Grace Christian Fellowship v. KJG Invs. Inc., Case No. 07-C-0348

Decision Date29 March 2012
Docket NumberCase No. 07-C-0348
PartiesGRACE CHRISTIAN FELLOWSHIP, Plaintiff, v. KJG INVESTMENTS INC. and COLONY INSURANCE COMPANY and PSK INVESTMENTS, LLC, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin
DECISION AND ORDER

On April 13, 2007, plaintiff Grace Christian Fellowship (Grace) filed this action against KJG Investments, Inc. (KJG) and Colony Insurance Co. (Colony) under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972. The plaintiff also asserted state law claims of continuing trespass, nuisance, and negligence. On August 7, 2009, the plaintiff filed an amended complaint adding defendant PSK Investments, LLC (PSK).

Pursuant to the amended scheduling order issued in this case, the parties filed the following motions: plaintiff's motion for summary judgment on the liability of defendants for trespass, nuisance and negligence and partial determination of liability under RCRA (Docket #224), plaintiff's motion for summary judgment as to defendant Colony Insurance (Docket #229), and defendants KJG and PSK's motion for summary judgment. (Docket #251).1 The plaintiff also filed a motion to reconsider the court's August 4, 2011, Decision and Orderdenying in part and granting in part defendants KJG and PSK's motion to strike. (Docket #287). The parties' pending motions will be addressed separately herein.

Plaintiff's Motion for Reconsideration of the Court's Decision and Order ofAugust 4, 2011

The plaintiff filed a motion for the court to reconsider its Decision and Order of August 4, 2011, denying its motion seeking to have the court consider environmental test results and evidence of the current environmental condition affecting the Grace building. In that decision and order, the court struck evidence or observations from after December 15, 2009. The plaintiff maintains that the specific injunctive relief sought will need to be tailored at trial to the environmental facts existing at the time of trial. Thus, the plaintiff asserts that the current environmental status of the properties will need to be considered at trial in order to fashion an appropriate injunction. The plaintiff submitted two August 29, 2011, letters from John Hnat, Project Manager/Hydrogeologist for the Wisconsin Department of Natural Resources (WDNR) which address the ongoing WDNR investigation of the properties at issue.

In response, defendants KJG and PSK assert that the plaintiff presented no evidence in its motion to reconsider that was not previously considered either directly or indirectly by the court. Defendants KJG and PSK further assert that ongoing discovery as proposed by the plaintiff would be prejudicial to the defendants. According to defendants KJG and PSK, the consideration of this additional testing data would open the door for the plaintiff to attempt to provide more expert opinions. It also would require additional expert depositions in order to identify the effect the new information would have on the various expert opinions already provided in this case.

In its November 16, 2010, motion to amend the scheduling order, the plaintiff sought an order amending the scheduling order "in order to accommodate the needs of the parties tocontinue to exchange groundwater/soil and air data which is periodically obtained by both parties and filed with the Department of Natural Resources (DNR)." (Plaintiff's Civil Local Rule 7(h) Expedited Nondispositive Motion to Amend the Scheduling Order [Motion to Amend] at 1). The plaintiff requested that the current discovery deadline be extended "as it relates to the issue of investigative environmental data obtained by either party to this case after [the] December 15, 2009 cut off date and forty-five (45) days prior to trial." (Motion to Amend at 2).

In its August 4, 2011, Decision and Order, the court denied the plaintiff's motion, concluding that the plaintiff failed to show good cause to amend the scheduling order and reopen discovery. The court also held that "any averment that relates to evidence or observations from after December 15, 2009, will be stricken and not considered by the court in deciding the pending motions." (August 4, 2001, Decision and Order at 8). The court also indicated that it would not consider any data from after December 15, 2009. The defendants' submissions were subjected to this restriction as well.

The plaintiff's motion for reconsideration seeks the usage at trial of facts occurring after December 15, 2009, in order for the court to fashion appropriate injunctive relief and, as the plaintiff argued in its motion to amend the scheduling order, in deciding the pending motions for summary judgment. The court's August 4, 2011, Decision and Order limited its decision to the pending motions for summary judgment. The plaintiff has not proffered any compelling argument nor submitted any new evidence which calls into question the court's decision striking averments relating to evidence or observations and data obtained after the discovery deadline, December 15, 2009. Such evidence, however, may be relevant in the future to determine the appropriate injunctive relief in this case. Accordingly, the plaintiff's motion for reconsideration will be denied.

SUMMARY JUDGMENT STANDARD

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits, if any, establish that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D. Wis. 1991). "Material facts" are those facts that under the applicable substantive law "might affect the outcome of the suit." See Anderson, 477 U.S. at 248. In determining whether a genuine issue of material fact exists, the court must consider the evidence and all reasonable inferences in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986), Matter of Wade, 969 F.2d 241, 245 (7th Cir. 1992).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

The evidence relied upon in a motion for summary judgment must be of a kind that would be admissible at trial. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 n.2 (7th Cir. 1994) (citing Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 849 [7th Cir.1992]). Any proposed findings of fact which do not set forth facts that "would be admissible in evidence" have not been included in the relevant facts. Fed. R. Civ. P. 56(e)(1).

An affidavit submitted to support or to oppose a summary judgment motion "must be made on personal knowledge, set forth facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). "It is well-settled that conclusory allegations . . . without support in the record, do not create a triable issue of fact." Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) (citing Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 [7th Cir. 1998]). A finding of fact based on an affidavit which contains conclusory legal statements and is barren of any relevant facts of which the affiant has personal knowledge is not proper under Rule 56(e). See Resolution Trust Corp. v. Juergens, 965 F.2d 149, 152-53 (7th Cir. 1992). Such unsupported conclusory allegations have not been included in the relevant undisputed facts.

To the extent that an objection to a proposed finding of fact fails to cite specific evidentiary support, the objection has no weight. See Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Doe v. Cunningham, 30 F.3d 879, 881 (7th Cir. 1994). Moreover, to the extent that an objection is non-responsive to the proposed finding of fact, the objection does not create a dispute of fact.

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
RELEVANT UNDISPUTED FACTS2

Defendant KJG Investments, Inc. (KJG) purchased the gas station located at 9922 West Capitol Drive, Milwaukee, Wisconsin, in 1996 (gas station). On April 25, 2006, the land on which the gas station is located was transferred to defendant PSK Investments, LLC. (PSK). Defendants KJG and PSK were the gas station owners at the relevant times. Jagdisher Singh Kler is the former vice president and 50% stock holder of KJG and the controlling member of PSK.

The plaintiff, Grace Christian Fellowship (Grace), owns the property adjacent to the gas station on the east located at 9900 West Capitol Drive, Milwaukee, Wisconsin. It purchased the property in 2001.

The underground storage tanks and lines at the gas station were inspected by the State of Wisconsin Department of Commerce (Department of Commerce) on April 20, 2006. The gas station tanks and lines passed the test conducted by the Department of Commerce (i.e., no violations were noted). The Department of Commerce found no leaks in the flex hose connector under pump island 5 and 6 on April 20, 2006.

On April 26, 2006, personnel from Grace reported gasoline odors in the...

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