Waste Action Project v. Buckley Recycle Center Inc

Filing 89

ORDER granting in part pltf's 82 Motion for Sanctions; pltf to file supplemental motion for fees and costs within 10 days to be noted for 2 Fridays; dfts' response due by Monday prior to noting date, no reply to be filed by Judge Ricardo S Martinez.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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)
) CASE NO. C13-1184RSM
)
Plaintiff,
)
) ORDER GRANTING MOTION FOR
v.
) SANCTIONS
BUCKLEY RECYCLE CENTER, INC., et )
)
al.,
)
))
Defendants.
WASTE ACTION PROJECT

THIS MATTER comes before the Court on Plaintiff’s Motion for Sanctions, which
follows its earlier Motion to Enforce Settlement Agreement. Dkts. #82 and #73.
On April 13, 2015, the parties in this matter verbally notified the Court that the case had

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been resolved and that they would be filing a consent decree for Court-approval. On July 10,
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2015, the parties verbally advised that they were continuing to work on the consent decree and

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hoped to file it with the Court shortly. Days later, Plaintiff filed its motion to enforce asking

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the Court to enforce the terms of the settlement agreement as memorialized in a written term

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sheet during prior mediation. Dkt. #73. The Court denied that motion and directed the parties

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to continue to negotiate in good faith and promptly move forward with finalizing a consent
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decree. Dkt. #80. The Court also warned Defendants that should they continue to delay in

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responding to Plaintiff’s efforts to draft an agreeable consent decree, such conduct may result

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in sanctions. Id.
ORDER
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As of this date, no consent decree has been agreed on, and Plaintiff has now filed the
instant motion for sanctions in further effort to reach an agreed consent decree. Dkt. #82.
This is a Clean Water Act (“CWA”) citizen suit brought by Plaintiff under section 505
of the CWA, 33 U.S.C. § 1365. Dkt. #40. Plaintiff alleges that Defendant Buckley Recycle

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Center, Inc. violated the CWA by discharging pollutants, without authorization, from an
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industrial and materials storage facility located in King County, Washington. Id.

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Plaintiff and Defendants Buckley Recycle Center, Inc., Ronald Shear and Ronda Sterley

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mediated this matter on April 9, 2015. Dkt. #74 at ¶ 2. However, Defendant Jeffrey Spencer,

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who owns the land on which the Buckley Recycle Center, Inc. is located did not participate in

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the mediation. Dkt. #74 at ¶ 2.

The mediation resulted in a settlement, which was

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memorialized in a written term sheet. Id. at ¶ ¶ 2-3 and Ex. A. In addition to agreeing to make

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certain monetary payments, ceasing operation and removing their equipment and materials

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from the subject property, Defendants Buckley Recycle Center, Inc., Shear and Sterley agreed,

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contingent upon Defendant Spencer’s approval and signing of the consent decree, to make
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specified improvements (primarily planting and grading) to the subject property on a specified

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timeline. Id., Ex. A at ¶ 3(d). Significantly, the term sheet also noted that if the landowner

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failed to approve the proposed plantings, the parties would engage in good faith negotiations of

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alternative terms. Id.

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Plaintiff and the Spencer Estate appear to have since been working toward finalizing a
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consent decree; however, Plaintiff now seeks sanctions for Defendants Buckley Recycle

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Center, Inc.’s, Ronald Shear’s and Ronda Sterley’s continued failure to engage in good faith

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efforts to finalize the consent decree. Defendants Buckley Recycle Center, Inc., Ronald Shear

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and Ronda Sterley ask the Court to deny the motion, and instead direct the parties to continue

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ORDER
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negotiating alternative terms in good faith, citing good faith delay due to counsel’s busy
litigation schedule. Dkt. #84.
Having reviewed the parties’ briefing and the declarations in support thereof, the Court
hereby finds and ORDERS:

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1. Plaintiff’s Motion for Sanctions (Dkt. #82) is GRANTED IN PART. The Court
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agrees that Defendants Buckley Recycle Center, Inc., Ronald Shear and Ronda

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Sterley have not shown good cause for their delay in this process. While the Court

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appreciates that one of their attorneys has had a busy litigation schedule, the fact

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that they do not want to pay their other retained counsel, who has also appeared in

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this matter, does not excuse their delay. Mr. Asher having appeared for Defendants
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remains responsible for this case as much as Mr. Lawler. There is no reason in the

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record, other than Defendants’ apparent desire to avoid paying two attorneys, that

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Mr. Asher could not have continued to move this matter forward during the time

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Mr. Lawler was engage in other matters. Further, the fact that Defendants Buckley
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Recycle Center, Inc, Ronald Shear and Ronda Sterley have apparently now

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attempted to renegotiate terms already agreed upon during mediation reflects a bad

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faith effort to further delay these proceedings. This conduct has necessitated Court

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intervention, wasting everyone’s time and resources for a matter that was

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purportedly settled six months ago.

For these reasons, the Court enters the

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following sanctions against Defendants:

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a. Defendants Buckley Recycle Center, Inc., Ronald Shear and Ronda Sterley

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shall pay the attorney’s fees incurred by Plaintiff associated with filing the

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previous Motion to Enforce and the instant Motion for Sanctions. No later

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ORDER
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than 10 days from the date of this Order Plaintiff shall file a

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Supplemental Motion for Award of Fees and Costs, supplying this Court

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with detailed documentation supporting the requested fees and costs.

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Plaintiff shall note the Motion for consideration no later than two Fridays

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after the motion is filed. Defendants shall file a response not to exceed ten
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(10) pages, no later than the Monday prior to the noting date. No reply shall

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be filed. Upon the completion of briefing, the Court will take this matter

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under consideration without oral argument.

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b. Defendants shall respond in good faith to Plaintiff’s consent decree no later

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than three (3) business days of the date of this Order. Should Defendants
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Buckley Recycle Center, Inc., Ronald Shear and Ronda Sterley fail to so

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respond, they and/or their counsel may be held in contempt of Court subject

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to additional sanctions for their failure to follow this Order. Nothing in this

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Order precludes Defendants Buckley Recycle Center, Inc., Ronald Shear and
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Ronda Sterley from filing a motion for relief from the deadline set forth in

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this subsection if they believe good cause necessitates such a motion;

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however, the allowance of such a filing is not intended to imply how the

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Court would resolve such a motion.

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2. Defendants Buckley Recycle Center, Inc., Ronald Shear and Ronda Sterley are
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warned that should they continue to engage in any bad faith delay in responding to

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Plaintiff’s efforts to draft an agreeable consent decree, this Court will also impose

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the following sanction – at Defendants Buckley Recycle Center, Inc.’s, Ronald

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Shear’s and Ronda Sterley’s expense, the Court will direct the parties to re-engage

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ORDER
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in private mediation with their prior mediator for the purpose of drafting an agreed

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consent decree, thereby achieving final settlement.

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3. On this record, it appears that the Spencer Estate has been cooperating in Plaintiff’s

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efforts to move this matter forward at this time and is not subject to sanctions. The

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Court directs the Spencer Estate to continue engaging in moving this matter forward
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and warns that any undue delay on the Estate’s part may result in sanctions.

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4. Defendants are directed to provide a copy of this Order to the Spencer Estate

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representative and counsel.
DATED this 5 day of October 2015.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER
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