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October 2012

Gordon & Rees Environmental Team Wins Motion for Summary Judgment; Defeats Cross-Motion for Leave to Amend

Lewis v. Russell, et al., 2012 U.S.Dist. LEXIS 143501 (Oct. 3, 2012)
Lewis v. Russell, et al., 2012 U.S.Dist. LEXIS 143453 (Oct. 3, 2012)

The Gordon & Rees environmental litigation team of Gery Zacher, Kristin Reyna and Matt Nugent recently were successful before the Eastern District of California in an environmental contamination case involving soil and groundwater contamination by PCE.

After negotiating dismissals of most of the claims in the case against their client over the past year, the Gordon & Rees team filed a motion for summary judgment as to the claims of the remaining cross-claimant.  In addition to CERCLA and nuisance claims, the claims included state law claims of negligence, product liability, negligence per se, state law indemnity and contribution under the cross-claimant’s municipal code pertaining to its sewers. 

Gordon & Rees argued that its client did not qualify as an “arranger” under CERCLA nor committed a nuisance under recent Ninth Circuit and Eastern District precedent. The team further argued that the state law claims were barred by the statute of limitations and that the municipal code claims failed as the client did not meet the definition of “user” of the sewer system under the code, using recent Ninth Circuit precedent to derive the meanings of the terms “causes,” “permits” and “contributes,” which composed the “user” definition. 

Hours after Gordon & Rees filed its motion, the cross-claimant filed a motion to amend its cross-claims to add further facts relating to the statute of limitations and a continuing trespass claim against the client.

Following oral argument, the court, on October 3, 2012, ruled that the cross-claimant’s state law claims were all barred by the statute of limitations in CCP § 338, and that the municipal code claim also fell, adopting the Gordon & Rees argument that the client did not, per the Ninth Circuit’s definitions in other cases, qualify as a “user” of the sewer system.  The court further denied cross-claimant’s motion for leave to amend, devoting 14 pages to discussing the cross-claimant’s severe undue delay and dilatory behavior in seeking amendment.  While the cross-claimant did not initially oppose the motion for summary judgment on the CERCLA and nuisance claims, it sought the ability to file a declaration under FRCP 56(d) to request additional discovery, which submission was permitted.  However, within days, cross-claimant agreed to dismiss its remaining claims and waive its rights to appeal the motion rulings, for an extremely nominal figure.

Matthew P. Nugent
Kristin N. Reyna DeHart
P. Gerhardt Zacher



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