-SMS Team Enterprises, LLC v. Western Investment Real Estate Trust et al, No. 1:2008cv00872 - Document 387 (E.D. Cal. 2011)

Court Description: ORDER adopting 385 FINDINGS AND RECOMMENDATIONS signed by District Judge Lawrence J. O'Neill on 12/22/2011. (Lundstrom, T)
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-SMS Team Enterprises, LLC v. Western Investment Real Estate Trust et al 1 Doc. 387 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 TEAM ENTERPRISES, LLC, 5 CASE NO. 1:08-cv-00872-LJO-SMS Plaintiff, ORDER ADOPTING 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 PURSUANT TO 42 U.S.C. § 9613(f) (CERCLA § 113(f)(2)) 6 v. 7 8 WESTERN INVESTMENT REAL ESTATE TRUST, et al., 9 Defendants. 10 (Doc. 385) / 11 12 On or about October 7, 2011, three groups of parties to this litigation (the “Settling 13 Parties”) agreed to final settlement of this matter. The first group (“Team”) included Plaintiff 14 Team Enterprises, LLC; and Third-Party Defendants Team Enterprises, Inc.; Thomas Jones; 15 Frederic Jones; and Eric Jones. The second group (“MCI”) included Defendants Modesto Center 16 Investors, LP; MC II, LP; John A. Branagh; Lynette Branagh; Gaylon C. Patterson; and Marla J. 17 Patterson. The third group (“PK II”) included Defendants PK II Century Center LP; Kimco 18 Realty Company; Pan Pacific Retail Properties, LLC; Pan Pacific Realty Properties, Inc.; and 19 Prudential Real Estate Investors. The Settling Parties stipulated and moved the Court to 20 determine that their settlement agreement (1) was made in good faith pursuant to California Code 21 of Civil Procedure §§ 877 and 877.6; (2) satisfied the requirements for a contribution bar, 22 regardless of when or by whom such claims are asserted, including all claims for litigation costs 23 and attorneys’ fees, by any party to the lawsuit that is not a party to the settlement agreement (a 24 “Non-Settling Party”), pursuant to 42 U.S.C. § 9613(f) (CERCLA § 113(f)(2)); (3) is 25 encompassed by a settlement agreement that constitutes a judicially approved settlement for 26 purposes of 42 U.S.C. § 113(f)(2) (CERCLA § 113(f)(2)), and barred claims under any other 27 federal or state statute or common law. 28 The Magistrate Judge heard argument on the motion on December 6, 2011, and 1 Dockets.Justia.com 1 recommended that the District Court grant the Settling Parties’ motion and make certain findings 2 and determinations. The Findings and Recommendations provided fourteen days for the filing of 3 objections. The fourteen-day period has passed, and no party has objected. 4 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 5 a de novo review of this case. Having carefully reviewed the entire file, the Court finds the 6 Findings and Recommendations to be supported by the record and proper analysis. 7 8 Accordingly, the Court hereby adopts the Findings and Recommendations and orders that the Settling Parties’ motion be granted. In addition, the Court 9 1. 10 Finds that the Settling Parties entered into the settlement in good faith as defined by California Code of Civil Procedure §§ 877 and 877.6; 11 2. Approves the Settlement as a good faith settlement; 12 3. Pursuant to 42 U.S.C. § 9613(f) (CERCLA § 113 (f)(2)) and California 13 Code of Civil Procedure § 877.6, bars all claims by any Non-Settling Party 14 for contribution or indemnity against the Settling Parties arising out of 15 facts alleged in Team’s Third Amended Complaint (Doc. 211), and as 16 further identified and provided for in the settlement agreement, regardless 17 of when or by whom such claims are asserted. The barred claims include 18 any and all claims for litigation costs, attorneys’ fees, or both, by any Non- 19 Settling party. The claims are barred whether they are brought pursuant to 20 CERCLA or pursuant to any other federal or state law; 21 4. 22 Orders the Settling Parties to dismiss this action according to the process outlined in paragraph 13 of the settlement agreement; and 23 5. 24 Orders that the settlement constitutes a judicially approved settlement for purposes of 42 U.S.C. § 9613 (f)(2) ( CERCLA § 113(f)(2)). 25 26 27 IT IS SO ORDERED. 28 Dated: b9ed48 December 22, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 2