-SMS Team Enterprises, LLC v. Western Investment Real Estate Trust et al, No. 1:2008cv00872 - Document 385 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending the Determination of Good Faith Settlement Pursuant to California Code of Civil Procedure 877.6 and Issuance of an Order Barring Contribution Pusuant to 42 U.S.C. 9613(f) (CERCLA 113(f)(2)) re 379 , signed by Magistrate Judge Sandra M. Snyder on 12/7/2011, referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
Download PDF
-SMS Team Enterprises, LLC v. Western Investment Real Estate Trust et al Doc. 385 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 CASE NO. 1:08-cv-00872-LJO-SMS TEAM ENTERPRISES, LLC, 10 11 12 13 14 FINDINGS AND RECOMMENDATIONS RECOMMENDING THE DETERMINATION OF GOOD FAITH SETTLEMENT PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE § 877.6 AND v. ISSUANCE OF AN ORDER BARRING CONTRIBUTION PURSUANT TO WESTERN INVESTMENT REAL ESTATE 42 U.S.C. § 9613(f) (CERCLA § 113(f)(2)) TRUST, et al., Plaintiff, 15 16 (Doc. 379) Defendants. / 17 18 19 On or about October 7, 2011, three groups of parties to this litigation (the “Settling 20 Parties”) agreed to final settlement of this matter. The first group (“Team”) includes Plaintiff 21 Team Enterprises, LLC; and Third-Party Defendants Team Enterprises, Inc.; Thomas Jones; 22 Frederic Jones; and Eric Jones. The second group (“MCI”) includes Defendants Modesto Center 23 Investors, LP; MC II, LP; John A. Branagh; Lynette Branagh; Gaylon C. Patterson; and Marla J. 24 Patterson. The third group (“PK II”) includes Defendants PK II Century Center LP; Kimco 25 Realty Company; Pan Pacific Retail Properties, LLC; Pan Pacific Realty Properties, Inc.; and 26 Prudential Real Estate Investors. A copy of the settlement agreement and its exhibits was filed 27 with the Court as Exhibit A to the November 3, 2011 Declaration of Robert C. Goodman (Doc. 28 377). 1 Dockets.Justia.com 1 The Setting Parties’ operative claims are set forth in (1) MCI’s Second Amended 2 Crossclaim and Second Amended Counterclaim (Doc. 158); (2) MCI’s Third Amended 3 Counterclaim (Doc. 217); (3) Team’s Third Amended Complaint (Doc. 211); (4) PK II’s First 4 Amended Third-Party Complaint (Doc. 233); (5) PK II’s Counterclaims and Crossclaims (Docs. 5 83, 84, 87, and 89); and (6) the Stipulated Order Joining Pan Pacific Retail Properties, LLC (Doc. 6 251). 7 The Settling Parties in this action have stipulated and moved this Court to determine that 8 their settlement agreement (1) is made in good faith pursuant to California Code of Civil 9 Procedure §§ 877 and 877.6; (2) satisfies the requirements for a contribution bar, regardless of 10 when or by whom such claims are asserted, including all claims for litigation costs and attorneys’ 11 fees, by any party to the lawsuit that is not a party to the settlement agreement (a “Non-Settling 12 Party”), pursuant to 42 U.S.C. § 9613(f) (CERCLA § 113(f)(2)); (3) is encompassed by a 13 settlement agreement that constitutes a judicially approved settlement for purposes of 42 U.S.C. 14 § 113(f)(2) (CERCLA § 113(f)(2)), and bars claims under any other federal or state statute or 15 common law. 16 The undersigned heard argument on the motion on December 6, 2011. Attorney Jan A. 17 Grebin appeared telephonically on behalf of Team; attorney Robert C. Goodman appeared 18 telephonically on behalf of MCI; and attorney Rita M. Allis Powers appeared telephonically on 19 behalf of PK II. Despite notice to all parties and their attorneys of record (Doc. 376), no other 20 party appeared. 21 Having fully reviewed the Settling Parties’ motion, all supporting documents, and 22 applicable law, and having heard the Settling Parties’ arguments at the motion hearing on 23 December 6, 2011, the undersigned recommends that the District Court grant the Settling Parties’ 24 motion and that 25 1. The District Court find and determine that the Settling Parties entered into 26 the settlement in good faith as defined by California Code of Civil 27 Procedure §§ 877 and 877.6; 28 2. The District Court approve the Settlement as a good faith settlement; 2 1 3. The District Court bar, pursuant to 42 U.S.C. § 9613(f) (CERCLA § 113 2 (f)(2)) and California Code of Civil Procedure § 877.6, all claims by any 3 Non-Settling Party for contribution or indemnity against the Settling 4 Parties arising out of facts alleged in Team’s Third Amended Complaint 5 (Doc. 211), and as further identified and provided for in the settlement 6 agreement, regardless of when or by whom such claims are asserted. The 7 barred claims shall include any and all claims for litigation costs, 8 attorneys’ fees, or both, by any Non-Settling party. The order shall also 9 provide that the claims are barred whether they are brought pursuant to 10 CERCLA or pursuant to any other federal or state law; 11 4. The District Court order the Settling Parties to dismiss this action 12 according to the process outlined in paragraph 13 of the settlement 13 agreement; and 14 5. The District Court order that the settlement constitutes a judicially 15 approved settlement for purposes of 42 U.S.C. § 9613 (f)(2) ( CERCLA § 16 113(f)(2)). 17 These Findings and Recommendations will be submitted to the Honorable Lawrence J. 18 O’Neill, the United States District Judge assigned to the case, pursuant to the provisions of 28 19 U.S.C § 636(b)(1). Within fourteen (14) days after being served with these Findings and 20 Recommendations, any party may file written objections with the Court. Any such document 21 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 22 parties are advised that, by failing to file objections within the specified time, a party may waive 23 its right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 IT IS SO ORDERED. 26 Dated: icido3 December 7, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 27 28 3