United States District Court, N.D. Illinois
April 12, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, United States of America, brings this action against
defendant, Glen Ekberg, pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA") seeking
recovery of response costs incurred in connection with the release or
threatened release of hazardous substances and a declaratory judgment,
under CERCLA sections 107 and 113(g)(2), 42 U.S.C. § 9607 (a), 9613
(g)(2), that defendant shall be liable for all future response costs
incurred by plaintiff in connection with the site in question.
Jurisdiction is proper under 28 U.S.C. § 1331 and 1345. Defendant filed a
jury demand and a motion for trial by jury pursuant to Fed.R.Civ.P. 38(b)
and 39(b) respectively. Plaintiff moves to strike the jury demand.
A party is entitled to a jury trial in a civil action where the Seventh
Amendment or statute provides such a right. See Tull v. United States,
481 U.S. 412, 417 (1987). CERCLA does not expressly provide a right to a
jury trial for actions by the government to recover response costs or to
impose liability for future response costs. The Seventh Amendment
provides a right to jury trial in "suits at common law" where the value in
controversy exceeds twenty dollars. U.S. CONST, amend. VII. "Suits at
common law" include actions that are analogous to suits that would have
been brought in the law courts rather than courts of equity or admiralty
prior to the Amendment's adoption. See Tull. 481 U.S. at 417. Actions
analogous to equity actions do not require a jury trial. Id.
It is fairly well settled that a government action to recover response
costs under 42 U.S.C. § 9607 is an equitable action seeking "restitution
or reimbursement of the costs it expended in order to respond to the
health and environmental danger presented by hazardous substances."
United States v. Northeastern Pharmaceutical & Chemical Co., Inc.,
810 F.2d 726, 749 (8th Cir. 1986), cert. Denied. 484 U.S. 848 (1987); see
also, Hatco. Corp. v. W.R. Grace & Co. Conn., 59 F.3d 400, 412 (3rd
Cir. 1995); State of New York v. Lashins Arcade Co., 91 F.3d 353, 362 n.7
(2nd Cir. 1996) (collecting cases); Consolidated City of Indianapolis v.
Union Carbide Corp., No. 1:02-CV-1340-LJM-WTL, 2003 WL 22327833 *l-2
(S.D. Ind. Oct. 8, 2003); Metal Processing Co., Inc. v. Amoco. Oil.
Inc., 173 F.R.D. 244, 245-46 (E.D. Wisc. 1997). The court "sees no reason
to re examine and re evaluate [this] well settled authority."
Consolidated. 2003 WL 22327833 at *2.
For the foregoing reasons, plaintiff's motion to strike defendant's
jury demand is granted and defendant's motion for trial by jury is
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