City of Fresno v. Chevron United Statesa., Inc. (In re Methyl Tertiary Butyl Ether (“mtbe”) Prods. Liab. Litig.)

980 F.Supp.2d 425

In re METHYL TERTIARY BUTYL ETHER (“MTBE”) PRODUCTS LIABILITY LITIGATION
This document relates to: City of Fresno v. Chevron U.S.A., Inc. et al., 04 Civ. 4973.

Master File No. 1:00–1898.
MDL No. 1358 (SAS).
No. M21–88.

United States District Court,
S.D. New York.

Sept. 10, 2013.

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Robin Greenwald, Esq., Robert Gordon, Esq., Weitz & Luxenberg, P.C., New York, NY, for Plaintiffs.

Peter John Sacripanti, Esq., James A. Pardo, Esq., McDermott Will & Emery LLP, New York, NY, for Defendants.

Michael Axline, Esq., Tracey L. O'Reilly, Esq., Evan Eickmeyer, Esq., Miller, Axline, & Sawyer, Sacramento, CA, for Fresno.

Robert E. Meadows, Esq., Jeremiah J. Anderson, Esq., King & Spalding LLP, Houston, TX, Charles C. Correll Jr., Esq., King & Spalding LLP, San Francisco, CA, for Limitations Defendants.

James R. Wedeking, Esq., Sidley Austin LLP, Washington, DC, for Duke.

Brian M. Ledger, Esq., Gordon & Rees LLP, San Diego, CA, for Kern.

Colleen P. Doyle, Esq., Diana Pfeffer Martin, Esq., Suedy Torabi, Esq., Hunton & Williams, Los Angeles, CA, for Tesoro.

M. Coy Connelly, Esq., Amy E. Parker, Esq., Bracewell & Giuliani, Pennzoil Place—, S. Tower, Houston, TX, for Valero.

Brent H. Allen, Esq., James Layman, Esq., Greenberg Traurig, LLP, Washington, DC, for Coastal.

Robert E. Meadows, Esq., Jeremiah J. Anderson, Esq., King & Spalding LLP, Houston, TX, Charles C. Correll Jr., Esq., King & Spalding LLP, San Francisco, CA, for Nuisance Defendants.

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OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
I. INTRODUCTION

This multidistrict litigation (“MDL”) arises from claims relating to the environmental and health impact allegedly caused by MTBE,¹ a water-soluble gasoline additive.² MTBE is known to have a favorable air-emissions profile compared to ethanol—a competing oxygenate—but its high solubility (and reportedly terrible taste) allegedly make it a threat to groundwater.

In this case within the MDL, the City of Fresno—which is charged with ensuring that roughly half a million residents of Fresno County, California receive fresh drinking water—sues a number of defendants that have refined, manufactured, supplied, distributed, handled, and/or used MTBE within its territory, and thereby allegedly threatened Fresno's water supply. Fresno asserts three claims: (1) strict liability; (2) negligence; and (3) nuisance.³

Presently before the Court are three motions for summary judgment brought by various defendants seeking the dismissal of one or more of Fresno's claims against them. The grounds for these motions are, respectively: (1) the statute of limitations (or, alternatively, lack of harm) (the “Limitations Motion”); (2) lack of evidence pertaining to causation (the “Causation Motion”); and (3) lack of evidence pertaining to nuisance (the “Nuisance Motion”). The moving defendants and grounds for these motions are detailed with greater specificity below. For the following reasons, the motions are granted.

II. PROCEDURAL POSTURE

Fresno commenced this action on October 22, 2003 by filing its Complaint in the Superior Court for the State of California, San Francisco County, alleging that Defendants were liable for contaminating the City of Fresno's public drinking water supplies with MTBE. Fresno subsequently filed its First Amended Complaint (“FAC”), dated October 28, 2004. The case was removed to federal court and transferred to this MDL, where pre-trial motions and discovery have been conducted. Discovery is now complete, and after the resolution of the instant motions, the case will be returned to the trial court.

A. The January 2, 2013 Stipulated Dismissal

All of Fresno's claims arise from its allegations that MTBE leaked from gasoline stations and contaminated the drinking water that it is charged with protecting. There were originally sixty gasoline stations at issue in the case. Through a stipulation and order entered on January 2, 2013, Fresno narrowed the scope of its claims to the stations and defendants listed on the following table.

Table 1:Stations and Defendants at Issue⁴

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B. Additional Stipulations and Dismissals

A number of additional stipulated dismissals and settlements have further narrowed the claims presently before the Court. I will first detail the settlements, and then the dismissals.

1. Settlements

The following defendants have executed settlements with Fresno during the pendency of this motion, and, after permitting time for allegedly jointly-liable co-defendants to object, have been dismissed from

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the case: (1) the BP Defendants; ⁵ (2) the Lyondell Defendants; ⁶ and (3) the ConocoPhillips Defendants.⁷ Additionally, Fresno has executed a settlement with Valero; ⁸ however, because the time for Valero's co-defendants to object to this settlement has not yet lapsed, the settlement has not yet been entered. Likewise, Coastal has stated that it has reached a settlement with Fresno, but this settlement has not yet been entered.

2. Stipulated Dismissals a. Complete Dismissals

Fresno has voluntarily dismissed its claim for trespass against all defendants.⁹ Fresno has also voluntarily dismissed, with prejudice, all of its claims against Duke Energy Merchants California, Inc. and Duke Energy Trading and Marketing, LLC.¹⁰ Likewise, Fresno has voluntarily dismissed, with prejudice, all of its claims against Chevron Corporation, Chevron Environmental Management Company, and Unocal Corporation; ¹¹ as well as all of its claims against Westport Petroleum, Inc.¹²

b. Dismissals as to Certain Claims or Sites

Fresno has dismissed, with prejudice, all of its claims against Exxon Mobil Corporation at the following two sites: (1) Gilbert's Exxon, 4142 E. Church; (2) Exxon Service Station, 4594 E. Tulare.¹³ Similarly, Fresno has dismissed, with prejudice, all of its claims against Duke Energy Merchants, LLC and Northridge Petroleum Marketing U.S., Inc. (collectively, “Duke”) at the following five sites: (1) Smith Tank Lines, 30 E. Divisadero; (2) Tulare Exxon; (3) Beacon # 3519; (4) Beacon # 615; (5) Van Ness Auto.¹⁴ However, Fresno continues to assert claims against these entities at the

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following two sites: (1) Red Triangle, 2809 S. Chestnut Ave.; and (2) Valley Gas, 2139 S. Elm St.¹⁵

Finally, Fresno has stipulated to the dismissal with prejudice of its claim for nuisance as to the following defendants at the following sites:

Table 2:Stipulated Dismissal of Nuisance Claims¹⁶

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C. Moving Defendants, Stations, and Grounds

This section sets forth with specificity the moving defendants, the grounds upon which they move, and the stations to which their motions are directed.

1. Motion for Summary Judgment Dismissing Claims on Limitations Grounds, or Alternatively for Lack of Harm

The Limitations Defendants ¹⁷ move for summary judgment dismissing all of Fresno's remaining claims—for strict liability, negligence, and nuisance—on the ground that these claims are either barred by the relevant statute of limitations, or are either unripe or non-existent. Specifically, the Limitations Defendants move for summary judgment dismissing Fresno's claims at the following stations.

Table 3:Stations at Issue in the Limitations Motion

Station Name	Station Address
Chevron# 9–4374	1160 Fresno St.
Gilbert's Exxon	4142 E. Church
Chevron# 9–9093	3996 N. Parkway Drive
7–Eleven# 13917	3645 Olive Ave.
Tosco# 39118	1605 N. Cedar
Tosco# 30587	1610 N. Palm
Valley Gas	2139 S. Elm St.
Beacon–Arco# 615	1625 Chestnut Ave.
Unocal# 6353	1418 E.Shaw

2. Motion for Summary Judgment Dismissing Claims for Lack of Evidence Pertaining to Causation

The Causation Defendants ¹⁸ move for summary judgment dismissing Fresno's strict liability and negligence claims against them on the grounds that Fresno cannot prove that their product caused its alleged injuries. ¹⁹ The Causation Defendants—or a subset thereof—move for summary judgment as to the following stations.

Table 4:Stations as to Which Causation Defendants Move for Summary Judgment²⁰

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3. Motion for Summary Judgment for Lack of Evidence Pertaining to Nuisance

Finally, the Nuisance Defendants ²¹ move for summary judgment dismissing Fresno's claim for nuisance as reflected in the table below.

Table 5:Stations as to Which Nuisance Defendants Move for Summary Judgment

Station Name and Address	Moving Defendant(s)
Van Ness Auto, 2740 N. Van Ness	CUSA
M & S Texaco, 2619 S.E. Ave.	Shell Defendants
Exxon Service Station, 4594 E. Tulare St.	Valero
Valley Gas, 2139 S. Elm St.	Valero
Beacon# 3519, 4591 E. Belmont Ave.	Valero
Beacon–Arco# 615, 1625 Chestnut Ave.	Valero

D. Claims at Issue for Purposes of These Motions

The following table lists the stations, defendants, and claims still at issue, for

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purposes of the present motions, following the settlements and stipulated dismissals detailed above. The Limitations Defendants seek dismissal of all claims at the stations indicated; the Causation Defendants seek dismissal of Fresno's strict liability and negligence claims; and the Nuisance Defendants, Fresno's nuisance claims.

Table 6:Stations and Defendants at Issue for Purposes of These Motions Following Stipulated Dismissals and Settlements

	Defendant(s)
Station Name And	Allegedly	Causation
Address	Liable	Limitations	Defendants	Defendants

M & S Texaco, 2619 S.E. Ave.	Kern (ND),22 Shell Defendants	Kern	Shell Defendants
Tosco# 3058–7, 1610 N. Palm Ave.	CUSA (ND), Kern (ND)	X	Kern
Valley Gas, 2139 S. Elm St.	Duke, Kern, Tesoro	X	Duke, Kern, Tesoro
Chevron# 9–4374, 1160 Fresno St.	CUSA, Kern (ND)	X	Duke, Kern, Tesoro
Shell (1212), 1212 Fresno St.	Kern (ND), Shell Defendants	Kern
Unocal# 635–3, 1418 E. Shaw	CUSA (ND), Kern (ND)	X 23	Kern
U & A Gas & Food Mart, 2929 N. Blackstone	Tesoro (ND)	Tesoro
Van Ness Auto, 2740 N. Van Ness	CUSA, Kern (ND)	Kern	CUSA
Smith Tank Lines (f/k/a Carey Oil), 30 E. Divisadero St.	Kern (ND)	Kern
Red Triangle, 2809 S. Chestnut Ave.	Duke, Exxon (ND), Kern (ND), Nella, New West, Tesoro (ND)	Duke, Kern, Tesoro
Chevron# 9–9093,

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