1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 In the course of arguing the motion, ERI also cites to Rule 12(b)(6), the rule

applicable to motions to dismiss, and seeks the dismissal of all claims alleged against it. 

Ordinarily, a motion for judgment on the pleadings may be brought only after the pleadings

have closed. See infra at 4-6. Irrespective of whether the instant motion is properly

characterized as having been brought under Rule 12(c) or Rule 12(b)(6), however, the

same analysis applies. See id. 

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KFD ENTERPRISES, INC.,

Plaintiff,

 v.

CITY OF EUREKA,

Defendant.

 /

And Related Counterclaims, Cross-claims,

and Third-Party Claims.

/

No. C-08-4571 MMC

ORDER GRANTING IN PART AND

DENYING IN PART ENVIRONMENTAL

RESOLUTIONS, INC.’S MOTION FOR

JUDGMENT ON THE PLEADINGS

Before the Court, pursuant to Rules 12(c) and 12(f) of the Federal Rules of Civil

Procedure, is defendant, third party defendant and cross-defendant Environmental

Resolutions, Inc.’s (“ERI”) Motion for Judgment on the Pleadings, filed February 26, 2010.1

Plaintiff KFD Enterprises (“KFD”) and cross-claimant Winzler & Kelly, have filed oppositions

to the motion, to which ERI has separately replied. Additionally, third-party plaintiff Unocal

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 1 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 Subsequent to the filing of the instant motion, the City and ERI filed a stipulation,

which the Court approved, affording the City leave to file a Third Amended Complaint no

later than April 30, 2010. (See Order filed March 24, 2010.) Accordingly, ERI’s motion to

dismiss, and to strike portions of, the City’s “Second Amended [Cross-]Complaint” (“City’s

SACC”) will be denied without prejudice to ERI’s renoticing the motion if the City does not

file an amended complaint by April 30, 2010. 

3

 R.R. Street & Co., Inc., Multimatic LLC, The Kirrberg Corporation, and Firbimatic

SpA are not participating in the instant motion as those defendants have not filed any

claims against ERI and, consequently, are not parties to the instant motion. 

2

Corporation (“Unocal”), cross-claimant Union Oil Company of California (“Union Oil”), and

their corporate parent, Chevron Corporation (collectively “Petroleum Defendants”), have

jointly filed opposition to the motion, to which ERI has replied. Cross-claimant City of

Eureka (“the City”) has not filed opposition to the motion.2

 Having read and considered the

papers filed in support of and in opposition to the motion,3 the Court rules as follows. 

BACKGROUND

The instant action was filed initially by KFD. The following allegations are taken from

KFD’s Second Amended Complaint (“KFD’s SAC”). “[S]ince on or about 1980" KFD “has

owned and operated a dry cleaning business” located at 2907 E Street, Eureka, CA (“the

Property”). (See KFD’s SAC ¶ 19.) Prior to KFD’s ownership, “from on or about 1964 to on

or about 1979 defendant Union Oil owned the Property and operated a motor fuel and

vehicle repair service station at the Property.” (See id. at ¶ 20.) While operating the

service station, Union Oil “used and stored” hazardous substances, “including

tetrachloroethylene (‘PCE’) and both petroleum and non-petroleum based contaminants,”

on the Property, which “led to releases of hazardous substances,” causing “contamination

in, at, or around the soil and groundwater underlying the Property and the surrounding soils

and groundwater.” (See id. ¶ 20.) ERI, “acting as an agent, servant and/or employee of

Union Oil, Unocal, and Chevron” (see id. at ¶ 28), was “an environmental remediation

company engaged in contaminant investigation, containment, and/or clean-up at the

Property” (see id. at ¶ 27). ERI “arranged for the disposal of hazardous substances into the

soil, groundwater and environment at and surrounding the Property” (see id. ¶ 38) and “as

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 2 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

 Winzler & Kelly was first named in the action by the City, and likewise is alleged to

be “an environmental remediation company engaged in contamination investigation

containment and/or clean-up at the Property.” (See City’s SACC at ¶ 27.) 

3

a result of ERI’s activities, hazardous substances were released at the Property, thereby

causing contamination in, at, or around the soil and groundwater underlying the Property

and the surrounding soils and groundwater.” (See id. ¶ 27.) “The operation of the sewer

system by the City led to releases of hazardous substances, including PCE, from the City’s

sewer system” and “resulted in contamination in, at, or around the soil and groundwater

underlying the Property and the surrounding soils and groundwater.” (See id. at 29.) 

The City’s SACC sets forth allegations, as against ERI, that are substantially similar

to the above-referenced allegations by KFD. In particular, the City alleges: “[ERI] is, and at

all times relevant to this complaint was, an environmental remediation company engaged in

contamination investigation containment and/or cleanup at the Property” and that “[a]s a

result of ERI’s activities, hazardous substances were released at the Property, thereby

causing contamination at or around the soil and groundwater underlying the Property, and

the surrounding soils and groundwater.” (See City’s SACC at ¶ 26.)4 

Unocal’s Third Party Complaint and Union Oil’s Cross-Complaint identically allege

that “Union Oil contracted with ERI with respect to the investigation of environmental

impacts associated with the property” (see Unocal’s Third Party Compl. at ¶ 12; see also

Union Oil’s Cross-Compl. at ¶ 12), that “[a]s part of that investigation, ERI installed several

monitoring wells at the Property, including a well referred to as MW-5" (see id.), and that

“[b]y virtue of ERI’s acts and/or omissions at the Property with respect to the monitoring

wells, Unocal and/or its subsidiary, Union Oil, may incur response costs, expenses, fees

and damages” (see id. ¶¶ 14).

Winzler & Kelly’s Cross-Claim against ERI alleges no facts as to ERI. (See Winzler

& Kelly’s Answer at 37 ¶¶ 1-3.)

KFD asserts eight Claims for Relief against ERI: “Cost Recovery Pursuant to [the

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 3 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

 The City’s SACC alleges twelve Causes of Action against “All Defendants,”

including ERI. As noted above, however, ERI’s motion, to the extent it pertains to the City,

is no longer before the Court. 

4

U.S.C. 9601 et. seq. (1980),] § 107(a)” (First Claim for Relief), Hazardous Substances

Statutory Indemnity (“HSAA”) (Third Claim for Relief), Equitable Indemnity (Fourth Claim for

Relief), Common Law Contribution (Fifth Claim for Relief), Declaratory Relief (Sixth Claim

for Relief), Continuing Private Nuisance (Seventh Claim for Relief), Continuing Public

Nuisance (Eighth Claim for Relief), Continuing Public Nuisance Per Se (Ninth Claim for

Relief), and Continuing Trespass (Tenth Claim for Relief). (See KFD’s SAC ¶¶ 32-44, 61-

92.) Unocal asserts three Causes of Action against ERI: Indemnity (First Cause of Action),

Partial Indemnity (Second Cause of Action), and Declaratory Relief (Third Cause of Action). 

(See Unocal’s Third Party Compl. ¶¶ 16-26.) Union Oil asserts three Causes of Action

against ERI: Indemnity (First Cause of Action), Partial Indemnity (Second Cause of Action),

and Declaratory Relief (Third Cause of Action). (See Union Oil’s Cross-Compl. ¶¶ 16-29.) 

Winzler & Kelly asserts a single Cross-Claim against “All Defendants” for contribution under

CERCLA § 113 as well as for common law contribution and indemnification. (See Winzler

& Kelly’s Answer at 37 ¶ 2.)5

By the instant motion, ERI seeks dismissal of all claims asserted against it. (See

ERI’s Mot. at 1:2-8, 7:2-20.) Additionally, ERI seeks to strike certain allegations and/or

prayers for relief on the ground that no party has adequately alleged facts supporting an

award of punitive damages or attorney’s fees. (See ERI’s Mot. at 2:6-10.) 

LEGAL STANDARD

Rule 12(c) of the Federal Rules of Civil Procedure provides that "[a]fter the pleadings

are closed – but early enough not to delay trial – a party may move for judgment on the

pleadings." See Fed.R.Civ.P. 12(c). “Rule 7(a) provides that the pleadings are closed

upon the filing of a complaint and an answer (absent a court-ordered reply), unless a

counterclaim, cross-claim, or third-party claim is interposed, in which event the filing of a

reply to a counterclaim, cross-claim answer, or third-party answer normally will mark the

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 4 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

 As noted, to the extent ERI challenges the City’s SACC, the motion is not before

the Court at this time. 

5

close of the pleadings.” See Wright & Miller, 5C Federal Practice and Procedure § 1367

(3rd ed. 2010); see also Doe v. United States, 419 F.3d 1058, 1061 (9th Cir. 2005) (holding

pleadings are closed for purposes of Rule 12(c) once complaint and answer are filed,

unless no counterclaim or cross-claim is made). “Ordinarily, this means that a Rule 12(c)

motion must await the answers of all defendants.” See Moran v. Peralta Community

College District, 825 F.Supp. 891, 894 (N.D. Cal. 1993) (finding exception where defendant

is not served and, therefore, “motion can have no effect on them”). 

Here, ERI has not, to date, answered Unocal’s Third Party Complaint, Union Oil’s

Cross-Complaint, or Winzler & Kelly’s Cross-Claim; consequently, ERI’s motion for

judgment on the pleadings is premature to the extent it challenges those pleadings. See

Doe, 419 F.3d at 1061-62; see also New York State United Teachers v. Thompson, 459

F.Supp. 677, 680 (N.D.N.Y. 1978) (holding “a Rule 12(c) motion may not be made by a

defendant until after he has answered”). Additionally, authority exists suggesting ERI’s

motion for judgment on the pleadings is premature to the extent it challenges KFD’s SAC,

as Firbimatic SpA and Eco-Dry have not, to date, filed answers thereto.6

 See, e.g., Stands

Over Bull v. Bureau of Indian Affairs, 442 F.Supp. 360, 367 (D. Mt. 1977) (finding motion for

judgment on the pleadings premature where some, but not all, defendants had answered

complaint); see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe,

California Practice Guide: Federal Civil Procedure Before Trial § 9:324 (2010).

Whether brought under Rule 12(c) or under Rule 12(b), however, ERI’s motion is

subject to the same analysis. See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192

(9th Cir. 1989) (explaining principal difference between Rule 12(c) and Rule 12(b) motions

“is the time of filing”; noting the two motions “are functionally identical”). Indeed, the motion

cites extensively to cases decided under Rule 12(b)(6) and seeks dismissal under that rule. 

Under such circumstances, the Court will exercise its discretion to treat the motion as a

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 5 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

motion to dismiss. See Dale v. Executive Office of the President, 164 F.Supp.2d 22, 24

(D.D.C. 2001) (holding “[i]f a party files a Rule 12(c) motion before the answer, the court

may treat it as a motion to dismiss under Rule 12(b)(6)); Seber v. Unger, 881 F.Supp. 323,

325 n. 2 (N.D.Ill. 1995) ("Because [defendant's] motion essentially serves the same

purpose as a Rule 12(b)(6) motion, we shall adopt the common practice of treating the

premature Rule 12(c) motion as a Rule 12(b)(6) motion.") (citations omitted). 

Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based

on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of the claim

showing that the pleader is entitled to relief.’” See Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, “a complaint attacked by

a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” See id.

Nonetheless, “a plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” See id. (internal quotation, citation, and alteration omitted).

In analyzing a motion to dismiss, a district court must accept as true all material

allegations in the complaint, and construe them in the light most favorable to the

nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). “To

survive a motion to dismiss, a complaint must contain sufficient factual material, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). “Factual allegations must be

enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. 

Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” 

See Iqbal, 129 S. Ct. at 1950 (internal quotation and citation omitted).

Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider any

material beyond the complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 6 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

 42 U.S.C. § 9607(a) identifies the following as "covered persons":

(1) the owner and operator of . . . a facility,

(2) any person who at the time of disposal of any hazardous substance

owned or operated any facility at which such hazardous substances were

disposed of,

(3) any person who by contract, agreement, or otherwise arranged for

disposal or treatment, or arranged with a transporter for transport for

disposal or treatment, of hazardous substances owned or possessed by

such person, by any other party or entity, at any facility . . . owned or

operated by another party or entity and containing such hazardous

substances ["arrangers"], and

(4) any person who accepts or accepted any hazardous substances for

transport to disposal or treatment facilities . . . or sites selected by such

person, from which there is a release, or a threatened release which

causes the incurrence of response costs, of a hazardous substance

["transporters"]

7

F.2d 1542, 1555 n. 19 (9th Cir. 1990). The Court may, however, consider matters that are

subject to judicial notice. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279,

1282 (9th Cir. 1986).

DISCUSSION

A. Motion to Dismiss

1. KFD’s Claims

ERI’s motion, as it pertains to KFD’s First, Third, Fourth, Fifth, Sixth, Seventh,

Eighth, Ninth and Tenth Claims for Relief against ERI, will be granted. As ERI points out,

KFD has failed to allege sufficient facts to support such claims. (See ERI’s Mot. at 8:22-

11.) In particular, KFD’s allegations (see KFD's SAC at ¶¶ 27, 28, 38) are both conclusory

and ambiguous, and none, whether alone or in combination, provides sufficient facts, either

as to the nature of ERI’s activities or how such activities caused the subject contamination,

to state a plausible claim for relief. Indeed, KFD’s CERCLA and HSAA claims contain no

factual allegations as to how ERI can be held liable as a “covered person.”7 See Ascon

Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir. 1989) (holding, to avoid

dismissal, plaintiff must allege “defendants are within one of four classes of persons subject

to CERCLA’s liability provisions”). 

2. Unocal and Union Oil’s Claims

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 7 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

 Unocal and Union Oil, have not alleged CERCLA contribution claims against ERI

(see Petroleum Defendants’ Opp’n at 3:18-19; see also Unocal’s Third Party Compl. at ¶¶

16-26; Union Oil’s Cross-Compl. at ¶¶ 16-29), and, consequently, to the extent ERI seeks

dismissal of any such claim, ERI’s arguments are not addressed herein in connection with

Unocal and Union Oil’s pleadings. 

8

To the extent Union Oil’s First through Third Causes of Action, by which Union Oil

brings claims for common law indemnification and declaratory relief, are based on Union

Oil’s liability to KFD, the motion will be denied as moot, as all of KFD’s claims against ERI,

on which Union Oil’s First through Third Causes of Action are based, are subject to

dismissal. See General Motors Corp. v. Doupnik, 1 F.3d 862, 866 (9th Cir.1993) (“A right

to [indemnity] exists only if the injured party [ ] has a legal cause of action against both the

indemnitor [ ] and the indemnitee.”) (emphasis omitted).

To the extent Unocal and Union Oil’s First through Third Causes of Action for

common law indemnification and declaratory relief are based on said parties’ liability to the

City, the motion will be denied as premature because the adequacy of the City’s Causes of

Action against ERI, on which Unocal and Union Oil’s Causes of Action are based, are not

before the Court at this time.8

 

3. Winzler & Kelly’s Claims

To the extent Winzler & Kelly’s Cross-Claim seeks, as against ERI, either CERCLA

contribution or common law contribution and indemnification (see Winzler & Kelly’s Answer

at 37 ¶ 2), ERI’s motion will be granted, as Winzler & Kelly has not itself pled any facts

therein pertaining to ERI, nor, in the alternative, has it identified therein any other party’s

allegations on which Winzler & Kelly’s claims are based. See Ascon Properties, 866 F.2d

at 1152 (holding plaintiff must allege “defendants are within one of four classes of persons

subject to CERCLA’s liability provisions”); see also, e.g., Askanase v. Fatjo, 148 F.R.D.

570, 573 (S.D.Tex. 1993) (holding “cross-claims, which derive substance from the

complaint itself,” must enable cross-defendants to “determine upon which allegations of the

complaint the cross-claimants are basing their claims for indemnity and contribution”).

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 8 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

B. Motion to Strike

 “The court may strike from a pleading an insufficient defense or any redundant,

immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). 

As noted, ERI seeks to strike any claim made against ERI for punitive damages or

attorneys’ fees. To date, only the City has included in its pleadings a prayer for punitive

damages and only the City and Winzler & Kelly have included, as against ERI, a prayer for

attorneys’ fees. As noted, the City’s SACC is not before the Court at this time, and Winzler

& Kelly’s Cross-Claim, to the extent it is alleged against ERI, is subject to dismissal. 

Accordingly, the motion to strike will be denied as moot. 

C. Leave to Amend CERCLA Claims

Where a court determines that a cause of action is subject to dismissal for failure to

state a claim, it "should grant leave to amend even if no request to amend the pleading was

made, unless it determines that the pleading could not possibly be cured by the allegation

of other facts." See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (internal

quotation and citation omitted). 

Here, ERI opposes the Court’s granting any party leave to amend its CERCLA

claims against ERI, arguing ERI’s drilling of monitoring wells on the Property is insufficient

to bring ERI within any of the four classes of “covered persons” liable under the statute. 

See 42 U.S.C. § 9607(a). KFD, relying on Kaiser Aluminum & Chemical Company v.

Catellus, 976 F.2d 1341 (9th Cir. 1992), argues, inter alia, that ERI can be held liable under

CERCLA as an “operator”; in particular, KFD argues, “ERI had sufficient control over the

well drilling when it spread contamination to be an ‘operator.’” (See KFD’s Opp’n at 7:6-7.) 

“CERCLA generally imposes strict liability on . . . operators of facilities at which

hazardous substances were disposed.” See Carson Harbor Village, Ltd. v. Unocal

Corporation, 270 F.3d 859, 870 (2001). Where the asserted operated is a contractor,

however, “‘operator’ liability under [CERCLA] only attaches if the [contractor] had authority

to control the cause of the contamination at the time the hazardous substances were

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 9 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

 In an apparent effort to anticipate the content of future pleadings, ERI requests the

Court take judicial notice of certain documents referencing ERI’s conduct relevant to the

instant claims and either authored or received by KFD. (See Request for Judicial Notice at

3:13-17, Exs. F, G, & H.) KFD has filed an objection thereto. Assuming, arguendo, the

subject documents are judicially noticeable for the limited purpose for which they are

offered, the Court’s ruling on this issue remains unchanged. 

10

released into the environment.” See Kaiser, 976 F.2d at 1341. 

Here, the record is not developed with respect to ERI’s activities at the Property, or

as to the time at which the hazardous substances were released. On the record presently

before the Court, ERI has not shown the CERCLA claims brought against ERI “could not

possibly be cured” by the allegation of additional facts. See Doe, 58 F.3d at 497.9

 

Accordingly, the Court will grant leave to amend as to all claims dismissed herein. 

CONCLUSION

For the reasons stated above, ERI’s motion is hereby GRANTED in part and

DENIED in part as follows:

1. With respect to KFD’s First, Third, Fourth, Fifth, Sixth, Seventh, Eighth,

Ninth and Tenth Claims for Relief, the motion is hereby GRANTED, and such claims, to the

extent they are alleged against ERI, are hereby DISMISSED with leave to amend to cure

the above-noted deficiencies. 

2. With respect to Union Oil’s First through Third Causes of Action, to the

extent such claims are based on ERI’s liability to KFD, the motion is hereby DENIED as

moot.

3. With respect to Unocal and Union Oil’s First through Third Causes of

Action, to the extent such claims are based on ERI’s liability to the City, the motion is

hereby DENIED without prejudice.

4. With respect to Winzler & Kelly’s Cross-Claim, to the extent such claim is

alleged against ERI, the motion is hereby GRANTED, and such claim is hereby

DISMISSED with leave to amend to cure the above-noted deficiencies.

5. With respect to Winzler & Kelly’s Cross-Claim, to extent such claim seeks

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 10 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

an award of attorneys’ fees as against ERI, the motion is hereby DENIED as moot.

6. With respect to any claims brought by the City against ERI, and any prayer

for damages or fees based thereon, the motion is hereby DENIED without prejudice to

ERI’s renoticing the motion if the City does not file an amended complaint by April 30,

2010. 

7. To the extent KFD and Winzler & Kelly seek to amend, respectively, their

SAC and Cross-Claim as against ERI, any such amended pleading shall be filed no later

than May 14, 2010. 

IT IS SO ORDERED.

Dated: April 22, 2010 

MAXINE M. CHESNEY

United States District Judge

Case 3:08-cv-04571-SC Document 227 Filed 04/22/10 Page 11 of 11