Summary
reading Pinal Creek to recognize that such a right existed prior to SARA
Summary of this case from Adobe Lumber, Inc. v. HellmanOpinion
No. CV S-02-186 GEB GGH.
May 24, 2005
ORDER
Pending are cross-motions for partial summary judgment. On March 4, 2005, Defendants and Counter-claimants Harold and Geraldine Taecker ("Taeckers") filed a partial summary judgment motion on Plaintiff Adobe Lumber, Inc.'s ("Adobe") 42 U.S.C. § 9607 ("§ 107") and § 9613 ("§ 113") claims, which are alleged under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601- 9675 ("CERCLA"). The Taeckers argue Adobe cannot assert a claim under § 113 because the recent Supreme Court ruling in Cooper Indus., Inc. v. Aviall Servs., Inc., ___ U.S. ___, 125 S. Ct. 577, 584 (2004) ("Aviall"), forecloses a § 113 claim where the private party has not been subject to a civil action under CERCLA. Adobe concedes the correctness of the Taeckers' position. Therefore, Adobe's § 113 claim is dismissed.
On March 5, 2005, Third Party Defendants Wells Fargo Bank, N.A., and F. Warren Hellman as Trustees of Trust A created by the Estate of Marco Hellman, and F. Warren Hellman as Trustee of Trust B created by the Estate of Marco Hellman, joined in the Taeckers' motion for partial summary judgment.
The Taeckers also argue Adobe's pled § 107 claim is not actionable because of case precedent that precludes Adobe from pursuing a joint and several theory of liability. Adobe agrees with the Taeckers; therefore, Adobe's claim for joint and several liability under § 107 is dismissed.
However, Adobe argues that it is not prevented from pursuing a recovery action on some form of liability other than joint and several. On March 18, 2005, Adobe filed a motion for partial summary judgment in which it seeks to establish the Taeckers' liability under § 107 "for costs incurred by Adobe to respond to the release of the hazardous substance perchloroethylene . . . from the Taeckers' former dry cleaning facility . . . at the `Woodland [Shopping] Center' . . . — a small strip mall in downtown Woodland, California that Adobe currently owns." (Pl.'s Mem. Supp. Pl.'s Cross-Mot. Partial Summ. J. at 1.) The Taeckers counter that this motion is untenable because it erroneously assumes that Adobe has pled a § 107 contribution claim. The Taeckers also argue the motion fails because Adobe has not shown compliance with the National Contingency Plan.
Adobe rejoins it has sufficiently pled a contribution claim, arguing:
The Taeckers have known for nearly three years (the Complaint was filed January 22, 2002) that Adobe seeks to recover all or a portion of its response costs from them in this action as permitted under CERCLA and state law. That one of Adobe's claims pleads a higher standard of liability than the standard of liability the Taeckers actually face in this action cannot reasonably be claimed to have caused prejudice.
(Pl.'s Reply Br. Supp. Cross-Mot. Partial Summ. J. at 16.)
Adobe's Complaint sufficiently provided notice to the Taeckers that Adobe seeks contribution under CERCLA. But the parties dispute whether Adobe's contribution claim is now actionable in light of the Supreme Court's holding in Aviall. Aviall does not foreclose Adobe's contribution claim since the Supreme Court did not rule on whether contribution is available under § 107.Aviall, 125 S. Ct. at 586 n. 6 (stating "we do not address whether a § 107 cost recovery action by Aviall" may be actionable under "some form of liability other than joint and several"). Thus, Ninth Circuit precedent governs this issue. The Ninth Circuit observed in Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir. 1997), that "the essence of a claim for contribution . . . is imbedded in the text of § 107." Pinal Creek was explained in Western Properties Service Corp. v. Shell Oil Co., 358 F.3d 678, 685 (9th Cir. 2004), as follows: "Pinal Creek held that the enactment of § 113 in 1986 did not replace the implicit right to contribution many courts recognized in § 107(a); rather, § 113 determines the `contours' of § 107, so that a claim for contribution requires the `joint operation' of both sections." Thus, in the wake of Aviall, Adobe's § 107 claim is construed as it was before the congressional enactment of § 113. See Pinal Creek, 118 F.3d at 1301 (stating that "[t]he legislative history behind § 113(f) also supports the conclusion that, in enacting that provision, Congress was only confirming and clarifying an existing claim for contribution under § 107."). Therefore, the Taeckers' motion for partial summary judgment on Adobe's § 107 contribution claim is denied.
Adobe's motion which seeks to establish the Taeckers' liability is denied because it did not address all the elements of a § 107 contribution claim. See Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 870 (9th Cir. 2001).
IT IS SO ORDERED.