Chappell v. SCA Services, Inc.

• Decision Date: 03 May 1982
• Docket Number: No. 82-3043.,82-3043.
• Parties: Dale L. CHAPPELL; Richard and Frances Balestri; David and Pamela Zaksas; Frank and Marie Molinar; James and Barbara Mussatto; James and Rosetta Kilgore; Joe and Sharon Borgini; Elvin and Gladys Sawyer; Joe and Marie Bertetto; Dennis and Albena Bruckert; Gwen Molinar; Frank and Helen Aghetta, as representatives of a class of all residents of the Village of Wilsonville and owners of unincorporated territory located within a 5 mile radius of the Village of Wilsonville, Plaintiffs, v. SCA SERVICES, INC., Earthline Corporation, and James Douglas Andrews, Defendants.
• Court: U.S. District Court — Central District of Illinois

540 F. Supp. 1087

Dale L. CHAPPELL; Richard and Frances Balestri; David and Pamela Zaksas; Frank and Marie Molinar; James and Barbara Mussatto; James and Rosetta Kilgore; Joe and Sharon Borgini; Elvin and Gladys Sawyer; Joe and Marie Bertetto; Dennis and Albena Bruckert; Gwen Molinar; Frank and Helen Aghetta, as representatives of a class of all residents of the Village of Wilsonville and owners of unincorporated territory

located within a 5 mile radius of the Village of Wilsonville, Plaintiffs, v. SCA SERVICES, INC., Earthline Corporation, and James Douglas Andrews, Defendants.

No. 82-3043.

United States District Court, C. D. Illinois, Springfield Division.

May 3, 1982.

Verticchio & Verticchio, Gillespie, Ill., James C. Craven, Londrigan & Potter, P. C., Springfield, Ill., for plaintiffs.

Thomas W. Weaver, Thomas M. McMahon, Robert M. Olian, Sidley & Austin, Chicago, Ill., Frederick C. Prillaman, Roger W. Holmes, Mohan, Alewelt & Prillaman, Gary M. Peplow, Heyl, Royster, Voelker & Allen, Springfield, Ill., for SCA Services, Inc.

Raymond L. Terrell, Drach, Terrell & Deffenbaugh, P. C., Springfield, Ill., for James Andrews.

ORDER

J. WALDO ACKERMAN, Chief Judge.

This matter is before the Court upon plaintiffs' motion to remand the case to the Macoupin County Circuit Court after defendant SCA Services, Inc. removed the case to this Court. The suit is a class action brought on behalf of the residents of the Village of Wilsonville, seeking damages for property losses and personal injury which resulted from the creation, maintenance and operation of a hazardous-chemical-waste landfill containing polychlorinated byphenyls (PCB's), together with other toxic waste substances, near Wilsonville. The Macoupin County Circuit Court, after 104 days of trial, concluded that the hazardous waste landfill constituted both a private and public nuisance. The court enjoined defendant SCA Services, Inc. from operating the landfill and ordered SCA to remove all toxic waste buried there and to restore and reclaim the site.

The Illinois Appellate Court for the Fourth District and the Illinois Supreme Court have affirmed the trial court's judgment. See 77 Ill.App.3d 618, 33 Ill.Dec. 163, 396 N.E.2d 552 (1979); 86 Ill.2d 1, 55 Ill. Dec. 499, 426 N.E.2d 824 (1981), respectively.

The instant action was filed to recover damages which have accrued as a result of this nuisance. The named defendants are SCA Services, Inc., a Delaware corporation with its principal place of business in Boston, Massachusetts; Earthline Corporation, a corporation which had been merged with SCA prior to the commencement of this action; and, James Douglas Andrews, a citizen of Illinois.

Count I of the Complaint seeks damages from SCA as a result of the nuisance it has operated near Wilsonville. Plaintiffs claim damages for actual interference with the enjoyment of their real property, including past and future damages to their crops, residences and underground water supplies, and for the substantial diminution in property value which has occurred because of the proximity of the landfill to the village. Count II of the Complaint is a claim for personal injuries which have resulted from the maintenance of this nuisance, including burning eyes, running noses, headaches, nausea and exposure to carcinogenic elements. Count III seeks punitive damages against SCA on the basis that it acted with reckless indifference to the safety of the public and on the basis of affirmative misrepresentations allegedly made to the village concerning the character of the wastes to be stored at the site. Count IV alleges that James Andrews organized Earthline Corporation to operate a landfill site for toxic wastes and then sold Earthline to SCA. Plaintiffs claim that Andrews conspired with Earthline Corporation to create and maintain a public and private nuisance. In furtherance of that conspiracy, plaintiffs contend that Andrews, inter alia, acquired an interest in land adjacent to the village; misrepresented to the Illinois Environmental Protection Agency (IEPA) and the United States Environmental Protection Agency (EPA) that the village was a safe location for a landfill operation; submitted false permeability studies to IEPA and EPA; and, submitted false reports concerning the likelihood of subsidence in the area.

Count IV also alleges that Andrews further conspired with Earthline and SCA to personally profit and to insulate himself and Earthline from all liability for creation of the nuisance by merging Earthline with SCA. As a result of the conspiracy to create and maintain this nuisance, plaintiffs claim compensatory and punitive damages for personal injuries and property losses.

Defendant SCA has removed this case pursuant to 28 U.S.C. § 1441, asserting that this Court has both diversity and federal question jurisdiction over this suit. 28 U.S.C. § 1332 and 28 U.S.C. § 1331, respectively. Defendant contends that there is a separate and independent claim against it which also supports removal of the entire case.

Diversity Jurisdiction

Generally speaking, for diversity of citizenship to serve as the basis for removal jurisdiction, it must exist both at the time the original action is filed in the state court, and at the time removal is sought. 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3723 at 592 (1976); 1A Moore's Federal Practice, ¶ 0.1611 at 207 (2d ed. 1981). Defendant contends that complete diversity existed at the time the petition for removal was filed, notwithstanding defendant Andrews' Illinois citizenship. It argues that Andrews had not been served with the complaint at the time the petition for removal was filed. Thus, SCA contends, he was not a defendant "properly joined and served" as required by 28 U.S.C. § 1441(b). Consequently, it argues that since the only resident, non-diverse defendant was not served at the time the petition for removal was filed, the case was properly removed.

This argument is completely lacking in merit.

A party whose presence would destroy diversity must be formally dropped as a matter of record to permit removal. It is insufficient, for example, that service of process simply has not been made on a nondiverse party; the case may not be removed until that party actually has been dismissed.

14 Wright, Miller & Cooper, Federal Practice and Procedure § 3723 at 597-98 (1976). The fact that service has not yet been made on the resident defendant is insufficient to allow his citizenship to be disregarded. Pullman Co. v. Jenkins, 305 U.S. 534, 541, 59 S.Ct. 347, 350, 83 L.Ed. 334 (1939); 1A Moore's Federal Practice, ¶ 0.1612 at 210-11 (2d ed. 1981). Accord, Pecherski v. General Motors Corp., 636 F.2d 1156, 1160 (8th Cir. 1981); Preaseau v. Prudential Insurance Co., 591 F.2d 74, 78-9 (9th Cir. 1979); Armstrong v. Monex International, Ltd., 413 F.Supp. 567, 570-71 (N.D.Ill.1976).

This is not a case where a plaintiff joins a resident defendant, but fails to ever serve him and commences trial without completing service of process on him. Here, the complaint was filed in state court on February 2, 1982. Plaintiff requested that summons be issued as to all defendants. The petition for removal was filed on February 12, 1982. In fact, the petition was filed prior to service of the complaint on SCA itself.

This case is a prime example of why the citizenship of an unserved resident defendant should not be ignored. Simultaneous service of multiple defendants is rarely possible. Thus, removal could be proper one day when service of the nonresident defendant was completed, but improper the next day when service had been completed on all defendants. The rule thus avoids unnecessary jurisdictional problems. Pecherski v. General Motors Corp., 636 F.2d 1156, 1161 n.6 (8th Cir. 1981); 1A Moore's Federal Practice, ¶ 0.1683-2 at 451 (2d ed. 1981).

SCA also contends that diversity exists because James Andrews, the resident defendant, was fraudulently joined to defeat removal jurisdiction. SCA argues that the complaint so clearly fails to state a cause of action under Illinois law that it is frivolous and should be regarded as fraudulent. First, SCA asserts that the complaint merely charges Andrews with conspiracy to create and maintain a nuisance. It contends that conspiracy is not an actionable tort in itself under Illinois law and, therefore, there can be no recovery against Andrews.

Plaintiffs do not dispute that conspiracy in and of itself is not actionable. However, plaintiffs have charged the defendants with conspiracy to create and maintain a public and private nuisance. In other words, plaintiffs contend that the defendants agreed to do an actionable wrong together. Ammons v. Jet Credit Sales, Inc., 34 Ill.App.2d 456, 181 N.E.2d 601 (1960), a case relied on by SCA, does not support its position. In that case, the acts which defendants allegedly conspired to do were not actionable wrongs. Therefore, conspiring to do them was not actionable. The court there said:

In a civil case the wrongful acts alleged to have been done in pursuance of a conspiracy, and not the fact of the conspiracy itself, is the gist of the action for damages ... The charge of conspiracy is merely an aggravation of the alleged wrongful acts; it serves the purpose of associating all the defendants with the acts done, and the declarations made, by any one of the defendants in pursuance of the conspiracy ... Inasmuch as the acts of the defendants in this case were neither criminal nor civil wrongs for which damages can be recovered, the charge of conspiracy adds nothing to the amended complaint.

Id. at 465, 181 N.E.2d 601. (Citations omitted). Accordingly, the allegations of this complaint sufficiently allege an actionable conspiracy, since creation of a nuisance is itself an actionable wrong.

Next, SCA maintains that the complaint is fatally deficient because it alleges that only Andrews and Earthline conspired to create and maintain a public and...