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Ethel and Rex Carlson v. Ameren Corporation (Also Known As Illinois Power Company

January 21, 2011

ETHEL AND REX CARLSON, PLAINTIFFS/COUNTER DEFENDANTS,
v.
AMEREN CORPORATION (ALSO KNOWN AS ILLINOIS POWER COMPANY), DEFENDANT/COUNTER PLAINTIFF.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

Friday, 21 January, 2011 08:01:36 AM

Clerk, U.S. District Court, ILCD

ORDER

Now before the Court, are Plaintiffs/Counter Defendants Ethel and Rex Carlson's 12(b) Motion to Dismiss [#15] Defendant Ameren Corporation's Affirmative Defenses [#12] and 12(f) Motion to Strike [#15] Defendant's Count One of its Counterclaim [#12]. For the following reasons, the Motion to Dismiss [#15] is DENIED, and the Motion to Strike [#15] is DENIED.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343, as the claim asserted in the Complaint presents a federal question under the citizen suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. §6972(a)(1)(B) ("RCRA").

BACKGROUND AND PROCEDURAL HISTORY*fn1

Ethel Carlson purchased the Ameren MGP site ("the Property") in February 2005 from the Defendant. (Answer, ¶ 6). Ethel Carlson's son, Rex Carlson, now operates an excavating and snow removal business on the Property. The Property is located at 151 West Ferris Street in Galesburg, Illinois. Defendant Ameren Corporation, also known as Illinois Power Company ("Ameren"), owned and operated the Property from 1861 to the mid-1940's. Plaintiffs/Counter Defendats allege that Ameren disposed of hazardous and solid wastes on the property, which resulted in soil and groundwater contamination before Plaintiffs/Counter Defendants acquired the property.

The Carlsons allege that, as a result of the hazardous wastes disposed by Ameren and its predecessors, the property and persons on the property are in serious risk of imminent and substantial endangerment. The Carlsons claim that Ameren is liable for the condition of the land pursuant to the RCRA. The Carlsons filed the pending action for injunctive relief with this Court on July 22, 2010. Ameren answered the Complaint and included its affirmative defenses and counterclaims [#12]. The Carlsons filed the present consolidated Motion to Dismiss and Motion to Strike, and this Order follows.

DISCUSSION

As there are two pending motions in this case, the Court will review each motion and issue its findings collectively in this Order regarding Plaintiffs'/Counter Defendants' Consolidated Motion to Dismiss and Motion to Strike.

I. Motion to Dismiss

A complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). That statement must be sufficient to provide the defendant with "fair notice" of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In other words, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what the . . . claim is and the grounds upon which it rests," and its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a "speculative level." EEOC v. Concentra Health Services, Inc. 496 F.3d 773, 776 (7th Cir. 2007). Conclusory allegations are "not entitled to be assumed true." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009) (citing Twombly, 550 U.S. 544 (2007)).

In a motion to dismiss, a complaint is construed in the light most favorable to the plaintiff, its well-pleaded factual allegations are taken as true, and all reasonably-drawn inferences are drawn in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994); Hishon v. King & Spalding, 467 U.S. 69 (1984); Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997); M.C.M. Partners, Inc. v. Andrews-Bartlett & ...


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