F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

ASARCO, L L C, Plaintiff-Appellant
,

v

.

U N I O N P A C I F I C R A I L R

O A D C O M P A N Y , a Utah corporation; U N I O N P A C I F I C C O R

P O R A T I O N , Defendants-Appellees
, N o. 13-35356

D.C. No. 2:12-cv-00283- EJ L

OPI NI ON

A ppeal from the United States District Court

f or the District of I daho Edward J . L o dg e, District J udg e, Presiding

Arg ued and Submitted J uly 10, 2014—Seattle, W ashing ton

F iled Aug ust 27, 2014

B efore: A. W a llace Tashima and Mary H. Murg uia, Circuit J udg e s, and Cormac J . Carney , District J udg e. *

Opinion by

J udg e Carney

* T h e Ho n o rab le Co rm ac J. Carn ey , Un i ted S tates District J u d g e f o r th e Cen tral District o f

Calif orn i a, sittin g b y

d esig n atio n

.ASARCO V

. U N I O N P A C I F I C 2

SUMMARY * *

Environm ental Law

The panel reversed the dismissal of a mining company ’s action und er § 113(f) of the Comprehensive Environmental Response, Compensation, and L iability Act, seeking a share of cleanup costs paid for e n v ironme n tal harm at the Coeur d’Alene Superfund Site.

The panel held that the mining c ompany ’s claim was not barred by CERCL A’s three-y ea r statute of limitations for claims seeking contribut i o n after e ntry o f a judicially approved settlement. The panel held that e v e n thoug h the first amended complaint included alleg ations that were

ex p ressly disclaimed in the orig inal c omplaint, it related back
to the date of the orig inal complaint under F ed. R. Civ. P. 15(c)(1) ( B ) because it arose out of the same conduct, transaction, or occurrence as that set forth in t h e orig inal complaint. T he panel held that the orig inal c o m p l aint was timely because Rule 6(a)’s g eneral rule for counting time,

ex c luding the day of the event that trig g e red the p e r i o d, applied.

The panel held that the mining company ’s claim was not unambig uously barred by a prior ag reem e n t that settled the defendant’s claims ag ainst the mining company at the s ame site

. T h e panel c oncluded that a “mutual release” provision in the parties’ settlement ag r eemen t d id not unambig uously release the claim in this case.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.ASARCO V

. U N I O N P A C I F I C 3

COUNSEL

Greg ory E vans (a r gu e d) and L aura G. B ry s, I nteg er L aw Corporation, L os Ang eles, California; L inda R. L ar son, Russell C. Pr u g h, and Meline G. MacCurdy
, Marten L aw PL L C, Seattle, W ashing ton, for Plaintiff-Appellant.

Caroly n McI ntosh (arg

u ed) and Max ine Martin, Patton B og g s L L P, Denver, Colorado; A usey H. Robne tt I I I
, Paine Hamblen L L P, Coeur d’Alene, I daho; Gail L

. W urtz ler, D avis Graham & Stubbs L L P, D enver, Colorado, for De fendantsAppellees.

OP INION

CARNEY, District J u dg e:

ASARCO, L L C ( “Asarco”) appeals the district court’s dismissal o f its contribution a ction broug ht under § 113(f) o f the C o m p r e h e n s i v e E n vironmental Response, Compensation, and L iability Act (“CERCL A”), 4 2 U. S

. C. §§ 9601–9675. Asarco seeks to recover from Union Pacific Railroad Co. a nd Union Pacific Corp. (tog ether, “Union Pac i f i c ” ) a share o f $482 million in c leanup costs Asarco paid for environmental harm at the Coeur d’Alene Superfund Site in Northern I d aho. The district court dismissed the action under F ederal Rule o f Civil Procedure 1 2(b)(6), concluding that althoug h Asarco’s claim was timely
, it was b a r r ed by a 2008 settlement
ag reement between the p arties that s e t tled Union Pacific’s

c l aims ag ainst Asarco at the same site. W e conclude that Asarco’s claim was t i m ely
, b ut that the parties’ 2008 settlem e n t a g r e e m e n

t d id not unambig uously release Asarco’sASARCO V

. U N I O N P A C I F I C 4

claim here. W e therefore reverse the district court’s judg ment dismissing the case under Rule 12(b)(6).

B A C K G R O U N D

Asarco and U nion Pacific both participated in nearly a century of mining operations in the C o e u r d ’Alene River watershed, a 1,500-squar e

- m ile area located in I daho’s northern panhandle. Asarco o p e ra t ed over 2 0 mines in the Coeur d’Alene site, and Union Pacific built rail l i n e s a nd transpo r t e d ore a

nd other materials for the reg ion’s mining and smelting facilities. I n 1983, the Environmental Protection Ag e ncy

(“EPA”) listed the Coeur d’Alene site on the CERCL A National Priorities L ist. Since then the site has underg one o ver 3 0 y e ars of cleanup e fforts b y t h e EPA, the State of I daho, and potentially responsible parties, including Asarco and Union Pacific.

I n the 1990s, the United States, the State of I daho, a nd the Coeur d’Alene Tribe each filed various claims ag ainst Asarco and other mining companies for response c o s t s and natural

resource d amag es at the Coeur d’Alen e site. These actions

were consolidated in 2003 and, afte r a 78-day trial, J udg e L odg e of the United S tates District Court for the D istrict o f I daho issued a

n order apportioning liability based on the volume of mining waste released into the basin’s w aterway s. Asarco was f

ound at least 2 2 percent responsible. Coeur d’Alene Tribe v

. Asarco, I nc. , 280 F

. Supp. 2d 1094, 1121 (D. I daho 2003).

I n 2005, before the d a mag es p o rtion of the cons o l i d ated

case was concluded, Asarco f i led for bankruptcy protection under Chapter 11 of the U nited States Ba n k r uptcy Code. Throug h bankruptcy
, Asarco soug ht to resolve approx imatelyASARCO V

. U N I O N P A C I F I C 5

$6.5 billion in environmental liabilities at 53 sites throug hout the country

. U n i on Pacific and the United States both filed proofs of claim.

U n i on Pacific’s proofs of claim soug ht a g ene ra l unsecured claim for pay

ment of freig ht charg es and response

cos t s at numerous sites, including $52 million in CERCL A
response costs Union Pacific h ad paid at the Coeur d ’ A l ene site. I n 2008, the parties entered into a settlement ag reement (the “UP Settlement”), which r esolved “all the claims by UP

or claims which UP could have f iled ag ainst ASARCO,” a nd allowed Union Pacific a g eneral unsecured claim of about $4 million. Upon the parties’ joint motion, the bankruptcy court approved the settlement.

The UP Settlement contains a “mutual release” provision, which states in relevant part:

ASARCO a g rees

. . . t o h ereby release, remise, and discharg e U P

. . . from any and all d amag es, losses, ex p enses, costs, liabilities
, claims, demands, suits, causes of action, a nd complaints, of any kind, character o r description, in law o r in equity
, whether known or u n known, arising out of or i n a n y way connected with

. . . Remaini ng Sites Costs

. (Emphasis added.)

The UP Settlement defines “Remaining Sites Costs” to mean “costs of r esponse under CERCL A incurred by U P a t t h e Remaining Sites,” includin g the Coeur d’Alene site. (Emphasis added.)ASARCO V

. U N I O N P A C I F I C 6

The U nited States also filed proofs of cl a i m in Asarco’s bankruptcy case, asserting that Asar c o was jointly a nd severally liable for more than $2 billion in cl e a nup costs at the Coeur d’Alene site. The bankruptcy court held a h earing
to estimate the United S tates’ claims ag ainst Asarco, but before the c ourt ruled, Asarco and the U nited States ex ecuted

an ag reement sett l i ng the United States’ Coeur d’Alene claims (“US CDA Settlement”).

The US CDA Settlement reso lved Asarco’s liability for all remaining response costs an d natural resource damag e s associated with the Coeur d’Alene site. U nder the settlement, Asarco a g r eed that the United St at e s w ould be entitled to g eneral unsecured c laims totaling about $ 482 million. F or its part, the United States covenanted not to sue Asarco for further CERCL A costs “[ w] ith respect to the Coeur d’Alene Site.” T h e bankruptcy court approved the proposed settlement on J une 5, 2009.

On J une 5, 2012, Asarco filed the underlying contribution action, seeking to recoup from Union P a c i fi c a share of the $482 million it paid u nder the US CDA Settlement. Asarco alleg ed that it had paid more than its allocable share of costs at the Coeur d’Alene site and demanded that U nion Pacific
pay “its e quitabl e s h a r e of a ny overpay

ment of costs b y Asarco.” A sarco’s o ri g i n a l complaint defined the Coeur d’Alene site as “a 1,500-square mile area located in northern I daho and eastern W ashing ton,” including “a 21-square mile

area a round [the B u n ker H ill mining ] complex ” and the upper and lower basins of the Coeu r d ’ Al ene River. T he orig inal compla i n t p rovided that “[ f] or purposes of this action, the Coeur d ’ Alene B asin . . . ex c ludes the drainag e of the N orth F o r k of the Coeur d’Alene River.” L ess than two months later, however, Asarco f iled a F irst Amended C o m plaintASARCO V

. U N I O N P A C I F I C 7

(“F AC”) as of rig ht under Rule 15(a)(1), a n d a m e nded the definition of “Coeur d’Alene B asin” to inclu de the N orth F ork drainag e area that was orig inally ex cluded.

Union Pacific f

i l ed a motion to dismiss A sarco’s F AC under Rule 12(b)(6), arg u ing that A sarco’s claim was barred by the statute of limitations, the UP Settlement, res judicata, judici a l e s t o p p e l, Union Pacific’s contribution protection, a nd As a r c o ’ s lack of any contribution r ig hts. The district court rejected Union Pacific’s statute o f limitations arg uments, but nevertheless g ranted the motion because it concluded that the action was barred by the UP Settlement’s release provisions.

The district court acknowledg ed Asarco’s arg ument that the defined term “Remaining Sites C o s ts” limited Asarco’s release to claims for costs “incurred by U P ,” but reasoned that if it r ead the ag reement as “l i m i ting the releases to only Union Pacific’s claims” the releases would then “be a ny thing but mutual.” ASARCO, LLC v. Union Pac. R.R.
, 936 F

. Supp. 2d 1197, 1204 (D. I daho 2013). The district court concluded that “[ g ] iven the scope of the definitions used in the F AC a nd the plain lang uag e of the [ UP] Settlement, it is clear that the claim raised in the F AC is p reclude d by the mutual release lang uag e o f t h e [ UP] Settlement.” Id. at 1204–05. The district court therefore dismissed Asarco’s action a nd declined to r u l e o n Union Pacific’s remaining defenses. Id. at 1206.

S T A N D A R D O F R E V I E W

W e review de novo the district court’s d i s missal for failure to state a claim under Rule 12(b)(6). Hartmann v. Cal. Dep’t of Corr. & Rehab.
, 7 07 F .3d 111 4
, 1 1 2 1 (9th Cir. 2 013). W e may affirm the district c ourt’s dismissal on a n yASARCO V

. U N I O N P A C I F I C 8

g round supported by t h e record. I d. (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe R eg’l Planning Agency
, 3 22 F .3d 1064, 1076

! 77 (9th Cir. 2003)).

D ismissal under Rule 12(b)(6) on the basis of a n affirmative defense is pr o p e r only if the defendant shows

some o bvious bar t o s e c u r ing relief on the face o f the compla i n t

. S

e e Sams v. Y

ahoo! Inc.
, 713 F .3d 1175, 1179 (9th Cir. 201 3 ) (“[ T] he assertion of an affirmative defense
may b e considered p roperly on a motion to dismiss where the ‘a l l e gations in the complaint suffice to establish’ the defense.” (quoting Jones v. Bock
, 549 U.S. 199, 215 (2007))); 5B Charles Alan W rig ht et al., Federal Practice and Procedure § 1 357 (3d e d

. 1 998) (“ [ A ] d ismissal under Rule 12(b)(6) is likely to be g r anted by the district court only in the relatively unusual case in w h i ch the plaintiff includes alleg at i o n s that show o n the face of the complaint that there is some insuperable bar to securing relief

. . . .”). I f, from the alleg ations o f the c omplaint as well as any jud i c i ally noticeable materials, an a sserted defen s e raises disputed issues of fact, dismissal under Rule 1 2 ( b )(6) is improper. Scott v

. Kuhlmann
, 746 F .2d 1377, 1378 (9th Cir. 1984) (per curiam).

A N A L Y S I S

I

W e first consider whether Asarco’s F AC is barred by CERCL A’s three-y

ear statute of limitations for c laims seeking contribution after entry of a judicially approved settlement. See 4 2 U.S.C. § 9 613(g )(3). Union Pacific contends that Asarco’s F AC was untimely because (1) it did

n o t relate back to the date of the o r ig inal complaint un d e rASARCO V

. U N I O N P A C I F I C 9

Rule 15(c)(1)(B ), and (2) even if it did, the orig inal complaint

was filed on e d ay t oo late. We review de novo both the question whether a n amended pleading relates back under Rule 15(c)(1)(B ), Martell v. Trilogy Ltd. , 872 F .2d 322, 325 (9th Cir. 1989), and the question whether a claim is barred b y the statute of limitations, Orr v. Bank of Am., NT & SA
, 285 F .3d 764, 779 (9th Cir. 2002).

A

An o therwise time-barred c laim in an amended pleading is d e e med timely if it r elates back to the date of a timely orig inal pleading

. U n d er Rule 15(c)(1)(B ), an amendment asserting a n e w o r chang ed c laim relates back to the date o f the orig inal pleading if th e amendment “arose out of the conduct, transaction, or occurrence set out

. . . in the orig inal pleading .” A n amended claim arises out of the same conduct, transactio n , o r occurrence if it “will likely be proved b y the ‘same kind of evidence’ o ffered in supp ort of the orig inal pleading .” Percy v

. S

.F. Gen. Hosp.
, 8 41 F .2d 975, 978 (9th Cir. 1 988) (quoting Rural Fire P rot. Co. v. Hepp
, 3 66 F .2d 355, 362 ( 9th Cir. 1966)). To re l a t e b a ck, “the orig inal a nd amended pleading s [ must] share a common core of operative facts so that the adverse pa r t y has fair notice of the transaction, occurrence, or condu c t c a lled into question.” Martell
, 872 F .2d at 325. T he relation back d octrine o f Rule 15(c) is “ liberally applied.” Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, I n c. , 6 9 0 F .2d 1240, 1259 n.29 (9th Cir. 1982).

1

Th i s case presents an issue of first impression in this Circuit: Can an amended pleadin g r e l a te back if it includesASARCO V

. U N I O N P A C I F I C 10

a l l e gations that were ex pressly d isclaimed in the orig ina l pleading ? W e hold that it can, and that in such cases the test continues to be the Rule 15(c)(1)(B ) standa rd i t self

— whether the amended cla i m a r i s es out of the same conduct, transaction, or occurrence as that set forth in the orig i nal complaint.

I n so holding
, we are mindful of two competing concerns. On the one hand, the relation back d octrine is to be liberally applied. See id. ; see also Rural Fire
, 366 F .2d at 362 (noting that Rule 15(c) “is liberally applied especia l l y i f no disadvantag e w ill accrue to the opposing party ” )

. I ndeed, Rule 15’s purpose “is to provide max imum opportunity for each clai m t o be decided on its merits rather than on procedu r a l t ec hnicalities.” 6 W r ig ht et al., supra , § 1471. Gone are the c ode pleading day s when a party was “irrevocably bound to the leg al or factual theory of the party ’s first pleading

. ” Id.

On the other hand, the purpose of the statute of limitations

— protecting defendants f r om stale claim s

— i s a lso to be respected. See Credit Suisse Sec. ( U SA) LLC v. Simmonds
, 132 S. Ct. 1414, 1420 (2 0 1 2 ) ; see also F D IC v

. Conner
, 20 F .3d 1376, 1 3 8 5 (5 th Cir. 1 9 94). Amendments that sig nificantly a lter the p leading s could r equire the opposing party to start over a n d p r epare the case a second time. 6A W rig ht et al., supra , § 1497. Consistent with the protecti v e purpose o f the statute of limitations, “[ f] airn e s s to the defendant demands that the de f e n d ant b e able to anticipate claims that mig h t f

o l l o w from the facts alleg ed by the plaintiff.” P ercy , 841 F .2d at 979.

Rule 1 5(c ) s trikes a balance between these c ompeting

concerns by pr o viding that once litig ation has beenASARCO V

. U N I O N P A C I F I C 11

commenced, an o pposing p arty is on notice that the pleading party may subsequently raise any claims or defenses that form pa rt of the same conduct, transaction, or occurrence a s t h e o rig inal pleading

. Thus, we have said, “[ i] t i s t h e ‘conduct, transaction, or occurrence’ test of Rule 15(c) which

assures that the relation back doctrine does not deprive the defendant of the protections o f the statute of l i m i t a tions.” Santana v. Holiday Inns, Inc.
, 686 F

. 2d 736, 739 ( 9 t h C i r. 1982); see also Conner
, 20 F .3d at 1386 (“In the end

. . . , the best touchst o n e for determining when an amended pleading relates back to the orig inal pleading is the lang uag e of Rule 15(c)

. . . .”); 6A W r ig ht et al., supra , § 1497 (ex plaining that

e v e n w h e re “[ a ] mendments

. . . g o bey ond the mere correction o r factual modification of the orig inal pleading a nd sig nificantly alter the cla im or defense alleg ed in that pleading [ ,]

. . . the search under Rule 15(c) is for a common core of operative facts in the two pleading s”).

Our d e cisio n i n R u ral Fire Protection Co. v. Hepp is instructive. There, the plaintiffs’ timely orig inal complaint claimed unpaid wag es under the F a ir L a b or Standards Act for
pay periods between September 5, 1959, and April 30, 1960. 366 F .2d a t 3 61. During trial, and after the statutory limitations period h a d ex pired, plaintiffs were g ranted leave
to a mend their complaint to claim wag es for an additional pay period from April 30 to May 19, 1960. Id. R uling on the defendants’ statute of limitations arg ument, we reasoned that “there [ could] be no question but that the amended pleading

was b ased on the same transac t i o n , w as to be proved by the

same kind of evidence (appellant’s time records), and did not take appellant by surprise.” Id. at 362. The a me n d m ent, therefore, related back. Id.ASARCO V

. U N I O N P A C I F I C 12

W e do not believe it would have made any difference h ad the orig inal complaint in Rural Fire ex plici t l y ex cluded
wag es for the April 30 to May 19, 1960 pay period. The pl a i n tiffs there could have conceivably d one so b ecause, for

ex a mple, they incorrectly believed they had no colora ble claim to wag es f

or that p a y period and thus determined in
g ood faith to limit t h e scope of their orig inal claim. B ut suppose they wer e t o learn later while conducting discovery that they in fact did have a colorable basis to seek wag es for that period — would they then be confined to the boundaries of their precise pre-discovery claim?

W e think not, for suc h a rule would clearly be inconsistent w i t h t he limited role Rule 15(c) assig ns to the initial pleading

. U nder Rule 15(c)’s liberal standard, a plaintiff need only

plead the g eneral conduct, transaction, or

occurrence to preserve its claims ag ainst a defe n d an t

. The

ex a c t c ontours of those claims

— the facts that will ultimately be alleg ed and the final scope of relief that will be soug ht

—
can and should be sorted out throug h later discovery a nd amendments to the pleading s. See 6 Wrig ht et al., supra , § 1471 (“[ I nitial pleading s] no long er carry the burden of fact revelation and issue formulation, which n ow is discharg ed b y the discovery process.”). W e see n o reason to disturb the limited role assig ned to initial pleading s under Rule 15 where

a party in g o od faith initially disclaims certain facts or relief. P ar t ies should not be d iscourag e d from limiting their initi al pl e ading s to claims and defenses that have evidentiary support. No r should they fear that doing so will foreclose them from amending their pleading s if new f a ct s come to lig ht after further investig a tion and discovery

.

Of course, Union Paci fi c is correct that notice is an essential element in the r elation back determination. B utASARCO V

. U N I O N P A C I F I C 13

Rule 15 does not r equire that a plead i n g gi v e notice o f the

ex a c t scope of relief soug ht. Rather, it must g ive “ fair notice of the transaction, occurrence, or c onduct c alled into
qu es t i o n

. ” Martell
, 872 F .2d at 325. So long as a party is notified of litig ation concern i n g a particular transaction o r occurrence, that p a

r ty has been g iven all the notice that Rule 15(c) requires. W h e n a defendant is so notified, “the defendant knows that the whole transaction describ e d in it will b e fully s i f

t e d, by a mendment if need be, a nd that the form of the action or the r elief pray e d or the law relied on will no t b e c onfined to their first statement.” Id. at 326 ( q uoting Barthel v

. Stamm
, 1 45 F .2d 487, 491 (5th Ci r. 1944)).

According ly
, we hold that even whe re an amendment trenches o n factual g round that the o rig in a l pleading said would be off limits, the standard is the same. I n such cases, the standard to b e applied is Rule 15(c)’s liberal “ c o n d u c t , transaction, or occurrence” test.

2

Apply ing the Rule 15(c)(1)(B ) standar d h e re, we ag r ee with the district court that Asarco’s F AC relates back to the date of its orig inal com p laint. The key chang e in Asarco’s F AC was its inclusion of a g eog raphical area within the Coeur d’Alene basin — the d rainag e of the North F ork of the Coeur d’Alene River — that was e x plicitly ex clu d ed in its orig inal complaint. Asarco’s orig inal complaint asserted that

[ f] o r purposes o f this acti o n, the Coeur d’Alene B asin r efers t o t h e watershed of the South Fork o f the Coeur d’Alene River, the main stem of the Coeur d’Alene River and itsASARCO V

. U N I O N P A C I F I C 14

floodplain, i n cluding the lateral lakes a nd associated wetlands, a

n d L ake Coeur d ’Alene, but excludes the drainage of the North Fork o f the Coeur d ’ Alene River. (Emphasis added.)

L ess than two months later, Asar c o f i l e d its F AC, which redefined the “Coeur d’Ale n e B a sin” to encompass the “ the watersheds of the North Fo rk and the South Fork o f the Coeur d’Alene River, the main stem of the Coeur d’Alene River and its floodplain, inc l u d i n g the lateral lakes a nd associated wetl a n d s, and L ake Coeur d’Alene.” (Emphasis added.)

Notwithstanding that chang e , we conclude that Asarco’s orig inal complaint c learly put Union Pacific on notice of the conduct, transaction, or occurrence set forth in the F AC. Both p leading s concern Asarco’s and U nion Pacifi c ’s historical activities at the “Coeur d’Alene Site”

— “ a 1,500-
square mile area located in northern I daho and e astern W a shing ton.” 1 B oth pleading s seek c ontribution based on the

same consent decree, which resolved Asarco’s liability for CERCL A response costs in the entire Coeur d’Alen e b a s in. And, in o rder to determine the scope of U nion Pacific’s

c o ntribution p rotection, both pleading s would inevitab l y

r equire an assessment of Union Pacific’s consent d ecrees settling claims for cleanup costs in the Coeur d’Alene basin. These factual o verlaps are more than enoug h. A sarco’s F AC will d oubtless “be proved by the ‘same kind of e v i d ence’” that would have been offered in suppo rt of its orig inal

1 A s th e district co u rt o b serv ed
, “ t h e C o eu r d ’ A len e B asin g eo g rap h i cal

area i s larg e an d en co m

p asses b o th th e No rth an d So u th F o rk s o f th e Co eu r d ’ A len e Riv er.”ASARCO V

. U N I O N P A C I F I C 15

complai n t

. P ercy , 8 41 F .2d at 978 (quoting Rural Fire
, 366 F .2d at 362).

L iberally apply ing Rule 15(c), we conclude, a s did t h e district c ourt, that A sarco’s F AC relates b ack to the date o f its orig inal complaint.

B

Of course, relat i o n back does not help A sarco if the orig inal compla int w as not timely in the first instance. CERCL A § 113(g ) (3) provides that “ [ n ] o action for

c o ntribution for a

n y r esponse costs o r damag es may be commenced more than 3 y ears after . . . the date of

. . . entry of a judicially approved settlement with respect to such costs

or damag e s.” 42 U.S.C. § 9613(g )(3)(B ). B ecause Asarco filed its orig inal complaint on J une 5, 2012 — o n p r e cisely the third anniversary of the date the U S CDA Settlement was entered by the b ankruptcy court

— the timeliness of Asarco’s

c o m p laint depends o n whether F ederal Rule of Procedure 6(a)’s g eneral rule for counting time applies.

Under R u l e 6 ( a ), the day of the e vent that trig g ers the period is ex c luded for purposes of c omputing the period’s e nd date. See F ed. R. Civ. P. 6 (a)(1). This is k n o w n a s the anniversary method. I f the anniversary method is applied, the first d a y o f t h e period would be J u ne 6, 2009 (the day a fter the US CDA S ettlement was entered), and the last day for filing would b e J u ne 5, 2012. Under a n alternative method, known as the calendar-date method, the day of the event that trig g ers the period is counted as the f irst day

. I f the c alendardate method is applied, the f irst day of t he period w ould be J une 5, 2009, and the las t day for filing would be J une 4, 2012. A s arco’s orig inal complaint would thus be timelyASARCO V

. U N I O N P A C I F I C 16

under Rule 6(a)’s anniversary method, but not under the calendar-date method.

Rule 6(a)’s method applies by default to “any statute that does not specify

a method of computing time.” F ed. R. Civ. P. 6(a); see also Patt e r

son v. Stewart
, 251 F .3d 1243, 1246 (9t h Cir. 2 001) (“Rule 6(a) is widely applied to federal limitations periods” and “can apply to ‘any applicable statute’ in the absence of contrary policy ex p r es s ed in the statute.” (quoting U

nion Nat’l Bank v

. L a m b
, 337 U.S. 38, 40–41 (1949))). Here, CERCL A § 113(g )(3) say s nothing about the method o f c ounting to be applied, nor does it manifest any intent to deviate from Rule 6(a)’s method.

Union Pacific arg ues that CERCL A § 113(g )(3) specifies

a method of computing time because it directs that the limitations period beg ins to r un o n “the date of

. . . entry of a judicially approved settlement.” Appell e e ’ s B r. at 35 (emphasis added). B ut that simply sho w s t h a t § 113(g )(3) specifies the d ay of the trig g ering event. I t does “not specify

a method of computing time.” F ed. R. Civ. P. 6(a). I ndeed, Rule 6 (a)(1) implicitly recog niz es that the “day of the event that trig g ers the period” a n d t h e first day of the period for computation purposes do not have t o b e the same day

. F ed. R. Civ. P. 6(a)(1 ) ( A ); see United States v. Inn Foods, Inc.
, 383 F .3d 1319, 1325 (F ed. Cir. 2004) ( “[ S] tatutes o f limitations

. . . often identify the date on which a time period starts, but not the date on which the period ends.”).

Moreover, Uni o n Pacific’s reliance o n § 113(g )(3)’s lang uag e runs contrary to our precedent. I n Patte rson v

. Stewart
, we applied Rule 6 ( a ) ’ s method to nearly identical lang uag e in the Antiterrorism and E ffective Death Pe n alty Act’s (“AEDPA”) limitations provision, 28 U .S.C.ASARCO V

. U N I O N P A C I F I C 17

§ 2244( d )( 1). See 251 F .3d a t 1245–46. J ust as CERCL A § 113(g )(3) directs that the period runs from the date t h e judicially approved settlement is entered, AEDPA directs that

[ t] he limitation period shall run from t h e latest of

. . . the da t e on which the judg ment became f i n a l

. . . [ ,] the date on which the impediment to filing a

n applicatio n

. . . is removed,

. . . the date o n w h i c h the constitutional r ig h t asserted was initially
recog niz ed by the Supreme Court,

. . . o r

. . . the d ate on which the factual predicate of the claim . . . could have been discovered.

28 U.S.C. § 2244(d)(1) ( emphasis adde d )

. Y et notwithstanding A EDPA’s clear lang uag e that the per i o d r uns from the date of a trig g ering event, we c o n c l u ded in Patterson that “AEDPA does not p rovide an alt e r native method for computing time periods.” 251 F .3d at 1246. W e reach the same conclusion as to CERCL A § 113(g )(3).

Union Pacific points to nothing in CERCL A’s l a n g uag e or leg islative history that sug g ests that Cong ress intended to deviate from Rule 6(a)’s method o f calculation. See id. ; see also Inn Foods
, 3 83 F

. 3d at 1 325 ( “ [ C ] o u rts h ave chosen to follow the g u idance of Rule 6(a) absent c lear lang uag e to the contrary in the statute

. . . .”). According ly
, we a p p l y Rule 6(a)’s anniversary method a nd conclude that Asarco’s orig inal complaint, a s well as its F AC, was timely under CERCL A § 113(g )(3).ASARCO V

. U N I O N P A C I F I C 18

II

Having determined that Asarco’s F AC was timely
, we

now consider whether it is barred by the UP Settle m ent’s

“ m u t ual release” provision. The meaning of a settlem e n t ag reement is, a s with all contracts, a question of law subject
to d e novo r eview. City of Emeryville v. Robinson
, 621 F .3d 1251, 1261 (9th Cir. 2010).

The parties’ key dispute i s w hether the UP Settlement unambig uously r eleases Asarco’s claim here ag ainst Union Paci f i c. 2 I f the settlement ag reement is ambig uous, then interpretation of the ag reement presents a fa c t i ssue that
cannot be resolved on a motion to dismiss. S ee State Farm Mut. Auto. I

ns. Co. v. Fernandez
, 767 F .2d 1 2 9 9, 1301 (9th Cir. 1985) (“The interpretation of a contract presents a mix ed question of law and fact. The ex istence of an ambig uity must be determined as a matter of law. I f an ambig uity e x i s t s, a q u e s t ion of fact is presented.” (citations omitted)); see also Scott
, 746 F .2d at 1378 ( affirmative defen s es may not be asserted b y motion to dismiss if they raise disputed issues o f fact); 1 1 Richard A. L ord, W illiston on Contracts [ “ W illiston ”] § 33:42 (4th ed. 2014) (“[ T] here is unanimity ” that evidence of the surrou n d i ng circumstances is necessary “when an ambig

u ity . . . ex ist[ s]

. ”).

W e conclude that the UP Settlement is a mbig u ous. The
ag reement’s “mutual release” p r ovision states, in relevant part:

2 Becau se th e s ettlem en t ag reem en t w as f iled w ith th e b an k

ru ptcy co u rt

an d i s a p u

b licly av ailab le reco rd
, it is p ro p erly su b j ect to j u d icial n o tice,

see In re E.R. Feg ert, In c. , 8 8 7 F.2 d 9 5 5
, 9 5 7

– 5 8 (9 th C ir. 1 9 89 ), an d th u s

m ay b e co n sid ered o n

a Ru l e 1 2 (b )(6 ) m otio n

to d ism iss.ASARCO V

. U N I O N P A C I F I C 19

A S A R C O ag rees

. . . to hereby release, remise, and discharg e U P

. . . from any and all d amag es, losses, ex p enses, costs, liabilities
, claims, demands, suits, causes of action, a nd complaints, of a n y kind, character o r d escription, in law or in equity
, whether known or u n known, arisi n g o u t of or in a ny

wa y connected with

. . . R emaining Sites Costs

. (Emphasis added.)

Sig nificantly
, “Remaining Sites Costs” are separately defined in the ag reement as “costs of resp o n s e u nder CERCL A incurred b

y UP at the Remaining Sites,” (emphasis added), and “Remaining Sites” ar e i n turn defined to include the Coeur d ’Alene site. Read tog ether with these definitions, the “mutual release” provision releases all claims held by Asarco that a rise out of or are in any w a y c o n n e c ted with Coeur d’Alene response costs incurred b y Union P a cific

. The
ag reement does not ex plicitly release Coeur d’Alene response costs incurred by Asarco

. Generally
, “lang uag e will be deemed ambig uous w h en it is reasonably susceptible to more than one interpretation.” 11 W illiston § 32:2. Here, the release p r ovision could plausibly
mean, as Union Pacific reads it, that Asarco’s contribution claim ag ains t U n i o n Pacific is r eleased because the claim is broadly related to CERCL A response costs incurred by Union Pacific. B ut this is not the only reasonable interp r e t ation. The release provision could also p lausibly mean that Asarco’s contribution claim ag a inst Union Pacific is reser ved, not released, because the claim only r elates to response costs incurred by A sarco. After all, the limitation to costs incurred by Union Pacific coul d have easily been r eplaced with “incurred by UP or Asarco ,” had that b een the parties’ intent.ASARCO V

. U N I O N P A C I F I C 20

B ecause both parties ’ interpretations are reasonable, the mutual release provision is ambiguous.

Asarco’s interpretation is supported by the ag reement’s repeated references to the release of Union Pacific’s claims. The ag reement states that it is “ i ntended to serve as a comprehensive settlement of all the claims by UP or c l a ims which U P could have filed against ASARCO with respect to

. . . Remaining Sites Costs,” (emphasis added), a nd that “the mutual releases set f

orth in Section [ V] apply to all c laims UP
may h ave f

iled, or had a rig ht to file, in the ASARCO Chapter 11 c a s e” and not to “any matters other than those ex pressly specified therein.” I t also notes th a t i t is an ag reement “[ i] n settlement and satisfaction of all claims and causes of action of UP . . . .” (Emphasis added.)

Union Pacific’s interpretation, b y contrast, is inconsistent with these references and r enders su p erfluous the phrase “incurred by UP” in the definition of Remaining Sites Costs. See 11 W illiston § 32:5 (“[ E] very word, p hrase or term of a

c o ntract must be g iven effect,” and courts should av o i d accepting interpretations that “ r e n d er[ ] part o f the writing superfluous.”). And while it is true that the “mutual release” provision ex tends to “any and a ll claims” that are “in any way connected with” Remaining Sites Costs, “it i s a n accepted principle that g eneral words in a release are limited a lway s to that thing or those thing s which were specially i n t h e contemplation of the parties a t the time when the release was g iven.” I d. § 3 2 : 1 0 ; see also id. ( “[ S] pecific words [ in a release] will limit the meaning o f g eneral words if it appears from the whole ag reement that the parties’ purpose was directed solely toward the matter to which the specific words

or clause relate. ” )

. Here, the release’s g eneral “in any wayASARCO V

. U N I O N P A C I F I C 21

connected with” lang uag e is restricte d b y i ts more specific limitation to “costs incurred by UP.”

Reading the contract the way Asarco sug g ests does n o t,

as the district court found, r e n d e r the release “any thing but mutual.” ASARCO
, 936 F

. Supp. 2d at 1204. T o the contrary , the release of both parties ’ cl a ims reg arding
response costs incurred by U nion Pacific — the subject of the parties’ settlement — has the effect of p reventing both parties from later claiming that their compromise amount as to those
costs was too hig h or too low in lig h t of later developments.

W e therefore c onclude that the UP Settlement is ambig uous b ecause it can be reasonably u nderstood to release only c laims involving Remaining Sites Costs incurred by Union Pacific . I t was error for the district court to conclude otherwise. 3

C O N C L U S I O N

Althoug h we ag ree with the district court that Asarco’s F AC was timely
, we c o nclude that the district court erred b y dismissing Asarco’s contribution claim on t h e basis of an ambig uous settlement ag reement. W e therefo r e reverse the district court’s dismissal of Asarco’s c ontribution a ction a nd remand for further proceeding s consistent with our opinion.

REVERSED and REMANDED.

3 W e d eclin e to af

f irm d ism issal of th e actio n o n th e b asis o f an y o f th e ad d itio n al g ro u n d s raised b y Un io n P acif ic b ecau se to d o so w o u ld req u ire

u s t o reso lv e d isp u ted f

acts in Un io n P acif

ic’ s f av o r. S ee S co tt , 7 4 6 F.2 d at 1 3 7 8

.