                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            AUG 02 2010

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

CITY OF COLTON, a California                     No. 06-56727
municipal corporation,
                                                 D.C. No. CV-05-01479-JFW
             Plaintiff - Appellee,

  v.                                             MEMORANDUM *

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 -


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appellee.




CITY OF COLTON, a California                  No. 07-55027
municipal corporation,
                                              D.C. No. CV-05-01479-JFW
            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.



                  Appeal from the United States District Court
                     for the Central District of California
                   John F. Walter, District Judge, Presiding
                      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).1 The

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



      1
        The City of Colton’s appeal in No. 06-56718 is addressed in an opinion
filed concurrently with this memorandum disposition.

                                         3
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




                                           4
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.


      2
        Both Goodrich and PSI agree that they asserted no cost recovery claims
against the United States Department of Defense, which is therefore not a proper
party to this appeal.

                                            5
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.3 On remand, the district court shall

consider the merits of these claims in the first instance.

      VACATED and REMANDED.




      3
       In light of the foregoing, we need not consider whether the district court’s
dismissal of these claims was procedurally improper.

                                             6
