Vill. Of Depue v. Viacom Int'l Inc. N/k/a/ Cbs Operations Inc, Case No. 08-cv-1272

• Decision Date: 12 May 2010
• Docket Number: 08-cv-1273.,Case No. 08-cv-1272
• Citation: 713 F.Supp.2d 774
• Parties: VILLAGE OF DePUE, ILLINOIS, a Municipal Corporation, Plaintiff,v.VIACOM INTERNATIONAL, INC. n/k/a/ CBS Operations, Inc., and Exxon Mobil Corporation, Defendants.
• Court: U.S. District Court — Central District of Illinois

713 F.Supp.2d 774

VILLAGE OF DePUE, ILLINOIS, a Municipal Corporation, Plaintiff,v.VIACOM INTERNATIONAL, INC. n/k/a/ CBS Operations, Inc., and Exxon Mobil Corporation, Defendants.

Case Nos. 08-cv-1272, 08-cv-1273.

United States District Court, C.D. Illinois.

May 12, 2010.

Melissa K. Sims, William J. Wimbiscus, Jr., Wimbiscus Law Firm, Spring Valley, IL, Richard L. Steagall, Nicoara & Steagall, Peoria, IL, for Plaintiff.

Henry W. Ipsen, Holme Roberts & Owen LLP, Denver, CO, Rex K. Linder, Robert M. Bennett, Heyl Royster Voelker & Allen, Peoria, IL, Wendy Bloom, Peter Michael Stasiewicz, Mark S. Lillie, Kirkland & Ellis, Chicago, IL, Elizabeth McCutcheon Weaver, Howrey LLP, Los Angeles, CA, for Defendants.

OPINION & ORDER

JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint and to Strike Damages Allegations. (Doc. 32). Plaintiff has responded in opposition to the Motion. (Doc. 38). On April 9, 2010, the Court found that a Reply Memorandum from Defendants would be helpful, and therefore instructed Defendants to file a Reply, which Defendants did on April 30, 2010. (Doc. 42). In addition, Plaintiff's Motion for Leave to File Supplemental Memorandum is also pending; this motion is denied.¹ (Doc. 41). For the reasons stated below, the Motion to Dismiss is granted.

Background

The background of this case is extensively reviewed in the Court's July 8, 2009 Amended Opinion & Order, 632 F.Supp.2d 854 (C.D.Ill.2009), and this summary draws on that review. (Doc. 27). Defendants' corporate predecessors operated a zinc smelting facility and a diammonium phosphate fertilizer plant on a particular location (“Site”) within the Village of DePue, Illinois, from 1903 until 1989. These operations left the Site with elevated levels of cadmium, lead, and other metals, which the United States Environmental Protection Agency (“EPA”) and Illinois Environmental Protection Agency (“IEPA”) began to investigate in 1992. Also in 1992, the IEPA began filing Fact Sheets about the Site, some of which have been filed with the Court by the parties as Exhibits in this case and in previous litigation over the Site, and which are also available at http:// www. epa. state. il. us/ community- relations/ fact- sheets/ new- jersey- zinc/ index. html. ² A map of the Site is included in Fact Sheet # 3, available at http:// www. epa. state. il. us/ community- relations/ fact-sheets/new-jersey-zinc/new-jersey-zinc-3. html.

In 1995, the Illinois Attorney General filed a suit based on the contamination against Defendants' corporate predecessors in Illinois circuit court, and later entered into an interim consent order with Defendants. ³ The Seventh Circuit described the requirements of the Consent Order:

Under this Consent Order, [Defendants] must perform a phased investigation of the site and implement certain interim remedies. [They] also must propose final remedies to the State of Illinois before completing final remedial action for the site. The Consent Order requires [Defendants] to perform ... investigations and remedial actions in compliance with both the ICP (Illinois Hazardous Substances Pollution Contingency Plan) and the NCP (National Oil and Hazardous Substances Pollution Contingency Plan). The State of Illinois, in consultation with the EPA, has sole discretion to decide if the final remedies proposed by [Defendants] are appropriate. The activities completed under the Consent Order are subject to approval by the State of Illinois.

Village of DePue v. Exxon Mobil Corp., 537 F.3d 775, 780 (7th Cir.2008) (internal citations and quotation omitted).⁴ Defendants are currently in the investigatory stage of the cleanup process under the Consent Order, and are in full compliance with it. In addition, the EPA added the Site to the National Priorities List in 1999.

In August 2006, Plaintiff attempted to compel Defendants to perform an immediate cleanup of the Site through a local nuisance ordinance. In October 2006, Plaintiff brought suit against Defendants under the ordinance in Illinois circuit court, and Defendants removed the suit to this Court. This Court granted the Defendants' motion to dismiss, finding that Plaintiff's claims were preempted by federal and state law. Village of Depue v. Exxon Mobile Corp., 06-1266, 2007 WL 1438581 (C.D.Ill. May 15, 2007). On appeal, the Seventh Circuit affirmed this Court's dismissal, based on state law preemption, relying primarily on the fact that Plaintiff was at that time a non-home-rule municipality. Village of DePue, 537 F.3d at 780.

On September 8, 2008, Plaintiff enacted a new ordinance against hazardous waste, and on November 4, 2008, Plaintiff became a home-rule municipality under the Illinois constitution. Plaintiff brought new suits in Illinois circuit court, making the same claims against each Defendant based on the new ordinance; Defendants against removed the cases to this Court, where they were consolidated and Plaintiff added common law claims of nuisance and trespass. This Court dismissed Plaintiff's claims based on the new ordinance with prejudice, finding that the ordinance was an invalid exercise of home-rule authority under the Illinois constitution. Plaintiff's common law trespass and nuisance claims were dismissed without prejudice, and Plaintiff was granted leave to amend them. (Doc. 27). Plaintiff filed its Second Amended Complaint on July 27, 2009, re-alleging its trespass and nuisance claims under Illinois law against Defendants. (Doc. 28). Defendants' instant Motion to Dismiss followed. (Doc. 32).

Legal Standard

“In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party.” In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir.2009) ( citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008)). To survive a motion to dismiss under 12(b)(6), a plaintiff's complaint must “plead some facts that suggest a right to relief that is beyond the ‘speculative level.’ ” EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773, 776-77 (7th Cir.2007) ( citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Though detailed factual allegations are not needed, a “formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 547, 127 S.Ct. 1955. “The complaint must contain ‘enough facts to state a claim to relief that is plausible on its face’ and also must state sufficient facts to raise a plaintiff's right to relief above the speculative level.” Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 602 (7th Cir.2009) ( quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955; Tamayo, 526 F.3d at 1084). “A claim has facial plausibility ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. ( quoting Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

Discussion

Plaintiff claims that Defendants are liable to it for trespass, by allowing contaminants from the Site to flow onto Village land, and for both public and private nuisance relating to the contamination of Village land. (Doc. 28). The Village land in question is primarily the portion of DePue Lake owned by the Village, though Plaintiff also notes its ownership of the streets and a decline in business revenue and Village property values. (Doc. 28 at 14, 18-19).⁵ Defendants argue that there are three reasons that the Second Amended Complaint should be dismissed: (1) Plaintiff's claims are time-barred, (2) the doctrine of res judicata prevents assertion of Plaintiff's instant claims as they could have been brought in DePue I, and (3) the Second Amended Complaint's allegations are insufficient to state claims for nuisance or trespass. In addition, Defendants argue that Plaintiff's damages allegations should be stricken, as they fail to state a claim for which damages are available. (Doc. 33). The Court finds that Plaintiff's claims are time-barred, and therefore need not address Defendants' other arguments.

Initially, it must be noted that Plaintiff claims two distinct sets of activities to underlie its claims of nuisance and trespass. First, Plaintiff claims that Defendants are liable for the conduct of their corporate predecessors, prior to 1989, in creating the accumulation of contaminants at the Site. (Doc. 28 at 13-14, 16). Plaintiff also claims that Defendants are liable for their “ownership and occupation of the Site.” (Doc. 28 at 15-17). As noted by the Court in its July 8, 2009 Amended Opinion & Order, “the Site's mere existence, absent some specific unreasonable conduct by Defendants, is not a proper basis for a nuisance claim.” (Doc. 27 at 18). Likewise, merely owning a piece of contaminated land is not alone enough, since such “conduct” does not cause the nuisance or trespass-the alleged injuries would occur whether or not Defendants owned the Site. Therefore, Plaintiff's claims must result from the actions of Defendants' corporate predecessors in accumulating the contaminants on the Site.

Plaintiff claims four sets of damages from the alleged trespass and nuisance: a diminution in the assessed property values within the Village, resulting in lower tax receipts for the Village; a “loss of business opportunity and loss of revenue for utilizing its once pristine lake as fishing community;” the “cost of remediating the lithopone ridges to cease continuing runoff of heave metal toxicants;” and the “costs of remediating Lake DePue.” (Doc. 28 at 18). Plaintiff asserts that these damages are “in excess of ... $20 million.” (Doc. 28 at 21). Plaintiff also claims punitive damages, which it calculates in the amount of one billion dollars against each Defendant. (Doc. 28 at 21).

Illinois law provides for a five-year statute of limitations on nuisance and trespass claims.⁶...