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City of San Diego v. National Steel & Shipbuilding Company; National Steel & Shipbuilding

July 27, 2012

CITY OF SAN DIEGO
PLAINTIFF,
v.
NATIONAL STEEL & SHIPBUILDING COMPANY; NATIONAL STEEL & SHIPBUILDING CORPORATION; NATIONAL IRON WORKS; MARTINOLICH SHIP BUILDING COMPANY; SOUTHWEST MARINE, INC.; BAE SYSTEMS SAN DIEGO SHIP REPAIR, INC.; SAN DIEGO MARINE CONSTRUCTION COMPANY; STAR AND CRESCENT BOAT COMPANY, A DIVISION OF SAN DIEGO MARINE CONSTRUCTION COMPANY; STAR AND CRESCENT BOAT COMPANY; STAR AND CRESCENT INVESTMENT COMPANY; STAR AND CRESCENT FERRY COMPANY; SAN DIEGO MARINE CONSTRUCTION CORPORATION; MCCSD; CAMPBELL INDUSTRIES; SAN DIEGO GAS & ELECTRIC; UNITED STATES NAVY; SAN DIEGO UNIFIED PORT DISTRICT; AND DOES 1-100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: United States District Judge William Q. Hayes

ORDER

AND RELATED CROSS-ACTIONS AND COUNTERCLAIMS HAYES, Judge:

The matter before the Court is the Motion for Leave to File the First Amended and Supplemental Cross-Claims (ECF No. 204) filed by San Diego Gas & Electric Company.

I. Background

On October 14, 2009, Plaintiff City of San Diego initiated this action by filing the Complaint against several Defendants including San Diego Gas & Electric Company ("SDG&E") alleging that they are "'Dischargers' or 'Persons Responsible' for alleged environmental contamination at the property known as the 'Shipyard Sediment Site' by the California Regional Water Quality Control Board, San Diego Region ... in Tentative Clean Up & Abatement Order No. R9-2005-0126...." (ECF No. 1 at 5).

On January 4, 2010, SDG&E filed cross-claims against all parties.

On January 4, 2010, BAE Systems San Diego Ship Repair Inc. and Southwest Marine, Inc. filed cross-claims against SDG&E asserting several claims including a claim for violation of the California Hazardous Substances Account Act ("HSAA"). (ECF No. 21). On February 25, 2010, the San Diego Unified Port District ("Port District") filed a First Amended Cross-Claims against SDG&E asserting several claims including a claim for violation of HSAA. (ECF No. 63).

On July 14, 2010, the Magistrate Judge conducted a Case Management Conference and Early Neutral Evaluation Conference. (ECF No. 124). On July 15, 2010, the Magistrate Judge issued an Order granting a joint motion for the adoption of a discovery plan and setting the Phase I discovery schedule. Phase I discovery included written discovery and production of documents limited to liability and allocation issues. (ECF No. 125). On May 5, 2011, the Amended Order Adopting Phase 1(b) Discovery Plan was entered.

On May 10, 2011 the parties entered into mediation and agreed to stay all further discovery. On September 8, 2011, the Magistrate Judge extended the discovery stay and stated, "[i]f the parties are unable to achieve settlement during or after completion of Phase I discovery, all discovery otherwise available under the Federal Rules of Civil Procedure and other applicable law may be conducted during Phase II discovery, including but not limited to expert discovery." (ECF No. 157).

On May 31, 2012, SDG&E filed a Motion for Leave to File the First Amended and Supplemental Cross-Claims. (ECF No. 204). SDG&E attached the proposed First Amended and Supplemental Cross-Claims to the Motion. (ECF No. 204-1 at 9-28). On June 18, 2012, Cross-Defendants San Diego Unified Port District, City of San Diego, BAE Systems San Diego Ship Repair, Inc., and Southwest Marine, Inc. ("Cross-Defendants") filed a Oppositions. (ECF Nos. 217-19). On June 25, 2012, SDG&E filed a Reply. (ECF No. 221).

Federal Rule of Civil Procedure 15 mandates that leave to amend "be freely given when justice so requires." Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court offered several factors for district courts to consider in deciding whether to grant a motion to amend under Rule 15(a):

In the absence of any apparent or declared reason--such as 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.--the leave sought should, as the rules require, be 'freely given.'

Foman, 371 U.S. at 182; see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004) (citing Forman factors).

"Not all of the [Foman] factors merit equal weight. As this circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citations omitted). "The party opposing amendment bears the burden of showing prejudice." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). "Absent prejudice, or a strong showing of any of the remaining Foman factors, ...


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