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Truck, et al., Enns Pontiac, Buick, & Gmc v. Orelia Flores

April 20, 2011

TRUCK, ET AL., ENNS PONTIAC, BUICK, & GMC
PLAINTIFFS,
v.
ORELIA FLORES, ET AL., DEFENDANTS.



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

MEMORANDUM DECISION REGARDING MOTION TO AMEND (Doc. 124)

I. INTRODUCTION.

On July 19, 2007, Plaintiffs filed their original complaint in this action. (Doc. 2). Plaintiffs filed a first amended complaint ("FAC") on November 7, 2007. (Doc. 13).

Plaintiffs filed a motion to amend the FAC on February 17, 2011. (Docs. 123, 124). Defendants Mabel Lee, Reedley Dry Cleaning Works, Reedley Steam Laundry, and the Estate of Herbert Lee filed opposition to Plaintiffs' motion on April 4, 2011. (Doc. 128). Defendant the Estate of Sieto Yamaguchi filed opposition on April 4, 2011; Defendant John Pierce also filed opposition to the motion to amend on April 4, 2011. (Docs. 132, 135). Plaintiffs filed replies on April 11, 2011. (Docs. 138, 139, 140).

II. FACTUAL BACKGROUND. FAC's Allegations

This case concerns the alleged release of various hazardous substances, namely solvents used in the dry cleaning industry, into a groundwater plume underlying part of Reedley, California. The FAC includes two federal claims for (1) recovery of "response" costs under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") §§ 107(a)(1-4)(B), and (2) declaratory relief under federal law, as well as five additional state law claims for (3) negligence per se, (4) negligence, (5) public and private nuisance, (6) trespass, and (7) equitable indemnity, and (8) declaratory relief under state law.

The FAC sets forth the following general background information. Plaintiffs own real property located at 1319 G. Street, Reedley, California ("Plaintiffs' Site"). (FAC ¶2.) Prior to Plaintiffs taking ownership of 1319 G. Street, Mabel and Herbert Lee (the "Lee Defendants") owned and/or operated a dry cleaning business at that location from approximately the 1940s through the 1970s. (FAC ¶4.) Herbert Lee is now deceased.

Orelia Florez and Sieto Yamaguchi (the "Flores/Yamaguchi" defendants) owned and/or operated real property at 1340 G. Street, Reedley, California, which is across the street from Plaintiff's Site. (FAC ¶¶ 4, 7.). Sieto Yamaguchi is now deceased. Finally, John Pearce ("Pearce") and Patty and Louie Martinez ("Martinez") "each owned and/or operated real property nearby and/or adjacent to the Plaintiffs' Site." (FAC ¶4.) The FAC alleges that the properties either currently or previously owned by these Defendants "caused Plaintiffs and Plaintiffs' Site environmental contamination." (Id.)

Plaintiffs allege that Defendants and Defendants' properties "generated disposed of or released ... hazard[ous] substances or wastes that caused contamination and pollution of structures, soils, subsoils, surface water and groundwater at and in the vicinity of the Plaintiffs' Site (both on-site and off-site) through the handling, generation, usage, storage, disposal of and/or release of hazardous substances at, onto and from the Plaintiffs' Site and Defendants' Sites." (FAC ¶5.). The FAC's allegations regarding the nature of the contamination at issue are very generic, alleging that Defendants, beginning in the 1940s, while operating either on Plaintiffs' Site or other sites, released hazardous substances including chlorinated hydrocarbon compounds ("CHCs"). (FAC ¶¶ 37-38.) These CHC releases allegedly caused and contributed to the contamination of soil and groundwater underlying Plaintiffs' Site, Defendants' properties, and surrounding properties. (FAC ¶37.)

In the First Claim for Relief, for recovery of response costs under CERCLA §§ 107(a)(1-4)(B), Plaintiffs allege that they "have incurred, and will continue to incur, substantial Response Costs ... to fully characterize the Plaintiffs' Site, including, but not limited to, soil sampling; installation of groundwater monitoring wells; sampling such wells and having all samples analyzed...." (FAC ¶42.) In addition, Plaintiffs anticipate that they will incur additional costs to address existing and future groundwater contamination. (Id.) The FAC specifically alleges that Defendants "caused and continue to cause Plaintiffs to incur Response Costs on their property and for the underlying groundwater." (FAC ¶49.) The FAC contains no further details about the nature of Defendants' releases or contribution to any contamination.

III. LEGAL STANDARD.

Rule 15(a), Federal Rules of Civil Procedure, provides that "leave [to amend] shall be freely given when justice so requires." "The purpose of pleading is 'to facilitate a proper decision on the merits' . and not erect formal and burdensome impediments to the litigation process. Unless undue prejudice to the opposing party will result, a trial judge should ordinarily permit a party to amend its complaint." Howey v. United States, 481 F.2d 1187, 1190 (1973). However, "[t]his strong policy toward permitting the amendment of pleadings . must be tempered with considerations of 'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.' Foman v. Davis, 371 U.S. 178, 182 (1962)." Schlacter-Jones v. General Telephone of California, 936 F.2d 435, 443 (9th Cir. 1991). "These factors, however, are not of equal weight in that delay, by itself, is insufficient to justify denial of leave to amend." DCD Programs, 833 F.2d at 186; see also Jones, 127 F.3d at 847 n.8.

"[I]t is the consideration of prejudice to the opposing party that carries the greatest weight . Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003). "The party opposing leave to amend bears the burden of showing prejudice." Serpa v. SBC Telecommunications., Inc., 318 F. Supp. 2d 865, 870 (N.D.Cal.2004).

Plaintiffs' Proposed Amendments

Plaintiffs seek to amend the complaint in order to (1) join additional parties, including the administrators for the estates of deceased Defendants; (2) correct the spelling of certain Defendants' names; and (3) add a claim pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"). Plaintiffs allege that the necessity for the proposed amendments was revealed during discovery.

IV. DISCUSSION.

A. Amendment to Add RCRA Claims

RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citing Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331-32 (1994)). Its purpose is to minimize the present and future threat to human health and the environment, not effectuate the clean-up of toxic waste sites or allocate those costs. 42 U.S.C. § 6902(b); Meghrig, 516 U.S. at 483. RCRA provides for citizen suits to obtain a "mandatory injunction, i.e., one that orders a responsible party to 'take action' by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i.e., one that 'restrains' a responsible party from further violating RCRA." Id. at 484.

Citizen suits under RCRA require proof of notice. E.g., Covington v. Jefferson County, 358 F.3d 626, 636 (9th Cir. 2004). For suits alleging present violations of RCRA, the plaintiff must provide notice to the relevant parties sixty-days before filing suit. Id. (citing 42 U.S.C. § 6972(b)(1)(A)). For actions alleging "contribution" to present or past violations of RCRA, a ninety-day notice is required. Id. (citing § 6972(b)(2)(A)). Both notice provisions are jurisdictional: absent compliance with a required notice provision, a district court lacks subject matter jurisdiction to hear the RCRA claims. Id. (citing inter alia Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (holding that the ninety-day notice requirement is jurisdictional)). The Supreme Court has held that courts may not take a "flexible or pragmatic" approach to RCRA's notice ...


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