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Response to Defendants' motion to dismiss
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IN THE UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
VILLAGE OF DE PUE ILLINOIS, )A MUNICIPAL CORPORATION, )
)Plaintiff, )
) Case No. 08-1272v. ) Judge McDade
) Magistrate Judge GormanVIACOM INTERNATIONAL, INC., n/k/a )CBS OPERATIONS, INC., and EXXON )MOBIL CORPORATION, )
)Defendants. )
PLAINTIFF’S RESPONSE TO DEFENDANTS’ JOINT MOTION TO DISMISS ITS SECOND AMENDED COMPLAINT
RICHARD L. STEAGALL MELISSA K SIMSNicoara & Steagall WILLIAM J. WIMBISCUS, JR.416 Main Street, Suite 815 Wimbiscus Law FirmCommerce Building 102 E St Paul StreetPeoria, IL 61602 Spring Valley , IL 61362309-674-6085 815-664-4151Fax: 309-674-6032 Fax: 815-663-4351Email [email protected] Email: [email protected]
E-FILED Friday, 06 November, 2009 10:42:41 PM
Clerk, U.S. District Court, ILCD
1:08-cv-01272-JBM-JAG # 35-1 Page 1 of 28
Now comes the Plaintiff ,Village of DePue, Illinois, a Home Rule Municipality, by its
attorneys, Richard L. Steagall and Melissa K. Sims, and for Plaintiff’s Response to the Joint
Motion to Dismiss of Defendants states:
I.Introduction
Exxon/Mobil and Viacom/CBS say this is “the third attempt by the Village to interfere
with the remediation of the DePue/New Jersey Zinc/Mobil Chemical Superfund Site (the
“Site”).” JointMot:¶ 1. The remediation is occurring at a snail’s pace under a March 6, 1995
Interim Consent Order Exxon/Mobil and Viacom/CBS agreed to in an action brought by the
Illinois Environmental Protection Agency in the Circuit Court of Bureau County.
Exxon/Mobil and Viacom/CBS do not tell us what about the Village’s tort claim for
damage to its property caused by the 14 worst toxic site in the United States “interfere[s] withth
the remediation” of the pollution from that site. In Depue I, the Seventh Circuit held the
Comprehensive Environmental Response,Compensation, and Liability Act (“CERCLA”) as
amended by the Superfund Amendments and Reauthorization Act (“SARA”) did not preempt the
Village’s nuisance abatement action. 42 U.S.C. § 9613. Village of Depue, Illinois v. Exxon Mobil
Corporation , 537 F.3d 775, 784-86 (7th Cir. 2008). Section 113 (h) of CERCLA is limited to
federal actions review of remedial efforts under 9604 and 9606 (a) and does not preempt a state
law nuisance action in state court or in federal court on diversity of citizenship. Id at 785 n.8.
During Depue I, the Village was a non-home rule unit of government. The Seventh Circuit held
the Village’s action under its nuisance abatement ordinance was preempted by clean up being
performed under the Illinois Environmental Protection Act. This was because the non-home rule
ordinance was contrary to the “spirit and purpose” of that state statute. Depue I, 537 F.3d at 789.
1:08-cv-01272-JBM-JAG # 35-1 Page 2 of 28
The Village has been a home rule unit of local government since November 4, 2008.
Depue I was a prosecution brought by the Village under its nuisance abatement
ordinance. Ex:1. That ordinance required Exxon/Mobil and Viacom/CBS to clean up the1
pollution on their own property. The originalordinance action was a quasi criminal action. City of
Danville v. Clark, 63 Ill.2d 408, 348 N.E.2d 844 (1976)(civil procedures applied in quasi
criminal action to prosecute regulatory ordinances that were criminal in nature).
The second amended complaint asserts common law tort claims against Exxon/Mobil and
Viacom/CBS for the damage to its property. The Illinois Environmental Protection Act provides
that “[n]o existing civil or criminal remedy for any wrongful act shall be excluded or impaired by
this Act.” 415 ILCS 5/45 (a), (b) (2006). The modern contours of the common law tort of
nuisance for unreasonable use of one’s land to the damage of adjoining landowners has existed
since Rylands v. Fletcher. L.R., 3 H.L. 330 (1868)(holding mill owners who constructed
areservoir which gave way and flooded the neighboring coal mine were strictly liable for the
damage). The Illinois Supreme Court has applied the doctrine of Rylands v. Fletcher for over 120
years. Seacord v. People, 121 Ill. 623, 13 N.E. 194, 199 (1887).(affirming a verdict of
public nuisance against defendant who collected dead animal carcasses on his land near dwelling
houses).
The EPA first began investigating the pollution from the site in 1980 and issued in 1982.
Ex:2 On November 9, 1995, the predecessors of Exxon Mobil and Viacom/CBS entered into an
Interim Consent Order with the Illinois EPA in the Circuit Court of Bureau County, Illinois. The
Order obligated Exxon/Mobil and CBS/Viacom to undergo the process for clean up of the toxic
The Village is filing the exhibits separately. Ex:1 is The National Priority List Fact1
Sheet used in Depue I, C.D. Ill. Case No. 06-1226; Dckt: 1:Ex:1:2:¶ 5[Ex:C; National PriorityList Fact Sheet].
1:08-cv-01272-JBM-JAG # 35-1 Page 3 of 28
remain s of the site. Exxon/Mobil is the world’s most profitable corporations with 150 years
experience in chemical and petroleum distillates. Viacom/CBS is the fourth largest2
entertainment company in the world.3
The Village has a population of 1,842. It relied on Exxon/Mobil, Viacom/CBS, and the4
Illinois EPA to clean up the site. The National Priority List Fact Sheet existing at the time Depue
I was filed stated the initial health evaluations found no short-term threats to nearby populations
Ex:2. Exxon/Mobil and Viacom/CBS spent 14 years from the November 6, 1995 Interim
Consent Order erecting a water treatment plant in the South Ditch portion of the site. Ex:2. And5
that plant is only an “interim” plant. Ex:2.6
The first report of the results of testing – “remedial investigation” in environmental speak
– outside the site was finalized and made public in June, 2009. It showed “concentrations of
Exxon/Mobil = oil-g’dammit ”, CNN Money, Apr il 23, 2007.2
http://money.cnn.com/magazines/for tune/fortunearchive/2007/04/30/8405398/index.htm.Exxon/Mobil’s 2006 profit s of $39.5 billion were the largest of any company in history.Exxon/Mobil paid outgoing CEO Lee Raymond a $400 million retirement package. Thecompany reject s the policy of r ival BP to invest in environmentally friendly fuels.Exxon/Mobil limit s its activities to pet roleum and supplies better returns on its capital toits shareholders than any other company on earth. United States v. S haughnessy, 219 F.2d 77, 79(2d Cir . 1955). Oran v. Stafford, 226 F.3d 275, 289 (3d Cir . 2000)(newspaper reports ofcorporate earnings are the subject of judicial notice).
3
http://money.cnn.com/magazines/for tune/for tune500/industries/Entertainment/1.html. Revenuesin 2006 were $14.5 billion on net worth of $21.7 billion.
4 http://www.city-data .com/city/De-Pue-Illinois.html;p.1.8 . Laborers' Pension Fundv. Blackmore Sewer Const., Inc., 298 F.3d 600, 608 (7 Cir . 2002)(judicial notice is appropriateth
of matters on the Internet).
5
http://www.epa.state.il.us/community-relations/fact-sheets/new-jersey-zinc/new-jersey-zinc-12.html
Id; Why has it taken so long for the responsible parties to focus on the clean-up of6
DePue Lake?
1:08-cv-01272-JBM-JAG # 35-1 Page 4 of 28
metals (zinc, cadmium, copper, lead etc.) are elevated. The highest concentrations of these metals
were located near the South Ditch discharge area and south of Division Street.” Ex:3.“The most7
likely most likely human exposure pathway with DePue Lake is incidental ingestion of the turbid
water, sediment and soil through recreational activities.” Ex:3 The Illinois Department of8
Natural Resources announced in that June, 2009 Fact Sheet limitations on the ingestion of fish
from Lake Depue to 1 meal per month/6 meals per year in great detail. Ex:3. 9
The Fact Sheet states exposure can be “minimized” by washing your hands before eating
and drinking after being in contact with Lake waters and washing any mud from clothing and
skin, the boat and oars, fishing rods and lure and draining bilge water before leaving the lake
area. Ex:2. Exxon/Mobil and Viacom/CBS have obviously convinced the Illinois EPA that this10
is an overwhelming task.
In the 10 years since the November 6, 1995 Interim Consent Order, Exxon/Mobil and
Viacom/CBS have performed actual cleaning work on only 40 acres of the 1500 acre site Depue
I. Ex:2. At that rate, the clean up will be completed in the year 2365. The Village Council see the
site everyday. They did their basic arithmetic and determined on October 18, 2006 that they
Id, Describe the types of contamination that have been found in the DePue Lake.7
Id, What are the most likely exposure pathways to potential contamination in DePue8
Lake?
Id, Are the fish in DePue Lake safe to eat? The advisory limits consumption of catfish9
and carp to 1 meal per month of any size, 6 meals / year of fish less than 24 inches and not to eatfish greater than 24 inches caught in DePue Lake. In addition there is an advisory to limitlargemouth bass to 1 meal / week, Channel Catfish to 1 meal / week less than 12 inches, 1 meal /month between 12 and 18 inches, 6 meals / year 16 to 18 inches and not to eat Channel Catfishgreater than 18 inches.
Id, What can I do to minimize my exposure to potential contaminants in and around10
DePue Lake?
1:08-cv-01272-JBM-JAG # 35-1 Page 5 of 28
could not rely upon the iron triangle of Exxon/Mobil, Viacom/CBS, and the Illinois EPA to
remedy this pollution. Depue I, C.D.Ill. Case No. 06-1226; Dckt #1:Ex:1. The site has risen from
24 on the National Priority List of the worst toxic sites in the United States at the time Depue Ith
was filed, to 14 when Depue II was began on August 10, 2008. Ex:2;Ex:3. The latest Fact Sheetth
refers to the site as 950 acres.Ex:3. No explanation is given for what happened to the 550 acres of
the site designated as 1500 acres in the Fact Sheet existing at the time Depue I began. Ex:2.
The Village’s suspicion about the 365 year clean up confirmed in the June, 2009 Fact
Sheet. Ex:3. It has suffered significant damage to the property it owns. The simplest way to
proceed was the exercise of its police powers to impose the $10,000 a day civil penalties on
Exxon/Mobil and Viacom/CBS each for the pollution under a home rule ordinance. The amount
of the penalty is the same imposed by Section 42 of the Illinois Environmental Protection Act for
noncompliance with Illinois EPA Orders or violations of the Act. 415 ILCS 5/42 (2008). This
court has held the Illinois Attorney General’s approval of the Interim Consent Order in the
Circuit Court of Bureau County was sufficient action to preempt the Village’s home rule powers
under Article VI Section 7 of the Illinois Constitution of 1970. 25. The Village has now turned11
to the common law of torts to obtain compensatory and punitive damages for Exxon/Mobil and
Viacom/CBS’s damage to the Village’s property. The Village owns the streets and public right of
way, the Village Hall and surrounding lot on the shores of Lake Depue and the shores, marina,
and the 20 acres of Lake Depue it owns.
II.The Statute of Limitations Has Not Expired
A. The Statue of Limitations is an Affirmative Defense Which Must be Pleadand Proven by the Defendant
“25" refers to the docket number of documents in this case.11
1:08-cv-01272-JBM-JAG # 35-1 Page 6 of 28
Exxon/Mobil ignores the fact the statute of limitation is an affirmative defense.
Fed.R.Civ.Proc. 8 (c). The burden of pleading and proving the statute of limitations as with all
affirmative defenses is on the defendant. Law v. Medco Research, Inc., 113 F.3d 781, 786 (7th
Cir. 1997)(“too much emphasis on the statute of limitations can precipitate premature and
groundless suits”).
This is a Rule 12 (b)(6) motion to dismiss. A plaintiff is not required to negate an
affirmative defense in his complaint. Tregenza v. Great American Communications Co., 12 F.3d
717, 718 (7 Cir. 1993). A Rule 12 (b)(6) motion to dismiss can be granted for expiration of theth
statute of limitations only when the “allegations leave no doubt that an asserted claim is
time-barred.” LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1 Cir. 1998) quoted inst
Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 670 n. 14 (7 Cir. 1998). th
B. The Limitations Period is Provided by Illinois Law, but the Accrual Date isSupplied by the Accrual Rules of Section 203 of CERCLA Applying theIllinois Doctrine of the Continuing Tort Which is Longer Than the PeriodProvided by the Federal Discovery Rule
Exxon/Mobil and Viacom/CBS’ reference to the five year Illinois property damage statute
of limitations is correct as far as it goes. 735 ILCS 5/13-205 (2008). JointMem:6-8. The
limitations period is supplied by the Illinois law, but the accrual of that limitations period is
provided by Section 309 of CERCLA. 42 U.S.C. § 9568 (a)(1) Congress exercised its commerce
power in adopting the SARA Amendments to CERCLA to provide a uniform accrual period for
state law actions for personal injury or property damage caused by hazardous or polluting
substances. . Freier v. Westinghouse Electric Company, 303 F.3d 176, 184 (2d Cir.2002). 12
The Comprehensive Environmental Response, Compensation, and Liability Act was12
adopted in 1980. (CERCLA) 42 U.S.C. § 9601 et seq. It purpose was to provide the necessarytools to clean up hazardous waste and impose liability on those responsible for the release ofsuch substances for the cost and clean up of the conditions they created. Walls v. Waste Resource
1:08-cv-01272-JBM-JAG # 35-1 Page 7 of 28
Section 309 of CERCLA provides a discovery rule providing state period of limitations
accrues on the date the plaintiff knew (or reasonably should have known) that the personal injury
or property damages were caused or contributed to by the hazardous or polluting substance shall
be applied. 42 U.S.C. § 9568 (a)(4)A). Significantly, this federal discovery rule applies only
when the state limitations period is earlier. 42 U.S.C. 9568 (a)(1). 13
Illinois – like most every state -- provides a longer accrual date than fives years from the
date of discovery of damages from pollution. A separate nuisance and trespass occurs each time
pollutants from a defendant’s property enter the plaintiff’s property. Meyers v. Kissner, 149 Ill.2d
1, 594 N.E.2d 336, 340 (1992). The statute of limitations runs anew in each time plaintiff is
damage from defendant’s pollutants.
Section 302 of CERCLA mandates application of the Illinois doctrine of continuing
nuisance and trespass torts because the period is longer than the federal minimum of five years
after the date of discovery. In this case, each time heavy metals ran downhill from the site during
a rain or melting snow and damaged the Village’s property was a separate tort of nuisance and
trespass . The five year Illinois property damage statute of limitations began anew with each
deposit of pollutants on the Village’s property to its damage.
Corp., 823 F.2d 977, 980 (6th Cir. 1987). The Superfund Amendment and Reauthorization Act of1986 (SARA) was Congress’ response to the alarming lack of progress in cleaning up pollutedsites. H.R. Report No. 253, 99thCong.,1st Sess. Pt .1 a t 54-55, Pt 5 at 2-3 (1985).
“In the case of any action brought under State law for personal injury, or property13
damages, which are caused or contributed to by exposure to any hazardous substance, orpollutant or contaminant, released into the environment from a facility, if the applicablelimitations period for such action (as specified in the State statute of limitations or undercommon law) provides a commencement date which is earlier than the federally requiredcommencement date, such period shall commence at the federally required commencement datein lieu of the date specified in such State statute.” 42 U.S.C. 9568 (a)(1).
1:08-cv-01272-JBM-JAG # 35-1 Page 8 of 28
In Meyers, the Illinois Supreme Court held while the five year statute of limitations does
not preclude suits for a continuing nuisance and trespass, it does limit the time for which damages
may be recovered. 594 N.E.2d at 340. This application of state law is preempted by the contrary
federal rule of Section 203 of CERCLA. Parker v. Scrap Metal Processors, Inc., 386 F.3d 993,
1016-17 (11 Cir. 2004). The plaintiffs brought a nuisance and trespass action for pollution ofth
their land from migration of toxic materials from defendant’s adjoining scrap metal business. 385
F.3d at 1016. Georgia courts apply the same rule as Meyers. Ga.Code Ann. § 9-3-30. Id at 1016-
17. The Eleventh Circuit held the Georgia restriction of damages to those occurring with the
period of its statute of limitations was preempted by Section 203 of CERCLA. Id at 1017. A
plaintiff satisfies Section 203 by bringing the action within the federal required commencement
date on discovery of the wrong and the damage from that wrong or longer period provided by state
law. . Having met the federal mandated commencement date, the plaintiff is entitled to recover
damages for the entire period the pollutants have caused him damage. 386 F.3d at 1017.
C. Even if the Continuing Tort Doctrine Were Not Applied, the Village’sDamage Action is Timely as It Was Brought Before Discovery of Damage tothe Village Property From the Polluted Site in the June, 2009 Fact Sheet
Application of the federal discovery rule to the statute of limitations would lend
Exxon/Mobil and Viacom/CBS no aid. The Village relied on the statement in the Fact Sheet of
the National Priority List that there was no short term risk to health. Ex:2. That statement has
been superseded by the listing of the hazards to users of Lake Depue in the June, 2009 Fact Sheet.
Ex:3. The Village’s August 10, 2008 action was brought before that disclosure. 1:Ex:1. It was also
bought before the Village hired engineers to perform the March 2, 2009 showing the elevated
levels of heavy metals in the blue water flowing downhill from the site through the Village when
1:08-cv-01272-JBM-JAG # 35-1 Page 9 of 28
it rained.
D. The Village’s Claim for Damages to the Public Property It Owns is a Claim ofthe Sovereign Not Subject to Any Statute of Limitation
The abolition of sovereign immunity did not include elimination of the government’s
immunity from statutes of limitations. City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill.2d
457, 451 N.E.2d 874, 876-77 (1983). The public should not bear the consequences of the neglect
of its officials. Id. The court held the City’s action to recover damages for the defendant’s failure
to construct the public streets in a workmanlike manner was a public right. The safety of all that
use the streets require that they be constructed in a workmanlike manner, which makes the
recovery of damages for defective construction an action in the public interest. 451 N.E.2d at 877-
78.
Here the Village is seeking to damages for the deposit of metals well beyond those safe to
animal and plant life. The June, 2009 Fact Sheet details the risk of harm to the public. An action
to recover damages from the polluters who stockpiled and then did not contain the toxic metals
from water running downhill whenever it rained or snow melted is an action to vindicate the
public right. The statute of limitations does not preclude such an action by the sovereign.
III.Res Judicata/Claim Preclusion Has No Application
A. Res Judicata is an Affirmative Defense Which Can Not be Decided on a Rule12 (b)(6) Motion to Dismiss
Exxon/Mobil and Viacom/CBS begin by saying judgment in the prior action bars the tort
claims in this action under the doctrine of res judicata. Village of Depue, Illinois v. Exxon Mobil
Corporation., 537 F.3d 737 (7 Cir. 2007). They again ignore their burden of pleading andth
proving an affirmative defense in this case, the defense of res judicata. Fed.R.Civ.Proc. 8 (c).
1:08-cv-01272-JBM-JAG # 35-1 Page 10 of 28
There must be no doubt from the face of the complaint and the filings in the action claimed to
have estoppel effect that the plaintiff’s claim could avoid res judicata in order to grant a Rule 12
(b)(6) motion to dismiss on those grounds. LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,
509 (1 Cir. 1998) quoted in Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 670 n.14 (7 Cir.st th
1998).
Exxon/Mobil and Viacom/CBS do not identify the source of law that governs the estoppel
effects of the federal judgment in the Depue I diversity of citizenship action The preclusive effect
of a federal diversity judgment is a matter of federal common law. Semtek International Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021 (2001). But the law required to be
applied under federal common law is the law of the state in which the federal court sits. Id.
B. The Claims Asserted in This Action and In Depue I Are Not Identical Causesof Action
Depue I satisfies two of the three elements of res judicata. There is (1) identity of the
parties and (3) there was a final judgment on the merits in Depue I. Cole v. Board of Trustees of
University of Illinois, 497 F.3d 770, 772 (7 Cir. 2007).th
Exxon/Mobil and Viacom/CBS’ failure to identity the actual claims asserted in Depue I is
fatal to their burden of demonstrating the identity of causes of action element of res judicata is
present. Such a discussion is essential as res judicata precludes all claims that were litigated or
might have been litigated in the prior action. Cole, 497 F.3d at 772 (7 Cir. 2007). th
Illinois applies the transactional analysis test of identity of causes of action. The evidence
on each claim is examined to determine if the claims arise from the same group of operative facts
and arise from the same transaction. Illinois River Park, Inc. v. City of Highland Park, 184 Ill.2d
290, 703 N.E.2d 883, 893 (1998) relying upon Restatement (Second) of Judgments § 24,
1:08-cv-01272-JBM-JAG # 35-1 Page 11 of 28
Comment b, at 199. The identity of cause of action element of res judicata is not met if the same
facts or evidence are not essential to both proceedings. People ex rel. Hartigan v. Illinois
Commerce Comm'n, 243 Ill.App.3d 544, 611 N.E.2d 1321, 1326 (1993).
Depue I was an ordinance prosecution of Exxon/Mobil and Viacom/CBS’ maintenance of
the polluted site in violation of the nuisance abatement ordinance. Depue Code § 7-5-3. Section 7-
5-3 provides that every day an offender fails to abate a nuisance on his property after notice
constitutes a separate offense subject to a civil penalty of $750 per day. Ex:1. The evidence14
required to sustain the ordinance prosecution Depue I was: (1) a notice to abate Exxon/Mobil and
Viacom/CBS and (2) the existence of a nuisance, an unreasonable use of one’s property resulting
in “a material inconvenience, discomfort or hurt.” Kolstad v. Rankin, 179 Ill.App.3d 1022, 534
N.E.2d 1373, 1379-80 (1989)(defining nuisance).
The transaction in Depue I was the failure to abate a nuisance on one’s own property after
notice to abate. The second amended complaint here in Depue II asserts common tort claims of
public nuisance, private nuisance, and trespass proximately causing damage to the Village’s
property.
A public nuisance requires evidence of: “(1) the existence of a public right; (2) a
substantial and unreasonable interference with that right by the defendant; (3) proximate cause,
and (4) injury.” City of Chicago v. American Cyanamid Co., 355 Ill.App.3d 209, 823 N.E.2d 126,
130 (2005). The nuisance must be the result of either intentional and unreasonable conduct or
negligence. City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 821 N.E.2d 1099, 1147
(2004)
Ex:1 of the plaintiff’s exhibits to its response to the joint motion to dismiss is the14
ordinance which was of record in Depue I., C.D.Ill. Case No. 06-1:DefEx:1-4-p.12-14.
1:08-cv-01272-JBM-JAG # 35-1 Page 12 of 28
The elements of a private nuisance are (1) substantial and unreasonable interference with
another’s interest in the use of his land, (2) intentional, reckless, or negligent conduct, (3)
proximate cause, and (4) injury. Willmschen v. Trinity Lakes Improvement Ass'n, 362 Ill.App.3d
546, 840 N.E.2d 1275, 1281 (2005); Patterson v. Peabody Coal Company, 3 Ill.App.2d 311, 316,
122 N.E.2d 48, 51 (Ill.App. 4 Dist.1954).
A trespass to land is any unauthorized entry on the land of another resulting directly or
indirectly from one’s conduct. 75 Am.Jur. 2d Trespass § 18. Unless nominal damages are sought,
the plaintiff must prove an injury was proximately caused from the entry on the land. An
intentional intrusion on land subjects one to liability irrespective of whether it causes harm to a
legally protected interest. Dial v. City of O'Fallon, 81 Ill.2d 548, 411 N.E.2d 217, 219 (1980)
citing Restatement (Second) of Torts § 158 at 277 (1965). A reckless intrusion on the land of
another gives rise to liability if it causes harm to a legally protected interest. Dial, Id citing
Restatement §165, at 300. There is no liability for an unintentional entry on to land that is not
negligent even though the entry causes harm to a legally protected interest. Dial, 411 N.E.2d at
220 citing Restatement § 166 at 304. The projection of any substance onto the land of another is a
trespass. Dial, 411 N.E.2d at 221.
The evidence necessary to prove the transactions involved in the torts of public nuisance,
private nuisance, and trespass are significantly different than the action to abate the nuisance
under the Section 7-5-3 of the Depue Code. The ordinance violation is failure to abate a nuisance
after notice. The Village was not required to prove Exxon/Mobil and Viacom/CBS acted
intentionally or negligently as it does in the public nuisance and private nuisance torts. It does not
have to prove an entry onto the Village’s land caused by Exxon/Mobil and Viacom/CBS as is
required under the tort of trespass. The existence of a nuisance on Exxon/Mobil and
1:08-cv-01272-JBM-JAG # 35-1 Page 13 of 28
Viacom/CBS’ land and failure to abate that nuisance after notice is all that need be shown under
the ordinance.
The facts essential to the common law tort claims here are not essential to the abatement
ordinance prosecution in Depue I. The identity of causes of action element is not present and res
judicata does not apply. People ex rel. Hartigan, 611 N.E.2d at 1326.
C. The Claim for Damage to the Village’s Own Property Could Not Have BeenLitigated in the Prior Nuisance Abatement Action As This Court and theSeventh Circuit Refused to Construe it to Include a Claim for Damages
This court considered whether the $750 a day penalty sought in the ordinance prosecution
complaint could be construed as an action for damages from a nuisance. Ex:4; Depue I, C.D.Ill.
O6-1266; Dckt #36:Tr:15-16. Actions for the costs of clean up and the diminished value of
property are authorized under Section 907 of CERCLA.42 U.S.C. § 9607 (a)(4). Section 113 (h)
excepts such actions from the preclusion of federal review during development of a plan for
remediation. 42 U.S.C. § 9613 (h).
This court considered the contention further in its Order ruling on the motion to dismiss.
The fine could be construed as compensation for the delay in cleaning up the pollution even
though it was not developed by plaintiff at argument. It noted plaintiff did not pursue that
contention at argument, but did not construe that to be a waiver. Depue I; Village of Depue,
Illinois v. Exxon Mobil Corp., 2007 WL 1438581, p.9 (2007); Ex:5
The court addressed the issue on the merits. It accepted defendant’s contention that the
fine is a means of leveraging a party into injunctive relief to clean up the property and a challenge
to the remedial plan adopted in the Interim Consent Order .Depue I at p. 9, supra. The Village
argued on appeal the complaint could be sustained as a damage action. Ex:6 15
Excerpts of the plaintiff’s brief are provided in Ex:6.15
1:08-cv-01272-JBM-JAG # 35-1 Page 14 of 28
This was appropriate under the liberal standards for review of a Rule 12 (b)(6) motion to
dismiss. Hrubec v.National Railroad Passenger Corp.. 981 F .2d 962, 963-64 (7th Cir .
1992)(dismissal reviewed on the basis of the complaint and any additional facts supplied by
memorandum or brief on appeal that are consistent with the complaint); Stevens v. Umsted, 131
F.3d 697, 704 (7th Cir. 1997)(affirming Hrubec standard). Plaintiff cited Hrubec and Stevens
along with the fact the plaintiff is entitled to the benefit of imagination in construction of the
claims asserted in the complaint in its brief in the Seventh Circuit. Sanjuan v. American Board of
Psychiatry & N eurology 40 F .3d 247, 251 (7 Cir. 1994) cited approvingly Bell Atlantic v.th
Twombly, 127 S.Ct . 1955, 1964 (2007). Ex:6.
The Seventh Circuit rejected this argument construing the complaint as alleged, an action
under the Village’s nuisance abatement ordinance for a declaratory judgment Exxon violated the
ordinance, daily fines up to $750 a day, and an injunction requiring the immediate clean up of the
site. Depue I, 537 F.3d at 781.
The Seventh Circuit stated, “The Village’s application of its nuisance ordinance seeks to
address, in a heavy-handed manner, a difficult environmental problem that is not only of local
concern.” Id at 788. The attempted enforcement of the nuisance ordinance by the Village – then a
non-home rule unit of local government – conflict was outside its limited powers not to act in
conflict “with the spirit and purpose” of the clean up being pursued under the Illinois
Environmental Protection Act. Id.
It is the defendants “heavy” burden to demonstrate “with clarity and certainty” the matter
claimed to be precluded by res judicata could actually have been litigated in the prior action.
Jones v. City of Alton, Ill., 757 F.2d 878, 885-86 (7 Cir. 1985). The plaintiff in Jones filed a raceth
discrimination action for his termination as an Alton Police officer because of plaintiff’s off-duty
1:08-cv-01272-JBM-JAG # 35-1 Page 15 of 28
retail theft. The plaintiff’s offer of evidence that white officers involved in as bad or worse
activities were not recommended for discharge was refused by the Alton Civil Service
Commission. The plaintiff raised this issue and it was rejected in the action for administrative
review in the Illinois circuit court. The plaintiff made the same claim on appeal, but his evidence
was rejected as inadequate by the Illinois Appellate Court. The court also found the evidence that
whites received more favorable treatment– even if in proper form – did not demonstrate the
discharge was unaerated.757 F.2d at 880-82.
The Seventh Circuit held the defendants had not sustained their burden on res judicata that
the racial discrimination could have been litigated in the Illinois courts. The evidence of racial
discrimination was rejected by the Alton Civil Service Commission, the circuit court, and the
Appellate Court. Since plaintiff’s racial discrimination was not fully litigated on the merits, the
might have litigated element of the identity of causes of action element of res judicata was not
present. 757 F.2d at 886.
The Government’s action for an injunction for environmental pollution was dismissed with
prejudice and its claim for cost recovery dismissed without prejudice. United States v. Outboard
Marine Corp., 789 F.2d 497, 508 (7 Cir. 1986). The Seventh Circuit held the dismissal withoutth
prejudice was not erroneous.It also held the judgment did not have res judicata effects on the
United States’ pursuit of a cost recovery action for the defendant’s pollution. Id.
Here, the Village sought to have the merits of a claim for damages considered in this
district court and in the court of appeals in Depue I. Both this court and the Seventh Circuit
limited the case to the prosecution for violation of its nuisance abatement ordinance requiring
Exxon/Mobil and Viacom/CBS to clean up the site or face $750 a day fines. Like Jones, the
Village could not have litigated the merits of a nuisance damage claim in the prior action.
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D. The Government’s Pursuit of a Criminal or Quasi Criminal Remedy Does NotPreclude It From Bringing a Later Action to Obtain a Civil Remedy
The Government’s pursuit of a criminal remedy does not preclude its pursuit of a civil
remedy in a later action. United States. v. Cunan, 156 F.3d 110, 115 (1 Cir. 1998). A priorst
governmental quasi criminal ordinance enforcement action is subject only to issue preclusion.
Claim preclusion is inappropriate. Stoutmire v. Strickland, 1985 WL 1940, p.1 (N.D.Ill.
2005)(Shadur J.); See also East Hanover Township. v. Cuva 156 N.J.Super. 159, 383 A.2d 725
(N.J.Super.A.D. 1978)(holding not guilty in quasi criminal action did not preclude civil action on
same conduct).
IVThe Interim Consent Order Does Not Affect the Rights of Third Parties
And by Its Terms Does Not Apply to Village Owned Property or toLake Depue, Twenty Acres of Which is Owned by the Village
This court and the Seventh Circuit in Depue I held the Village could not use the terms
Interim Consent Order as a sword to bring its nuisance abatement ordinance action in the Circuit
Court of Bureau County. The Interim Consent Order addressed only actions interpreting the Order
itself. It was not intended to benefit the Village. Depue I, 537 F.3d at 783. Now Exxon/Mobil and
Viacom/CBS contend the Interim Consent Order entered into with the Illinois Attorney General on
behalf of the Illinois Environmental Protection Agency immunizes them from any liability to the
Village of Depue for damage to its property. That contention runs into directly into the language of
the Order. The Order expressly provides that it shall not have any effect on the claims of others for
personal injury or property damage. Ex:7 ICO;82:¶ 3; (“Nothing herein is intended to be a release
or settlement of any claim for personal injury or property damage by any person not a party to this
1:08-cv-01272-JBM-JAG # 35-1 Page 17 of 28
Interim Consent Order). Ex:716
“Consent decrees derive their authority from the parties' consent, which permits the parties
to give away their rights, not the rights of third parties.” State of Ohio ex rel Skaggs v. Brunner,
549 F.3d 268, 274 (6 Cir. 2008); Rumpke of Indiana, Inc. v. Cummins Engine Company, Inc., 107th
F.3d 1235, 1242 (7 Cir. 1997).th
There is more. By its terms, the ICO applies to the 1500 acre site of the abandoned
manufacturing plant and the various operations conduced on that site. Ex:7. The second amended17
complaint seeks recovery of damages for the toxic metals which have drained downhill from the
site into Lake Depue and polluted that spring fed lake bordering the Illinois River. The Village
owns the marina, and beachfront of Lake Depue and 20 acres of the Lake itself. Ex:7. The Interim
Consent Order does not include any of the Village’s property – including Lake Depue – in its
terms.
The Order obligated Exxon/Mobil and Viacom/CBS to do an “immediate investigation”
into groundwater contamination. Fourteen years have passed and the result of that testing have
been disclosed in the June, 2009 Fact Sheet. Ex:3. Exxon/Mobil and Viacom/CBS can not now
unilaterally amend the Order of the Circuit Court of Bureau County, Illinois to shield them from
the liability for pollution of the Village owned Lake Depue.
The relevant language of this portion of page 83 ¶ 3 of the Interim Consent Order and16
the Order is filed as Ex:7.
The Order lists the operations: a) primary smelting of zinc ore; b) production of17
lithopone paint pigment; c) production of sulfuric acid; d) production of phosphoric acid; e)manufacturer and distributor of diammonium phosphate fertilizer; f) manufacturer of zinc dust;g) recovery an refinery of other lesser concentration contained in zinc ore and scrap zinc, and h)operation of secondary zinc smelter. (ICO VIII). Ex:7.
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V.The Second Amended Complaint States a Claim for Common Law
Public Nuisance, Private Nuisance, and Trespass
A. The Common Law Torts of Public Nuisance, Private Nuisance, and TrespassWhen Applied to Pollution of the Plaintiff’s Land by the Defendant Addressthe Same Conduct
The Illinois Supreme Court has found the Restatement sets forth the common law of public
and private nuisance. City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 821 N.E.2d 1099,
1110-11 (2004). A public nuisance as “an unreasonable interference with a right common to the
general public.” Restatement of Torts (Second) § 821B (a). (1965) Circumstances that determine
whether a public nuisance exists are whether there is a (1) “significant interference with the public
health, safety, peace, comfort, or convenience” and (2) “the conduct is of a continuing nature or has
produced a permanent or long-standing effect, and, as the actor knows or has reason to know has a
significant effect on a public right.” Restatement, § 821B (b) (2).
A public official, a public agency, or someone who has suffered injury apart from that
suffered by the public at large may bring an action for a public nuisance. Restatement, § 821C.
A private person who suffers physical harm or damage to their land has suffered an injury different
from that suffered by the public at large and can bring a damage action for a public nuisance.
Restatement, § 821C Comment d.
A publicnuisance which inflicts damage upon a person different from that of the public at
large can also be brought as a private nuisance. Restatement § 821D. An invasion of one’s land by
substances from an adjoining landowner is a continuing trespass to land. Id; Comment e. Thus, the
same conduct can be the subject of a damage action for a public nuisance, a private nuisance, and a
trespass to land. Restatement § 821D Comment h.
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Municipalities may bring public nuisance actions to recover damages to municipal
property. Town of East Troy v. Soo Line Railroad, 653 F.2d 1123 (7 Cir. 1980)(affirming verdictth
in favor of Town for the costs of remedying water pollution by the defendant railraod); City of
Evansville, Indiana v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 1018 (7 Cir.th
1979)(holding City may maintain an action to recover the damage incurred when the City’s water
treatment plants from the discharge of toxic chemicals into the Ohio River by the defendant
refiner); Louisana Dept. Of Transportation and Development v. Kansas City Southern Railway
Co., 846 So.2d 734 (2003)(Louisiana Department of Transportation could recover cost of removal
of hazardous material from highway from previous property owners who deposited it there).
B. The Village Has Repeatedly Alleged Conduct of Exxon/Mobil, Viacom/CBSand Their Corporate Predecessors That is Tortious in the Second AmendedComplaint
1. The Complaint States a Claim for Public Nuisance
Exxon/Mobil and Viacom/CBS say the amended complaint ”failed to identify tortious
conduct” and “the second amended complaint suffers from that fatal deficiency.” DefsMem:14.
The second amended complaint repeatedly alleges misconduct by Exxon/Mobil and Viacom/CBS.
1. ¶ 24. The managerial acts of the Defendants from 1903 to present day knowinglycontaminated Lake DePue with the byproducts of its heavy metal manufacturing. ...
2. ¶25. The managerial acts of the predecessor corporations of Exxon/Mobil andViacom/CBS during the operation of the manufacturing plant making zinc products,sulfuric acid, diammonium phosphate, and fertilizers for 84 years was done intentionally,willfully and wantonly, or negligently by the managerial agents of Exxon/Mobil andViacom/CBS created an unreasonably dangerous in the land on the site that interfered withthe rights of the general public ...
3. ¶ 30. The ownership and occupation of the Site by Exxon/Mobil and Viacom/CBSsince 1987 when the manufacturing plant closed until 1995, wherein the metals ... ... attoxic levels continue to pollute the Village sic [by] accumulation and failure to confine thetoxic metals from water run off whenever it rains or melts
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4. ¶ 31. These abnormally dangerous activities subject Exxon/Mobil and Viacom/CBSto liability for a public nuisance ... ... Alternatively, the managerial agents of Exxon/Mobiland Viacom/CBS acted intentionally, willfully and wantonly, or negligently in stockpilingthe toxic metals as stated above. [i.e. “failure to confine the toxic metals from water run offwhenever it rains or melts” alleged in ¶ 30].
5. ¶ 34. The managerial agents of Exxon/Mobil and Viacom/CBS and their corporatepredecessors have intentionally, willfully and wantonly, or negligently allowed toxic metalsfrom the Site including zinc, lead, arsenic, cadmium, chromium, and copper to pollute theVillage of DePue and Lake DePue.
The Illinois system of fact pleading is more stringent than the federal system of notice
pleading.. Vincent v. City Colleges of Chicago, 485 F.3d 919, 923-924 (7th Cir.2007). But the
Illinois Supreme Court applies less exacting standards to nuisance claims because the concept
“eludes precise definition” and “depends on peculiar facts presented by each case.” City of Chicago
v. Beretta USA Corp., 213 Ill.2d 351, 821 N.E.2d 1099, 1110 (2005).
Exxon/Mobil and Viacom/CBS next say the second amended complaint does not allege the
“unreasonable interference element of a public nuisance claim.” The paragraphs quoted above
contain such references.
1.. ¶ 25. The managerial acts of the predecessor corporations of Exxon/Mobil andViacom/CBS during the operation of the manufacturing plant making zinc products,sulfuric acid, diammonium phosphate, and fertilizers for 84 years was done intentionally,willfully and wantonly, or negligently by the managerial agents of Exxon/Mobil andViacom/CBS created an unreasonably dangerous in the land on the site that interfered withthe rights of the general public ...
2. ¶ 31. These abnormally dangerous activities subject Exxon/Mobil and Viacom/CBSto liability for a public nuisance ... ... Alternatively, the managerial agents of Exxon/Mobiland Viacom/CBS acted intentionally, willfully and wantonly, or negligently in stockpilingthe toxic metals as stated above. [i.e. “failure to confine the toxic metals from water run offwhenever it rains or melts” alleged in ¶ 30].
These allegations must not be read in isolation.
¶13 During these years of heavy manufacturing, these toxic metals, however, did notsimply remain in place where they were dumped. The Site is located on a hill withsubstantial incline from the Site downward through the Village of DePue and Lake DePue.”
1:08-cv-01272-JBM-JAG # 35-1 Page 21 of 28
Ex:8-10 are satellite maps showing the significant incline from the Illinois River bluffwhere the site is located to the Village of Depue, Lake Depue, and the Illinois River.
¶15. ... The byproducts [from the 84 years of manufacturing] were stored in a number ofways and remain on the Site at the following locations among others:
A. Heavy metals were deposited in a ditch known as the South Ditch.Materials in the South Ditch directly migrate into Lake DePue.
B. Smelting and coal cinder wastes from the zinc processing operations wereaccumulated in a large pile called the “gob pile” or “cinder pile”. The gobpile covers about 15 acres along Marquette Street in DePue, whichcontains solid smelting wastes and coal cinders.
C. Lithopone was accumulated in ridges that cover approximately 28 acresand are in places the size of a building of more than two stories.TheseLithopone Ridges are adjacent to Marquette Street in DePue and arereferred to by local residents as the “Black Pile of Death.”
¶ 17. Toxic metals from the South Ditch, the gob pile, and the lithopone ridges continueto wash into the groundwater, the Village of DePue, and Lake DePue with each rainfall andmelting snow. The vegetation from the seeding eroded and failed, leaving thecontamination bare to runoff and ambient exposure. It is a blight to the community.
¶19. The toxic metals in the South Ditch, gob pile, and lithopone ridges contaminatedthe Village of DePue from 1903 to present day. Toxic metals do not break down. Becausethe contaminants remain in the groundwater and in the Lake, the damages from thenuisance are ongoing, continue to accrue, and will continue to accrue for many years tocome, independently of whether the nuisance itself continues.
Nine photographs taken on October 6, 2008 after a rain occurred show the blue water that runs
down the hill from the site through the Village of Depue and into Lake Depue.
¶ 20. The photographs that are Ex:A & B to the [second] amended complaint and Ex:5accurately depict the results which occur whenever it rainThe photographs accuratelydepicts the results that occur whenever it rains. lary of what occurs whenever it rains orsnow melts.
The Village waited 14 years since the Interim Consent Order was entered on November 6, 1995 for
the results of testing to determine if there was any damage from the site to the Village and Lake
Depue. On March 6, 2009, the Village retained engineer gathered samples during a rain and tested
1:08-cv-01272-JBM-JAG # 35-1 Page 22 of 28
the blue water that runs downhill from the site. The tests revealed Copper levels 56 times the
accepted levels to avoid risk of injury to animals and plants; 398 times such levels for Manganese;
224 times such levels for Zinc; 31 such levels times for Cadmium; and 20 times such levels for
Nickel. ¶ 22.
Part D, ¶ 24-25 sets forth the specifics of the running of the blue water containing toxic
metals through the Village of Depue and into Lake Depue contaminating the Lake. These
allegations and the risk to health have been confirmed in the test results released in the June, 2009
National Priority List Fact Sheet. Ex:3. It is a substantial and unreasonable interference with the
public right when one can not consume fish over a certain size and only so many per month and per
year. It also a substantial interference with a public right when you must wash your hands before
eating and drinking after being in contact with Lake Depue waters. That is not all. You must also
wash any mud from clothing and skin, the boat and oars, fishing rods and lure and draining bilge
water before leaving the lake area. Ex:3. So much for the prior Fact Sheet’s statement there was no
short term threat to the public health from the site. Ex:2.
2. The Complaint States a Claim for a Private Nuisance
Exxon/Mobil and Viacom/CBS repeat their assertion there were no allegations any
“intentional, negligent, or unreasonable invasion of a private interest in land. JointMem:15. They
also say “the Village does not allege any facts showing how, under the Restatement § 520 factors,
defendants’ operation of a zinc smelter/fertilizer plant was an abnormally dangerous activity, as
required under Illinois law.” DefMem:16.
The detailed allegations of ¶ 15, 17, 19, 20, 22-24, 25, 30, 31, 34 of the second amended
complaint contain those facts. The toxic byproducts of the zinc smelting and fertilizer
manufacturing, copper, manganese, and zinc were stockpiled where they would run downhill in
1:08-cv-01272-JBM-JAG # 35-1 Page 23 of 28
rainwater at 100-500 times acceptable levels , cadmium at 31 times, and zinc 21 times acceptable
levels through the Village of Depue and into Lake Depue. These levels are specifically alleged in ¶
22. These metals ran with the water downhill in the 86 years of manufacturing at the site and have
continued to run downhill for the 20 years since the plant was closed in 1989. Fourteen of those
years – 1995-2009 -- the site was the subject of the Interim Consent Order under which
Exxon/Mobil and Viacom/CBS agreed not to remediate the pollution, but to plan to remediate the
pollution on the site.
Exxon/Mobil has multitudes of petroleum engineers and geologists. Exxon/Mobil and
Viacom/CBS also have multitudes of environmental and civil engineers. It does not take an
engineer to know water runs downhill. The sophisticated chemical processes required by the
manufacturing process and in the testing for a plan of remediation necessarily revealed levels of the
toxic metals at levels that are unacceptable to animal and plant life. Yet Exxon/Mobil and
Viacom/CBS and its corporate predecessors did nothing to contain the toxic metals and dispose of
them. Instead they allowed them to run downhill through the Village and into Lake Depue
whenever it rained or snow melted. That is tortious conduct.
3. The Complaint States a Claim for Trespass
Exxon/ Mobil and Viacom/CBS repeat their contention of insufficient allegations of
toritous conduct in the trespass claim. The allegations referred to previously in the public nuisance
and private nuisance claims are likewise applicable to the trespass claim. The second amended
complaint states a claim for trespass.
V.The Village Seeks Recovery of Damages That Are the Subject of
Tort Liability And Not Precluded by the Economic Loss Doctrine
Exxon/Mobil and Viacom/CBS close by contending the Village’s claim is precluded by the
1:08-cv-01272-JBM-JAG # 35-1 Page 24 of 28
economic loss doctrine. JointMem:17-19. The Illinois Supreme Court has defined “damages for
inadequate value, costs of repair and replacement of the defective product, or consequent loss of
profits-without any claim of personal injury or damage to other property. Moorman Mfg. Co. v.
National Tank Co., 91 Ill.2d 69, 435 N.E.2d 443, 449 (1982). Moorman was a strict products
liability action for a crack in a grain storage tank manufactured by the defendant. No one injured
and no property was physically damaged. Strict products liability would have been appropriate if
there were personal injury, physical damage to property, or the defect caused a sudden calamitous.
But the crack in the tank was a failure of the product addressed by contract law. The plaintiff’s
remedies were those available for breach of warranty under the Uniform Commercial Code. Id at
450-51, 453.
The economic loss doctrine applies to “disappointed commercial expectations, gradual
deterioration, internal breakage, or other nonaccidental causes, rather than a dangerous event.”
Redarowicz v. Ohlendorf, 92 Ill.2d 171, 177-78, 441 N.E.2d 324 (1982). It does not apply to
property damage from a nuisance such as the perishable inventory lost in the Chicago River flooed
into underground tunnels under the Loop. In re Chicago Flood Litigation, 176 Ill.2d 179, 680
N.E.2d 265, 276 (1997).
The costs of repairing a building contaminated by asbestos asserted in tort claims of strict
products liability and negligence is not barred by the economic loss doctrine. Tioga Public School
Dist. No. 15 of Williams County, State of N.D. v. U.S. Gypsum Co., 984 F.2d 915 918 (8 Cir.th
1993)(applying North Dakota law). The risk to the health of persons exposed to asbestos makes
clean up costs the appropriate subject of tort liability. Id at 918. The tort claims of grain farmers
whose corn was destroyed by contact with defendant’s defective genetically altered corn from cross
pollination in the field or by commingling in distribution were not precluded by the economic loss
1:08-cv-01272-JBM-JAG # 35-1 Page 25 of 28
doctrine. In re StarLink Corn Products Liability Litigation, 212 F.Supp.2d 828, 842-43 (N.D.Ill.
2002).
Here the Village has suffered physical injury to its streets, land surrounding the Village
Hall and the shores and bottom of Lake Depue. This occurs from the deposit of toxic metals in the
blue water runoff from the site whenever it rained or snow melts. Those claims are actionable in
tort and not precluded by the economic loss doctrine.
Respectfully submitted,
s/ Richard L. Steagall RICHARD L. STEAGALL,Attorney for the Plaintiff
1:08-cv-01272-JBM-JAG # 35-1 Page 26 of 28
LOCAL RULE 7.1 CERTIFICATION
The undersigned states this document was prepared on his law firm’s Wordperfect X4software and the word count is 8239.
s/ Richard L. Steagall RICHARD L. STEAGALL
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed this document with the Clerk of the court onNovember 6, 2009 using the CM/ECF system, which will send this document and notification ofits filing by e-mail to the following:
Mr. Henry W. IpsenHolme Roberts & Owen LLPSuite 14001700 Lincoln Street, Suite 1400Denver , CO 80203-4541303-866-0430Fax: 303-866-0200Email: [email protected] Attorney for Viacom International, Inc. n/k/a CBS Operations, Inc.
Mr. Rex K LinderMr. Robert M. BennettHeyl Royster Voelker & Allen124 SW Adams Street, Suite 600Peoria , IL 61602309-676-0400Fax: 309-676-3374Email: [email protected] Email: [email protected] Attorneys for Viacom International, Inc. n/k/a CBS Operations, Inc.
1:08-cv-01272-JBM-JAG # 35-1 Page 27 of 28
Mr. Mark S LillieMr. Peter Michael StasiewiczKirkland & Ellis200 E Randolph DriveChicago , IL 60601312-861-2000Fax: 312-861-2200Email: [email protected] Email: [email protected] Attorneys for Defendant,Exxon Mobil Corporation
Ms. Wendy BloomKirkland & Ellis LLP200 East Randolph DriveChicago , IL 60601312-861-2000Fax: 312-861-2200Email: [email protected] Attorneys for Defendants, Viacom International, Inc.n/k/a CBS Operations, Inc.and Exxon Mobil Corporation
s/ Richard L. Steagall RICHARD L. STEAGALL
RICHARD L. STEAGALL MELISSA K SIMSNicoara & Steagall WILLIAM J. WIMBISCUS, JR.416 Main Street, Suite 815 Wimbiscus Law FirmCommerce Building 102 E St Paul StreetPeoria, IL 61602 Spring Valley , IL 61362309-674-6085 815-664-4151Fax: 309-674-6032 Fax: 815-663-4351Email [email protected] Email: [email protected]
1:08-cv-01272-JBM-JAG # 35-1 Page 28 of 28
