United States District Court, D. Rhode Island
GAIL, JOHN D. and John F. CORVELLO, et al., Plaintiffs,
NEW ENGLAND GAS COMPANY, INC., Defendant; KEVIN BURNS, et al., Plaintiffs,
SOUTHERN UNION COMPANY dba FALL RIVER GAS AND NEW ENGLAND GAS, Defendants; COLLEEN BIGELOW, et al., Plaintiffs,
NEW ENGLAND GAS COMPANY, formerly known as FALL RIVER GAS COMPANY, an unincorporated division of SOUTHERN UNION COMPANY, Defendants; SHEILA REIS, et al., Plaintiffs,
SOUTHERN UNION COMPANY dba FALL RIVER GAS AND NEW ENGLAND GAS, Defendants.
MEMORANDUM & ORDER DENYING, IN PART, AND GRANTING, IN PART, MOTION TO RECUSE AND DENYING MOTION TO SEAL
ERNEST C. TORRES SENIOR U.S. DISTRICT JUDGE
New England Gas Company ("NEG"), an unincorporated division of Southern Union Company, has moved that this Court recuse itself from presiding over any further matters in these four consolidated cases because the Court, already, has indicated that it will recuse itself from presiding over any future trial. In addition, the plaintiffs have moved to seal a motion and supporting memorandum that they have filed to enforce what they allege was a settlement agreement reached on April 22, 2008 between them and NEG (the "Motion to Enforce").
For the reasons hereinafter stated, the Motion to Recuse is denied, in part, and granted, in part, and the Motion to Seal is denied.
The plaintiffs are approximately 150 residents of Tiverton, Rhode Island, who allege that their properties have been contaminated by hazardous substances that NEG caused to be buried there. In 2002, when the hazardous substances were discovered, the Town of Tiverton ("Town") imposed a moratorium on the issuance of building or excavation permits in what is referred to as the "moratorium area" until the area was remediated.
In May 2005, the plaintiffs brought these actions against NEG seeking damages and injunctive relief. In November 2007, more than two years after these actions were brought and just before discovery was scheduled to close, NEG filed third-party claims for indemnity and/or contribution against the Town and a number of business entities, claiming they were responsible for all or part of the contamination. The Town counterclaimed against NEG, alleging that Town streets and rights-of-way in the moratorium area also had been contaminated. Assertion of the third-party claims required postponement of the trial which had been scheduled to begin in January 2008.
Shortly thereafter, this Court bifurcated the trial into two phases. Phase I was to consist of the plaintiffs' claims against NEG and trial of that phase was scheduled to begin on April 24, 2008. Phase II was to consist of the third-party claims by NEG and the Town's counterclaim against NEG and discovery with respect to the Phase II claims was stayed until after conclusion of the Phase I trial.
Several weeks before the Phase I trial was to begin, the plaintiffs and NEG made an effort to settle the case by participating in a mediation conducted by Professor Eric Green and, on April 3, 2008, the Court was informed that an agreement had been reached to settle the plaintiffs' claims against NEG. One of the terms of that agreement was that NEG would underwrite the cost of remediating the plaintiffs' properties, provided that the parties could develop a remediation plan acceptable to the plaintiffs and DEM and that the cost of implementing the plan was acceptable to NEC Based on that "agreement, " counsel for the plaintiffs and NEG requested that the Phase I trial be postponed for several months. The Court rejected that request on the ground that the purported "settlement" was nothing more than an "agreement to try to agree" that did not present a sufficient likelihood of finality to justify any further delay in resolving the plaintiffs' claims.
On April 22, 2008, counsel for the plaintiffs and NEG requested a conference with the Court at which they informed the Court that they had reached a more definitive "settlement." They described the agreement as calling for NEG to pay a specified sum of money in satisfaction of the plaintiffs' claims for damages and remediation of their properties, in exchange for which the plaintiffs would assume responsibility for the remediation work. The agreement also gave the plaintiffs the option to rescind it if the remediation costs exceeded $3 million. The Court required that the "agreement" be placed on the record and granted the parties' request to postpone the trial until late September in order to give the plaintiffs an opportunity to determine what the remediation costs would be. The Court, also, granted the parties' request that the transcript be sealed.
Although the parties apparently recognized that the Town's agreement to lift its moratorium would be necessary, there was no indication that the Town was a party to the negotiations leading to the April 22 "Settlement Agreement" and the Town did not participate in the April 22 conference.
In June, and again in September, NEG served extensive discovery requests on the third-party defendants, presumably, because it believed that the Phase I claims had been resolved and that, therefore, the order staying discovery with respect to the Phase II claims was no longer in effect.
In mid-October, the Court was informed that a dispute had arisen between the plaintiffs and NEG with respect to implementation of the April 22 "Settlement Agreement" and that no settlement had been reached with respect to the claims between NEG and the Town which, according to NEG, was a condition of the April 22 "Settlement Agreement." Consequently, the Court scheduled a conference with the counsel for the plaintiffs, NEG and the Town.
On October 22, 2008, the Court met with counsel for the plaintiffs, NEG and the Town in order to see whether there was some way to resolve their disputes. After briefly outlining the issues and referring to the possibility that a motion to enforce the April 22 "Settlement Agreement" might be made, plaintiffs' counsel expressed optimism that the issues could be resolved with the Court's help. The Court agreed that, because of its familiarity with the case, it might be able to help the parties reach agreement but that doing so "would require me to recuse myself from trying the case" but not "from hearing any motion. . . to enforce the settlement." October 22, 2008 Tr. at 26-27. The Court asked counsel whether, knowing that, they still wanted the Court to "try to broker some kind of an agreement." Id. at 28. When all counsel replied affirmatively, the Court conducted what amounted to a mediation that lasted the better part of two days.
The discussions that took place consisted of:
1. Discussions in which the plaintiffs, NEG and the Town all participated and which dealt, primarily, with the manner in which the discussions would be conducted;
2. Discussions in which only the plaintiffs and NEG participated which focused on what NEG maintained were the plaintiffs' obligations under the April 22 "Settlement Agreement" and discussions in which only NEG and the Town participated which focused on efforts to resolve the claims between them;
3. Ex parte discussions between the Court and each party in which the Court explored ways in which the disputed matters might be resolved as well as the strengths and weaknesses of the positions taken by NEG and the Town with respect to their claims against one another. The Court assured the parties, in advance, that anything they might tell the Court in confidence would not be disclosed without their consent.
Although the discussions appeared to resolve the disputes between the plaintiffs and NEG, efforts to settle the claims by NEG and the Town against one another were unsuccessful. Since NEG maintained that settlement of those claims was a condition of the April 22 "Settlement Agreement, " an impasse was reached which, eventually, led the plaintiffs to file their Motion to Enforce.
The Motion to Recuse
NEG makes two arguments in support of its Motion to Recuse. First, it argues that the Court recused itself and therefore should take no further action in the case. Second, NEG argues that, even if the Court did not formally recuse itself, it should take no further action in the case because it expressed an intent to recuse itself. Neither of those arguments is persuasive.
I. Actual Recusal
On page two of its memorandum, NEG accurately quotes the Court as saying that it "would recuse itself from trying this case." However, in its argument, NEG cites authority for the proposition that the "trial judge who has recused himself" should not take any further action in the case.
That argument appears to be based on the erroneous premise that recusal already had taken place even though no recusal order had been filed. Thus, in its memorandum, NEG asserts that, in a conference occurring on November 5, 2008, "the Court once again stated that it had recused itself from trial of the case." NEG's Mem. at 3 (emphasis added). Unfortunately, since the purpose of the conference was merely to ascertain whether continuing settlement negotiations between NEG and the Town had borne any fruit, it was not recorded. However, the Court's recollection is that what it "once again stated" was ...