Association of Irritated Residents v. Owens-Illinois, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ASSOCIATION OF IRRITATED No. 1:19-cv-01707-DAD-JLT RESIDENTS, [12] Plaintiff, 13 ORDER APPROVING FIRST AMENDED v. CONSENT DECREE [14] OWENS-ILLINOIS, INC., et al., [15] Defendants. (Doc. No. 41) [17] 18 This matter is before the court on the parties’ joint request to approve a first amended 19 consent decree, filed on August 2, 2021, which the court construes as a motion for relief under 20 Federal Rule of Civil Procedure 60(b)(1). (Doc. No. 41.) After the approval of the parties’ 21 proposed consent decree on July 14, 2021 (Doc. No. 40), the parties became aware that the 22 consent decree inadvertently directed the compliance monitoring payment to plaintiff’s Executive 23 Director, in his personal capacity, rather than to plaintiff as an organization (Doc. No. 39, Ex. A 24 at ¶ 36), and the parties wished instead direct that the compliance monitoring payment be sent to 25 plaintiff’s counsel to be held in trust for plaintiff. (Doc. No. 41 at 2.) Thus, the parties jointly 26 request that the court modify the consent decree approved in this matter on July 14, 2021 (Doc. 27 No. 40) in order to correct: (1) the paragraph directing how defendant is to pay the compliance 28 monitoring payment (Doc. No. 39, Ex. A at ¶ 36)); and (2) the paragraph outlining the specific 1 rules for how the parties may modify the consent decree in the future by removing a fourteen (14) 2 day deadline (Id. at ¶ 54). Having reviewed and considered the submissions of the parties, the 3 court determines this matter is suitable for resolution without oral argument. See L.R. 230(g). 4 For the reasons set forth below, the court will grant the parties’ joint request and approve the first 5 amended consent decree. 6 This suit arises from a complaint for declaratory and injunctive relief and civil penalties 7 pursuant to the citizen suit enforcement provision of the Federal Clean Air Act, 42 U.S.C. 8 §§ 7401, et seq. (“Clean Air Act” or “CAA”). (Doc. No. 19.) Plaintiff Association of Irritated 9 Residents (“AIR”) is a California non-profit corporation. (Id. at ¶ 6.) Defendant Owens10 Brockway Glass Container, Inc., is a Delaware corporation registered in California that owns and 11 operates a glass manufacturing plant in Tracy, California. (Id. at ¶ 8.) Defendant Owens-Illinois, 12 Inc., was the parent corporation of defendant Owens-Brockway Glass Container, Inc. until it 13 declared bankruptcy in January 2020. (Id. at ¶ 9.) Plaintiff alleges that defendant Owens-Illinois, 14 Inc., is not responsible for the glass manufacturing operations conducted by defendant Owens15 Brockway Glass Container, Inc. (Id.) 16 The court previously approved the parties’ proposed consent decree on July 14, 2021, and 17 this case was closed. (Doc. No. 40.) Pertinent factual details may be found in that order and will 18 not be repeated here. Prior to submitting this joint stipulation, the parties contacted the U.S. 19 Department of Justice (“DOJ”) to determine whether the proposed first amended consent decree 20 would undergo review pursuant to 42 U.S.C. ¶ 7604(c)(3). DOJ chose to waive their review for 21 the proposed first amended consent decree. (Doc. No. 41 at 6.) 22 Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the 23 district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment 24 on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered 25 evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has 26 been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.” 27 Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any 28 event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id. 1 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the 2 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of 3 Bishop, 229 F.3d 877 , 890 (9th Cir. 2000) (citation omitted); see also Harvest v. Castro, 531 F.3d 4 737, 749 (9th Cir. 2008) (addressing reconsideration under Rule 60(b)). In seeking 5 reconsideration under Rule 60, the moving party “must demonstrate both injury and 6 circumstances beyond his control.” Harvest, 531 F.3d at 749 (internal quotation marks and 7 citation omitted). 8 “A motion for reconsideration should not be granted, absent highly unusual 9 circumstances, unless the district court is presented with newly discovered evidence, committed 10 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 11 raise arguments or present evidence for the first time when they could reasonably have been 12 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 13 F.3d 873 , 880 (9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in 14 original). Further, Local Rule 230(j) requires, in relevant part, that a movant show “what new or 15 different facts or circumstances are claimed to exist which did not exist or were not shown” 16 previously, “what other grounds exist for the motion,” and “why the facts or circumstances were 17 not shown” at the time the substance of the order which is objected to was considered. 18 “A consent decree is ‘essentially a settlement agreement subject to continued judicial 19 policing.’” United States v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990) (quoting Williams v. 20 Vukovich, 720 F.2d 909, 920 (6th Cir. 1983)). Thus, before approving a consent decree, a district 21 court must independently determine that the proposed agreement is “fundamentally fair, adequate, 22 and reasonable” and “conform[s] to applicable laws.” Id.; see also Arizona v. City of Tucson, 761 23 F.3d 1005 , 1010–14 (9th Cir. 2014). “[T]he district court must balance several factors, including 24 but not limited to: strength of the plaintiffs’ case; risk, expense, complexity and possible duration 25 of continued litigation; relief offered in settlement; extent of discovery already completed; stage 26 of proceedings; experience and views of counsel; governmental participation; and reaction of the 27 class members.” Davis v. City & County of San Francisco, 890 F.2d 1438, 1445 (9th Cir. 1989) 28 (citing Officers for Justice v. Civil Serv. Comm’n of City & Cnty. of S.F., 688 F.2d 615, 625 (9th 1 Cir. 1982)). Where a government agency is involved in the negotiation of the proposed consent 2 decree, there is a presumption in favor of the decree’s enforceability, and courts should pay 3 deference to the agency’s judgment. See S.E.C. v. Randolph, 736 F.2d 525, 529 (9th Cir. 1984). 4 The court again concludes that this consent decree will provide substantial relief to the 5 parties and good case appearing, it should be corrected according to the terms of the parties’ 6 stipulation. The first amended consent decree as proposed is the product of a fair arms-length 7 negotiation process and is fair, reasonable, and adequate, and not illegal, collusive, or against the 8 public interest. Though a government agency was not involved in the negotiation of the proposed 9 consent decree, the United States’ comments regarding waiving any review further indicate that 10 the proposed first amended consent decree is an appropriate resolution of this case. See Pa. Env’t 11 Def. Found. v. Bellefonte Borough, 718 F. Supp. 431, 435 (M.D. Pa. 1989) (considering 12 comments from the United States, a nonparty, in approving a consent decree in a citizen suit 13 action brought under the Clean Water Act). 14 For these reasons: 15 1. The joint stipulation for entry of the parties’ first amended consent decree (Doc. 16 No. 41) is granted; 17 2. The consent decree approved on July 14, 2021 (Doc. No. 39, Ex. A) is hereby 18 amended as follows: 19 a. Paragraph 36 shall be amended to state: Defendant agrees to pay a one-time 20 total of $10,000.00 to AIR as settlement of Plaintiff’s future claims for 21 investigation fees and costs, expert/consultant fees and costs, reasonable 22 attorneys’ fees, and other costs anticipated to be incurred for monitoring the 23 Parties’ compliance with the Consent Decree. The payment in full shall be 24 made within thirty (30) days after entry of the First Amended Consent Decree 25 by the Court and delivered by wire, certified mail, or overnight delivery made 26 payable to Aqua Terra Aeris Law Group, LLP, 4030 Martin Luther King Jr. 27 Way, Oakland, CA 94609. Payment shall be held in trust for AIR; 28 ///// 1 b. Paragraph 54 shall be amended to state: Modification of the Consent Decree. 2 This Consent Decree, and any provisions herein, may not be changed, waived, 3 discharged, or terminated unless by a written instrument, signed by the Parties 4 and approved by the Court; and 5 c. No other provision of the Consent Decree is amended by this First Amended 6 Consent Decree; 7 3. The court retains continuing jurisdiction to enforce the consent decree in this action 8 for the duration of the decree (see Doc. No. 39 at 4] 11-13); and 9 4. This case is to remain closed. 10 | IT IS SO ORDERED. a "| Dated: _August 9, 2021 LL 1 12 UNITED STATES DISTRICT JUDGE