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MORTON COLLEGE BD. OF TRUSTEES OF ILLINOIS COMMUNI

September 1, 1998

MORTON COLLEGE BOARD OF TRUSTEES OF ILLINOIS COMMUNITY COLLEGE DISTRICT NO. 527, Plaintiff,
v.
THE TOWN OF CICERO, Defendant.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is defendant's motion to dismiss plaintiff's second amended complaint. For the following reasons, the court denies defendant's motion.

 I. BACKGROUND

 Plaintiff Morton College Board of Trustees of Illinois Community College District No. 527 ("the College") has filed suit against the Town of Cicero ("the Town") in this court. The College's second amended complaint contains nine counts. Counts 1, 2, and 3 are claims under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675. Counts 4, 5, 6, and 7 are claims under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992. Count 8 is a state-law claim for nuisance. Count 9 is a state-law claim for continuing intentional trespass. This court has subject matter jurisdiction over the CERCLA claims pursuant to 42 U.S.C. §§ 9613 and 9659; over the RCRA claims pursuant to 42 U.S.C. § 6972(a); and over the state-law claims pursuant to 28 U.S.C. § 1367.

 The dispute between the parties centers on a piece of land that the Town sold to the College. In its second amended complaint, the College contends that while the Town owned the property, several different types of hazardous wastes were dumped on it. The College alleges that those hazardous wastes have contaminated the property.

 Before suit was filed in this court, two other suits between the parties had been commenced. The first is a suit before the Illinois Pollution Control Board ("the Board") in which the College is the plaintiff and the Town is the defendant. In that suit, the College alleges violations of the Illinois Environmental Protection Act. The second is a suit before the Circuit Court of Cook County in which the Town is the plaintiff and the College is the defendant. In that suit, the Town asks the circuit court to grant the following relief: (1) to declare that an "as is" provision contained in the purchase agreement between the parties immunizes the Town from any liability under either state or federal environmental regulations with respect to the property in question; (2) to order the College to abate the public nuisance created by the contaminated property; (3) to enjoin the Board from adjudicating the action between the College and the Town; and (4) to grant a preliminary injunction enjoining the College from proceeding on its case before the Board.

 This case is currently before the court on the Town's motion to dismiss the College's second amended complaint. In its motion to dismiss, the Town argues that this court should abstain from exercising jurisdiction over this case pursuant to either the abstention doctrine stated in Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943), or the abstention doctrine stated in Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). *fn1"

 II. DISCUSSION

 The sole question before this court is whether the court should abstain from adjudicating this case. The Town argues that abstention is "required" under either the Burford abstention doctrine or the Colorado River abstention doctrine. The College argues that abstention would not be proper under either doctrine.

 "Federal courts have a strict duty to exercise the jurisdiction conferred upon them by Congress." International College of Surgeons v. City of Chicago, 153 F.3d 356, 1998 U.S. App. LEXIS 18182, 1998 WL 452340, at *2 (7th Cir. 1998) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 135 L. Ed. 2d 1, 116 S. Ct. 1712 (1996)). The Supreme Court has described this duty as "'virtually unflagging.'" New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 359, 105 L. Ed. 2d 298, 109 S. Ct. 2506 (1989) (quoting Deakins v. Monaghan, 484 U.S. 193, 203, 98 L. Ed. 2d 529, 108 S. Ct. 523 (1988)). Because this is so, the doctrine of abstention is "'an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it' and may be invoked only in those 'exceptional circumstances' in which surrendering jurisdiction 'would clearly serve an important countervailing interest.'" International College of Surgeons, 1998 WL 452340, at *2 (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959)).

 The party requesting abstention bears the heavy burden of showing that abstention is warranted. Seay v. Dodge, 1995 U.S. Dist. LEXIS 13628, No. 95 C 3643, 1995 WL 557361, at *6 N.D. Ill. Sept. 18, 1995); Illinois Pub. Interest Research Group v. PMC, Inc., 835 F. Supp. 1070, 1076 (N.D. Ill. 1993). The decision of whether to abstain is committed to the sound discretion of the district court. International College of Surgeons, 1998 WL 452340, at *2.

 A. Burford abstention

 The first issue is whether this court should abstain from adjudicating this case based on the Burford abstention doctrine. Under that doctrine, a federal court should abstain from deciding an unsettled question of state law that relates to a complex state regulatory scheme. International College of Surgeons, 1998 WL 452340, at *3. The Burford abstention doctrine "is concerned with protecting complex state administrative processes from undue federal influence." New Orleans Pub. Serv., Inc., 491 U.S. at 362. It is not concerned with the rights of the parties in the case at hand. International College of Surgeons, 1998 WL 452340, at *3.

 There are two different situations in which Burford abstention is appropriate. The first is in a case involving a "'"difficult question of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar."'" Quackenbush, 517 U.S. at 726-27 (quoting New Orleans Pub. Serv., Inc., 491 U.S. at 361 (quoting Colorado River, 424 U.S. at 814)). The second is where exercise of federal jurisdiction "'"would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern."'" Id.

 Determining whether to abstain under Burford requires the court to make a fact-intensive inquiry. General Ry. Signal Co. v. Corcoran, 921 F.2d 700, 709 (7th Cir. 1991). In making such an inquiry, the court should consider (1) whether the suit is based on a cause of action which is exclusively federal; (2) whether difficult or unusual state laws are at issue; (3) whether there is a need for coherent state doctrine in the area; and (4) whether state procedures indicate a desire to create special state ...


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