City of Colton, a California municipal corporation v. American Promotional Events, Inc. - West;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF COLTON, a California
municipal corporation,
Plaintiff - Appellee,
v.
AMERICAN PROMOTIONAL EVENTS,
INC. - WEST; et al.,
Defendants,
PYROTRONICS CORP.; et al.,
Defendants,
and
PYRO SPECTACULARS, INC.,
Defendant - Appellant,
v.
UNITED STATES DEPARTMENT OF
DEFENSE,
Third-party-defendant -
No. 06-56727
D.C. No. CV-05-01479-JFW
MEMORANDUM *
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Appellee.
CITY OF COLTON, a California
municipal corporation,
Plaintiff - Appellee,
v.
AMERICAN PROMOTIONAL EVENTS,
INC. - WEST; et al.,
Defendants,
KWIKSET LOCKS, INC.; et al.,
Defendants,
and
GOODRICH CORPORATION,
Defendant - Appellant,
v.
UNITED STATES DEPARTMENT OF
DEFENSE,
Third-party-defendant -
Appellee.
No. 07-55027
D.C. No. CV-05-01479-JFW
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

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The City of Colton’s appeal in No. 06-56718 is addressed in an opinion1
filed concurrently with this memorandum disposition.
3
Argued and Submitted January 11, 2010
Pasadena, California
Before: GOODWIN, CANBY, and O’SCANNLAIN, Circuit Judges.
Goodrich Corporation (“Goodrich”) and Pyro Spectaculars, Inc. (“PSI”)
cross-appeal from the dismissal of their counterclaims and cross-claims for cost
recovery under section 107(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a). The1
facts are known to the parties, and we do not repeat them here except as necessary.
I
We reject the contention that the cross-appeals are moot because Goodrich
and PSI have asserted similar cost recovery claims in subsequent proceedings.
“The mere pendency of parallel actions seeking the same relief does not of itself
moot either action.” 13A Charles Alan Wright et al., Federal Practice &
Procedure § 3533.2.1 (3d ed. 2009).
II
The district court held that Goodrich and PSI did not plead claims for cost
recovery, but rather for contribution only. Even if Goodrich captioned its claims as

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4
for contribution only, it is the substance of the claim rather than the caption that
controls. See Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1064 n.2
(9th Cir. 2002). Goodrich alleged not only all of the elements of a prima facie
claim for cost recovery, see Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d
863, 870-71 (9th Cir. 2001) (en banc), but also sufficient facts to provide “general
notice of the nature of the CERCLA claim,” Ascon Props., Inc. v. Mobil Oil Co.,
866 F.2d 1149, 1156 (9th Cir. 1989). Furthermore, Goodrich’s pleadings
specifically sought “reimbursement . . . for all response costs” as well as “cost
recovery . . . for past and future response costs.” We are thus satisfied that
Goodrich adequately pled claims under section 107(a).
Although PSI did not seek to recover its response costs in its cross-
complaint, the parties stipulated in Case Management Order 2 that “[e]ach
defendant . . . is deemed to assert cross-claims under CERCLA sec. 107(a) for
response costs . . . against each separately represented defendant.” This pretrial
order “controls the course of the action,” Fed. R. Civ. P. 16(d), and is binding on
the parties, Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 996 (9th Cir.
2009). Moreover, PSI’s cross-complaint alleged all of the necessary elements of a
prima facie section 107(a) claim as well as sufficient facts to put the other

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Both Goodrich and PSI agree that they asserted no cost recovery claims2
against the United States Department of Defense, which is therefore not a proper
party to this appeal.
5
defendants on notice of the nature of the claim. Consequently, we are satisfied that
PSI asserted claims under section 107(a).2
III
The district court also held that to the extent Goodrich alleged claims under
section 107(a), it did so solely to effectuate its claims for contribution. In so
holding, the district court relied upon Pinal Creek Group v. Newmont Mining
Corp., in which we held that “a claim by one PRP [potentially responsible party]
against another PRP necessarily is for contribution,” and that sections 107 and 113
work together to “provide and regulate a PRP’s right to claim contribution from
other PRPs.” 118 F.3d 1298, 1301 (9th Cir. 1997).
Subsequent to the district court’s decision, the Supreme Court clarified that
“§§ 107(a) and 113(f) provide two clearly distinct remedies,” the former for
recovery of clean-up costs incurred by a private party, and the latter for
contribution “upon an inequitable distribution of common liability among liable
parties.” United States v. Atl. Research Corp., 551 U.S. 128, 138-39 (2007)
(internal quotation marks omitted). Accordingly, we overruled Pinal Creek’s
holding that an action between PRPs is necessarily for contribution. Kotrous v.

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In light of the foregoing, we need not consider whether the district court’s3
dismissal of these claims was procedurally improper.
6
Goss-Jewett Co. of N. Cal., Inc., 523 F.3d 924, 933 (9th Cir. 2008). We explained
that “[u]nder Atlantic Research, a PRP . . . that incurs costs voluntarily, without
having been subject to an action under § 106 or § 107, may bring a suit for
recovery of its costs under § 107(a).” Id.
In light of Atlantic Research and Kotrous, we conclude that both Goodrich’s
and PSI’s section 107(a) counterclaims and cross-claims for cost recovery should
have survived the district court’s grant of summary judgment on Colton’s claims.
We therefore vacate the order of the district court to the extent that it dismisses
Goodrich’s and PSI’s section 107(a) claims. On remand, the district court shall3
consider the merits of these claims in the first instance.
VACATED and REMANDED.

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