Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-1263-PSF-MEH

ROBERT M. FRIEDLAN,
Plaintiff,
v.

TIC - THE INUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS, INC. f/k/a GEOSERVICES, INC.,
Defendants.

DEFENDANTS' JOINT OPPOSITION TO PLAINTIFF'S MOTIONS TO SUPPLEMENT THE RECORD REGARDING DEFENDANTS' RESPECTIVE MOTIONS FOR SUMMARY JUDGMENT
Defendants GeoSyntec Consultants, Inc. f/k/a GeoServices, Inc. ("GeoSyntec") and TICThe Industrial Company ("TIC"), through their respective undersigned counsel, submit the

following Joint Opposition to Plaintiffs Motion to Supplement the Record Regarding GeoSyntec
Consultants, Inc.' s Motion for Summary Judgment and Plaintiff s Motion to Supplement the

Record Regarding TIC - The Industrial Company's Motion for Summary Judgment
(collectively, the "Motions to Supplement").

GeoSvntec's Motion for Summary Jud2ment
GeoSyntec fied its Motion for Summary Judgment (the "GeoSyntec Motion") on

November 18, 2005. (Mot. for Summ. 1., Doc. No.4!.) Before Friedland fied his response to
the Motion, GeoSyntec moved to supplement its motion with two deposition excerpts supporting

its initial arguments. (Mot. to Supp. Mot. for Summ. 1. dated 12/22/05, Doc. No. 44.) In a

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vigorous effort to create the appearance of a factual issue, Friedland fied a voluminous, "kitchen
sink" Response in Opposition to Defendant GeoSyntec's Motion for Summary Judgment (the

"GeoSyntec Response"), accompanied by 88 exhibits, on January 10, 2006. (Resp. to Mot. for
Summ. 1., Doc. No. 50.)
On February 22, 2006, GeoSyntec fied a reply brief

highlighting the fatal flaw in

Friedland's GeoSyntec Response - the unsupported assumption that any form of amorphous, undefined "involvement" in discussions or decisions equates to "control" over operations,

thereby giving rise to CERCLA liability. (Reply to Resp. to Mot. for Summ. 1., Doc. No. 75

at 3.) While Friedland cited many instances in which GeoSyntec provided recommendations,
noted criticisms, or was "involved in" discussions related to the leach pad liner construction, he
failed to come forward with any evidence that GeoSyntec exercised control over the leaching

activities through which cyanide leakage occurred at the Summitville Mine, or that it "owned or

possessed" any hazardous substances, as required for CERCLA liability. (Id. at 4.)

TIC's Motion for Summary Jud2ment
TIC fied its Motion for Summary Judgment (the "TIC Motion") on February 8,2006.
(Mot. for Summ. 1., Doc. No. 62.) Taking a similar approach to that embodied in the GeoSyntec

Response, Friedland fied a hefty Response in Opposition to Defendant TIC's Motion for
Summary Judgment (the "TIC Response"), containing approximately 300 pages of exhibits, on
March 31,2006. (Resp. to Mot. for Summ. 1., Doc. No. 97.)

On May 3, 2006, TIC fied a reply in support of its motion for summary judgment,
pointing out, among other things, that Bechtel was responsible for design and construction of

the
TIC's work at the site.

mine processing facilities, and that Bechtel directed and controlled all of

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TIC did not design or approve the design of

the mining facility, did not determine what earth

should be moved or where it should be moved, did not establish or approve the operating
procedures for the mine, and did not decide how hazardous waste at the site would be handled.

In short, Friedland failed to advance any evidence that TIC managed, directed or controlled any
operations at the site.

Discoverv Proceedin2s
The Defendants took their first deposition in this case, of

Robert Friedland (after

requesting available dates for several months), on January 27, 2006. Friedland took his first
deposition, of

Thomas Krasovec, on March 17,2006. Friedland took eight additional
fact witnesses between April

depositions of

26 and June 30,2006, the deadline to complete fact

discovery on liability issues. (See Order on Motion for Modification of Scheduling Order and
Related Relief entered 6/26/06, Doc. No. 13 1 at ii 7.) .

The parties then embarked on expert and damages discovery, which began in mid-

September and is still not complete. Plaintiff s depositions of defense experts Steve Crane and Luke Danielson are scheduled for December 7 and 15, respectively. In addition, the Court has
recently entered an order allowing Friedland an extension of

time to endorse "rebuttal" experts

(who would actually be surrebuttal experts, as the Defendants' experts were themselves rebuttal

experts), by December 15, 2006. (See Minute Order Granting Plaintiffs motion for Extension of
Time to Designate Expert Rebuttal Witnesses entered 11/22/06, Doc. NO.1 75.) Because
allowing these late endorsements will prejudice the Defendants and necessitate a whole new

round of expert discovery, which would have to be completed between December 15, 2006 and

January 22,2007, when the Final Pretrial Order is due (see Minute Order entered 11/21/06, Doc.

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No.

172), Defendants intend to fie a motion challenging the granting of

Plaintiffs motion for

extension on rebuttal experts.

Plaintifls Motions to Supplement
On October 27,2006, Friedland fied the Motions to Supplement. With respect to the
GeoSyntec Motion, Friedland offers a supplement containing 14 pages of

argument and 33 new

exhibits comprising nearly 200 pages. (Attachment 1 and Exhibits to Mot. to Supp., Doc.

No. 148-2.) With respect to the TIC Motion, Friedland offers a supplement containing 13 pages
of argument and 30 new exhibits comprising over 400 pages. (Attachment 1 and Exhibits to

Mot. to Supp., Doc. No. 149.) These motions should be denied as untimely, because the
depositions to which they pertain were completed on June 30,2006, over four months before the

Motions to Supplement were fied.
On October 30,2006, Friedland fied two additional dispositive motions, a Motion for

Partial Summary Judgment That Friedland's CERCLA Response Costs for Government Directed

Remediation Were Consistent With National Contingency Plan (Doc. No. 152), and a Motion for

Summary Judgment Regarding Plaintiffs CERCLA Liability (Doc. No. 150.) Thus, Friedland's
Motions to Supplement, seeking to commence a whole new round of briefing for the summary

judgment motions fied last winter and spring, is not only untimely, it imposes a substantial and

unfair burden on the Defendants. In addition to responding to Friedland's recently-fied
dispositive motions, completing expert discovery, and preparing voluminous witness and exhibit
lists for the Final Pretrial Conference in January, Defendants will be forced to review all of

the

fact discovery and deposition testimony given during the liability phase of discovery, to prepare

responsive supplements. Friedland offers no excuse for his tardy submission, no reason why he

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could not have supplemented his Responses to the summary judgment motions during July and

August, before the parties became engrossed in expert and damages discovery and before the
imminent approach of

the Final Pretrial Conference.

In support of

both Motions to Supplement, Friedland argued that he had "indicated" in

his Responses that discovery was ongoing, and "suggested" that consideration of the motions

might be continued pursuant to Fed. R. Civ. P. 56(f). (Mot. to Supp. re GeoSyntec, Doc. No.
148 at ii 3; Mot. to Supp. re TIC, Doc. No. 149 at ii 3.) Indeed, the only case law cited in the
Motions to Supplement was the case of Patty Preczsion v. Brown & Sharpe Mfg. Co., 742 F.2d

1260 (10th Cir. 1984), which pertains specifically to requests under Rule 56(f). However, in

both Responses, Friedland's "suggestion" was nothing more than a footnote. (See GeoSyntec
Response, Doc. No. 50 at 12, n. 1; TIC Response, Doc. No. 97 at 13, n.1.)
Friedland also claims to have submitted affdavits in support of

his Rule 56(f) requests,

referencing the Affdavit of

Lauren Buehler attached to both Responses. (GeoSyntec Response,

Doc. No. 50, Ex. 20; TIC Response, Doc. No. 97, Ex. 9.) However, this affdavit merely
purports to authenticate numerous exhibits, states that the exhibits were produced in the

underlying cost recovery action, and states that counsel for Friedland "anticipates conducting

further discovery" regarding these documents. (Id.) The affdavit says nothing about needing
additional discovery in order to respond to the Motions, and lacks the specificity required to seek
a continuance under Rule 56(f). See, e.g., Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys.,

Inc., 52 F.3d 901, 905 (10th Cir. 1995). In any event, this issue is moot, as discovery regarding
liability issues, which were the subject of

the motions, concluded five months ago with the

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summary judgment motions still pending. Friedland had ample time to supplement the record
after the close of discovery, but failed to do so in a timely manner.

Friedland's Motions to Supplement should also be denied because the proffered

testimony and exhibits add nothing to his prior Responses. In order to hold the defendants liable,
Friedland must prove that they "manage( d), direct( ed), or conduct

( ed) operations specifically

related to pollution." United States v. Bestfoods, 524 U. S. 51, 66-67 (1998). Demonstrating the requisite control over pollution-related activities does not require hundreds of exhibits - a single,

"smoking gun" would suffce to create a genuine factual issue defeating summary judgment,
such as a memo from GeoSyntec ordering (and causing) SCMCI to stop spraying cyanide on the leach pad until the liner was fully installed, or deposition testimony that TIC compelled SCMCI

to dispose of acid rock drainage in a particular manner. Unfortunately for Friedland, however,
no such documents exist, and no such testimony has ever been given in this case.

Indeed, the sheer number of exhibits Friedland submitted reflects that he does not have a

"smoking gun," not a single, definitive document he can point to that establishes the requisite

control by each defendant. A hundred exhibits showing "participation" in discussions and
"involvement" in various activities do not add up to a demonstration of "control" over pollution-

causing activities. (See, e.g., Proposed Supplement to GeoSyntec Response, Doc. No. 148-2 at
6-7 (GeoSyntec was "involved in" determining placement of material under the liner, "involved
in" determining placement of

the liner, and "involved in" problem solving decisions).)

A court acts within its discretion in denying an untimely request to supplement a

summary judgment response, particularly where no excuse for the delay is given. See, e.g.,
Wiliams v. Hudson, 2000 WL 1838639 *1-2 (unpublished disposition) (10th Cir. Dec. 14,

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2000)(attached as Ex. A-I hereto). See also

Maier v. Lucent Technologies, Inc., 120 F.3d 730,

735 (7th Cir. 1997) (no abuse of

discretion in denying untimely and non-conforming motion to
pages of

supplement). In this case, Friedland's eleventh-hour request to add hundreds of

evidence to the summary judgment record, and to re-open briefing on motions that were fied
over a year ago in the case of GeoSyntec, and over nine months ago in the case of TIC particularly given the current status of

this case and Friedland's pending summary judgment

motions - should be denied.

WHREFORE, Defendants GeoSyntec Consultants, Inc. and TIC - The Industrial
Company respectfully request that the Court enter an order denying Plaintiff s Motion to
Supplement the Record Regarding Defendant GeoSyntec's Motion for Summary Judgment and

Plaintiffs Motion to Supplement the Record Regarding Defendant TIC's Motion for Summary Judgment. In the event the Court grants Plaintiff s Motions to Supplement, however, Defendants
respectfully request that the Court grant them an opportunity to submit responsive
supplementation within fifteen (15) days after the Court's order allowing supplementation.

Defendants are submitting herewith a conditional motion requesting this relief.
Dated this 29th day of

November, 2006.
Respectfully submitted,

By: s/ Marian L. Carlson Terence M. Ridley Marian L. Carlson Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202-2617
Telephone No.: 303-244-1800
Telecopier No.: 303-244- 1 879

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Paul 1. Sanner Hanson, Bridgett, Marcus, Vlahos & Rudy LLP 333 Market Street, Suite 2100 San Francisco, CA 94105-2122 Telephone No.: 415-995-0517
Telecopier No.: 415-541 -9366

Attorneys for Defendant GeoSyntec Consultants,
Inc.
and

s/ Colin C. Deihl Colin C. Deihl, Esq. Faegre & Benson LLP
3200 Wells Fargo Center

1700 Lincoln Street Denver, CO 80203
Telephone: (303) 607-3651

FAX: (303) 607-3600
E-mail: cdeihl(£faegre.com

Delmar R. Ehrich, Esq. Faegre & Benson LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402
Attorneys for Defendant TIC - The Industrial Company

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CERTIFICA TE OF SERVICE

I hereby certify that on November 29, 2006, I electronically fied the foregoing Joint Opposition to Plaintiff s Motions to Supplement the Record with the Clerk of Court using the CM/CF system which will send notification of such fiing to the following email addresses:
. Lauren C. Buehler

Ibuehler(£fognanilaw. com cvega(£fognanilaw. com
. Marian Lee Carlson

carlson(£wtklaw. com carpenter(£wtklaw. com
. Colin Christopher Deihl

cdeihl(£faegre. com j sullivan(£faegre. com
. Perry L. Glantz

pglantz(£fognanilaw. com cvega(£fognanilaw. com
. Jon Bernhardt bernhardt(£ballardspahr. com, hoefler(£ballardspahr. com, myersr(£ballardspahr. com
. Leslie Ann Eaton

eaton(£ballardspahr. com,hoefler(£ballardspahr. com, dethlefs(£ballardspahr. com
. Steven Matthew Kelso

kelso(£wtklaw. com hand(£wtklaw.com
. Kristina I. Mattson

kmattson(£fognanilaw. com cvega(£fognanilaw. com
. Richard Kirk Mueller

rmueller(£fognanilaw. com cvega(£fognanilaw. com
. Terence M. Ridley

ridley(£wtklaw. com norris(£wtklaw. com

and I hereby certify that a copy of the document has been served to the following non-CM/CF participant via E-Mail:
Paul

1. Sanner - psanner(£hansonbridgett.com

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and I hereby certify that I have mailed the document or paper to the following non CM/CF
participant:
Delmar R. Ehrich

Faegre & Benson, LLP-Minnesota 2200 Wells Fargo Center 90 South 7th Street Minneapolis, MN 55402-3901
By: s/ Marian L. Carlson by Lisa McLucas Marian L. Carlson Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, Colorado 80202
Telephone No.: 303-292-2525
Telecopier No.: 303-294- 1 879

E-Mail: carlson(£wtklaw.com

Attorney for Defendant GeoSyntec Consultants, Inc.

443309v.l

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