especially true because the Illinois Pollution Control Board
cannot consider Plaintiff's cause of action pursuant to 42 U.S.C. § 6972.
Because Plaintiff cannot receive timely and adequate
state court review of its RCRA claim and because the Court's
consideration of the other three factors set forth in General Ry.
Signal "tip the scale" in favor of finding Burford abstention to
be inappropriate, the Court so finds.
The key question which a federal district court must ask
itself when considering whether to abstain pursuant to Burford is
"whether an erroneous federal court decision could impair the
state's effort to implement its policy." Ada-Cascade Watch, 720
F.2d at 903; Turf Paradise, Inc., v. Arizona Downs, 670 F.2d 813,
820 (9th Cir. 1982); BT Inv. Managers, Inc. v. Lewis,
559 F.2d 950, 955 (5th Cir. 1977). Ultimately, what is at stake is the
interest of the federal court in retaining jurisdiction,
especially in matters involving federal rights, versus the
state's interest in adjudicating issues best handled in a state
forum and the state's interest in maintaining uniformity in the
treatment of local problems. Quackenbush v. Allstate Inc. Co.,
___ U.S. ___, ___ - ___, 116 S.Ct. 1712, 1726-27, 135 L.Ed.2d 1
(1996). In the instant case, the Court cannot say that the
adjudication of the issues before it would "unduly intrude into
the processes of state government or undermine the State's
ability to maintain desired uniformity." Id. ___, 116 S.Ct. at
1726; New Orleans Public Serv., 491 U.S. at 363, 109 S.Ct. at
Furthermore, at least one court has found the issue of "open
dumping" to be a national rather than a local problem. The United
States District Court for the District of Minnesota has stated
that "Congress has found the problems of solid and hazardous
waste to be national as opposed to only an `essentially local
problem.'" Craig Lyle Ltd. Partnership v. Land O'Lakes, Inc.,
877 F. Supp. 476, 484 (D.Minn. 1995). Generally, federal courts have
been hesitant to interfere with land use questions. Caleb Stowe
Assoc. v. County of Albemarle, 724 F.2d 1079, 1080 (4th Cir.
1984). However, because federal regulations have been
established, it is unlikely that Congress considered the issue of
environmental safety to be one of merely local concern.
Accordingly, the Court declines to invoke Burford abstention in
the instant case.
B. Wholly Past Violations
Defendants argue that Count I of Plaintiff's Complaint should
be dismissed because the only claim stated therein is one for
wholly past violations. Defendants assert that RCRA citizen suits
pursuant to 42 U.S.C. § 6972(a)(1)(A) for wholly past violations
are barred. Moreover, Defendants claim that the notice provisions
of the RCRA which require a would-be plaintiff to provide notice
to the alleged violator in order to allow the alleged violations
to be remedied prior to bringing a suit show that
42 U.S.C. § 6972(a)(1)(A) is applicable to present violators only. Finally,
Defendants state that the United States Environmental Protection
Agency's ("USEPA") regulations (40 C.F.R. § 257.3-3(a)) outlaw
only the present operation of a landfill which is causing
discharge in violation of a NPDES permit.
Plaintiff argues that it has alleged a continuing violation
of the NPDES permit by Defendants (Count I is written in the
present tense), and therefore, Count I is not for wholly past
violations. Plaintiff states that because Defendants were the
only parties to operate Cells A-D of the disposal site and
because it is the consequences of the dumping and not the dumping
itself which violates 42 U.S.C. § 6972(a)(1)(A), Count I should
not be dismissed.
In Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found.,
Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), the U.S.
Supreme Court held that § 505(a) of the Clean Water Act
(33 U.S.C. § 1365(a)) does not authorize citizen suits for wholly
violations.*fn11 Therein, the U.S. Supreme Court specifically
mentioned 42 U.S.C. § 6972(a)(1)(B) as an example of a statute in
which Congress specifically targeted wholly past violations. Id.
at 57, 108 S.Ct. at 381. However, the Supreme Court went on to
opine that in order for a citizen suit brought pursuant to §
505(a) of the Clean Water Act to have subject matter
jurisdiction,*fn12 all that is necessary is that the
citizen-plaintiff make a good-faith allegation of a present or
continuing violation. Gwaltney, 484 U.S. at 65, 108 S.Ct. at 385.
In the present case, the Court takes note of the parties'
arguments based upon the plain language of the statute, the
statute's notice provision, and the authority present from other
federal district courts. However, when taking all of Plaintiff's
well-pleaded allegations as true and when viewing all of the
facts and inferences in the light most favorable to Plaintiff,
the Court cannot say that Count I should be dismissed. In order
to establish a prima facie case, Plaintiff must demonstrate: "(1)
the alleged endangerment stems from a solid or hazardous waste as
defined by RCRA, (2) conditions which may present an imminent and
substantial endangerment, and (3) the defendant has contributed
to or is contributing to such handling, storage, treatment,
transportation, or disposal." Craig Lyle, 877 F. Supp. at 480; see
United States v. Aceto Agr. Chemicals Corp., 872 F.2d 1373, 1382
n. 9 (8th Cir. 1989).
In the instant case, Plaintiff has alleged all of the
essential elements of a prima facie case in Count I of its
Complaint. Even though in Gwaltney the U.S. Supreme Court found
that actions based upon wholly past violation are barred, the
Supreme Court remanded the case to the Fourth Circuit to further
consider whether the plaintiffs had made a good-faith allegation
of a continuous or intermittent violation. Here, Plaintiff has
made a good-faith allegation of a continuous violation.
Accordingly, the Court declines to dismiss Count I for lack of
subject matter jurisdiction at this time.
C. Breach of Contract
Defendants argue that Count III of the Complaint should be
dismissed as to Defendant Leroy Donley. Count III alleges a
breach of contract by Defendants ESDI and Leroy Donley. However,
Defendant Leroy Donley states that he did not sign any contract
or purchase agreement with Plaintiff in his individual capacity
but only as the president of ESDI. Defendant Leroy Donley asserts
that he cannot be held personally liable under Illinois law in
such a situation, and therefore, Count III should be dismissed as
Plaintiff argues that Count III meets the notice requirements
of Federal Rule of Civil Procedure 8(a)(1). Plaintiff states that
Defendant Leroy Donley has adequate notice of the claim against
him, and therefore, Count III should not be dismissed in whole or
Plaintiff correctly states that Federal Rule of Civil
Procedure 8(a) incorporates a liberal pleading standard. However,
Plaintiff must still allege "a short and plain statement of the
claim showing that the pleader is entitled to relief. . . ."
Fed.R.Civ.Pro. 8(a)(2). Plaintiff has not shown that it is
entitled to relief based upon a claim of breach of contract as to
Defendant Leroy Donley. Accordingly, Count III is dismissed as to
Defendant Leroy Donley.
In Wottowa Ins. Agency v. Bock, 104 Ill.2d 311,
472 N.E.2d 411, 84 Ill.Dec. 451 (Ill. 1984), the Illinois Supreme Court
stated that "[w]hen an officer signs a document and indicates
next to his signature his corporate affiliation, then absent
evidence of contrary intent in the document, the officer is not
personally bound." Id. at 313, 472 N.E.2d at 413, 84 Ill.Dec. at
453, citing Knightsbridge Realty Partners, Ltd.-75 v. Pace, 101
App.3d 49, 427 N.E.2d 815, 56 Ill.Dec. 483 (Ill. App.Ct. 1981).
Plaintiff has alleged a breach of contract by Defendant Leroy
Donley based upon the fact that Leroy Donley was the president of
ESDI, that he signed the purchase agreement between ESDI and
Plaintiff, and that he signed a handwritten commitment to be
responsible to take all necessary steps to achieve IEPA approval
of the new groundwater monitoring system at the disposal site.
However, Illinois law is clear that officers and directors
are not subject to personal liability based solely upon their
status as officers and/or directors. See Stafford v. Puro,
63 F.3d 1436, 1442 (7th Cir. 1995); see also HPI Health Care Serv.
Inc. v. Mt. Vernon Hosp. Inc., 131 Ill.2d 145, 157,
545 N.E.2d 672, 677, 137 Ill.Dec. 19, 24 (Ill. 1989). Furthermore, although
Defendant Leroy Donley signed both the purchase agreement and the
handwritten note attached to the Complaint as Plaintiff's Exhibit
C, he did so in his official corporate capacity only. The
purchase agreement is signed: "Environmental Site Developers,
Inc., a Delaware Corporation, By Leroy Donley, Its President."
The handwritten document is signed: "Leroy Donley, President of
Environmental Site Developers, Inc." In both documents, Defendant
Leroy Donley indicated his corporate affiliation next to his
signature. Therefore, under Illinois law, he is not personally
liable. Bock, 104 Ill.2d at 313, 472 N.E.2d at 413, 84 Ill.Dec.
Finally, there is no evidence within the documents themselves
to indicate that the parties intended Defendant Leroy Donley to
be personally bound, and Plaintiffs have not so alleged. The
purchase agreement refers to the parties as Plaintiff and
Defendant ESDI. The only mention of Leroy Donley is his signature
as president of ESDI. Moreover, the handwritten document attached
as Plaintiff's Exhibit C explicitly states that "Environmental
Site Developers, Inc. will be responsible. . . ." (emphasis
added). Accordingly, even when taking all of the facts and
inferences in a light most favorable to Plaintiff, Plaintiff can
prove no set of facts in support of its claim of breach of
contract against Defendant Leroy Donley which would entitle it to
1. Count IV
Defendants argue that Count IV of the Complaint, as a whole,
does not allege all of the essential elements of a claim of
negligent misrepresentation. Specifically, Defendants state that
Plaintiff has failed to allege negligence. Thus, Count IV should
be dismissed. In any event, Defendants state that Count IV should
be dismissed as to Defendant Mary Jane Donley because Count IV
fails to allege that Mary Jane Donley, individually, owed
Plaintiff any duty.
Plaintiff argues that negligence is a conclusion of law, and
therefore, had it alleged negligence specifically, Count IV would
have been subject to a motion to strike. Furthermore, Plaintiff
asserts that it has alleged all of the essential elements of a
claim of fraudulent misrepresentation. Finally, Plaintiff claims
that it has sufficiently alleged that Defendant Mary Jane Donley
owed it a duty because the Count alleges that she participated in
the operating decisions of Envirocon and participated in the
preparation of the environmental report at issue.
[t]o state a cause of action for negligent
misrepresentation, plaintiff must plead and prove:
(1) a false statement of material fact, (2)
carelessness or negligence in ascertaining the
truth of the statement by defendant, (3) an
intention to induce the other party to act, (4)
action by the other party in reliance on the truth
of the statement, (5) damage to the other party
resulting from such reliance, and (6) a duty owed
by defendant to plaintiff to communicate accurate
Rosenstein v. Standard & Poor's Corp., 264 Ill. App.3d 818, 820,
misrepresentation. Id. Plaintiff has not alleged carelessness or
negligence by Defendants nor has Plaintiff alleged any facts
which would tend to establish carelessness or negligence on the
part of Defendants.
Because Plaintiff has failed to allege all of the essential
elements of a claim of negligent misrepresentation as to both
Defendant Envirocon and Defendant Mary Jane Donley, the Court
need not address Defendant Mary Jane Donley's argument that Count
IV does not allege that she breached a duty owed to Plaintiff.
Accordingly, Count IV is dismissed as to both Defendants
Envirocon and Mary Jane Donley.
2. Count V
The challenge to Count V of the Complaint is made by
Defendant Mary Jane Donley. Defendant Mary Jane Donley argues
that Count V contains no allegations that she knew of the
allegedly false statements contained within the environmental
report at issue or that she intended that Plaintiff rely on the
allegedly erroneous statements. Plaintiff states that a corporate
officer may be held liable for the corporation's torts in which
that officer actively participates. Furthermore, Plaintiff argues
that in this case, fraud is a sufficient ground for piercing the
As Defendant states, the essential elements which must be
pled in order to establish a claim of fraudulent
misrepresentation are: "(1) a false statement of material fact,
(2) knowledge or belief of the falsity by the party making it,
(3) intention to induce the other party to act, (4) action by the
other party in reliance on the truth of the statements, and (5)
damage to the other party resulting from such negligence." A, C
AND S, 131 Ill.2d at 452, 546 N.E.2d at 591, 137 Ill.Dec. at 646.
Count V alleges all of the essential elements of a claim of
fraudulent misrepresentation against Defendant Envirocon.
However, Count V does not allege that Defendant Mary Jane
Donley had any knowledge of the allegedly false statements
contained within the environmental report, nor does it allege
that she intended to induce Plaintiff to rely upon or to act upon
those allegedly false statements. While Plaintiff alleges that
Defendant Mary Jane Donley participated in the operation of
Envirocon and in the preparation of the environmental report,
those paragraphs do not sufficiently allege the second and third
elements of a claim of fraudulent misrepresentation.
Furthermore, although fraud may be a sufficient basis to
pierce the corporate veil, Federal Rule of Civil Procedure 9(b)
requires that "[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with
particularity." Count V neither alleges fraud nor the
circumstances which constitute fraud. Accordingly, Count V is
dismissed as to Defendant Mary Jane Donley.
E. Consumer Fraud and Deceptive Business Practices Act
In Count VI of its Complaint, Plaintiff alleges that
Defendants Envirocon and Mary Jane Donley violated the Illinois
Fraud and Deceptive Practices Act ("Act"). 815 ILCS 505/1 et seq.
(1995). Defendants claim that the Act does not apply in every
commercial transaction; rather, in order to state a cause of
action under the Act, Plaintiff must implicate some consumer
protection concern. Defendants assert that Plaintiff has failed
to allege any such concern. Moreover, Defendants state that
Plaintiff's claim is essentially one based upon a breach of
contract which is a purely private matter. Thus, the Act does not
Plaintiff argues that the claim is not one sounding in
contract but rather in tort. Furthermore, Plaintiff asserts that
it is not required to plead a public injury or an effect on the
public generally in order to state a cause of action under the
Act. Finally, Plaintiff states that a single deceptive act is
sufficient to support a recovery under the Act.
The essential elements of a cause of action pursuant to the
Act are: "(1) a deceptive act or practice including concealment
or omission of any material fact; (2) defendants' intent that
plaintiffs rely on the concealment; and (3) that the concealment
occurred in the course of conduct involving trade or commerce."
Washington Courte Condominium Association-Four v. Washington-Golf
Corp., 267 Ill. App.3d 790, 823, 643 N.E.2d 199, 221, 205 Ill.Dec.
248, 270 (Ill. App.Ct. 1994). Moreover, Illinois courts have held
that the Act should be liberally construed to curb fraudulent
abuses and to provide a remedy to injured parties. People ex rel.
Hartigan v. Lann, 225 Ill. App.3d 236, 240, 587 N.E.2d 521, 524,
167 Ill.Dec. 252, 255 (Ill. App.Ct. 1992).
Contrary to Defendants' assertions, Counts IV and V of
Plaintiff's Complaint are not based upon a breach of contract but
are based upon the tort claims of negligent and fraudulent
misrepresentation. See A, C and S, 131 Ill.2d at 452-60, 546
N.E.2d at 591-595, 137 Ill.Dec. at 646-650. Because the cases
cited by Defendants involve claims for a breach of contract, they
are inapplicable to the case at bar.
Furthermore, public injury need not be pled in order to
establish a prima facie case under the Act. 815 ILCS 505/10a; see
Reshal Assoc., Inc. v. Long Grove Trading Co., 754 F. Supp. 1226,
1236-37 (N.D.Ill. 1990); see also Royal Imperial Group, Inc. v.
Joseph Blumberg & Assoc., In., 240 Ill. App.3d 360, 368,
608 N.E.2d 178, 183, 181 Ill.Dec. 105, 110 (Ill. App.Ct. 1992). Prior
to 1996, 815 ILCS 505/10(a) explicitly stated that "[p]roof of a
public injury, a pattern, or an effect on consumers generally
shall not be required." In 1996, the General Assembly amended the
statute. Title 815 ILCS 505/1(a) now states that "proof of public
injury, a pattern, or an effect on consumers and the public
interest generally shall be required in order to state a cause of
action under this Section against a party defendant who is a new
vehicle dealer or used vehicle dealer. . . ." Id. Plaintiff does
not deal in either new or used vehicles. Thus, Plaintiff is not
required to plead proof of a public injury.
Ergo, Defendants' Motion for Judgment on the Pleadings is
ALLOWED in part and DENIED in part. Defendants' motion as to
Count III is ALLOWED as to Defendant Leroy Donley. Accordingly,
Defendant Leroy Donley is DISMISSED WITHOUT PREJUDICE from Count
III of the Complaint.
Defendants' motion as to Count V is ALLOWED as to Defendant
Mary Jane Donley. Accordingly, Defendant Mary Jane Donley is
DISMISSED WITHOUT PREJUDICE from Count V of the Complaint.
Defendants' motion as to Count IV is ALLOWED as to Defendants
Envirocon and Mary Jane Donley. Accordingly, Count IV is
DISMISSED WITHOUT PREJUDICE.
Finally, Defendants' motion as to Counts I, II, and VI is