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Robert P. Doty (SBN 148069) 

rdoty@coxcastle. corn 

Ali P. Hamidi (SBN 191198) 

ahamidi@coxcastle.corn 

James M. Purvis (State Bar No. 281596) 

jpurvis@coxcastle.com 

COX, CASTLE & NICHOLSON LLP 

50 California Street, Suite 3200 

San Francisco, CA 94111 

Telephone: (415) 262-5100 

Facsimile: (415) 262-5199 

Attorneys for Plaintiffs 

The Successor Agency to the former Emeryville 

Redevelopment Agency and The City of Emeryville 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

THE SUCCESSOR AGENCY TO THE FORMER 

EMERYVILLE REDEVELOPMENT AGENCY 

AND THE CITY OF EMERYVILLE, 

Plaintiffs, 

vs. 

SWAGELOK COMPANY, an Ohio corporation; 

WHITNEY RESEARCH TOOL CO., 

a dissolved California corporation; HANSON 

BUILDING MATERIALS LIMITED, 

a British Corporation; CATHERINE LENNON 

LOZICK, an individual residing in Ohio, 

Defendants. 

AND RELATED COUNTERCLAIMS AND 

CROSSCLAIMS 

Case No. 17-cv-00308-WHO 

JOINT CASE MANAGEMENT 

STATEMENT 

Judge: Hon. William H. Orrick 

Action Filed: January 20, 2017 

CMC Date: August 6, 2019 

Time: 2:00 p.m. 

LAW OFFICES OF 

COX, CASTLE & 

NICHOLSON LLP 070431 \ 10643600 

SAN FRANCISCO 

Case No. 17-cv-00308-WHO 

JOINT CASE MANAGEMENT STATEMENT 

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Plaintiffs The Successor Agency to the Former Emeryville Redevelopment Agency 

("Successor Agency") and The City of Emeryville ("City") (collectively, "Plaintiffs"), and Defendants 

Swagelok Company ("Swagelok"), Catherine Lennon Lozick ("Lozick"), Whitney Research Tool Co. 

("Whitney"), and Specially Appearing Hanson Building Materials Limited ("HBML") I (collectively, 

the "Parties"), by and through their respective counsel of record, hereby submit this Joint Case 

Management Statement pursuant to Local Rule 16-9(c), in advance of the Case Management 

Conference scheduled to take place on August 6, 2019, at 2 p.m. 

1. Subject Matter Jurisdiction & Service 

The Court has subject matter jurisdiction over this action pursuant to sections 107 and 

113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act 

("CERCLA"), 42 U.S.C. § 9613(b); 42 U.S.C. § 6972(a) (a portion of the Solid Waste Disposal Act 

commonly referred to as the Resource Conservation and Recovery Act ("RCRA")); and 28 U.S.C. § 

1331 (federal question jurisdiction). This Court has subject matter jurisdiction over the related state 

law claims pursuant to 28 U.S.C. § 1367(a) (supplemental jurisdiction). 

All defendants have been served. Swagelok, Lozick, and Whitney answered the Second 

Amended Complaint and filed counterclaims and crossclaims in October 2017. HBML answered the 

Second Amended Complaint and filed counterclaims and crossclaims in February 2019 after its motion to 

dismiss the Second Amended Complaint for lack of personal jurisdiction was denied. (ECF No. 143.) 

Plaintiffs answered HBML's counterclaims and Swagelok, Lozick and Whitney answered HBML's 

crossclaims in March 2019. 

2. Facts 

A. Plaintiffs' Statement of Facts 

This action arises out of polluted groundwater and real property owned by Plaintiffs and located 

at 5679 Horton Street in the City of Emeryville, Alameda County, California (the "Property"). The 

Property is approximately 1.75 acres in size and is generally bounded by Union Pacific railroad tracks to 

the west, commercial/industrial properties to the north, Horton Street to the east, and Stanford Avenue 

1 HBML timely asserted, and continues to assert, that this Court does not have personal jurisdiction 

over it. 

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and a former rail spur to the southeast/south. The Successor Agency's predecessor in interest—the 

former Emeryville Redevelopment Agency acquired all but a small fraction of the Property in 1999. 

Through the exercise of eminent domain, the City later acquired a fractional interest in one parcel within 

the Property. The Property has only been used for storage since 2012, when the City's Public Works 

Department vacated the site due to concerns regarding vapor intrusion from contamination in the 

subsurface. 

According to sampling, the impacted groundwater is allegedly located beneath and down 

gradient (i.e., to the west) of the Property. Plaintiffs allege the contamination was caused by industrial 

activities that were conducted on the Property. Plaintiffs allege that Swagelok, Lozick, Whitney, and 

HBML are legally responsible for the contamination under federal statutes, California statutes that were 

derived from and largely mirror those federal statutes, and California common law. Defendants dispute 

these allegations and in turn have filed counterclaims against Plaintiffs and crossclaims. 

B. Defendants Swagelok's and Whitney's Statement of Facts 

Whitney is a California corporation that was dissolved in 2000 and has appeared in this action 

only to the extent of its liability insurance. From about 1963 to 1999, Whitney leased the Property 

(where it engaged in manufacturing activities). The Catherine Lennon Lozick Trust No. 3 ("CLL3"), the 

titled owner of the Property in 1999, sold the Property to the Emeryville Redevelopment Agency 

(predecessor to the Successor Agency). Mrs. Lozick was, at the time of the sale of the Property, the sole 

beneficiary of CLL3. In 1999, Whitney also sold substantially all of its assets to Swagelok. Swagelok 

has been sued as Whitney's alleged "alter ego" (which allegations they deny). CLL3 was dissolved after 

the sale. 

Whitney and Swagelok deny that any of the contamination detected at the Property is 

associated with Whitney's activities, and instead is associated with the activities of others, primarily 

Marchant Calculating Machine Company ("Marchant") (to which HBML is alleged to be the 

successor) and other off-site parties. Marchant manufactured mechanical calculating machines at the 

Property (and an adjoining property) for nearly sixty years, after which the buildings occupied by 

Marchant were demolished. In the early 1960's, a new foundation and building were built over a 

portion of the pre-existing foundation and the site that had been occupied by Marchant and SCM. 

LAW OFFICES OF 

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That new building was occupied by Whitney until approximately May 1999 (and the "new" building is 

still located on the Property today). 

Whitney and Swagelok are also informed and believe that the City is alleging that 

contamination from the Property has migrated offsite to City owned adjacent property known as the 

South Bay Front Site B located at 1525-1535 Powell Street and 5760 — 5770 Shellmound Street, 

Emeryville, CA ("Site B"). Site B was occupied by several industrial users, including but not limited 

to Sherwin Williams Company. Furthermore, according to the Department of Toxic Substances 

Control, Site B has a history of mixed industrial use, including use as and by the Western Carbonic 

Acid Company, Union Oil Company of California, a radiator hose facility, industrial equipment 

storage, a rail spur, machine shops, a dental material warehouse, a lumber yard, an electronic 

equipment warehouse and a plaster mix factory. Any contamination on Site B is attributable to those 

historic activities. 

Whitney and Swagelok contend that the contamination on the Property and any offsite 

contamination, including contamination at Site B was caused by others, including Marchant through 

its hardening and plating operations, and other activities, and the actions of Plaintiffs' consultant in 

installing groundwater wells, which exacerbated the extent of the contamination by allowing the 

downward migration of chemicals present in the subsurface. 

C. Defendant Lozick's Statement of Facts 

Mrs. Lozick was the beneficiary of the CLL3 that was the titled owner of the Property from 

December 1988 until the sale of the Property to the Emeryville Redevelopment Agency in 1999. Mrs. 

Lozick did not conduct any separate business operations on the Property at any time. Mrs. Lozick 

otherwise incorporates the Statement of Facts as set forth by Swagelok and Whitney. 

D. Defendant HBML's Statement of Facts 

Specially Appearing HBML is a British corporation and appears in this action subject to a 

continued objection to this Court's personal jurisdiction over HBML. 

HBML denies that Marchant is responsible for any release of hazardous substances during the 

time Marchant owned and/or occupied the Property. HBML had no relationship, either directly or 

indirectly, with Marchant during the years that Marchant owned and/or operated on the Property, 

LAW OFFICES OF 

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allegedly between 1910 and 1959. Indeed, no entity affiliated with HBML was affiliated with any 

entity allegedly holding Marchant's legacy environmental liability until 1986 (twenty seven years after 

Marchant allegedly contaminated the Property). HBML denies that it is a successor of Marchant or 

that HBML could be the alter ego of any subsidiary that is alleged to be the successor to Marchant 

under the highly rigorous alter ego standard recognized by the Ninth Circuit in deference to the 

"deeply ingrained" general principle that "a corporation is not liable for the acts of its 

subsidiaries." U.S. v. Bestfoods, 524 U.S. 51, 61 (1998). 

HBML further contends that any contamination on the Property is the legal responsibility of 

others, including Plaintiffs, who contributed to the contamination through their investigation of the 

Property, Defendants Whitney and Swagelok, which either directly or indirectly engaged in 

manufacturing operations on the Property from approximately 1963 to at least 1999, and/or Defendant 

Lozick, who, on information and belief, was the beneficiary of the CLL3 that was the owner of the 

Property from approximately December 1988 until approximately 1999.2 To the extent Plaintiffs 

allege that contamination from the Property migrated off-site, HBML denies that contamination on 

other properties was caused, in whole or in part by HBML but was instead caused by the other parties 

in this action and/or by other entities that operated on or near those properties. 

3. Legal Issues 

The principal legal issues relate to identification of those entities legally responsible for 

contamination of the Property under federal statutes, California statutes derived from and that largely 

mirror those federal statutes, and California common law. This includes liability under: (1) CERCLA, 

see 42 U.S.C. sections 9601, et seq., which provides for liability of persons responsible for releases of 

hazardous substances; (2) RCRA (as to Swagelok only), see 42 U.S.C. sections 6901, et seq., which 

provides for liability of persons in connection with the handling, storage, treatment, transportation, or 

disposal of solid or hazardous waste; (3) the Polanco Act, see Cal. Health & Safety Code sections 

33459, et seq., which authorizes redevelopment agencies and their statutorily designated successor 

2 Plaintiffs and the Cross-claimants claim that indirect subsidiary HSCM-20 and ultimately HM 

Holdings, Inc. "inherited Marchant's liability for contamination at the Property." Plaintiffs and Crossclaimants also admit that HM Holdings "subsequently became Millennium Holdings, LLC," a separate 

company. 

LAW OFFICES OF 

COX, CASTLE & 

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agencies to take actions to remedy or remove releases of hazardous substances from property within 

redevelopment areas; (4) the Gatto Act, see Cal. Health & Safety Code sections 25403, et seq., which 

authorizes local agencies to take actions to remedy or remove releases of hazardous materials from 

blighted property within a blighted area; and (5) common law theories of private and public nuisance 

and trespass. Defendants deny that they are responsible for any contamination of the Property or for 

the offsite migration of any contamination to Site B or any other property and allege that, to the extent 

any individual defendant is responsible for any contamination, any such harm is distinct, divisible, and 

capable of reasonable apportionment. Defendants also claim that the Plaintiffs' environmental agent 

contributed to the alleged contamination through its activities and that, as such, the Plaintiffs are 

responsible for the damage caused by its agent. 

Other legal issues to be resolved likely will include various aspects of corporate law, including 

in particular whether Swagelok and HBML are the alter ego(s) and/or successor(s) in interest to 

Whitney and Marchant, respectively. 

Finally, HBML anticipates that a legal issue that will need to be resolved will be its continuing 

argument that this Court has no personal jurisdiction over it. 

4. Motions 

HBML's motion to dismiss the Second Amended Complaint under Rule 12(b)(2) for lack of 

personal jurisdiction was denied on January 30, 2019. (ECF No. 143.) HBML, Lozick, Swagelok and 

Whitney anticipate that they may file motions for summary judgment pursuant to Rule 56, but it is too 

early to make such determination. The Parties do not anticipate any other motions at this time. 

5. Amendment of Pleadings 

Plaintiffs have amended the operative complaint in this action on two occasions. Plaintiffs' 

Second Amended Complaint was filed on October 5, 2017. (ECF No. 67.) Swagelok, Lozick and 

Whitney filed answers on October 6, 2017 (ECF Nos. 69-70, 72), and HBML filed its answer on 

February 13, 2019 (ECF No. 144). Based on information obtained from HBML during jurisdictional 

discovery which concluded in mid-September 2018, Plaintiffs anticipate requesting leave of Court to 

amend the Second Amended Complaint to name Tillotson Commercial Motors Limited, a British 

corporation ("Tillotson"), and Hanson Limited, a British corporation ("Hanson Limited"), as 

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additional defendants. Based on information and belief, Hanson Limited was created in year 2000, 

and designated as HBML's parent company, with direct control over HBML and its financial 

liabilities. Moreover, evidence shows that Tillotson was a subsidiary of HBML, managing HBML's 

business activities in the United States, and in particular the acquisition and liquidation of SCM, 

through its business division called "Hanson Industries" in the United States. 

HBML objects to adding either Tillotson or Hanson Limited as defendants in this case as they 

are not proper defendants: among other issues, Plaintiffs have not served proper administrative notice 

on either entity, Hanson Limited did not exist until 2003, years after the time period identified by the 

other parties as relevant (and is not a corporate successor as to which jurisdiction is proper under the 

standard in the Court's January 30, 2019 Order), this Court lacks personal jurisdiction over either 

Tillotson or Hanson Limited (the Court's recent decision with respect to HBML does not translate to 

similar decisions for these separate corporate entities), and the other parties have unreasonably delayed 

in raising these issues. In fact, on December 4, 2018 (after the other parties were admittedly long 

aware of the existence of these entities), all of the other parties stated in their Joint Case Management 

Statement that they "do not presently anticipate the further addition of any parties . . . ." Attempting to 

add these two additional foreign entities almost three years after the filing of the initial complaint and 

over eleven months after the latest point in time when the other parties admit that they learned of the 

entities would necessitate additional 12(b)(2) motions, which would delay the entire schedule set forth 

in the Discovery Plan jointly proffered by the parties. 

Swagelok, Whitney and Lozick are currently unaware of any additional parties that may be 

liable for the contamination of the Property. However, if discovery discloses that offsite contamination 

from other sources has migrated to the Property and contributed to the contamination, these defendants 

reserve the right to seek leave to add additional parties responsible for the contamination. 

Additionally, to the extent that the Plaintiffs allege that contamination from the Property has migrated 

to offsite locations, including Site B as the property is known, then these defendants will seek leave to 

add the former owners and/or operators of Site B or other properties that Plaintiffs allege were 

contaminated. 

LAW OFFICES OF 

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HBML is currently unaware of any additional parties that might properly be joined as parties in 

this action but will promptly seek to add such parties if and when it learns of their identities or of their 

ability to be sued. 

6. Evidence Preservation 

The Parties have reviewed the ESI Guidelines and will meet and confer pursuant to Rule 26(f) 

regarding reasonable and proportionate steps taken to preserve evidence relevant to the issues 

reasonably evident in this action. 

7. Disclosures 

Plaintiffs, Swagelok, Lozick and Whitney timely complied with Rule 26 by providing their 

initial disclosures on December 4, 2017. HBML timely complied with Rule 26 by providing its initial 

disclosures on March 1, 2019, after its motion to dismiss was denied. The Parties recently met and 

conferred to discuss the exchange of documents referenced in their initial disclosures. 

8. Discovery 

For most of 2018, Plaintiffs, Swagelok, Lozick and Whitney pursued jurisdictional discovery 

from HBML in support of their oppositions to HBML's motion to dismiss. Pursuant to this Court's 

Order, this discovery was limited to those jurisdictional issues raised in HBML's motion. These 

efforts were substantial and included multiple requests for production of documents, propounding of 

interrogatories and requests for admission, several months spent meeting and conferring with HBML 

(including a motion to compel filed by Swagelok), the review of almost 30,000 pages of documents 

produced by HBML and depositions of multiple HBML witnesses on two continents. 

In conjunction with these efforts, the Plaintiffs also directed third party subpoenas to Smith 

Corona Corporation ("SCC") and Millennium Custodial Trust ("MCT"). While SCC's documents 

were relatively limited, MCT provided an index identifying over 3,000 boxes containing potentially 

relevant documents. After substantial discussions with MCT, Plaintiffs, Swagelok, Lozick and 

Whitney obtained an initial production of over 7,000 documents (spanning over 26,000 pages) from 

MCT in mid-2018 and another production of over 28,000 documents (spanning over 67,000 pages) in 

late 2018. Finally, in early 2019, MCT produced almost 9,000 additional documents (spanning over 

21,000 pages). 

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Pending this Court's ruling on HBML's motion to dismiss, Plaintiffs, Swagelok, Whitney and 

Lozick also met and conferred on a number of occasions with respect to formal discovery vis-à-vis 

themselves. To that end, they initially filed a Joint Discovery Plan on December 4, 2017. (ECF No. 

84.) Given the substantial amount of time that was involved in pursuing jurisdictional discovery from 

HBML and related entities, however, they ultimately chose to defer these additional discovery efforts. 

With the January 30, 2019 denial of HBML's motion to dismiss, all of the Parties have met and 

conferred to prepare an Amended Joint Discovery Plan, filed concurrently herewith. In that plan, the 

Parties have laid out a general timeline for conducting discovery and proceeding to trial. 

9. Class Actions 

This case is not a class action. 

10. Related Cases 

There are no related cases or proceedings pending before another judge of this court or before 

another court or administrative body. 

11. Relief 

Plaintiffs seek an award of damages for the costs of cleanup work needed to meet applicable 

state and federal standards, in addition to attorneys' fees and statutory interest. Plaintiffs' estimated 

costs of cleanup are in the range of $35 to $65 million, with $42 million listed on the Successor 

Agency's most recent accounting of anticipated expenditures. Plaintiffs also seek injunctive and 

declaratory relief. 

HBML, Swagelok, Lozick, and Whitney dispute any legal responsibility or liability for the 

costs of cleanup and contend that Plaintiffs' damages are premature and speculative as a final remedy 

has not been ordered by any authorized governmental agency. HBML, Swagelok, Lozick, and 

Whitney also believe the cleanup costs will be substantially less than Plaintiffs' estimate. To the 

extent that they may be found liable for any contamination, HBML, Swagelok, Lozick, and Whitney's 

respective cross claims and counterclaims seek contribution with respect to any liability in excess of 

their allocable and/or separate and divisible share of such cleanup costs. Each of the counterclaims 

also seeks both injunctive and declaratory relief. 

LAW OFFICES OF 

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SAN FRANCISCO 

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12. Settlement and ADR 

The Parties met and conferred regarding ADR pursuant to Civil L.R. 16-8 and ADR L.R. 3-5 

and filed the required ADR certification documents. Pursuant to those provisions, the Parties have 

agreed to participate in private mediation upon completion of fact and expert discovery and after filing 

of dispositive motions or upon agreement by the Parties. 

13. Consent to Magistrate Judge for All Purposes 

Plaintiffs have declined to have a United States magistrate judge conduct any further 

proceedings in this case. (ECF No. 25.) 

14. Other References 

The Parties agree that this case is not suitable for reference to binding arbitration, a special 

master, or the Judicial Panel on Multidistrict Litigation at this time. 

15. Narrowing of Issues 

The Parties are not presently aware of any issues that can be narrowed by agreement. The 

parties reserve the right to seek further narrowing of issues if such a need arises. 

16. Expedited Trial Procedure 

The Parties do not believe that this is the type of case that should be handled under the 

Expedited Trial Procedure of General Order No. 64 Attachment A. 

17. Scheduling 

The Parties have met and conferred to discuss scheduling matters, including written discovery, 

depositions, expert witnesses, pretrial deadlines, and trial. The Parties have proposed a general 

timeline in their Amended Joint Discovery Plan, which is being filed concurrently herewith. 

18. Trial 

This case will be tried to the Court. As reflected in the Amended Joint Discovery Plan, the 

Parties currently estimate that the case will be ready for trial in October 2021. The Parties estimate 

that trial will take approximately three to four weeks. 

LAW OFFICES OF 

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SAN FRANCISCO 

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19. Disclosure of Non-party Interested Entities or Persons 

Because they are governmental entities, Plaintiffs are not required to file a Certificate of 

Interested Entities or Persons pursuant to Civil L.R. 3-16. Defendants have filed their respective 

Certificates of Interested Entities or Persons pursuant to Civil L.R. 3-16 (ECF Nos. 83, 86, 87, 148). 

20. Professional Conduct 

All attorneys of record for the Parties have reviewed the Guidelines for Professional Conduct 

for the Northern District of California. 

21. Other 

The Parties have not identified any other matters that may facilitate the just, speedy, and 

inexpensive disposition of this matter at this time. 

Dated: July 30, 2019 COX, CASTLE & NICHOLSON LLP 

By: /s/ Robert P. Doty 

Robert P. Doty 

Attorneys for Plaintiffs 

THE SUCCESSOR AGENCY TO THE FORMER 

EMERYVILLE REDEVELOPMENT AGENCY 

AND THE CITY OF EMERYVILLE 

Dated: July 30, 2019 BAKER & HOSTETLER LLP 

By: /s/ Joelle A. Berle 

John Parker 

Joelle A. Berle 

Attorneys for Defendants 

SWAGELOK COMPANY and 

WHITNEY RESEARCH TOOL CO. 

Dated: July 30, 2019 MANSOUR GAVIN 

By: /s/ Jeffrey M Embleton 

Jeffrey M. Embleton 

Samuel R. Martillotta 

Attorneys for Defendant 

CATHERINE LENNON LOZICK 

3 Concurrence in the filing of this document has been obtained from each of the other signatories. 

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Dated: July 30, 2019 WENDEL ROSEN BLACK & DEAN LLP 

By: /s/ Christine K Noma 

Christine K. Noma 

Attorneys for Defendant 

CATHERINE LENNON LOZICK 

Dated: July 30, 2019 K&L GATES LLP 

By: /s/ Belynda S. Reck 

Belynda S. Reck 

Kevin Asfour 

Attorneys for Defendant 

HANSON BUILDING MATERIALS LIMITED 

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