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Snellback Properties, L.L.C. v. Aetna Development Corp.

June 9, 2009

SNELLBACK PROPERTIES, L.L.C., PLAINTIFF,
v.
AETNA DEVELOPMENT CORP., AND AETNA DEVELOPERS, L.L.C., DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Plaintiff contends that contamination from defendants' property has migrated to its property and seeks an injunction against them pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972. The case is before the Court on defendants' Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion to dismiss the complaint. For the reasons set forth below, the Court denies the motion.

Background

On August 20, 2005, Aetna Developers purchased the property located at 614 Green Bay Road, Kenilworth, Illinois to be developed by Aetna Development. (Compl. ¶¶ 8-9, 13.) Because a dry-cleaning business had previously been operated there, defendants sought and obtained a No Further Remediation Letter ("NFR") from the Illinois Environmental Protection Agency ("IEPA") before buying the land. (Id. ¶ 16.) Under Illinois law, an NFR releases the recipient from "further responsibilities under [the Illinois Environmental Protection] Act" and constitutes prima facie evidence that the covered property is not "a threat to human health [or] the environment." 415 Ill. Comp. Stat. 5/58.10(a).

In January 2007, plaintiff purchased the property at 624 Green Bay Road, Kenilworth, Illinois, which is adjacent to the Aetna property. (Compl. ¶¶ 7, 21.) Subsequently, plaintiff discovered on its property environmental contamination that it believes migrated from Aetna's property. (Id. ¶¶ 22-24).

On July 9, 2008, plaintiff filed suit against defendants in state court seeking injunctive relief and damages under the common-law theories of trespass and nuisance. (Defs.' Br., Ex. C, Compl.) The state action is still pending.

On December 23, 2008, plaintiff filed this suit.

Discussion

Jurisdiction

First, defendants argue that the NFR letter moots plaintiff's RCRA claim. It does so if it resolves the contamination dispute or eliminates plaintiff's stake in its outcome. St. John's United Church of Christ v. City of Chi., 502 F.3d 616, 626 (7th Cir. 2007), cert. denied, 128 S.Ct. 2431 (2008). The NFR does neither. It releases defendants from liability under state law, not RCRA, and is prima facie, not conclusive, proof that Aetna's property is contaminant-free. (See Defs.' Mot. Dismiss, Ex. A, NFR Letter at 1.)*fn1 Because the NFR does not establish that the contamination on plaintiff's land did not come from defendants' property, it does not moot plaintiff's RCRA claim.

Abstention

Even if there is subject matter jurisdiction over this suit, defendants say the Court should abstain from exercising it under the doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Abstention is appropriate under that doctrine only if there are parallel suits pending in state and federal court and the following factors, on balance, favor abstention:

1) whether the state has assumed jurisdiction over property; 2) the inconvenience of the federal forum; 3) the desirability of avoiding piecemeal litigation; 4) the order in which jurisdiction was obtained by the concurrent forums; 5) the source of governing law, state or federal; 6) the adequacy of state-court action to protect the federal plaintiff's rights; 7) the relative progress of state and federal proceedings; 8) the presence or absence of ...


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