Atchison Topeka, et al v. Hercules Inc, et al, No. 1:1996cv05879 - Document 460 (E.D. Cal. 2010)

Court Description: ORDER adopting 275 FINDINGS AND RECOMMENDATIONS and Imposing Terminating Sanctions against the Brown and Bryant Parties signed by Judge Oliver W. Wanger on 7/23/2010. (Sant Agata, S)

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Atchison Topeka, et al v. Hercules Inc, et al Doc. 460 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, as successor to THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, et al., 11 Plaintiffs, 12 v. 13 HERCULES, INC., et al., 14 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 1:96-cv-5879 OWW DLB (Consolidated Shafter Cases) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND IMPOSING TERMINATING SANCTIONS AGAINST THE BROWN & BRYANT PARTIES 15 16 17 18 The matter of the motions of the Burlington Northern & Santa 19 Fe Railway Company, as successor to the Atchison Topeka & Santa 20 Fe Railway Company (“BNSF”) and the Dow Chemical Company (“Dow”) 21 for orders for terminating sanctions against Brown & Bryant, 22 Inc., John H. Brown, an individual, and Ed A. Brown, an 23 individual (collectively the “Brown & Bryant Parties”) for said 24 Defendants’ repeated willful failure to provide discovery 25 responses and repeated and intentional disregard of the Court’s 26 prior discovery orders, was submitted on Findings & 27 Recommendations for adoption by the District Court on February 28 17, 1999. 1 Dockets.Justia.com 1 All parties were advised of the requirement that any 2 objections be filed within ten (10) court days. Any responses to 3 said objections were to be served and filed within ten (10) court 4 days thereafter. 5 file objections within the specified time may waive the right to 6 appeal the District Court’s order. The parties were also advised that failure to 7 No objections were filed. 8 A stay of all proceedings was lifted, only as to these 9 motions, by separate Order of July 23, 2010. 10 The Court has fully considered the Magistrate Judge’s 11 Findings & Recommendations and finds them to be correct in all 12 respects and that there is no substantial justification or other 13 cause shown why terminating sanctions should not be issued 14 against the Brown & Bryant parties. 15 the Findings & Recommendations, 16 IT IS ORDERED: 17 1. For the reasons set forth in 18 The Magistrate Judge’s Findings & Recommendations filed February 17, 1999 ARE ADOPTED; 19 2. 20 BNSF’s Motion for Terminating Sanctions is GRANTED: a. The Brown & Bryant Parties’ counter-claim against 21 BNSF (including any and all counter-claims of Brown & Bryant, 22 Inc., John H. Brown, and Ed A. Brown against BNSF) are DISMISSED 23 WITH PREJUDICE; 24 b. The Brown & Bryant Parties’ answers to BNSF’s 25 complaint (including any and all answers of Brown & Bryant, Inc., 26 John H. Brown and Ed A. Brown to BNSF’s complaint) are STRICKEN; 27 and 28 c. Default judgment is entered against the Brown & 2 1 Bryant Parties (including Brown & Bryant, Inc., John H. Brown, 2 and Ed A. Brown) in favor of BNSF as to the remaining claims of 3 BNSF against them in this matter as follows: 4 I. Thirteenth Claim for Relief: Private Party 5 Cost Recovery under CERCLA § 107; Complaint, ¶¶ 176 through 186, 6 inclusive; 7 8 ii. under CERCLA § 113; Complaint, ¶¶ 187 through 190, inclusive; 9 10 Fourteenth Claim for Relief: Contribution iii. Fifteenth Claim for Relief: Contribution under the CHSAA; Complaint, ¶¶ 191 through 197, inclusive; 11 iv. Nineteenth Claim for Relief: Breach of 12 Contract, to the extent the breach of contract claims relate to 13 the CERCLA and CHSAA claims; Complaint, ¶¶ 221 through 247, 14 inclusive; and 15 16 17 v. Twenty-Fourth Claim for Relief: Declaratory Relief: Complaint; ¶¶ 281 through 284, inclusive. 3. Dow’s Motion for Terminating Sanctions is GRANTED and 18 default judgment is entered against the Brown & Bryant Parties in 19 favor of Dow as follows: 20 a. Brown & Bryant Parties’ answers to Dow’s counter- 21 claim (including any and all answers of Brown & Bryant, Inc., 22 John H. Brown, and Ed A. Brown to Dow’s counter-claim) are 23 STRICKEN; and 24 b. Default judgment is entered against the Brown & 25 Bryant Parties (including Brown & Bryant, Inc., John H. Brown, 26 and Ed A. Brown), as to all claims of Dow against them in this 27 case, as set forth in Dow’s counter-claim for cost recovery and 28 contribution filed March 7, 1996 as follows: 3 1 2 i. First Counter-Claim for Contribution and Cost Recovery under CERCLA Section 113(f); 3 ii. Second Counter-Claim for Declaratory Relief 4 for Contribution and Cost Recovery under 42 U.S.C. Section 5 9613(g); 6 7 iii. Cost Recovery under 42 U.S.C. Section 9607(a) and 9613(g); and 8 9 10 Third Counter-Claim for Declaratory Relief for iv. Fourth Counter-Claim for Cost Recovery under 42 U.S.C. Section 9607(a). 3. Plaintiffs BNSF and Dow shall recover their costs of 11 suit against Brown & Bryant Parties (Brown & Bryant, Inc., John 12 H. Brown, and Ed A. Brown). 13 14 IT IS SO ORDERED. 15 Dated: July 23, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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