Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

Document 296

Filed 11/20/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01263-PSF-MEH ROBERT M. FRIEDLAND, Plaintiff, v. TIC ­ THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS INC., f/k/a GEOSERVICES, INC. Defendants. MOTION TO SUBMIT SUPPLEMENTAL AUTHORITY IN SUPPORT OF ROBERT FRIEDLAND'S MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF'S CERCLA LIABILITY Plaintiff, Robert M. Friedland, by his undersigned counsel and pursuant to Fed.R.Civ.P. 56(f), requests the Court exercise its discretion to allow the submission of the attached authority in support of his Motion for Summary Judgment Regarding Plaintiff's CERCLA Liability ("Motion for Summary Judgment"). LOCAL RULE 7.1CERTIFICATION Pursuant to D.C. Colo. L.R. 7.1, undersigned counsel has conferred with counsel for TIC ­ The Industrial Company and counsel for GeoSyntec Consultants, Inc. f/k/a GeoServices, Inc. regarding this Motion to Supplement the Record in Support of Robert Friedland's Motion for Summary Judgment regarding Plaintiff's CERCLA Liability ("Motion to Supplement"). TIC has indicated that it does not oppose the instant motion. GeoSyntec has indicated that it does not oppose the instant motion.

Case 1:04-cv-01263-REB-KLM

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1.

Robert Friedland filed the Motion for Summary Judgment he now seeks to

supplement on October 30, 2006. The briefing on the Motion contemplated by the Rules of Civil Procedure was completed on January 2, 2007. 2. A recent decision of the United States District Court for the Eastern District of

New York, State et al. v. B.B. & S. Treated Lumber Corp. et al., 2007 WL 2908211 (E.D.N.Y. Sept. 30, 2007) regarding the determination of "operator" liability under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") deals with the central issue in the Motion for Summary Judgment and should be considered by the Court in resolving the Motion. 3. In the B.B.&S. case, United States District Court Judge Joanna Seybert, sitting in

the Eastern District of New York, conducted an analysis of the CERCLA liability of certain individual defendants under the standard set forth in United States v. Bestfoods, 524 U.S. 51 (1998). In particular, it was determined that individual defendants Thomas Samuels and Charles Guilloz did not have offices at the facility where the contamination took place; did not have any involvement in the day-to-day operations of the facility; did not personally hire employees at the facility; nor did they supervise any of the employees at the facility. B.B.&S. at 3. These individual defendants were found to be involved in discussions regarding sales data and purchasing, accounts receivable and payable, equipment purchases and major financial decisions of the company. Id. at 4. As demonstrated in Robert Friedland's underlying Motion for Summary Judgment, this is very similar to Robert Friedland's role in the Summitville Mine. Under these factual circumstances, Judge Seybert ruled Samuels and Guilloz were not operators as defined under CERCLA. Id.

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Case 1:04-cv-01263-REB-KLM

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4.

It is within the Court's discretion to allow supplementation of the record of a

motion for summary judgment after the motion has been fully briefed for the purpose of issuing an order that is "just." F.R.C.P. 56(f); see also Patty Precision v. Brown & Sharpe Manuf. Co., 742 F.2d 1260, 1264-1265 (10th Cir. 1984). 5. It would serve the interests of justice and fair play for the Court to consider the

offered supplemental authority in this regard. WHEREFORE, Plaintiff Robert M. Friedland respectfully requests this Court accept for filing his Supplemental Submission of Authority in Support of Robert Friedland's Motion for Summary Judgment regarding Plaintiff's CERCLA Liability, Attachment 1 hereto. DATED this 20th day of November 2007.

s/ Perry L. Glantz Perry L. Glantz, Esq. Fritz W. Ganz, Esq. Fognani & Faught, PLLC 1700 Lincoln Street, Suite 2222 Denver, CO 80203 Attorneys for Plaintiff

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Case 1:04-cv-01263-REB-KLM

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Filed 11/20/2007

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CERTIFICATE OF SERVICE I hereby certify that on this 20th day of November, 2007, a true and correct copy of the foregoing MOTION TO SUBMIT SUPPLEMENTAL AUTHORITY IN SUPPORT OF ROBERT FRIEDLAND'S MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF'S CERCLA LIABILITY was electronically filed via ECF with the U.S. District Court for the District of Colorado and served electronically or via first-class U.S. mail on the following: Terrence M. Ridley, Esq. [email protected] [email protected] Marian Lee Carlson, Esq. [email protected] [email protected] Colin C. Deihl, Esq. [email protected] [email protected] Paul J. Sanner, Esq. [email protected] Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 333 Market Street, Suite 2100 San Francisco, CA 94105-2122

s/ Janyce L. Lee