Gopher Oil Co., Inc. v. Union Oil Co. of California

• Decision Date: 15 February 1991
• Docket Number: Civ. No. 4-88-16.
• Citation: 757 F. Supp. 998
• Parties: GOPHER OIL COMPANY, INC., a Minnesota corporation, Plaintiff, v. UNION OIL COMPANY OF CALIFORNIA, a California corporation, Defendant.
• Court: U.S. District Court — District of Minnesota

757 F. Supp. 998

GOPHER OIL COMPANY, INC., a Minnesota corporation, Plaintiff, v. UNION OIL COMPANY OF CALIFORNIA, a California corporation, Defendant.

Civ. No. 4-88-16.

United States District Court, D. Minnesota, Fourth Division.

February 15, 1991.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lawrence C. Brown, Delmar R. Ehrich, Brian Boru O'Neill, Paul M. Vaaler, Faegre & Benson, Minneapolis, Minn., for plaintiff.

Joe A. Walters, Ann Meredith-Will, Corey John Ayling, O'Connor & Hannan, Minneapolis, Minn., for defendant.

ORDER

DOTY, District Judge.

This matter is before the court on plaintiff's motion for certification pursuant to 28 U.S.C. § 1292(b), plaintiff's application for fees and other expenses, defendant's renewed motion for a new trial, and defendant's motion for amendment of the judgment entered in this case on November 20, 1990.¹

For the reasons stated herein, plaintiff's motion for certification will be granted in part and denied in part, plaintiff's application for fees and other expenses will be granted in part and denied in part, defendant's renewed motion for a new trial will be denied, and defendant's motion for amendment of the judgment will be denied.

BACKGROUND

Plaintiff Gopher Oil Company, Inc. ("Gopher Oil" or "Gopher") initiated this action against defendant Union Oil Company of California, Inc. ("Union Oil" or "Union") under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-9675 ("CERCLA"), the Minnesota Environmental Response and Liability Act, Minn.Stat. §§ 115B.01-115B.37 ("MERLA") and various Minnesota common law theories. The facts applicable to this motion are set forth in this court's order dated October 12, 1990, and are hereby incorporated by reference. In an order dated November 20, 1990, this court ordered that:

1. There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the clerk shall enter final judgment in the amount of $423,272.81 plus prejudgment interest in the amount of $93,572.34 plus post-judgment interest in the amount of $4,794, against defendant Union Oil Company of California and in favor of plaintiff Gopher Oil Company, Inc.

2. There being no just reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the clerk shall enter final judgment declaring that defendant Union Oil Company of California is solely responsible for the future costs of investigating, cleaning up and otherwise responding to the contaminated site located at 825 Thornton Avenue S.E., Minneapolis, Minnesota, and also declaring that defendant Union Oil Company of California is 100 percent liable for any necessary response costs and for future reasonable and necessary removal costs plaintiff Gopher Oil Company, Inc. may incur in connection with the contaminated site located at 825 Thornton Avenue S.E., Minneapolis, Minnesota.

3. The court will retain jurisdiction over plaintiff's fraud claim and will determine the damages due thereunder after the cleanup at the Thornton Avenue site has been substantially completed.

Gopher Oil Company, Inc. v. Union Oil Company of California, Inc., 757 F.Supp. 988 at 997-998 (D.Minn.1990) hereinafter Order dated November 20, 1990.

A. Plaintiff's Motion for Certification Pursuant to 28 U.S.C. § 1292(b)

On December 19, 1990, Union Oil filed a notice of appeal to the United States Court of Appeals for the Eighth Circuit. Union Oil indicated that it was appealing from paragraphs 1 and 2 of this court's order dated November 20, 1990. Gopher Oil now moves the court pursuant to 28 U.S.C. § 1292(b) for an order allowing it to appeal immediately paragraph 3 of the order dated November 20, 1990.²

28 U.S.C. § 1292(b) provides in pertinent part:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b) (1988). Applying this statute to paragraph 3 of the November 20, 1990, order leads to the conclusion that Gopher Oil's motion for an immediate appeal should be granted.

Paragraph 3 of the November 20, 1990, order is "not otherwise appealable" under 28 U.S.C. § 1292. See 28 U.S.C. § 1292(a), (c) & (d) (1988). Moreover, in paragraph 3 the court retained jurisdiction over Gopher Oil's fraud claim. No final judgment has been entered on the fraud claim and thus that portion of the court's order is not a final decision and not appealable pursuant to 28 U.S.C. § 1291. See 28 U.S.C. § 1291 (1988).

Discretionary appeal from an interlocutory order of the district court is permitted if the district judge certifies in writing that the order (1) "involves a controlling question of law," (2) "as to which there is substantial ground for a difference of opinion," and (3) "that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure: Jurisdiction § 3930 (1977). An order may be amended to include the prescribed statement of § 1292(b) at any time. Fed.R.App.P. 5(a).

Union Oil maintains that an immediate appeal of paragraph 3 is improper for several reasons. Union Oil asserts that Gopher Oil has failed to identify a controlling question of law within the meaning of § 1292(b), that the issue Gopher Oil seeks to appeal is not ripe for review, and that whether this court abused its discretion in applying Minnesota common law is not a controlling issue of law as to which there is substantial ground for difference of opinion. The court will address each of these assertions as it applies to the requirements of § 1292(b).

First, the court must determine whether paragraph 3 of the November 20, 1990, order involves a controlling question of law. Union Oil contends that Gopher Oil has failed to identify a controlling question of law within the meaning of § 1292(b). In support of this contention, Union points to the question of law Gopher requests this court to certify. That question reads:

Did the district err in its order determining that plaintiff's CERCLA and MERLA remedies pre-empt available remedies under Minnesota common law, including plaintiff's out-of-pocket damages for defendant's fraud until such undetermined future time as the environmental cleanup of the plaintiff's polluted property under CERCLA and MERLA is substantially complete?

(Plaintiff's Memorandum in Support of Motion for Certification Pursuant to 28 U.S.C. § 1292(b) at 4). Union Oil argues that this proposed question of law does not accurately reflect the reasoning which underlies paragraph 3. Union Oil asserts that because the court did not expressly or impliedly order that Gopher Oil's remedies under CERCLA and MERLA replaced Gopher Oil's remedies for fraud, pre-emption is not an issue. Union Oil's contention has some merit. Consequently, the court will not certify to the Eighth Circuit the specific question Gopher Oil has proposed. Contrary to Union Oil's contention, however, Gopher Oil's failure to accurately identify the controlling question of law in this case does not mean that such a question does not exist.

Union Oil next contends that the issue Gopher Oil seeks to appeal is not ripe for review. In its order dated October 12, 1990, the court explained more fully its order contained in paragraph 3. The court stated:

It is necessary to consider the effect that the cleanup activities which CERCLA and MERLA dictate will have on the value of the property. Because this cleanup has not yet occurred, the court does not have a sufficiently established factual basis on which to render a decision on the plaintiff's fraud claim. Accordingly, the court will order entry of judgment on the CERCLA and MERLA claims but will retain jurisdiction over the fraud claim until the ordered cleanup has been substantially completed. When the cleanup of the site is substantially complete, the court will receive evidence on the value of the clean property and will then make a determination of what relief plaintiff is entitled to under its fraud claim.

Gopher Oil Company, Inc. v. Union Oil Company of California, Inc., 757 F.Supp. 988, 996 (D.Minn.1990). hereinafter Order dated October 12, 1990, 757 F.Supp. 988. Union Oil maintains that because the site has not yet been cleaned up, the value of the cleaned up property is unknown and thus the factual record is not sufficiently developed to allow the Eighth Circuit to review this court's order. Moreover, Union Oil suggests that the Eighth Circuit has expressed an unwillingness to grant interlocutory appeals where there is an incomplete factual and legal record. In support of this proposition Union Oil cites Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir.1979), rev'd on other grounds, 727 F.2d 692 (1984); Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977); Control Data Corp. v. International Business Machine Corp., 421 F.2d 323, 326 (8th Cir.1970).

Union Oil is correct in contending that the factual record pertinent to paragraph 3 is incomplete. The incomplete factual record does not present an insurmountable barrier to certification, however. Whether this court should allow an immediate appeal of paragraph 3 depends in large measure on how the issue to be appealed is characterized. The court's characterization of the issue to be appealed is at odds with the parties' characterizations. Gopher Oil asserts that the issue to be appealed is inextricably bound up with the pre-emption issue. Union Oil responds that there is no pre-emption issue and that paragraph 3 is not ripe for review because the value of the cleaned up site is as...