)
(emphasis added) (Heartney Decl., Ex. 6). Indeed, among the District’s stated goals for FY
2017-18 is to “[s]et OCWD apart from other special districts.” OCWD Budget Report FY 201718 at 3-9 (Heartney Decl., Ex. 7). A 2011-12 report by an Orange County grand jury also
identifies the District as one of many “special districts” located in Orange County in an aptlynamed report. “Let There Be Light”: Dragging Special Districts From The Shadows at 7, 10,
12-14 (Heartney Decl., Ex. 8).
The confusion engendered by the District’s misrepresentation of its status and its
unsupported denial undoubtedly played a role in the Second Circuit’s determination that the
record was insufficient to show that the District is an agency of the State of California.3
California law provides that “‘agents of the same government are in privity with each other,
since they represent not their own rights but the right of the government.’” People v. Sims, 32
Cal. 3d 468, 487 (1982) (citations omitted); Zapata v. Dep’t of Motor Vehicles, 2 Cal. App. 4th
108, 114 (1991) (DA’s office and state agency in privity, because they “acted as agents of the
same government” and “represented not their own rights but the right of the government”
(quotations omitted)). As the court held in Zapata, where parties in successive lawsuits are
agents of the same government, “this relationship is sufficient in itself to establish privity.”

3

Likely as a result of this confusion, the Second Circuit characterized the District in its
opinion as a “public corporation.” 859 F.3d at 181. There is no support for that statement
anywhere in the record. Even the District never argued that it was a public corporation.

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2 Cal. App. 4th at 114 (emphasis added). The BP and Shell Defendants should be afforded the
opportunity to develop the record further on this issue and to probe the District’s denial.
The other quotations that the District lifts from the Opinion merely list factors that the
Second Circuit took into account in deciding to vacate Judge Scheindlin’s order. Indeed, the
court also found that “the District and the OCDA have significant overlapping interests in
protecting Orange County’s groundwater resources and that the harm the suits address and the
relief sought are similar.” 859 F.3d at 186. And although the District sought to emphasize its
distinctive character based on the right of cost recovery it has under the Orange County Water
District Act, this Court has already determined – twice – that the District did not incur any
recoverable costs under that Act, resulting in the entry of summary judgment against it. In re
MTBE Prods. Liab. Litig., 279 F.R.D. 131, 138 (S.D.N.Y. 2011); In re MTBE Prods. Liab. Litig.,
67 F. Supp. 3d at 630, 634.
The District’s reliance on Fed. R. Civ. P. 60(b) to argue that no further proceedings
should be permitted in this Court is puzzling. Rule 60(b) addresses the standard a party must
meet for obtaining relief from a final judgment or order entered by a district court. Here, neither
BP nor Shell is seeking relief from a final judgment or order of this Court. To the contrary, the
final judgment that had been entered in this matter – in their favor – has now been vacated and
the claims against them have been remanded to this Court for further proceedings. Thus, Rule
60(b) is irrelevant here, so there is no necessity for BP or Shell to point to “newly discovered
evidence” to renew their motion on res judicata grounds (although the evidence cited above,
amply demonstrating that the District misstated its status as a California “special district” when
opposing BP’s and Shell’s motion for summary judgment, would certainly seem to qualify). The
District, not surprisingly, provides no support or authority for why Rule 60(b) would apply to a

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party seeking additional evidence or renewing a motion for summary judgment after a final
judgment in that party’s favor has been vacated.4
The BP and Shell Defendants should be permitted to develop the evidence showing that
the District is, in fact, an agency of the State of California, and therefore an “agent of the same
government” as the OCDA, which the Second Circuit recognized was “represent[ing] the People
of California.” 859 F.3d at 182.5 Likewise, the BP and Shell Defendants should be afforded the
opportunity to develop additional evidence pertaining to the alignment of interests between the
District and the OCDA such that a finding of privity is appropriate. The BP and Shell
Defendants believe this and other record development pertinent to the privity issue can be done
in short order, likely on the order of 60 to 90 days. Provided that the District responds
cooperatively to requests to authenticate certain documents recently obtained by the BP and
Shell Defendants and, potentially, to a handful of requests for admissions or related discovery
requests clarifying matters raised in the Second Circuit’s Opinion, no additional discovery
should be involved. Thereafter, the BP and Shell Defendants would renew their summary

4

The District’s claim that a renewed res judicata summary judgment motion would
constitute a “third bite at the res judicata apple” (OCWD Mot. at 6) is also puzzling. BP and
Shell filed a single, joint motion for summary judgment previously.
5

Cf. Cal. Civ. Proc. Code § 731 (“[a] civil action may be brought in the name of the
people of the State of California to abate a public nuisance, as defined in Section 3480 of the
Civil Code, by the district attorney”); Cal. Fish & Game Code § 5650.1; Cal. Health & Safety
Code § 25299.02; Cal. Bus. & Prof. Code § 17204. When pursuing claims “in the name of the
People of the State of California,” a district attorney acts on behalf of the State. See Nguyen v.
Superior Court, 49 Cal. App. 4th 1781, 1787 (1996) (DA acts on behalf of state in abating public
nuisance); Pekin v. Cty. of San Benito, 2008 WL 440581, at *6 (N.D. Cal. Feb. 15, 2008) (DA
“acts as a state, not a county, official when prosecuting certain civil actions,” including violation
of Business and Professions Code).

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judgment motion on res judicata grounds. A proposed scheduling order is attached as Exhibit 1
to the Heartney Declaration.
II.

THIS COURT IS THE APPROPRIATE FORUM FOR ADDITIONAL
PROCEEDINGS ON RES JUDICATA IN ACCORDANCE WITH THE SECOND
CIRCUIT’S OPINION, BECAUSE ONLY THIS COURT HAS JURISDICTION
OVER ALL CLAIMS THAT WOULD BE AFFECTED BY A RES JUDICATA
RULING.
The District suggests that the res judicata issues left open for further proceedings by the

Second Circuit’s Opinion should be addressed by Judge Carney in the Central District of
California. That is incorrect. The District acknowledges that only 11 sites at issue in this case
would be appropriate for remand because those are the only sites that have been subject to full
discovery in this matter. The res judicata ruling, however, affected dozens of additional BP and
Shell sites that would remain here in the Southern District of New York following any remand.
Any ruling Judge Carney made after remand necessarily would only apply to the 11 sites before
him, and not to the overwhelming majority of sites that would still be before this Court.6
This Court currently has jurisdiction over all of the claims and sites at issue on the BP
and Shell res judicata motion and, by conducting the further proceedings contemplated by the
Second Circuit’s Opinion, would be in a position to grant the BP and Shell Defendants the same
relief provided by Judge Scheindlin after deciding their res judicata motion – a full judgment of
dismissal. Splitting off 11 sites and sending them to Judge Carney to address the res judicata
issue would be inefficient and impair judicial economy, as it would require both this Court and
6

The Second Circuit erroneously believed that this Court had “transferred to the Central
District of California all claims except those against BP and Shell.” 859 F.3d at 180-81. In fact,
only the District’s claims pertaining to a handful of “focus plume” sites were transferred by the
JPML, not this Court, back to the Central District of California. See Decl. of Michael Axline in
Support of Pl. OCWD’s Mot. to Remand Phase 1 Claims Against Defs., Ex. 4 (filed July 25,
2017).

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the Central District of California to rule on the same matter. See Allen v. Bayer Corp., 460 F.3d
1217, 1230-31 (9th Cir. 2006) (noting that when an MDL transfer occurs, “‘the jurisdiction of
the transferor court ceases and the transferee court has exclusive jurisdiction,’” and that “[a]fter
an MDL action is remanded, the transferor court resumes exclusive jurisdiction over further
proceedings”) (citing Manual for Complex Litigation §§ 20.131, 20.133). It also could lead to
conflicting results. Thus, contrary to the District’s arguments, remanding the claims against BP
and Shell, rather than allowing them to proceed in this Court in conformance with the Opinion,
would “create confusion, inefficiency and further delay.” OCWD Mot. at 9.7
CONCLUSION
For all the foregoing reasons, the District’s motion should be denied, and the Court
should issue a scheduling order governing further proceedings on the res judicata issue in this
Court.
Dated: August 8, 2017

Respectfully submitted,

/s/ Matthew T. Heartney
Matthew T. Heartney
ARNOLD & PORTER KAYE SCHOLER LLP
777 South Figueroa Street
Los Angeles, California 90017
Telephone: [phone]
Stephanie B. Weirick
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Avenue, NW
Washington, DC 20001
Telephone: [phone]
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The District’s emphasis on what other defendants before the court in the Central District
of California might have “assumed” or “expected” regarding further proceedings in this Court on
the res judicata issue (OCWD Mot. at 5) is, of course, misguided and wholly irrelevant.
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Attorneys for Defendants Atlantic Richfield
Company, BP Products North America Inc., and
BP West Coast Products LLC
Peter C. Condron
CROWELL & MORING LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004
Telephone: [phone]
Attorney for Defendants Shell Oil Company,
Equilon Enterprises LLC, and Texaco Refining
and Marketing Inc., n/k/a TMR Company

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