ORDER SETTING ASIDE DEFAULT AND DISMISSING CLAIMS AGAINST DEFENDANT FULLER-O'BRIEN, INC. Re: ECF No. 83
Plaintiffs Richard E. Haskins, Arthur L. Haskins, and the Estate of Arthur "Buzz" Haskins ("Haskins") obtained an entry of default in this action against Defendant Fuller-O'Brien, Inc. 16 ("FOB"), a dissolved Indiana corporation. ECF No. 13. FOB now moves to set aside default and 17 to dismiss the claims against it. ECF No. 83. Having considered the arguments of the parties at 18 oral argument held April 18, 2013, the moving papers, and good cause appearing, the Court 19 hereby GRANTS the motion. 20
A. Factual and Procedural Background
FOB claims, and Haskins does not dispute, that Fuller-O'Brien, Inc. was a surrendered Delaware corporation incorporated in 1967 as a wholly owned subsidiary of the O'Brien 24 Corporation, an Indiana corporation.*fn1 Declaration of Thomas F. Karaba ("Karaba Decl.") at ¶ 3, 25 ECF No. 86. Haskins alleges that FOB owned a paint manufacturing facility in South San 26 Francisco from the late 1800s to the late 1900s, and that FOB owned the land on which the factory 27 sat from approximately 1968 to 1999. Amended Complaint, ECF No. 14, ¶ 11. Haskins further 2 alleges that, in 1999, FOB conveyed that parcel ("the FOB property") to Cherokee Acquisition 3 Corporation, Cherokee Grand Avenue, Cherokee San Francisco and Cherokee Investment Partners 4 II (the "Cherokee Parties"). Id., ¶¶ 6-9. 5
Jerome Crowley ("Crowley Decl."), ECF No. 85.*fn2 On March 29, 2000, pursuant to Indiana's 7 corporate dissolution statute, FOB published notices of dissolution in newspapers in San 8 Francisco, advising that any claims against the corporation would be barred unless commenced 9 within two years of that date. Id.*fn3
On December 23, 2010, Haskins sent a Notice of Endangerment ("NOE"), pursuant to the FOB filed articles of dissolution on March 27, 2000. Exhs. A and B to Declaration of 11 federal Resource Conservation and Recovery Act ("RCRA"), to FOB's last known registered 12 agent. Exh. 1 to Declaration of Bret A. Stone ("Stone Decl."), ¶ 2, ECF No. 95.*fn4 When the NOE was returned, Haskins then sent it to Jerome Crowley, FOB's former president. Stone Decl., ¶ 3, 14 Exh. 2. Mr. Crowley did not respond, and a year later, Haskins sent another letter to Mr. Crowley 15 with a draft complaint. Id., ¶ 5, Exh. 3. On October 12, 2011, FOB's former counsel Thomas 16 Karaba wrote to Haskins to state that "any purported service upon Mr. Crowley is ineffective as he 17 is no longer an agent, officer or director of O'Brien." Id., ¶ 6, Exh. 4. 18
Haskins brought this action against FOB and the Cherokee Parties on October 20, 2011, 19 alleging that hazardous wastes released at the FOB property had contaminated Haskins' 20 neighboring property, and seeking relief under RCRA and the federal Comprehensive 21 Environmental Response, Compensation and Liability Act ("CERCLA"), among other causes of 2 action. ECF No. 1. On November 1, 2011, Haskins served a copy of the summons and complaint 3 on Mr. Crowley. ECF No. 8. A week later, Mr. Karaba wrote a letter in response, repeating the 4 arguments that he made in his October 12 letter, stating this time that Mr. Crowley "is not an 5 agent, officer or director" of FOB. Exh. A to Karaba Decl. 6
The Clerk of Court granted entry of default against FOB on December 9, 2011. ECF No. 13. In October and November 2012, Haskins subpoenaed Mr. Crowley for production of 8 documents related to FOB, and for his deposition. Stone Decl., ¶¶ 9 & 10, Exhs. 5 & 6. Haskins 9 moved for default judgment a year later, and wrote to inform to Mr. Karaba of the same. ECF No. 10 53; Exh. 7 to Stone Decl.. On January 25, 2013, FOB moved to set aside entry of default, but 11 withdrew the motion on February 6. ECF Nos. 64 & 69. On March 15, 2013, FOB filed a 12 renewed motion to set aside default and dismiss the case, which the Court now considers. ECF No. 83. 14
Haskins and the Cherokee parties filed a notice of settlement on March 20. ECF No. 92.
Haskins' primary causes of action arise under federal statutes RCRA and CERCLA.
Therefore, this Court has jurisdiction pursuant to those statutes' jurisdictional provisions, 42 18 U.S.C. §§ 6972(a), 9607 & 9613. The Court also exercises supplemental jurisdiction over the 19 remaining clams pursuant to 28 U.S.C. § 1367, ...