City of East St. Louis v. Monsanto Co.

• Decision Date: 14 November 2022
• Docket Number: 3:21-cv-00232-DWD
• Parties: CITY OF EAST ST. LOUIS, Plaintiff, v. MONSANTO CO., PHARMACIA LLC, and SOLUTIA, INC., Defendants.
• Court: U.S. District Court — Southern District of Illinois

CITY OF EAST ST. LOUIS, Plaintiff, v. MONSANTO CO., PHARMACIA LLC, and SOLUTIA, INC., Defendants.

No. 3:21-cv-00232-DWD

United States District Court, S.D. Illinois

November 14, 2022

MEMORANDUM & ORDER

DAVID W. DUGAN UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff's Motion to Strike Defendants' Affirmative Defenses (“Motion”) (Doc. 87) related to the statutes of limitations, the statute of repose laches, and estoppel. Defendants filed a Response in Opposition to the Motion (Doc. 98). For the reasons explained below, the Court DENIES the Motion.

Background

This case was removed from the Circuit Court of St. Clair County. Plaintiff filed a First Amended Complaint for Damages and Abatement (Doc. 29), alleging public nuisance, violations of the ordinances of the City of East St. Louis, continuing trespass, design defect, failure to warn and instruct, and negligence. Plaintiff's allegations relate to “the contamination of vast swaths of its land with polychlorinated biphenyls... manufactured in Defendants' Monsanto Plant in adjacent Sauget, Illinois.” (Doc. 29, ¶ 1).

In response, Defendants filed an Answer (Doc. 48) that raised affirmative defenses based upon, inter alia, the statutes of limitations, the statute of repose, laches, and estoppel.^[1] (Doc. 48, pgs. 15-16). Defendants later filed Amended Affirmative Defenses (Doc. 71). Defendants prefaced their affirmative defenses with the following statement:

As of the date of these amended defenses, no party has yet responded to written discovery (written discovery has been served, but responses are not yet due). Thus, Defendants are filing these Amended Affirmative Defenses without the benefit of any discovery responses. To the extent possible Defendants have pled facts currently known to them; however due to the limited discovery to-date, Defendants have also pled certain facts based upon good-faith information and belief.

(Doc. 71, pg. 2).

Defendants then noted they allegedly ceased producing polychlorinated biphenyls (“PCBs”) in Sauget in 1977 and ceased depositing PCBs in nearby landfills in the 1980s. (Doc. 71 pg. 2). Thus, unless an exception applies, Defendants stated Plaintiff's allegations are barred by the limitations periods contained in §§ 13-202 and 13-205 of the Illinois Code of Civil Procedure. See 735 ILCS 5/13-202; 13-205; (Doc. 71, pgs. 2-3). Likewise, Defendants alleged Plaintiff could not avoid the repose period stated in § 13213 of the Illinois Code of Civil Procedure since it did not file suit within 20 years of when Defendants manufactured PCBs, i.e., 1977. See 735 ILCS 5/13-213; (Doc. 71, pgs. 4-5).

Defendants also stated no exception applies to save Plaintiff's claims from the limitations periods. (Doc. 71, pgs. 3-4). The continuing tort and sovereign immunity exceptions were said to be inapplicable. (Doc. 71, pg. 3). To the extent Plaintiff seeks to toll those periods by alleging it was unaware of PCBs until December 2020, that allegation would be contradicted in discovery.^[2] (Doc. 71, pg. 3). Defendants noted the Sauget plant and landfills “have been the subject of well-known, well-publicized investigation and oversight. for decades... [and,] upon information and belief, the City had direct communications...concerning such investigation and oversight.” (Doc. 71, pg. 3).

In addition, since Plaintiff “slept on its rights,” despite knowledge of PCBs in East St. Louis before 2020, Defendants argued Plaintiff's claims were barred by the doctrine of laches. (Doc. 71, pg. 5). Similarly, Plaintiff's allegations were arguably barred by the doctrine of estoppel. (Doc. 71, pg. 6). Defendants realleged, upon information and belief, that Plaintiff had “direct communications” regarding the aforementioned investigation and oversight of the Sauget plant and landfills. (Doc. 71, pgs. 3, 6). Those facts, and the facts adduced during discovery, would reveal Plaintiff was aware of the potential or actual presence of PCBs in East St. Louis before 2020 but took no action. (Doc. 71, pg. 6).

Now, in its Motion, Plaintiff presents two arguments. First, with respect to the four Counts of the First Amended Complaint for Damages and Abatement relating to ordinance violations, Plaintiff invokes the continuing tort doctrine. Plaintiff argues its Code of Ordinances has a “general penalty clause” for continuing ordinance violations. (Doc. 87, pg. 3). As a result, Plaintiff argues Defendants cannot raise affirmative defenses based upon the statutes of limitations, the statute of repose, laches, and estoppel in defense of the allegations pertaining to ordinance violations. (Doc. 87, pgs. 2-3).

Second, as to each Count of the First Amended Complaint for Damages and Abatement, Plaintiff argues the doctrine of nullum tempus occurit regi (commonly interpreted as “no time runs against the king”) bars the affirmative defenses related to the statutes of limitations, the statute of repose, laches, and estoppel. (Doc. 87, pgs. 3-4). Under that doctrine, Plaintiff argues Defendants cannot assert their affirmative defenses because Plaintiff is an Illinois governmental entity acting in its public capacity. (Doc. 87, pg. 4). Indeed, Plaintiff suggests its allegations are presumed exempt from the affirmative defenses. (Doc. 87, pg. 4). Further, Plaintiff argues it is a home-rule corporation that, under Section 11-60-2 of the Illinois Municipal Code, has a public governmental interest in preserving and protecting its natural resources, lands, and citizenry. See 65 ILCS 5/1160-2; (Doc. 87, pgs. 4, 12). In the same vein, Plaintiff argues it has a constitutional obligation to protect and vindicate rights related to the health and well-being of the public, environment, and economy. (Doc. 87, pgs. 4-5, 8-9, 11). Plaintiff states it incurred and will continue to incur “massive costs” related to this litigation and attempts to abate and remediate the alleged “PCB contamination.” (Doc. 87, pgs. 5, 13).

In response, Defendants initially argue the Motion is untimely under Federal Rule of Civil Procedure 12(f). (Doc. 98, pg. 1). Defendants note that the Motion was filed in the middle of discovery and, as Plaintiff admits, 97 days after the service of Defendant's Amended Affirmative Defenses. (Docs. 98, pgs. 1, 3; 103, pg. 1). Defendants argue the Court may deny the Motion on this basis alone. (Doc. 98, pg. 1).

Further, Defendants argue Plaintiff, in each of its arguments, seeks for the Court to reach the substance of their affirmative defenses at a time when “the underlying facts[] and the application of Illinois law[are] very much in dispute.” (Doc. 98, pgs. 1, 3-4). With respect to the allegations that their activities constituted a continuing tort in violation of Plaintiff's ordinances, Defendants submit that Plaintiff must actually prove, with facts from discovery that are certain to be disputed, a tort that was “continuing.” (Doc. 98, pg. 4). By extension, Defendants submit that Plaintiff must prove the tort not only continued but continued consistent with the applicable limitations periods or, if necessary, that the limitations periods did not limit the damages recoverable and were tolled by a lack of knowledge about the continuing tort. (Doc. 98, pgs. 5, 9). Defendants note, aside from the disputed facts relating to a potential continuing tort, they disagree with Plaintiff's reading of the applicable ordinances and case law. (Doc. 98, pgs. 5-10).

Likewise, Defendants argue Plaintiff ignores the disputed facts that are relevant to the doctrine of nullum tempus occurit regi under Illinois law. (Doc. 98, pgs. 10-11). For example, Defendants submit that Plaintiff's lawsuit is “lawyer-driven,” Plaintiff has no legal obligation to “clean up” its properties as a result of Defendants' alleged PCB contamination, the circumstances in East St. Louis do not constitute a health and safety concern for residents, the only funds spent by Plaintiff relate to this litigation and not abatement, and in the absence of this litigation Plaintiff would not spend any public funds to “clean up” its properties. (Doc. 98, pgs. 10-11). Defendants note various other factual disputes about whether Plaintiff filed this case in a public or private capacity, which they believe is legally determinative of a governmental entity's immunity from the affirmative defenses at issue. (Doc. 98, pgs. 11-13). Alternatively, Defendants claim laches and estoppel may be asserted against a governmental entity under extraordinary circumstances and to prevent fraud and injustice, respectively. (Doc. 98, pgs. 14-15).

In sum, Defendants assert the above-described factual and legal issues will be clarified in discovery, which is currently ongoing. (Doc. 98, generally). Defendants emphasize, after discovery, Plaintiff may challenge their affirmative defenses in a motion for summary judgment. (Doc. 98, pg. 2). At this early stage, though, Defendants state they must be allowed to assess their affirmative defenses in discovery. (Doc. 98, pgs. 1-2).

In a Reply to Defendants' Response to the Motion, Plaintiff suggested Defendants alleged no facts to support the affirmative defenses relating to the limitations periods. (Doc. 101, pg. 2). Defendants allegedly provided only legal conclusions. (Doc. 101, pg. 2). Therefore, Plaintiff argued those affirmative defenses were facially insufficient and could be stricken for the failure to satisfy pleading requirements. (Doc. 101, pg. 2). Further, Plaintiff argued Defendants did not address the legal presumption that their affirmative defenses, relating to the limitations periods cannot be asserted against a governmental entity. (Doc. 101, pg. 2). Since the limitations periods asserted by Defendants do not expressly state a governmental entity is unexempt from such limitations, as...