Dedham Water Co., In re
| Decision Date | 30 March 1990 |
| Docket Number | No. 90-1120,90-1120 |
| Citation | 901 F.2d 3 |
| Parties | In re DEDHAM WATER COMPANY and Dedham-Westwood Water District, Petitioners. |
| Court | U.S. Court of Appeals — First Circuit |
Thomas F. Holt, Jr., with whom Nancy B. Reiner, DiCara, Selig, Sawyer & Holt, Boston, Mass., John R. Cope and Bracewell & Patterson, Washington, D.C., were on brief, for plaintiffs, appellants.
Allan van Gestel with whom Henry C. Dinger, Christopher P. Davis, A. Lauren Carpenter and Goodwin, Procter & Hoar, Boston, Mass., were on brief, for defendants, appellees.
Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.
Dedham Water Company petitions the court for a writ of mandamus directing that the remanded proceeding in this case, pending in the United States District Court for the District of Massachusetts, be heard before a different district judge than the judge who originally heard the case. This petition follows hard upon our answer to an earlier motion for clarification. Obviously we did not successfully clarify matters and we accept our share of the blame for the present continuing confusion. We treat the present petition as a motion for further clarification and rule as follows.
We direct that this remand proceeding be handled by a judge other than the judge who originally heard and decided the case. We do so entirely without criticism of the original judge. We, believe, however, that a new judge is indicated under principles to which this circuit has adhered since at least 1967 when it decided Halliday v. United States, 380 F.2d 270, 272. Massachusetts Local Rule 8(i) grew out of those principles and should be interpreted consistently with them.
Local Rule 8(i) provides that when an appellate court remands for a new trial, "the case shall be reassigned to a judge other than the judge before whom the first trial was held." What is meant by a "new trial" may not always be self-evident, but in the present case our court made it plain that the proceeding on remand would be a new trial by characterizing it as such. In our original opinion in this case, we stated:
Since the district court failed to properly consider Dedham's claim that even if Cumberland's releases did not cause the contamination of Dedham's wells, Cumberland's releases and threatened releases caused it to incur response costs, there must be a new trial.
Dedham Water Co. v. Cumberland Farms Dairy, 889 F.2d 1146, 1154 (1st Cir.1989).
In the same opinion, we further stated:
For the same reasons discussed in the CERCLA section supra, we conclude that the plaintiff does not need to prove that actual releases of hazardous waste from defendant's property physically migrated and contaminated the plaintiff's property. Chapter 21E requires only that the release or threatened release of hazardous substance from defendant's property caused the plaintiff to incur reasonable response costs. There must, therefore, be a new trial as to liability and damages under that statute. Id. at 1156-57. See also id. at 1147-48 ().
In our recent Memorandum and Order of January 3, 1990, we stated that it was "implicit in our direction to hold a new trial on [the response costs] ... issue," that the district court could take additional evidence on that issue.
When a court of appeals reiterates the words "new trial" to this extent, we believe they should be accepted at face value.
We may have confused matters by also stating in our January 3, 1990 Memorandum and Order that we left the proper application of Local Rule 8(i), and the question of assignment of a new judge, to the district court. This diplomatic language was not intended, however, to sanction overriding the plain language of our original opinion and of the Local Rule.
Given our contribution to the confusion, we would overlook the district court's departure from our specific direction of a "new trial" were this merely a semantic issue. But there is more here than semantics. The remand proceeding directed in our opinion is of a character similar to those in previous cases where we have required a different judge. To be sure, we did not here authorize the district court to retry on remand the question of whether or not the hazardous substances released by Cumberland Farms had physically migrated into Dedham Water's well field and had contaminated it. As noted in our opinion, that factual issue was never appealed; it must now be regarded as resolved. Dedham Water, 889 F.2d at 1149. We did, however, expressly order a new trial with respect to whether the release or threatened release of a hazardous substance from Cumberland's property otherwise caused the plaintiff to incur reasonable response costs. We authorized the court--in addition to considering the full record and a "stipulation"--to take new evidence to whatever extent necessary to properly determine that issue in accordance with principles discussed in our opinion....
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