gno.law

Otay Land Co. v. United Enterprises Ltd.

Court of Appeals for the Ninth Circuit · Nos. 06-56132, 07-56514, 07-56515, 06-56597, 06-56618 · 2009-07-22 · Published

OTAY LAND COMPANY, a Delaware limited liability company Flat Rock Land Company v. UNITED ENTERPRISES LTD., a California limited partnership United Enterprises, Inc., a Delaware corporation John T. Knox The Otay Ranch LP, a California limited partnership Baldwin Builders, a California corporation Sky Communities, Inc., a California corporation Sky Vista Inc., a California corporation Olin Corporation, a Virginia corporation Ray N. Enniss Patrick J. Patek Phil G. Scott Rose B. Patek, in her capacity as the of the Estate of Patrick J. Patek, Defendants-Appellees Otay Land Company, a Delaware limited liability company Flat Rock Land Company, Plaintiffs-Cross-Appellees v. United Enterprises Ltd., a California limited partnership United Enterprises, Inc., a Delaware corporation John T. Knox The Otay Ranch LP, a California limited partnership Baldwin Builders, a California corporation Sky Communities, Inc., a California corporation Sky Vista Inc., a California corporation Olin Corporation, a Virginia corporation Ray N. Enniss Phil G. Scott Patrick J. Patek Rose B. Patek, in her capacity as the of the Estate of Patrick J. Patek, Defendants-Cross-Appellants

Area
civil
Panel
Alex Kozinski (author), Andrew J. Kleinfeld, Johnnie B. Rawlinson

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Dissent — Kozinski

KOZINSKI, Chief Judge, dissenting:

The majority holds that Otay’s case isn’t ripe because it failed to show that its clean-up actions are consistent with the National Contingency Plan. In the majori-t/s view, this failure makes Otay’s claims “speculative” and “premature.” But we held in Cadillac Fairview/California Inc. v. Dow Chemical Co. that the question of “whether a response action is necessary and consistent with the criteria set forth in the contingency plan is a factual one to be determined at the damages stage of a section 107(a) action....” 840 F.2d 691, 695 (9th Cir.1988). Defendants must therefore wait until “trial to express their concern that the costs incurred by” the plaintiffs “were unnecessary or inconsistent with the national contingency plan.” Id.

None of the defendants moved for summary judgment on ripeness, nor does the district court’s order rest on it. See Otay Land Co. v. United Enterprises, Ltd., 440 F.Supp.2d 1152, 1174 (S.D.Cal.2006) (“[T]he CERCLA action may not yet be ripe for determination, and therefore, subject to dismissal.”) (emphasis added). Consequently, Otay never had the chance to produce evidence on the issue. It strikes me as unfair and inappropriate to dismiss plaintiffs case for failing to present proof when it had no notice proof was needed.

We should remand and give the plaintiff a chance to present evidence as to ripeness. If it has no such evidence, the case will be dismissed soon enough.

Cites, in this corpus