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Burlington Northern & Santa Fe Railway Co. v. Hercules

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 23, 2010

BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, AS SUCCESSOR TO THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, ET AL., PLAINTIFFS,
v.
HERCULES, INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND IMPOSING TERMINATING SANCTIONS AGAINST THE BROWN & BRYANT PARTIES

The matter of the motions of the Burlington Northern & Santa Fe Railway Company, as successor to the Atchison Topeka & Santa Fe Railway Company ("BNSF") and the Dow Chemical Company ("Dow") for orders for terminating sanctions against Brown & Bryant, Inc., John H. Brown, an individual, and Ed A. Brown, an individual (collectively the "Brown & Bryant Parties") for said Defendants' repeated willful failure to provide discovery responses and repeated and intentional disregard of the Court's prior discovery orders, was submitted on Findings & Recommendations for adoption by the District Court on February 17, 1999.

All parties were advised of the requirement that any objections be filed within ten (10) court days. Any responses to said objections were to be served and filed within ten (10) court days thereafter. The parties were also advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.

No objections were filed.

A stay of all proceedings was lifted, only as to these motions, by separate Order of July 23, 2010.

The Court has fully considered the Magistrate Judge's Findings & Recommendations and finds them to be correct in all respects and that there is no substantial justification or other cause shown why terminating sanctions should not be issued against the Brown & Bryant parties. For the reasons set forth in the Findings & Recommendations,

IT IS ORDERED:

1. The Magistrate Judge's Findings & Recommendations filed February 17, 1999 ARE ADOPTED;

2. BNSF's Motion for Terminating Sanctions is GRANTED:

a. The Brown & Bryant Parties' counter-claim against BNSF (including any and all counter-claims of Brown & Bryant, Inc., John H. Brown, and Ed A. Brown against BNSF) are DISMISSED WITH PREJUDICE;

b. The Brown & Bryant Parties' answers to BNSF's complaint (including any and all answers of Brown & Bryant, Inc., John H. Brown and Ed A. Brown to BNSF's complaint) are STRICKEN; and

c. Default judgment is entered against the Brown & Bryant Parties (including Brown & Bryant, Inc., John H. Brown, and Ed A. Brown) in favor of BNSF as to the remaining claims of BNSF against them in this matter as follows:

I. Thirteenth Claim for Relief: Private Party Cost Recovery under CERCLA § 107; Complaint, ¶¶ 176 through 186, inclusive;

ii. Fourteenth Claim for Relief: Contribution under CERCLA § 113; Complaint, ¶¶ 187 through 190, inclusive;

iii. Fifteenth Claim for Relief: Contribution under the CHSAA; Complaint, ¶¶ 191 through 197, inclusive;

iv. Nineteenth Claim for Relief: Breach of Contract, to the extent the breach of contract claims relate to the CERCLA and CHSAA claims; Complaint, ¶¶ 221 through 247, inclusive; and

v. Twenty-Fourth Claim for Relief: Declaratory Relief: Complaint; ¶¶ 281 through 284, inclusive.

3. Dow's Motion for Terminating Sanctions is GRANTED and default judgment is entered against the Brown & Bryant Parties in favor of Dow as follows:

a. Brown & Bryant Parties' answers to Dow's counter-claim (including any and all answers of Brown & Bryant, Inc., John H. Brown, and Ed A. Brown to Dow's counter-claim) are STRICKEN; and

b. Default judgment is entered against the Brown & Bryant Parties (including Brown & Bryant, Inc., John H. Brown, and Ed A. Brown), as to all claims of Dow against them in this case, as set forth in Dow's counter-claim for cost recovery and contribution filed March 7, 1996 as follows:

i. First Counter-Claim for Contribution and Cost Recovery under CERCLA Section 113(f);

ii. Second Counter-Claim for Declaratory Relief for Contribution and Cost Recovery under 42 U.S.C. Section 9613(g);

iii. Third Counter-Claim for Declaratory Relief for Cost Recovery under 42 U.S.C. Section 9607(a) and 9613(g); and

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 suit against Brown & Bryant Parties (Brown & Bryant, Inc., John H. Brown, and Ed A. Brown).

IT IS SO ORDERED.

20100723

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