Baykeeper v. Zanker Road Resource Management, Ltd
Filing
10
ORDER Vacating Initial Case Management Conference. Plaintiff's time to serve the Complaint is extended to October 27, 2012. Order to Show Cause Hearing set for 11/6/2012 10:00 AM. See order for further details. Signed by Magistrate Judge Howard R. Lloyd on 8/10/12. (hrllc1, COURT STAFF) (Filed on 8/10/2012)
<![CDATA[
Case5:12-cv-02157-HRL Document9 Filed08/09/12 Page1 of 5
1
2
3
4
5
6
7
8
9
10
Jason Flanders (Bar No. 238007)
Andrea Kopecky (Bar No. 276366)
SAN FRANCISCO BAYKEEPER, INC.
785 Market Street, Suite 850
San Francisco, California 94103
Telephone: (415) 856-0444
Facsimile: (415) 856-0443
Email: jason@baykeeper.org
Email: andrea@baykeeper.org
*** E-filed August 10, 2012 **
Drevet Hunt (Bar No. 240487)
LAWYERS FOR CLEAN WATER, INC.
1004A O’Reilly Avenue
San Francisco, California 94129
Telephone: (415) 440-6520
Facsimile: (415) 440-4155
Email: drev@lawyersforcleanwater.com
11
12
Attorneys for Plaintiff
BAYKEEPER
13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
SAN JOSE DIVISION
16
17
18
BAYKEEPER, a non-profit corporation,
Plaintiff,
Civil Case No. C 12-02157-HRL
Hon. Howard R. Lloyd
19
20
21
22
v.
ZANKER ROAD RESOURCE
MANAGEMENT, LTD.,
Defendant.
23
24
NOTICE OF TENTATIVE
SETTLEMENT; REQUEST TO
VACATE INITIAL CASE
MANAGEMENT CONFERENCE AND
RELATED DEADLINES; MOTION TO
EXTEND TIME (CIV. L.R. 7-11);
[PROPOSED] ORDER
(MODIFIED BY THE COURT)
25
26
27
28
Notice of Tentative Settlement and [Proposed] Order
Civil Case No. C 12-02157-HRL
Case5:12-cv-02157-HRL Document9 Filed08/09/12 Page2 of 5
1
TO THE COURT AND TO THE PARTIES:
2
PLEASE TAKE NOTICE that Plaintiff Baykeeper (“Baykeeper”) and Zanker Road
3
Resource Management, Ltd. (“Zanker”) (collectively, the “Parties”) have reached a tentative
4
settlement in this action, which has been executed by the Parties. As required by federal law, a copy
5
of the [Proposed] Consent Decree has been sent to the U.S. Department of Justice and to the U.S.
6
Environmental Protection Agency (collectively “the Agencies”) for a mandatory 45-day review
7
period under Section 135.5 of Title 40 of the Code of Federal Regulations. Copies of the [Proposed]
8
Consent Decree will be sent to the Agencies via U.S. Certified Mail on today’s date. Because the
9
Agencies interpret the 45-Day review period as commencing on the date the Agencies receive the
10
[Proposed] Consent Decree, Plaintiff will promptly notify the Court in writing upon expiration of the
11
45-Day review period, and shall advise the Court as to whether any objections were received from the
12
Agencies. Upon expiration of the 45-Day review period, the Parties will jointly request that the Court
13
(1) approve and execute an Order dismissing the Complaint and (2) approve and execute the
14
[Proposed] Consent Decree which provides for continuing Court jurisdiction over any disputes which
15
may arise between the parties under the agreement.
16
Consistent with the impending settlement of this action, the Parties hereby respectfully request
17
that the Court vacate from its calendar the August 14, 2012 Initial Case Management Conference and
18
associated deadlines. Should the Court require any additional information, the undersigned will be
19
pleased to provide it upon request.
20
21
22
23
24
25
26
27
28
Notice of Tentative Settlement
[Proposed] Order
-2-
Civil Case No. C 12-02157-HRL
Case5:12-cv-02157-HRL Document9 Filed08/09/12 Page3 of 5
1
2
MOTION TO EXTEND TIME
I.
3
INTRODUCTION
Plaintiff Baykeeper hereby requests an extension of time to serve the Complaint in this action
4
upon Defendant Zanker Road Resource Management, Ltd. (“Zanker”). Baykeeper filed its Complaint
5
on April 30, 2012, at which time the Parties had begun negotiating an agreement. See Declaration of
6
Andrea Kopecky in Support of Motion to Extend Time, ¶ 5. Plaintiff has not yet served the Defendant
7
with the Complaint, and the time in which Plaintiff is required to serve the Complaint has not yet run.
8
Id.; see Fed. R. Civ. Pro., rule 4(m). The Parties have now executed a [Proposed] Consent Decree on
9
August 9, 2012. On August 9, 2012, the [Proposed] Consent Decree was submitted to the U.S.
10
Department of Justice (“DOJ”) for its 45 day review and comment period. Id. at ¶ 7-8. Following the
11
DOJ review period, the Plaintiff will submit the approved [Proposed] Consent Decree to the Court,
12
together with a motion to dismiss the Complaint, saving the Court’s continuing jurisdiction to enforce
13
the approved Consent Decree. Id. at ¶ 8. Therefore, Plaintiff requests an extension of time to serve the
14
Complaint in this action upon Defendant, until after such time as the [Proposed] Consent Decree has
15
been reviewed by DOJ, and Plaintiff has had an opportunity to file the [Proposed] Consent Decree and
16
stipulation to dismiss the case, with the Court.
17
II.
POINTS AND AUTHORITIES
18
Federal Rule of Civil Procedure 4(m) provides:
19
Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court must extend the time for service for an
appropriate period.
20
21
22
23
Here, the time for service of the Complaint has not yet expired. Taking a proactive approach,
24
however, Plaintiff has shown good cause for the Court to extend the upcoming deadline for service from
25
August 28, 2012, to October 27, 2012.
26
27
28
The Court has the inherent power to regulate litigation. See, e.g., Annotations to FRCP 16; cf.
Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197
Notice of Tentative Settlement
[Proposed] Order
-3-
Civil Case No. C 12-02157-HRL
Case5:12-cv-02157-HRL Document9 Filed08/09/12 Page4 of 5
1
(1958). It therefore has the discretion, by motion made under Local Rule 7-11, to vacate or extend the
2
time to serve the Complaint. Plaintiff therefore requests that, in the interests of justice and judicial
3
economy, the Court exercise that discretion and vacate or extend the deadline for serving the Complaint
4
by 60 days to permit the Parties sufficient time to implement the conditions subsequent set forth in the
5
[Proposed] Consent Decree.
6
III.
7
CONCLUSION
For all the foregoing reasons, we respectfully request the Court grant this motion to extend the
8
deadline by which Plaintiff must serve the Complaint, as allowed by FRCP 4(m), for a period of not less
9
than 60 days.
10
11
Dated: August 9, 2012
Respectfully Submitted,
12
13
By:
14
Andrea Kopecky
Attorney for Plaintiff
BAYKEEPER
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Notice of Tentative Settlement
[Proposed] Order
-4-
Civil Case No. C 12-02157-HRL
Case5:12-cv-02157-HRL Document9 Filed08/09/12 Page5 of 5
1
[PROPOSED] ORDER
2
3
GOOD CAUSE APPEARING,
4
The Parties’ Initial Case Management Conference on August 14, 2012, is vacated. Plaintiff’s time to
5
serve the Complaint is extended to October 27, 2012.
6
7
IT IS SO ORDERED
8
9
August 10, 2012
Date: ______________
NORTHERN DISTRICT OF CALIFORNIA
10
11
_____________________________________
Honorable Howard R. Lloyd
United States District Court
12
13
14
15
16
17
18
19
20
In light of the parties' tentative settlement, all pending case management deadlines are also vacated. All
parties shall appear on November 6, 2012 at 10:00 AM in Courtroom 2, Fifth Floor, San Jose, CA and
show cause why, if any, this case should not be dismissed. The parties shall file a Joint Statement in
response to this Order to Show Cause no later than October 30, 2012. The joint statement shall state (1) the
status of the activities of the parties in finalizing settlement; and (2) how much additional time, if any, is
needed to finalize the settlement and file a dismissal. However, if a dismissal and consent decree are filed
before the hearing date, the Show Cause hearing will be automatically vacated and no statement will be
required.
21
22
23
24
25
26
27
28
Notice of Tentative Settlement
[Proposed] Order
-5-
Civil Case No. C 12-02157-HRL
Case5:12-cv-02157-HRL Document9-1 Filed08/09/12 Page1 of 2
1
2
3
4
5
6
7
8
9
10
Jason Flanders (Bar No. 238007)
Andrea Kopecky (Bar No. 276366)
SAN FRANCISCO BAYKEEPER, INC.
785 Market Street, Suite 850
San Francisco, California 94103
Telephone: (415) 856-0444
Facsimile: (415) 856-0443
Email: jason@baykeeper.org
Email: andrea@baykeeper.org
Drevet Hunt (Bar No. 240487)
LAWYERS FOR CLEAN WATER, INC.
1004A O’Reilly Avenue
San Francisco, California 94129
Telephone: (415) 440-6520
Facsimile: (415) 440-4155
Email: drev@lawyersforcleanwater.com
11
12
Attorneys for Plaintiff
BAYKEEPER
13
UNITED STATES DISTRICT COURT
14
NORTHERN DISTRICT OF CALIFORNIA
15
SAN JOSE DIVISION
16
17
18
BAYKEEPER, a non-profit corporation,
Plaintiff,
Civil Case No. C 12-02157-HRL
Hon. Howard R. Lloyd
19
20
21
22
v.
ZANKER ROAD RESOURCE
MANAGEMENT, LTD.,
DECLARATION OF ANDREA
KOPECKY IN SUPPORT OF
PLAINTIFF’S MOTION TO EXTEND
TIME
Defendant.
23
24
25
26
27
28
Declaration of Andrea Kopecky
Civil Case No. C 12-02157-HRL
Case5:12-cv-02157-HRL Document9-1 Filed08/09/12 Page2 of 2
1
2
I, Andrea Kopecky, declare as follows:
1. I am a duly licensed attorney admitted to the bar in the State of California and to practice before
3
the United States District Court for the Northern District of California. I am an Associate Attorney for
4
Plaintiff San Francisco Baykeeper (“Baykeeper”) in the above-captioned action. I have personal
5
knowledge of the following facts and if called upon to do so, I could and would testify thereto.
6
7
8
9
2. I submit this declaration pursuant to Civil L.R. 7-11 in support of Plaintiff’s Motion to Extend
Time (“Motion”).
3. On February 29, 2012, Baykeeper sent a 60-day notice letter to Zanker Road Resource
Management, Ltd. (“Zanker”) for violations of the Clean Water Act.
10
4. During the 60-day notice period, Zanker and Baykeeper began negotiating a settlement.
11
5. At the end of the 60-day notice period, on April 30, 2012, Baykeeper filed a Complaint against
12
Zanker. Because settlement negotiations were ongoing, Baykeeper elected not to serve the Complaint to
13
Zanker at that time.
14
15
16
6. The Parties continued to negotiate and came to a final [Proposed] Consent Decree. The Parties
executed the [Proposed] Consent Decree on August 9, 2012.
7. On August 9, 2012, the [Proposed] Consent Decree was submitted to the U.S. Department of
17
Justice (“DOJ”) for review and approval, as required by law. DOJ has 45 days from receipt of the
18
[Proposed] Consent Decree to review it.
19
20
8. If DOJ approves the [Proposed] Consent Decree, the Parties will submit the [Proposed] Consent
Decree to the Court along with a motion to dismiss the Complaint.
21
I declare under penalty of perjury that the foregoing is true and correct.
22
Executed within the United States on this 9th day of August, 2012.
23
24
25
Andrea Kopecky
BAYKEEPER
26
27
28
Declaration of Andrea Kopecky
-2-
Civil Case No. C 12-02157-HRL
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
