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Tinaglia Family Limited Partnership v. North Shore Cleaners

May 27, 2010

THE TINAGLIA FAMILY LIMITED PARTNERSHIP, PLAINTIFF,
v.
NORTH SHORE CLEANERS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-Yeghiayan United States District Court Judge

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendants' motions to dismiss. For the reasons stated below, we deny the motions to dismiss.

BACKGROUND

Plaintiff The Tinaglia Family Limited Partnership (Tinaglia) alleges that it is the owner of a commercial and residential property in Glencoe, Illinois (TFLP Property). Tinaglia further alleges that Defendant Kun Hae Corporation (KHC) owns a piece of Property (Kim Property) that is adjacent to the TFLP Property. Defendant North Shore Cleaners, Inc. (NSC), KHC, Defendant Kun K. Kim (Kun), Defendant Hae Sook Kim (Hae), and Defendant ATC Associates, Inc. (ATC) allegedly operate a dry cleaning establishment on the Kim Property. Tinaglia contends that there has been and continues to be a release of hazardous substances on the Kim Property and that the hazardous substances have migrated to adjacent properties including the TFLP Property. In 2002, Defendants allegedly hired an environmental consultant to investigate a possible contamination problem. Tinaglia allegedly signed an agreement providing consent for Defendants' consultant to test the TFLP Property. Pursuant to that agreement, Defendants were also required to provide Tinaglia with the results of all tests. According to Tinaglia, Defendants falsely reported to Tinaglia both orally and in writing that there was no contamination on the TFLP property. Tinaglia allegedly believed the representations, relied on them, and took no further action to investigate the issue. In February 2008, Tinaglia allegedly attempted to sell the TFLP Property, and as part of the sale, the lender required an environmental assessment. The assessment allegedly showed that the TFLP Property was contaminated by the hazardous substances that had migrated from the Kim Property.

Tinaglia includes in its complaint Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., claims brought against all Defendants except ATC (Count I), Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6900 et seq., claims brought against all Defendants except ATC (Count II), negligence claims brought against all Defendants except ATC (Count III), trespass claims brought against all Defendants except ATC (Count IV), private nuisance claims brought against all Defendants except ATC (Count V), breach of contract claims brought against ATC and NSC (Count VI), intentional misrepresentation claims brought against ATC and NSC (Count VII), and negligent misrepresentation claims brought against ATC and NSC (Count VIII). ATC moves to dismiss the claims brought against it in Counts VI, VII, and VIII. NSC, KHC, Kun, and Hae (collectively referred to as "Kim Defendants") move to dismiss all claims.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).

Federal Rule of Civil Procedure 12(b)(1)requires a court to dismiss an action when it lacks subject matter jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the court or party challenging subject matter jurisdiction is that "subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when reviewing a motion to dismiss brought under Rule 12(b)(1), this court "must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff"). However, if the complaint appears on its face to indicate that the court has subject matter jurisdiction, "but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, Ltd., 322 F.3d at 946. For the purpose of determining subject matter jurisdiction, this court "'may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof in regards to a Rule 12(b)(1)motion is "on the party asserting jurisdiction." United Phosphorus, Ltd., 322 F.3d at 946.

DISCUSSION

I. ATC's Motion to Dismiss

ATC moves to dismiss Counts VI, VII, and VIII. We note that ATC indicates in its motion that it is seeking to dismiss Counts V, VI, and VII. (Mot. 1). However, the confusion on ATC's part is due to a mislabeling of the counts in the amended complaint. It is apparent from ATC's arguments that it is seeking to dismiss the claims brought against it, which are Counts VI, VII, and VIII. ATC contends that this court lacks supplemental jurisdiction over the state law claims in counts VI, VII, and VIII, arguing that they are not sufficiently connected to the federal law claims in this case. ATC also argues that the court should decline to exercise supplemental jurisdiction over such state law claims, arguing that they predominate over the federal claims.

A. Common Facts with Federal Claims

ATC contends that there is an insufficient connection between the federal and state law claims in this case and thus, the court lacks supplemental jurisdiction over the state law claims. Pursuant to 28 U.S.C. § 1367(a), "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A district court exercising original subject matter jurisdiction over federal claims has supplemental jurisdiction over related state law claims "so long as they derive from a common nucleus of ...


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