II. State Law Claims

In Counts IIII-VI of its Complaint, CKM asserts claims for
breach of contract, negligence, nuisance and unjust enrichment
under Illinois law. Having granted Phillips’s motion to dismiss
CKM’s RCRA claims, there is no longer a federal claim pending
before this Court. Thus, this Court, in its discretion, declines
to accept supplemental jurisdiction over CKM’s state law claims
of breach of contract, negligence, nuisance and unjust
enrichment. See, e.g., Vukadinovich v. Board of Sch. Trustees,
978 F.2d 403, 415 (7th Cir. 1992) (“It is well established that
if federal claims are dismissed before trial, the federal
district courts should generally dismiss the state law claims as
well.”); Vakharia v. Swedish Covenant Hosp., 987 F. Supp. 633,
643 (N.D. Ill. 1997) (“Ordinarily, if a court rules against a
plaintiff on all federal claims short of trial the pendent state
law claims are dismissed without prejudice.”), aff'd, 190 F.3d
799 (7th Cir. 1999). Accordingly, the Court dismisses Counts
III-VI without prejudice.

CONCLUSION

For the reasons set forth above, the Court grants Phillips’s

motion to dismiss. CKM’s RCRA claims (Counts I and II) are

dismissed with prejudice. CKM’s state law breach of contract,


I. RCRA Claims

The first two counts of CKM’s Complaint sought declaratory
and injunctive relief, and monetary damages under RCRA, 42 U.S.C.
§ 6972(a) and (e). CKM requested that the Court declare that
Phillips: (1) was the past owner/operator of the property; (2)
contributed to the storage of waste which presents imminent and
substantial endangerment to health or the environment; and (3) is
responsible for undertaking, at its expense, all necessary
remediation action. CKM also requested that the Court enter a
permanent injunction requiring Phillips to remediate the
contamination at its expense. The NFR letter issued by the IEPA
regarding this contamination moots CKM’s claims for declaratory
or injunctive relief.

All that remains then is CKM’s claim for monetary damages
under RCRA. However, RCRA does not permit citizen suits for
recovery of money spent on past investigation and remediation

efforts. See Mehrig v. KFC Western, Inc., 516 U.S. 479, 484

(1996); Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692,

694 (7th Cir. 1999). CKM‘’s desire to be reimbursed by Phillips
for its expenditures in dealing with this contamination
“certainly seems fair, it is simply not allowed under RCRA.”
Avondale, 170 F.3d at 695. CKM may yet recover from Phillips
“but not in this court and not under RCRA.” Id. Thus, CKM’s
claim for investigation and remediation costs prior to or during

this suit must be dismissed.


negligence, nuisance and unjust enrichment claims (Counts III-VI)
are dismissed without prejudice.

ENTER:

i
Fs
gS Yarovich

States District Judge

DATED:

I Xo)
C


Minute Order Form (06/97)

Ao United States District Court, Northern District of Mlinois
jame of Assigned Judy oT Sitting Judge if Other
‘ or Macherate Judge George M. Marovich than Assigned Sudee
CASE NUMBER 00 C 6529 DATE 4/05/2002
CASE CKM Partners vs. Phillips Petroleum Company
TITLE

of the motion being presented.)

[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

OOFRCP4(m) General Rule 21 OFRCP41(a)(1) CO FRCP41(a)(2).

are dismissed without prejudice.

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) © Answer brief to motion due___. Reply to answer brief due

(4) oO Ruling/Hearingon____—ssetfor_—_at

(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at

(6) a Pretrial conference{held/continued to] [set for/re-set for]on__setfor_ at
(7) oO Trial{set for/re-set for] on __at

(8) ao (Bench/Jury trial] [Hearing] held/continued to__at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

| (Other docket entry) _ ENTER MEMORANDUM OPINION AND ORDER. The Court grants
Phillips’s motion to dismiss. CKM’s RCRA claims (Counts I and II) are dismissed with prejudice.
CKM’s state law breach of contract, negligence, nuisance and unjust enrichment claims (Counts II-VI)

APR 1 2 2002

date mailed notice

Docketing to mail notices.

v Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
JD deputy’s
initials

*-Datertime'rectives in
central Clerk’s Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS iF ,

DocKrten

APRi 2 ute

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CKM PARTNERS, an Illinois
general partnership,

Plaintiff,
v.

00 C 6529
Judge George fy. Marovich

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)
)
)
)
}
PHILLIPS PETROLEUM COMPANY,  )
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff CKM Partners (“CKM”) filed a six-count Complaint
against Phillips Petroleum Company (“Phillips”) alleging
violations of the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. §§ 6972 (Counts I and II); and state law
claims of breach of contract (Count III); negligence (Count IV);
nuisance (Count V); and unjust enrichment (Count VI). Phillips
has moved to dismiss the Complaint in its entirety pursuant to
Fed. R. Civ. P. 12(b) (6). For the reasons set forth below, the
Court grants Phillips’s motions.

BACKGROUND

The Complaint alleges the following facts which, for the
purposes of ruling on this motion, are taken as true. Hishon v.
Kemp & Spalding, 467 U.S. 69, 73 (1984). From 1960 to 1979,
Phillips owned property located at 8259 South Cicero Avenue,
Chicago, Illinois. Phillips operated a gas station on the
property where it installed at least six underground tanks to
store gasoline, waste oil and heating oil. Those storage tanks

subsequently leaked and contaminated the property. In April

\¥


1997, CKM, the then owner of the property, notified Phillips of
subsurface investigations which resulted in contamination
findings. CKM also informed Phillips of its intent to file a
citizens suit against Phillips pursuant to RCRA, 42 U.S.C. §
6972(a) and (e). On March 12, 1999, CKM and Phillips executed a
Property Access and Settlement Agreement which required Phillips
to: (1) investigate and remediate the contamination of the
property as required by the Illinois Environmental Protection
Agency (“IEPA”); (2) obtain a No Further Remediation (“NFR”)
letter for the property from the IEPA; and (3) perform these
actions in compliance with applicable federal, state and local
laws and regulations. Phillips began the work, but did not
complete it before the present Complaint was filed on October 20,
2000. During the pendency of this suit, Phillips performed the
remainder of the required investigation and remediation, and
received an NFR letter from the IEPA on February 23, 2001.
DISCUSSION

When considering a motion to dismiss, a court must view the
complaint’s allegations in the light most favorable to the
plaintiff, and all well-pleaded facts in the complaint must be
accepted as true. Wilson v. Formigoni, 42 F.3d 1060, 1062 (7th
Cir. 1994). Dismissal is proper only if it appears beyond a
doubt that a plaintiff can prove no set of facts in support
of a claim which would entitle her to relief. Conley v. Gibson,

355 U.S. 41, 45-46 (1957).