Free Reassign/Transfer Case to Another Judge - District Court of Arizona - Arizona

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Quarles & Brady LLP
Firm State Bar No. 00443100 Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200

Attorneys for Plaintiffs Crane Co. and Unidynamics/Phoenix, Inc. Andrew R. Sherwood (Bar No. 003855) [email protected] Joseph A. Drazek (Bar No. 011842) [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CRANE CO., a Delaware corporation and UNIDYNAMICS/PHOENIX, INC., a Delaware corporation, Plaintiffs, vs. UNITED STATES OF AMERICA, et al., Defendants. CRANE CO., a Delaware corporation; and UNIDYNAMICS/PHOENIX INC., a Delaware corporation, Plaintiffs, MOTION TO TRANSFER vs. MALCOLM-PIRNIE, INC., a New York corporation, Defendant. Plaintiffs Crane Co. ("Crane") and Unidynamics/Phoenix, Inc. ("UPI"), by and through their counsel undersigned, hereby move the Court, pursuant to Rule 42.1(a)(1) of the Local Rules of Practice for the United States District Court of Arizona, to transfer Cause No. CV06-2838-PHX-EHC from the Hon. Earl Carroll to the Hon. Roslyn Silver. NO. CV06-02838-PHX-EHC Other Related Case: CV05-00387-PHX-ROS Case No. CV03-2226-PHX-ROS Case No. CV04-1400-PHX-ROS (Consolidated)

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Document 86

Filed 03/30/2007

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This Motion is based upon the attached Memorandum of Points and Authorities which is incorporated herein by this reference. RESPECTFULLY SUBMITTED this 30th day of March, 2007. QUARLES & BRADY LLP Renaissance One, Two North Central Avenue Phoenix, AZ 85004-2391

By s/Andrew R. Sherwood Andrew R. Sherwood Joseph A. Drazek Attorneys for Plaintiffs Crane Co. and Unidynamics/Phoenix, Inc. MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL BACKGROUND. From approximately 1970 until 1993, Plaintiff UPI operated a manufacturing facility at 101 South Litchfield Road, Goodyear, Arizona. In the early 1980s, the Arizona Department of Health Services ("ADHS") and the United States Environmental Protection Agency ("EPA") conducted an investigation of the UPI property which revealed the presence of groundwater contamination. As a result, EPA added the site to the National Priorities List ("NPL") pursuant to the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et. Seq., ("CERCLA") as the "Phoenix/Goodyear Airport Area (North) Superfund Site ("PGA-North Site" or "Site")." In 1989, EPA issued a Record of Decision ("ROD") specifying the remedial actions required to address the effect of the release of hazardous substance at the Site, including groundwater contamination. Approximately a year later, EPA issued a unilateral

administrative order ("UAO") to UPI pursuant to Section 106(a) of CERCLA, 42 U.S.C. § 9606(a) requiring performance of remedial design and remedial action for the groundwater and soil vadose zone remedies selected in the ROD for the Site. Defendant Malcolm-Pirnie was retained by UPI, among other things, to assist in responding to the UAO. In that regard, Malcolm-Pirnie initially provided certain design

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services in connection with the initial phase of the groundwater treatment system that was constructed at the PGA-North Site. Additionally, Malcolm-Pirnie operated the

groundwater treatment system constructed by Crane at the PGA-North Site from early 1998 through January 2001. The four related cases involving the PGA-North Site, including this case, are as follows: A. First Lawsuit Re: PGA-North Site.

On November 3, 2003, Crane and UPI filed a CERCLA contribution action against the United States and certain of its executive departments and agencies in the United States District Court in an action styled as Crane Co. and Unidynamics/Phoenix, Inc. v. United States of America, et al., Cause No. CV03-2226-PHX-ROS ("Contribution Action"). The Contribution Action concerned the proper allocation of responsibility for the costs of investigating and remediating environmental contamination at the PGA-North Site as well as at another location. That case was assigned to the Hon. Roslyn Silver. B. Second Lawsuit Re: PGA-North Site.

On July 8, 2004, the United States filed a CERCLA enforcement action against Unidynamics and Crane in the United States District Court of Arizona in an action styled United States of America v. Unidynamics/Phoenix, Inc. and Crane Co., Cause No. CV041400-PHX-JAT ("Enforcement Action"). In the Enforcement Action, the United States sought to recover response costs it had incurred in connection with the PGA-North Site as well as other relief. When the United States filed the Enforcement Action, it stated in the Civil Cover Sheet accompanying the Complaint that the lawsuit was related to the Contribution Action which was pending before Judge Silver. Although the Enforcement Action initially was assigned to the Hon. James Teilborg, UPI and Crane filed a motion to transfer the matter to Judge Silver, based upon the fact that both the Contribution and Enforcement Actions related to the presence of contaminants at the PGA-North Site and both Actions involved the appropriate allocation of response costs arising under CERCLA

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at the PGA-North Site.

That motion was granted and the Enforcement Action was

transferred to Judge Silver on February 22, 2005. C. Third Lawsuit Re: PGA-North Site.

On February 1, 2005, the City of Goodyear filed an action in the United States District Court against UPI and Crane styled City of Goodyear, Arizona v. Unidynamics/Phoenix, Inc., et al., Cause Co. CV05-0387-PHX-ROS ("Goodyear Action"). The Goodyear Action also sought to recover costs under CERCLA allegedly incurred by the City of Goodyear as a result of contamination at the PGA-North Site. The Goodyear Action was assigned to Judge Silver. D. Fourth Lawsuit Re: PGA-North Site.

The present lawsuit styled Crane Co. and Unidynamics/Phoenix, Inc. v. MalcolmPirnie, Inc., Cause No. CV06-2838-PHX-EHC ("Malcolm-Pirnie Action"), relates directly to attribution of certain response costs incurred in dealing with the same groundwater contamination that has been the subject of the other three lawsuits which have been assigned to Judge Silver. In the Civil Cover Sheet accompanying the Complaint, the above three lawsuits were identified as related cases. This fourth in the series of cases related to the PGA-North Site currently is pending before the Honorable Earl Carroll. II. LEGAL AUTHORITY. United States District Court of Arizona Local Rule 42.1 provides that: (1) Whenever two or more cases are pending before different Judges and any party believes that such cases (A) arise from substantially the same transaction or event; (B) involve substantially the same parties or property; . . . (D) calls for determination of substantially the same questions of law; or (E) for any other reason would entail substantial duplication of labor if heard by different Judges, any party may file a motion to transfer the case or cases involved to a single Judge. The Malcolm-Pirnie Action meets all of these criteria. First, it arises from the same events and circumstances, since all four of these cases relate the presence and effect of contaminants at the PGA-North Site. Second, all four cases involve the same property, i.e., the PGA-North Site. Third, the Malcolm-Pirnie Action requires the determination of
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substantially the same questions of law, i.e., the appropriate allocation of response costs arising under CERCLA at the PGA-North Site. Because Judge Silver has been administering the other three cases related to the appropriate allocation of response costs for contamination at the PGA-North Site since 2003 and because Judge Silver retains jurisdiction over those actions where Consent Decrees have been entered regarding the PGA-North Site, the parties jointly request that the Malcolm-Pirnie Action be transferred to Judge Silver. Such transfer should reduce the need for a new Court to duplicate the understanding already developed by Judge Silver of many of the issues related to the PGA-North Site. It also should reduce the possibility of an allocation of response costs which is inconsistent with prior allocations made in the related cases involving the PGA-North Site. Accordingly, the Plaintiffs move the Court to enter an order transferring the Malcolm-Pirnie Action (CV06-02838-PHX-EHC) to Judge Silver for all further proceedings in the interest of the efficient administration of justice. RESPECTFULLY SUBMITTED this 30th day of March, 2007. QUARLES & BRADY LLP Renaissance One, Two North Central Avenue Phoenix, AZ 85004-2391

By s/Andrew R. Sherwood Andrew R. Sherwood Joseph A. Drazek Attorneys for Plaintiffs Crane Co. and Unidynamics/Phoenix, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on March 30th, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Andrew R. Sherwood, Esq. [email protected] Joseph A. Drazek, Esq. [email protected] Quarles & Brady, LLP Renaissance One 2 North Central Avenue Phoenix, Arizona 85004 I certify that on March 30th, 2007, I served the attached document by electronic mail on the following, who is not a registered participant of the CM/ECF System: Brad Holm, Esq. [email protected] Holm Wright Hyde & Hays, PLC 10429 South 51st Street, Suite 285 Phoenix, AZ 85044