Dаvid BERG; Marge Berg, Plaintiffs-Appellants, v. David POPHAM; Tsukiko Popham, Defendants, and Norge Corporation, and its successors in interest; Magic Chef Corporation; Maytag Corporation; ABC Inc.; ABC Co.; ABC Corp., Defendants-Appellees.
No. 01-35807
United States Court of Appeals, Ninth Circuit
Filed June 24, 2005
1122
Argued Aug. 7, 2002. Submission Withdrawn Oct. 4, 2002. Resubmitted June 16, 2005.
The Government argues it was Singh‘s own fault that he did not receive the NTA because he failed to provide the INS with his change of address, as required under
Nor can the Government argue that Singh should have provided his change of address to the asylum offiсe before he left the U.S. An alien is excused from failing to notify the INS of a change of address, and as a consequence, failing to appear for an initial removal proceeding, if the Service never actually provided the alien with written notice of the address notification requirement, which is what happened here. See Lahmidi v. INS, 149 F.3d 1011, 1017 (9th Cir. 1998). It is true that
Accordingly, although the Service satisfied all of the jurisdictional requirements for Singh‘s removal proceedings, we conclude that Singh has demonstrated a failure to receive the NTA and any notice of the address notification requirements. Therefore, his motion to reopen should have been granted.
PETITION FOR REVIEW GRANTED and REMANDED to the Board, with direction to remand this matter to the IJ to reopen removal proceedings and to rescind the removal order.
GRANTED AND REMANDED.
Michael W. Flanigan, Walther & Flanigan, Anchorage, AK, for the plaintiffs-appellants.
ALARCÓN, Senior Circuit Judge:
This matter is bеfore us to review the Alaska state law questions presented by the parties to this dispute.1 This appeal presents a novel issue under Alaska law, i.e., is an entity subject to liability under
The Maytag Corporation (“Maytag“) moved to dismiss the second amended complaint filed by David and Marge Berg (“the Bergs“) for failure to state a claim upon which rеlief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Relying solely on federal decisions interpreting the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA“),
The Alaska Supreme Court accepted our requеst for certification for its interpretation of Alaska law. In its response to our request, the Alaska Supreme Court held that a manufacturer of a useful product can be held liable under
I
The Bergs filed this action in the Superior Court for the State of Alaska alleging, inter alia, that Maytag was liable for contribution pursuant to CERCLA and
Maytag removed the action to federal court, alleging federal question and diversity jurisdiction. Maytag moved to dismiss the Bergs’ first amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Bergs moved for leave to amend their complaint. The district court granted the Bergs leave to file a second amended complaint.
The Bergs alleged in their second amended complaint that they owned a dry-cleaning business in Anchorage, Alaska, from 1972 through 1978 and again from 1980 through 1983. The dry cleaning equipment was purchased from Norge Corporation (“Norge“) before 1972. Maytag is Norge‘s successor in interest.2 Norge recommended that the Bergs use PCE in the equipment as part of the dry-cleаning process. Norge designed the layout of the equipment and installed the dry-cleaning equipment and a water and PCE separator system that “facilitated spillage, leakage and direction of [PCE] into the city sewer system.”
In 1991, highway construction workers for the State of Alaska discovered PCE in the soil near the Bergs’ former dry-cleaning business. The State issued notices and filed liens on the Bergs’ assets to create a pool of funds to be used in decontamination efforts.
Maytag moved to dismiss the Bergs’ second amended complaint for failure to state a claim upon which relief can be granted. The district court granted Maytag‘s motion, in part, concluding that it could not be liable as an arranger or transporter under CERCLA or
II
The Bergs do not appeal from the portion of the district court‘s judgment dismissing their CERCLA claim. They assert, however, that the district court erred in dismissing their claim for contribution against Maytag under
We review ”de novo a district court‘s dismissal of a complaint: for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) ... and for judgment on the pleadings pursuant to Rule 12(c).” Arrington v. Wong, 237 F.3d 1066, 1069 (9th Cir. 2001). “A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle it to relief. All allegations of material fact are taken as true and construed in thе light most favorable to the nonmoving party.” Daniel v. County of Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002) (quotations and citation omitted).
In addition to imposing liability on “owners” and “operators,”
any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by the person, other than domestic sewage, or by any other party or entity, at any facility or vessel owned or operated by another party or entity and containing hazardous substances, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance[.]
CERCLA, by contrast, defines the liability of a person who arranges the release of a hazardous substance as
any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances оwned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances[.]
The Bergs alleged in their second amended complaint that Maytag installed defective dry-cleaning equipment at the Bergs’ dry-cleaning business that included a “still system [that] when used as directed spillеd [PCE] into the city sewer system[]” and a “water/[PCE] separator system that when used as directed, spilled [PCE] into the city sewer system.” The Bergs argue that the district court erred in determining that these allegations were insufficient to state a claim for arranger liability under
In construing CERCLA, we have recognized that “‘[n]o court has imposed arranger liability on a party who never owned or possessed, and never had any authority to control or duty to dispose of, the hazardous materials at issue.‘” United States v. Shell Oil Co., 294 F.3d 1045, 1058 (9th Cir. 2002) (quoting United States v. Iron Mountain Mines, Inc., 881 F. Supp. 1432, 1451 (E.D. Cal. 1995)). Maytag contends that it cannot be liable as an arranger because the Bergs have not alleged that it owned or possessed the hazardous substance that was released into the sewer system.
Because we found no controlling precedent in decisions of the Alaska Supreme Court interpreting the scope of the word “arranged” as used in
In answering our first certified question, the Alaska Supreme Court noted that “the Alaska legislature intended that CERCLA be used as a framework for interpreting section .822.” Berg, 113 P.3d at 608 (citing Bill Review letter from Douglas B. Baily, Attorney General, to Governor Steve Cowper on H.B. 68 (May 11, 1989), in Alaska State Archives, Series 1185, Record Group 91, Box No. 7892, File No. 883-89-0039). The Alaska Supreme Court explained that its review of federal cases, however, “disclosed no federal decision involving facts truly analogous to those of the present case.” Berg, 113 P.3d at 608. The Supreme Court of Alaska noted that, although Alaska law is generally modeled on CERCLA,
there is an important difference between section .822 and CERCLA. While CERCLA lists four classes of persons potentially responsible for the release of hazardous substances, subsection .822(a) lists five. Those potentially responsible under
§ 9607(a) are: (1) the owner and opеrator of a vessel or a facility from which hazardous substances were released; (2) the owner or operator of a facility where hazardous substances were disposed of, at the time of disposal; (3) arrangers; and (4) transporters of hazardous substances. Subsection .822(a)(1) adds to CERCLA‘s classes of PRPs “the owner of, and the person having control over, the hazardous substance at the time of the release.
Id. (citing
The Alaska Supreme Court explained that, in interpreting
[t]his difference between Alaska and federal law reflects our legislature‘s intent to expand liability beyond CERCLA‘s standards, even if section .822‘s legislative history is silent as to the interpretation and application of arranger liability specifically. While section .822 was modeled on CERCLA generally, it was revised in the months following the Exxon Valdez catastrophe, so its scope would be broader than that of its forebear ...
In light of the textual distinctions between the federal and state statutes, and based upon our review of the legislative history of section .822, we adopt a standard of arranger liability that is broader than that of the Ninth Circuit. Like most courts assigning arranger liability under CERCLA, we hold that arranger liability under
AS 46.03.822(a)(4) requires some “actual involvement in the deсision to dispose of waste” that was substantial or integral. However, we note that actual involvement in a decision to dispose of waste can encompass involvement in deciding how to dispose of waste or in facilitating such disposal. Involvement in deciding how to dispose of waste can, in turn, include actions such as designing, installing, or connecting a system that disposes of waste on behalf of a third party.
Id. 113 P.3d at 609 (quoting Gen. Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 286 & n. 27 (2d Cir. 1992) (per curiam)).
In interpreting
Like the supplier in R.R. Street, Norge visited and inspected the Bergs’ business and provided service and technical advice. While Norge did not actually conduct tests involving PCE, it did connect the dry cleaning equipment to the plumbing system. We apply the “actual involvement” standard artiсulated in R.R. Street because this standard conforms with the intent of the Alaska legislature when it revised section .822 and broadened arranger liability.
Berg, 113 P.3d at 610 (citing R.R. Street & Co., 81 S.W.3d at 284). The Alaska Supreme Court held:
Alaska Statute 46.03.822(a)(4) does not require that a person own, possess, have authority to control, or a duty to dispose of a hazardous substance for that person to face arranger liability for the release of that substance. Rather, under 46.03.822(a)(4), any person who was actually involved in a decision to dispose of, or а decision on how to dispose of, a hazardous substance may be liable.
After answering our first certified question in the negative, the Alaska Supreme Court resolved our second certified question concerning whether a person or entity lacking ownership, possession, authority, or a duty to dispose can be liable for making, selling, or installing a useful product that purposely directs hazardous substances into the environment. In answering this question, the Alaska Supreme Court first discussed the “useful product” exception, noting that “[federal courts] have consistently held that a manufacturer who does nothing more than sell a useful, albeit hazardous, product to an end user has not arranged for disposal of a hazardous substance.” Berg, 113 P.3d at 610 (citations omitted) (internal quotations omitted). “[E]ven a company distributing a hazardous chemical that later causes environmental harm can avoid liability as an arranger under CERCLA.” Id. “The key inquiry is often whether the alleged arrаnger‘s intent was to dispose of waste or to sell a product.” Id. (citing New York v. Solvent Chem. Co. Inc., 225 F. Supp. 2d 270, 281-82 (W.D.N.Y. 2002)).
The Alaska Supreme Court also stated:
[T]he Alaska legislature clearly intended section .822 to contain some exception from arranger liability for useful products.... The legislature enacted a law specifically designed to avoid imposing liability on “virtually everyone in the chain of commerce who had ever handled [a released hazardous] substance, even if that person had absolutely nothing to do with the release.”
Berg, 113 P.3d at 611 (quoting Floоr Memo for H.B. 68, Senate Judiciary Committee (undated), in Alaska State Archives, Box # 17568 (alteration in original)).
The Alaska Supreme Court noted, however, that none of the federal cases discussing the useful-product exception applied the doctrine to shield a party whose products or services were known to facilitate another party‘s disposal of hazardous materials.
[M]ost federal cases apply the exception to shield suppliers of tangible physical goods put to further productive use by their recipients. But this case deals with machines and services specifically designed to release hazardous sub-
stances as part of their essential function. As we noted above, the water/Perc separator flushed waste water into sewer lines, and post-vaporization PCE-contaminated sludge was also flushed into sewer lines. Thus, we are not persuaded that the useful product exception to seсtion .822 liability is applicable in this case.
Berg, 113 P.3d at 611-612 (citation omitted).
The Alaska Supreme Court concluded that “[t]he provider of a ‘useful product’ is not automatically liable under
Applying the Alaska Supreme Court‘s interpretation of
III
The Bergs also contend that the district court erred in dismissing their state law claims for contribution, equitable apportionment, and implied indemnity, which the Bergs argue are viable statutory causes of action independent of their claim for contribution under
The right to contribution in Alaska arises only by operatiоn of statute. Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 436 (Alaska 1979). Along these lines, the citizens of Alaska, by ballot initiative, eliminated the statutory right to contribution for injuries occurring after March 5, 1989. Benner v. Wichman, 874 P.2d 949, 955-56 (Alaska 1994). The Bergs therefore cannot have a state law claim for contribution for injury occurring after this date. Prior to March 5, 1989, a contribution claimant was required to show that 1) the claimant and the contribution defendant are both tortfeasors who are joint and severally liable for the same injury, 2) the claimant has paid more than its pro rata share of the common liability, 3) the claimant has extinguished the contribution defendant‘s liability, and 4) if the liability is extinguished by settlement, the amount was reasonable.
The Bergs also lack a valid claim for equitable apportionment under
The Bergs’ claim for indemnity against Maytag also fails. The Bergs failed to allege in their comрlaint that Maytag expressly or impliedly agreed to indemnify them. “Express and implied contractual indemnity claims require proof of a contract to indemnify....” AVCP Reg‘l Hous. Auth. v. R.A. Vranckaert Co. Inc., 47 P.3d 650, 655-56 (Alaska 2002). Additionally, to state a claim for recovery under an implied contractual indemnity theory, the Bergs were required to allege that Maytag‘s liability was extinguished. Id. at 658. The Bergs did not allege that Maytag‘s potential liability to the State of Alaska was extinguished.
IV
Finally, the Bergs argue that the district court abused its discretion in imposing sanctions against their attorney pursuant to
CONCLUSION
We hold that the district court erred in determining that the Bergs’ allegations that Maytag installed the dry-cleaning equipment that included a “still system [that] when used as directed spilled [PCE] into the city sewer system[]” and a “water/[PCE] separator system that when used as directed, spilled [PCE] into the city sewer system,” were not sufficient to support a claim for arranger liability under
VACATED and REMANDED in part; AFFIRMED in part; DISMISSED in part. The parties shall bear their own costs on appeal.