United States District Court, S.D. New York
March 5, 2014
IN RE: METHYL TERTIARY BUTYL ETHER (
Robin Greenwald, Esq., Robert Gordon, Esq., Weitz & Luxenberg, P.C., New York, New York, Liaison Counsel for Plaintiffs.
Michael Axline, Esq., Miller, Axline & Sawyer, Sacramento, California, for fresno.
Peter John Sacripanti, Esq., James A. Pardo, Esq., McDermott Will & Emery LLP, New York, New York, Liaison Counsel for Defendants.
Jeffrey J. Parker, Esq., Whitney Jones Roy, Esq., Sheppard, Mullin, Richter & Hampton LLP, Los Angeles, California, for Exxon Mobil Corporation.
MEMORANDUM OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
This is a consolidated multi-district litigation ("MDL") relating to contamination actual or threatened - of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or etertiary butyl alcohol, a product formed by the breakdown of MTBE in water. In this case, the City of Fresno ("Fresno") sues Exxon Mobil Corporation, Shell Oil Company, Equilon Enterprises LLC, Equiva Services LLC, Texaco Refining and Marketing Inc., CITGO Petroleum Corporation, Chevron U.S.A. Inc., Union Oil Company of California, Texaco Inc., Nella Oil Company, and New West Petroleum, alleging that these defendants have refined, manufactured, supplied, distributed, handled, and/or used IVITBE within its territory, and thereby allegedly threatened Fresno's water supply. Familiarity with the underlying facts of this case is presumed for purposes of this Order.
In September 2013, this Court issued an Opinion and Order (the "September Opinion") dismissing Fresno's claims at various sites for failure to prove injury. Fresno stipulates that the evidence of injury at the sites remaining in this case is substantially the same as evidence the Court found insufficient in its September Opinion. Therefore, Fresno agrees that defendants would prevail on summary judgment as to the remaining sites, and that it will not object to dismissal of these claims. The parties' sole remaining dispute is whether the stipulated dismissal should be with or without prejudice. Pursuant to the parties' stipulation, Fresno's remaining claims are dismissed for lack of injury under this Court's reasoning in the September Opinion. For the reasons stated below, these claims are dismissed with prejudice.
A. Procedural History
Fresno initiated this action over ten years ago. Since then, the parties have conducted extensive discovery, produced nearly a half-million pages of documents, and deposed approximately seventy-five fact witnesses and twelve expert witnesses. Experts for both sides have produced detailed reports. Despite the duration and comprehensiveness of discovery, Fresno was unable to produce sufficient evidence for a reasonable jury to find that its production wells are threatened by groundwater and soil contamination at the sites at issue in the September Opinion,  and would be unable to produce sufficient evidence to show injury at the remaining sites.
B. Applicable Law
Federal Rule of Civil Procedure 41(a) permits a plaintiff to voluntarily dismiss an action by filing "a stipulation of dismissal signed by all parties who have appeared." "Unless the notice or stipulation states otherwise, the dismissal is without prejudice." Second Circuit courts must consider the following factors when determining whether an action should be dismissed with prejudice:
the plaintiff's diligence in bringing the motion; any "undue vexatiousness" on plaintiff's part; the extent to which the suit has progressed, including the defendant's effort and expense in preparation for trial; the duplicative expense of relitigation; and the adequacy of plaintiff's explanation for the need to dismiss.
"Prudential ripeness is... a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary..." In the Second Circuit, "[t]wo factors inform [a court's] analysis of prudential ripeness: 1) the fitness of the issues for judicial decision; and 2) the hardship to the parties of withholding court consideration.'"
Fresno argues that the Court should dismiss its claims without prejudice because this action is not ripe for review. However, Fresno misconstrues the September Opinion, the facts of this case, and the doctrine of ripeness. The Court granted summary judgment in the September Opinion because Fresno did not have sufficient evidence linking defendants' MTBE with current or threatened injury to drinking water in its jurisdiction. Thus, the Court found that Fresno's evidence of potential injury was too speculative to support liability. Fresno's inability to prove an essential element of its claims does not render those claims unripe.
In deciding this motion, this Court must consider the Zagano factors. Four of these factors favor dismissal with prejudice. First, Fresno did not agree to dismissal at the remaining sites until after the September Opinion made clear that its remaining claims would not be successful. Second, this litigation has lasted more than ten years, and has required extensive discovery by multiple parties. Third, future litigation would undoubtedly result in duplicative expenses. Fourth, Fresno's need to dismiss is based on its acknowledgment that the evidence will not support its claims. These factors provide sufficient reason for the Court to dismiss Fresno's claims with prejudice:
For the foregoing reasons, Fresno's claims at the remaining sites are dismissed and defendants' motion that these claims should be dismissed with prejudice is GRANTED. The Clerk of the Court is directed to close this motion (Doc. No. 255.).