-DLB Atchison Topeka, et al v. Hercules Inc, et al, No. 1:1996cv05879 - Document 492 (E.D. Cal. 2011)

Court Description: FINAL JUDGMENT In Favor of BNSF Railway Company and The Dow Chemical Company Against Brown & Bryant, Inc. and John H. Brown, signed by Judge Oliver W. Wanger on 06/08/2011. (Martin-Gill, S)

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-DLB Atchison Topeka, et al v. Hercules Inc, et al 1 2 3 4 Doc. 492 JOHN F. BARG (State Bar No. 60230) (jfb@bcltlaw.com) MARC A. ZEPPETELLO (State Bar No. 121185) (maz@bcltlaw.com) BARG COFFIN LEWIS & TRAPP, LLP 350 California Street, 22nd Floor San Francisco, California 94104-1435 Telephone: (415) 228-5400 5 6 Attorneys for BNSF RAILWAY COMPANY, as successor to THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., Case No.: 1:96-cv-05879 OWW DLB (CONSOLIDATED SHAFTER CASES) 12 Plaintiffs, 13 v. 14 HERCULES INCORPORATED, et al., JUDGMENT FOR BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN 15 Defendants. [Fed. R. Civ. P. 54(b)] 16 THE HONORABLE OLIVER W. WANGER __________________________________ 17 18 19 20 21 On July 26, 2010, the Court issued Order Adopting Findings and Recommendations and 22 Imposing Terminating Sanctions Against the Brown & Bryant Parties (Brown & Bryant, Inc., John 23 H. Brown, an individual, and Ed. A. Brown, an individual) for their willful failure to comply with 24 the Court’s discovery orders (“Order Imposing Terminating Sanctions”). The Order Imposing 25 Terminating Sanctions provides, inter alia, that default judgment be entered against the Brown & 26 Bryant Parties in favor of BNSF Railway Company (“BNSF”) and The Dow Chemical Company 27 (“Dow”) as to their remaining claims in this action against the Brown & Bryant Parties. 28 JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN Case No. CIV-F-96-5879 OWW/DLB PDF created with pdfFactory trial version www.pdffactory.com 852768.1 Dockets.Justia.com On March 29, 2011, Dow filed a Motion for Determination of Recoverable Response Costs 1 2 and Entry of Judgment Against the Brown & Bryant Parties (“Dow Motion”). On April 15, 2011, 3 BNSF filed a Motion for Entry of Judgment Against the Brown & Bryant Parties (“BNSF 4 Motion”). David R. Griffin, counsel of record for the Brown & Bryant Parties, was given notice of 5 the BNSF Motion, and on April 29, 2011, Mr. Griffin filed a written non-opposition to the granting 6 of the Dow Motion and the BNSF Motion on behalf of Brown & Bryant Inc. and John H. Brown. 7 On May 20, 2011, the Court granted Dow’s Motion and BNSF’s Motion as to Brown and Bryant, 8 Inc. and John H. Brown.1 In accordance with Federal Rule of Civil Procedure 52(c), the Court hereby makes the 9 10 following findings of fact and conclusions of law: a. On July 26, 2010, default was entered against the Brown & Bryant Parties pursuant to 11 12 the Court’s Order Imposing Terminating Sanctions for the Brown & Bryant Parties’ 13 willful failure to comply with discovery orders. (Document No. 460) 14 b. In accordance with Federal Rule of Civil Procedure 55 and Adriana Int’l Corp. v. 15 Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990)(citing Geddes v. United Financial 16 Group, 559 F.2d 557, 560 (9th Cir. 1977), the factual allegations contained in BNSF’s 17 Second Amended Complaint against the Brown & Bryant Parties and Dow’s 18 Counterclaim for Cost Recovery and Contribution against the Brown & Bryant Parties 19 are presumed to be true in assessing the damages to which BNSF and Dow are entitled. c. BNSF and Dow have established a prima facie case of CERCLA liability against the 20 21 Brown & Bryant Parties, as shown by the following facts: 22 i. the 15-acre site located at 135 Commercial Street in Shafter, California (“the B&B 23 Shafter Site”) is a “facility” within the meaning of that term under CERCLA, 42 24 U.S.C. Sections 9601(9); ii. there has been a “release” or threatened release of a “hazardous substance” at or 25 from the facility within the meaning of those terms under CERCLA, 42 U.S.C. §§ 26 27 28 1 Ed Brown is deceased and judgment is not entered against his estate. 2 JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN Case No. CIV-F-96-5879 OWW/DLB PDF created with pdfFactory trial version www.pdffactory.com 852768.1 1 9601(22) and (14), respectively; 2 iii. the release or threatened release of hazardous substances at the B&B Shafter Site 3 has caused BNSF and Dow to incur response costs that were “necessary” and 4 “consistent with the national contingency plan,” 40 C.F.R. Part 300; and 5 iv. the Brown & Bryant Parties, and each of them, are within the classes of persons 6 subject to liability under CERCLA Section 107(a), 42 U.S.C. § 9607(a), as owners, 7 former owners and operators at the time of disposal, and “arrangers” as they own a 8 portion of the B&B Shafter Site and/or formulated, stored and handled agricultural 9 chemicals and hazardous substances at the B&B Shafter Site. 10 d. BNSF has incurred damages in the sum of $3,721,868.23 for response costs, exclusive 11 of interest and costs, incurred from June 14, 1991 though April 1, 2011, at the B&B 12 Shafter Site. See Declaration of David C. Clark in Support of BNSF Railway 13 Company’s Motion for Entry of Default Judgment Against The Brown & Bryant 14 Parties, filed on April 15, 2011 (Document No. 479). 15 e. Dow has incurred damages in the sum of $917,606.39 for response costs, exclusive of 16 interest and costs, incurred from December 1993 though October 2009, at the B&B 17 Shafter Site. See Declaration of Dr. Larry Bone in Support of Motion of The Dow 18 Chemical Company for Determination of Recoverable Response Costs and Entry of 19 Judgment (Rule 55(B), Fed.R.Civ.Proc.), filed on March 29, 2011 (Document No. 472), 20 and Declaration of Stephen McKae in Correction of Motion of The Dow Chemical 21 Company for Determination of Recoverable Response Costs and Entry of Judgment 22 (Rule 55(B), Fed.R.Civ.Proc.) for Post-Filing Partial Return of Funds, filed on May 13, 23 2011 (Document No. 488). 24 25 26 27 28 f. These costs incurred by BNSF and Dow are necessary and consistent with the national contingency plan. Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: a. That BNSF recover from Brown & Bryant, Inc. and John H. Brown, jointly and severally, the sum of $3,721,868.23 for response costs incurred from June 14, 1991 3 JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN Case No. CIV-F-96-5879 OWW/DLB PDF created with pdfFactory trial version www.pdffactory.com 852768.1 1 2 through April 1, 2011, at the B&B Shafter Site. b. That Dow recover from Brown & Bryant, Inc. and John H. Brown, jointly and 3 severally, the sum of $917,606.39 for response costs incurred from December 1993 4 through October 2009 at the B&B Shafter Site. 5 6 7 8 9 c. That BNSF recover costs of suit from Brown & Bryant, Inc. and John H. Brown, jointly and severally. d. That Dow recover costs of suit from Brown & Bryant, Inc. and John H. Brown, jointly and severally. e. The matter having been fully adjudicated, the Court finds no just reason for delaying 10 entry of final judgment for BNSF and Dow, and final judgment pursuant to Federal 11 Rule of Civil Procedure 54(b) hereby is and shall be entered in favor of BNSF and Dow 12 and against Brown & Bryant, Inc. and John H. Brown. 13 14 IT IS SO ORDERED. 15 16 Dated: June 8, 2011 /s/ OLIVER W. WANGER United States District Court Judge 17 18 19 20 21 22 23 24 25 26 27 28 4 JUDGMENT IN FAVOR OF BNSF RAILWAY COMPANY AND THE DOW CHEMICAL COMPANY AGAINST BROWN & BRYANT, INC. AND JOHN H. BROWN Case No. CIV-F-96-5879 OWW/DLB PDF created with pdfFactory trial version www.pdffactory.com 852768.1

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