1039 (7? Cir. 1987). A Motion to Dismiss should not be granted
unless it appears beyond a reasonable doubt Plaintiffs could prove
no set of facts that would support their claim and entitle them to
relief. Conley v. Gibson, 355 U.S. 41, 45 (1957). The system of
notice pleading does not favor dismissals for failure to state a
claim. Id. at 45-46.
A.COUNT IV

Count IV of Plaintiffs’ Amended Complaint addresses
Honeywell’s alleged violation of certain regulations under RCRA, 42
U.S.C. § 6972(a) (1) (A). Honeywell seeks to dismiss Count IV and
claim Plaintiffs did not comply with the notice and delay
requirements set forth in 42 U.S.C. § 6972(a) (1) (A) and 40 C.F.R.
§ 254.3(a). These statutes state a potential plaintiff must
provide notification of the alleged violation to the U.S. E.P.A.,
the state in which the alleged violation took or is taking place,
and the perpetrator of the alleged violation. The potential
plaintiff must then wait sixty days before filing a complaint.
The purpose of these requirements is to allow the alleged
perpetrator an opportunity to remedy the problem or,
alternatively, to allow the U.S. E.P.A. or the state the
opportunity to intervene. See Evco Assocs., Inc. v. C.J. Saporito
Plating Co., No. 93 C 2038, 1995 WL 571438, at *1 (N.D. Ill. Sept.

25, 1995).

19


their health. Defendants argue since there is no apparent threat
to Plaintiffs’ health, they have no claim under CERCLA or for
nuisance or negligence. Defendants then rely on Bennett v.
Roberts, No. 96 C 6917, 2000 WL 781868, at *6 (N.D. Ill. June 15,
2000), to conclude Plaintiffs cannot represent a class if they do
not have a meritorious claim. In Bennett, though, the Court said
only that a class representative must be a member of the class and
must have suffered the same injury as the class. Id., at *6
(citing General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161
(1982)). Plaintiffs need only show they would be entitled to
relief, if granted, not that they will be entitled to relief. The
Court does not need to address the merits of the case, but only
needs to decide whether or not Plaintiffs can adequately represent
the proposed class. See Retired Chicago Police Ass’n, 7 F.3d at
598. As Plaintiffs point out, no members of the proposed class
have test results above 5 ppb. Therefore, Plaintiffs are entirely
representative of their class. Whether or not Defendants should be
held liable for the level of TCE, regardless of how high or low it
is, is a determination left to the factfinder.

The Court finds no other reason to question the adequacy of
the class representatives or Plaintiffs’ appointed counsel.
Therefore, the Court finds Plaintiffs have satisfied the last

element of Rule 23(a).

13


and remediate the alleged contamination; and prevent any further
spillage of TCE or other solvents.

The RCRA precludes a citizens’ suit if a state or federal
agency “commences and is diligently prosecuting enforcement
proceedings” under Section 6972 (a) (1) (B). Evco, 1995 WL 571438, at
*1. Honeywell seeks to dismiss Count V on the basis that the suit
brought by the State of Illinois, including the relief sought,
mirrors Plaintiffs’ case and Plaintiffs’ case should be precluded.
Even though Honeywell admits the State of Illinois did not bring
its case under § 6972(a)(1)(B) (rather, under § 43(a) of the
Illinois Environmental Protection Act, 415 ILCS 5/43(a) (2000))
the goal of avoiding duplicitous suits can only be met if citizens’
suits are preempted by state suits seeking the same relief.

Plaintiffs, though, point to the language of the RCRA that
precludes citizens’ suits only when the state or federal agency
brings suit under the same section of the RCRA. 42 U.S.C. §
6972 (b) (2) (C). Therefore, Plaintiffs argue since the State of
Illinois brought its case under the Illinois Environmental
Protection Act, and not under the RCRA, the plain language of the
RCRA allows Plaintiffs’ claim to proceed, even given the admitted
duplicity of the relief sought. See Echternach v. D.H. Martin
Petroleum, No. 97 C 3802, 1997 WL 627646, at *3 (N.D. Ill. Sept.

30, 1997) (“While Congress could have been more direct in its

23


properties, require Defendants to reimburse them for costs they
have incurred or will incur, and recover compensatory and punitive
damages for the alleged damage to their properties.

The Court notes Judge Lienenweber’s ruling in LeClercq v. The
Lockformer Company, No. 00 C 7164, 2001 WL 199840 (N.D. Ill. Feb.
28, 2001) addressed many of the same interests, issues and parties
that are before the Court today. Readers will therefore notice
similarities, where appropriate, between the analysis below and the
analysis set forth by Judge Lienenweber in LeClercq. While these
similarities warrant recognition, the two cases remain independent
from one another. Therefore, the Court has undertaken a complete
and individualized evaluation of this case.

I. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs request an order to proceed as a class action.
Plaintiffs assert the proposed class satisfies the requirements of
Fed.R.Civ.P. 23. They further claim a class action is the
appropriate tool for the adjudication of this action. The proposed
class includes those persons who “own or reside in property in the

ny

area of the plume of contamination” and whose “property has been
impacted, or a threat exists that it will be impacted, by hazardous
substances released at or from the Lockformer and/or Met~Coil

Properties.” (Pls.’ Am. Class Action Compl. 4 33).

Plaintiffs seeking class certification bear the burden of


Plaintiffs provided a notice letter and waited the requisite
sixty days before filing their original complaint. Honeywell,
though, complains the notice letter did not satisfy the statutory
requirements. Under the statute, the notification must include
“sufficient information” so the alleged perpetrator can “identify
the specific permit, standard, regulation, condition, requirement,
or order which has allegedly been violated.” 40 C.F.R. § 254.3(a).
Honeywell claims Plaintiffs’ notice letter did not include
sufficient information and Honeywell was unable to identify the
alleged violation. Specifically, Honeywell argues while Plaintiffs
claimed TCE was spilled from the aboveground storage tank, they
failed to identify what RCRA provision that violated, and Honeywell
does not bear the burden of guessing.

The standard of sufficient information, though, as interpreted
by the Seventh Circuit, does not require a potential plaintiff to
list the specific RCRA provision at hand, so long as the notice is
sufficiently clear. See Atlantic States Legal Found., Inc. v.
Stroh Die Casting Co., 116 F.3d 814, 819 (7 Cir. 1997); see also
York Center Park Dist. v. Krilich, No. 89 C 6000, 1993 WL 114628,
at 3 (N.D. Ill. Apr. 13, 1993); Evco Associates, 1995 WL 571438,
at *3. Plaintiffs’ letter was sufficiently definite for purposes
of informing Honeywell of the alleged violation. Plaintiffs’

notice letter described in detail exactly what was perceived to be

20


relief sought by the State of Illinois.

If the State of Illinois finds it necessary or advisable to
amend its complaint to include allegations under RCRA §
6972(a) (1) (B), it is free to do so. But, based on the above
reasons and based on the facts as they currently stand, the Court
finds Defendants’ Motion to Dismiss Count V is denied.

CONCLUSION

For the reasons noted herein, the Court finds Plaintiff has
satisfied the requirements of Rule 23; therefore, Plaintiffs’
Motion for Class Certification is GRANTED.

For the reasons noted herein, the Court finds Honeywell has
not established Plaintiffs’ notification letter was insufficient or
that the State of Illinois’ suit precludes a citizens’ suit;
therefore, Honeywell’s Motion to Dismiss Counts IV and V of

Plaintiffs’ Amended Complaint is DENIED.

LL. Hef

n. William J. Hibbler
U.S. District Court Judge

IT IS SO ORDERED.
DATE: August 9, 2002

26


storage, treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and substantial
endangerment to the health or to the environment.” See RCRA, 42
U.S.C. § 6972(a) (1) (B). As under Section 6972(a) (1) (A) discussed
in Count IV, Plaintiffs must provide a notice letter, although the
delay requirement under this section is ninety days. Plaintiffs
waited the requisite ninety days before they filed their original
complaint and Honeywell’s complaints about the notice letter are
addressed in the preceding section.

The issue that Honeywell raises regarding Count V centers on
the fact after the notice letter was dispersed, the State of
Illinois brought suit against Lockformer and Honeywell seeking an
injunction and civil penalties. An immediate and preliminary
injunction was granted three days later. The order required
Lockformer to supply bottled water to affected residents; to
investigate and delineate the extent of TCE contamination,
including installing numerous groundwater monitoring wells; to
develop objectives for the clean-up of soil, surface water and
groundwater contamination; to propose and implement the clean-up of
any soil, surface water and groundwater contamination; to pay the
Illinois EPA’s oversight costs; and to ensure no more TCE was
spilled. In their Amended Complaint, Plaintiffs request that

Defendants be required to provide a safe water supply; investigate

22


include the interest of individual members in individually
controlling the litigation, the desirability of concentrating the
litigation in the particular forum, and the manageability of the
class action.” Demitropoulos, 915 F. Supp. at 1419. As discussed
above, the core questions, i.e. whether or not and to what extent
Defendants caused contamination of the area in question, will rely.
on the same proof. Therefore, it would be wholly inefficient to
try thousands of separate cases that would allege the same
misconduct and provide the same proof of such. See, e.g., Bates,

132 F.R.D. at 164; Boggs v. Divested Atomic Corp., 141 F.R.D. 58,

67 (S.D. Ohio 1991). While monetary damages, if any, would likely
need to be determined on an individual basis, the Court finds class
certification is the most efficient and manageable way to proceed
in an action against Defendants for injunctive relief and
determining liability.

For the above reasons, the Court finds Plaintiffs have
satisfied Rule 23(b) (3). Alternatively, the Court finds
Plaintiffs have also satisfied subsections 23(b)(1) and (2). To
satisfy Rule 23(b) (1), Plaintiffs must demonstrate “[t]he
prosecution of separate actions by or against individual members of
the Class” would create a risk of “inconsistent or varying
adjudications” or adjudications for some members that would “be

dispositive of the interest of the other members... or

17


the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc.,
713 F.2d 225, 232 (7 Cir. 1983) (citations and internal quotations
omitted). Rule 23{(a)(3) does not mandate each proposed class
member suffer the same injury as the class representative.
Rosario, 963 F.2d at 1018; De La Fuente, 713 F.2d at 232.
Typicality may be found even in instances where “there are factual
distinctions between the claims of the named plaintiffs and those
of the other class members.” De La Fuente, 713 F.2d at 232.
Instead, a court looks to the defendant’s conduct and the
plaintiff's legal theory to satisfy Rule 23(a) (3). Rosario, 963
F.2d at 1018 (citing De La Fuente, 713 F.2d at 233).

The issue of typicality is closely related to that of
commonality. Rosario, 963 F.2d at 1018. As such, Plaintiffs rely
on the same commonality argument, i.e. their claims all focus on
the same alleged misconduct by Defendants and are based on the same
legal theories. Defendants also rely on their same commonality
argument that the differences between the class members render
class certification inapplicable. For the reasons set forth in the
preceding section, the Court finds Plaintiffs’ claims arise out of
the same alleged misconduct by Defendants. Plaintiffs need not
allege the same exact injury or be free of factual distinctions so
long as their claims are based on the same legal theory, De La

Fuente, 713 F.2d at 232; Heastie v. Community Bank of Greater


representation. Defendants’ essentially argues there are so many
differences between the proposed class members’ properties that
class certification is improper and, even if Plaintiffs could
satisfy the requirements of Rule 23(a), Defendants argue that these
differences defeat all of the subsections of Rule 23(b).

A. RULE 23(a)

1. Numerosity

Rule 23(a) (1) requires that a class be “so numerous that the
joinder of all members is impracticable.” Fed.R.Civ.P. 23(a) (1).
Plaintiffs must provide some evidence or reasonable estimate of the
number of class members. Long v. Thornton Township High Sch. Dist.
205, 82 F.R.D. 186, 189 (N.D. Ill. 1979). If Plaintiffs, however,
are unable to provide exact numbers, a good faith effort is
sufficient to establish the number of class members. Id.

In this case, the proposed class includes approximately 1,000
homes. Plaintiffs therefore estimate the number of persons
included in the class would be 2,000 or more. Defendants do not
raise any objections to the calculation or to Plaintiffs’ assertion
that this number is sufficient. The Court agrees and finds this
number does satisfy the numerosity requirement of Rule 23(a) (1).

2. Commonality
Rule 23(a) (2) requires questions of law or fact common to the

class must be present to sustain class certification. A “common


proving the action satisfies the four requirements of Rule 23(a);
“the plaintiff must meet the prerequisites of numerosity,
commonality, typicality, and adequacy of representation.”
Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7° Cir. 1993).
‘All of these elements are prerequisites to certification; failure
to meet any one of these precludes certification as a class.”
Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596
(7 Cir. 1993); Harriston, 992 F.2d at 703. Where plaintiffs seek
class certification, the court should not consider the merits of
the case. Retired Chicago Police Ass’n, 7 F.3d at 598. Also, the
court takes all well-pleaded allegations to be true. Eisen v.
Carlisle and Jacquelin, 417 U.S. 156, 177 (1974). Once the
requirements of Rule 23(a) are met, the plaintiff must demonstrate
certification satisfies at least one of the subsections of Rule
23(b). Alliance to End Repression v. Rochford, 565 F.2d 975, 977
(7 Cir. 1977). Here, Plaintiffs argue their claim satisfies all
three subsections. Finally, the plaintiff bears the ultimate
burden to establish that class certification is proper. Retired
Chicago Police Ass’n, 7 F.3d at 596. District courts then have
broad discretion in ruling on the plaintiff’s request. Mira v.
Nuclear Measurements Corp., 107 F.3d 466, 474 (7 Cir. 1997).
Defendants maintain Plaintiffs have failed to show the

proposed class has commonality, typicality and adequate


substantially impair or impede their ability to protect their
interests.” Fed.R.Civ.P. 23(b) (1). Since trying a thousand cases
or more would likely lead to varying judgments here, Plaintiffs
satisfy Rule 23(b) (1).

To satisfy Rule 23(b) (2), Plaintiffs must show Defendants have
acted “on grounds generally applicable to the class, thereby making
appropriate injunctive relief or corresponding declaratory relief
with respect to the class as a whole.” Fed.R.Civ.P. 23(b) (2).
Where monetary relief is the primary goal, this rule should not be
applied. Orlowski v. Dominick’s Finer Foods, 172 F.R.D. 370, 375
(N.D. Ill. 1997). Defendants have not adequately demonstrated
Plaintiffs’ request for injunctive relief is only a ruse to cover
up the overriding goal of monetary relief. Therefore, since
Plaintiffs seek injunctive relief based on an allegation that
Defendant engaged in a common course of conduct against them,
Plaintiffs satisfy Rule '23(b) (2).

III. HONEYWELL’S MOTION TO DISMISS
COUNTS IV AND V OF PLAINTIFFS’ AMENDED COMPLAINT

In ruling on a Motion to Dismiss, the Court must presume all
well-pleaded allegations in Plaintiffs’ Amended Complaint to be
true. Miree v. DeKalb County, 433 U.S. 25, 27 n.2 (1977). Those
allegations must be construed in a light most favorable to

Plaintiffs. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030,

18


class would not be able to prove the elements of their claims.
None of the differences, though, are sufficient enough to
overshadow the underlying questions of whether or not Defendants’
conduct caused contamination of the area in question, and, if so,
to what extent Defendants should be held liable. All class
members, whether or not they have a well, a basement or have
otherwise tested negative for TCE, allege Defendants should be held
liable for TCE contamination and the effects of such on their
property. For purposes of ruling on class certification, the
characteristics of Plaintiffs need not be identical, so long as
there is a “common nucleus of operative fact.” Rosario, 963 F.2d at
1018. Here, the Court finds there is such a nucleus, and since
commonality should be found where Defendants have engaged in some
standardized conduct towards the proposed class members, the Court
finds the commonality prong of Rule 23(a)(2) has been met. See
Chandler, 162 F.R.D. at 307; Johns v. DeLeonardis, 145 F.R.D. 480,
483 (N.D. Ill. 1992) (“Where the defendant engages in a single
course of conduct that results in injury to the class as a whole,
a common core of operative facts is usually present.”).
3. Typicality

A “plaintiff's claim is typical if it arises from the same

event or practice or course of conduct that gives rise to the

claims of other class members and his or her claims are based on


language, the language is not ambiguous in the least.”) Plaintiffs
point to the Clean Water Act, which specifically precludes
citizens’ suits when a state or federal agency has already brought
suit under the Clean Water Act or under statutes similar to the
Clean Water Act. See 33 U.S.C. § 3319(g) (6) (A) and (B). The Court
agrees with the argument put forth by Plaintiffs and supported by
Echternach. See also Kara Holding Corp. v. Getty Petroleum Mktg.,
Inc., 67 F. Supp. 2d 302, 307 (S.D.N.Y. 1999) (“Given the language
of section (b) (2) (C) (4), [the state’s] action must also
specifically press claims under RCRA.”); Goe Eng’g Co. v.
Physicians Formula Cosmetics, Inc., No. CV 94 3576 WDK, 1997 WL
889278, at *8 (C.D. Cal. June 4, 1997) (finding that an action
“must be taken under subsection (a) (1) (B)”). Although Defendants
rightly point out these cases address the question of whether or
not the state must bring a court action rather than an
administrative action, the cases stand for the proposition that the
language of the RCRA is clear and a variation in the state’s
compliance will nullify the preclusion of a citizens’ suit.
Defendants rely mainly on the finding in Hudson Riverkeeper
Fund, Inc. v. Harbor at Hastings Assoc., 917 F. Supp. 251 (S.D.N.Y.
1996), that a citizens’ suit under the RCRA is precluded when the
state’s action seeks the same relief, even if the state’s action

was not brought under the RCRA. Defendants argue the language of

24


‘Minute Oneer Form (06/97)

United States District Court, Northern District of Illinois

Ni f Assigned Jud; ili: i Sitting Judge if Oth
opr Magistrate Judge William J. Hibbler than Assigned Judge

CASE NUMBER 01 C 6107 DATE 08/09/2002
CASE TITLE Mejdreck, et al. v. Lockformer, etal.

{In the following box (a) indicate the party fiting the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.)

MOTION:
Plaintiffs’ Motion to Certify the Class (#14-1);

Defendant’s Motion to Dismiss Counts IV and V (#17-1)
DOCKET ENTRY:
ql) ia) Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due____
4) a Ruling/Hearing ons Set for at
(5) Oo Status hearing [held/continued to] [set for/re-set for] on__—sset for at
(6) Qo Pretrial conference [held/continued to] [set for/re-set for]}on____—sset for at.
(7) QO Trial [set for/re-set for]on att
(8) a [Bench/Jury trial] [Hearing] held/continued to at.
(9) G This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]

OFRCP4(m) O General Rule21 OFRCP41(a)(1) O FRCP41(a)(2).

be

(10)  @ {Other docket entry] For the attached reasons, the Court GRANTS Plaintiffs’ motion to certify the
class (#14-1) and DENIES Defendant’s motion to dismiss Counts IV and V (#17-1). Enter
Memorandum Opinion and Order. Status hearing set for 8/29/02 at 9:15 a.m.

(11) (For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court. Document.
No notices required. number of tices
Notices mailed by judge’s staff.
AUG : 2 2002
v

Notified counsel by telephone. date doghpred
Docketing to mail notices, U
Mail AO 450 form. me ere cee Beketing deputy initials

Copy to judge/magistrate judge.

- date muted noi
courtroom i? —

JHC deputy's . :
initials

Date/time received in
central Clerk's Office mailing deputy initials



are not seeking recovery for personal injuries. “Typicality will
only be destroyed where the defenses against the named
representatives are ‘likely to usurp a significant portion of the
litigant’s time and energy,’ and there is a danger that the absent
class members will suffer if their representative is preoccupied
with defenses unique to it.” Frietsch v. Refco, Inc., No. 92 C
6844, 1994 WL 10014, at *3 (N.D. Ill. 1994) (quoting McNichols v.
Loeb Rhoades & Co., 97 F.R.D. 331, 334-335 (N.D. Ill. 1982))
Based on the information provided by Defendants, the Court finds
any unique defenses they would put forth would not be sufficiently
burdensome to either side so as to defeat typicality. Therefore,
the Court finds the element of typicality is satisfied.
4. Adequacy of Representation

Rule 23(a) (4) mandates three elements for the adequacy of
representation: (1) the class representative cannot have
antagonistic or conflicting claims with other members of the class;
(2) the class representative must have a “sufficient interest in
the outcome to ensure vigorous advocacy;” and (3) counsel for the
class representative must be competent, experienced, qualified and
generally able to vigorously conduct the proposed litigation.
Chandler, 162 F.R.D. at 308 (quoting Riordan v. Smith Barney, 113
F.R.D. 60, 64 (N.D. Ill. 1986)).

Defendants put forth two arguments that the representation in

11


Peoria, 125 F.R.D. 669, 676 (N.D. Ill. 1989), which the Court finds
they are here.

Defendants, though, go on to argue the differences between the
class members preclude Defendants from using “unique defenses” for
certain “subclasses” and “individual households.” (Lockformer’s
Opp’n to Pls.’ Mot. to Certify Class at 10). Defendants rely on
Burke to assert typicality is defeated by these unique defenses.
Burke v. Local 710 Pension Fund, No. 98 C 2723, 2000 WL 336518, at
**3-4 (N.D. T1ll. March 28, 2000) (“Colorable defenses unique to the
named representative, or to a small subset of the plaintiff class,
may render the claims sufficiently atypical of one another so as to
‘destroy the required typicality of the class.’”) (quoting J.H.
Cohn & Co. v. Am. Appraisal Assoc., Inc., 628 F.2d 994, 999 (7%
Cir. 1980)). Defendants do not set forth what precise defenses
they would proffer but insinuate, based on the differences between
the class members’ properties, Defendants could be liable to some
class members but not liable to others. In Burke, though, the
defendant had a very specific defense that the plaintiff was not a
participant in the pension fund in question. Burke, 2000 WL
336518, at *4.

Here, Plaintiffs seek injunctive relief based on the common
allegation that Defendants contaminated the groundwater, soil and

wells in the plume of contamination. They specifically state they

10


nucleus of operative fact” is generally sufficient to satisfy this
second requirement. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7%
Cir. 1992). The fact some factual variation exists between the
class members’ claims will not preclude certification. Id. at
1017. A common nucleus of operative fact is usually found where
the defendant has engaged in some standardized conduct toward the
proposed class members. Chandler v. Southwest Jeep~Eagle, Inc.,
162 F.R.D. 302, 307 (N.D. Ill. 1995) (citing Franklin v. City of
Chicago, 102 F.R.D. 944, 949-950 (N.D. Ill. 1984)).

Here, Plaintiffs allege Defendants allowed TCE to contaminate
the soil, groundwater and property in the plume of contamination,
i.e. the area where all proposed class members live. Plaintiffs
allege this contamination constitutes standardized conduct towards
all proposed class members and there are therefore common questions
of law and fact.

Defendants argue there are enough differences within the
proposed class that commonality is untenable.’ They claim because
some class members have wells while others do not, because some
class members have basements while others do not, and because some

class members have already tested negative for TCE, the, proposed

‘ Mestek proffers an additional argument that it is not a proper defendant in this case. (See
Mestek Inc.’s Memo. in Opp’n to Pls.’ Mot. to Certify Class at 2). Specifically, Mestek argues
it is only a parent company and is therefore unable to engage in any standardized conduct towards
Plaintiffs. Mestek points out the Illinois E.P.A. and US £.P.A, have both omitted Mestek as a
party to their proceedings. This argument, though, is more appropriate in a Motion for Summary
Judgment and does not defeat the element of commonality

7


the problem. “The sufficiency of the notice letter is to be judged
on whether it provides enough information to enable the alleged
violator to be able to bring itself into compliance.” Evco
Assocs., 1995 WL 571438, at *3 (citing Public Interest Research
Group v. Hercules, Inc., 50 F.3d 1239, 1248 (3% Cir. 1995)).
Plaintiffs clearly complained Defendants allegedly had spilled
TCE, among other chemicals, out of the aboveground storage tank and
into the ground, contaminating the soil, groundwater, and wells in
the area. Plaintiffs’ detailed description of the alleged
violations was sufficient enough that Honeywell could have come
into compliance. See Atlantic States Legal Foundation, 116 F.3d at
819-20.

Although Plaintiffs do not specifically refer to an
“underground” system, they do refer to the degreaser system in
reference to the spilled chemicals. The majority of the degreaser
system is underground. Therefore, Defendants’ argument that a
failure to use the word “underground” points to the letter’s
insufficiency is unsupported by the facts.

For the reasons set forth above, Honeywell’s Motion to Dismiss
Count IV of Plaintiffs’ Amended Complaint is denied.

B. COUNT V
Count V of Plaintiffs’ Amended Complaint alleges Honeywell

“has ... or is contributing to the past or present handling,

21


As part of the Lockformer Property and at all relevant times,
Lockformer has maintained a metal degreasing system that included
a pitted vapor degreaser located a few feet below ground surface.
Beginning in 1968 and continuing through at least 1997, Lockformer
utilized chlorinated solvents in the metal degreasing system,
including trichloroethylene (“TCE”). The TCE was stored in a
rooftop storage tank. Plaintiffs allege when the rooftop storage
tank was filled, solvents, including TCE, spilled directly onto the
ground via an overflow pipe that was part of the degreaser system.
Plaintiffs allege the TCE migrated, and continues to migrate, in
both liquid and vapor form, towards their homes and has
contaminated the soil, groundwater and domestic water supply in the
area.

Plaintiffs allege Lockformer has known about the release of
TCE into the ground for many years, but has failed to investigate
or remedy the problem or notify Plaintiffs of the potential harm.

Plaintiffs allege the contamination was caused by Lockformer’s
failure to properly handle, store, use, and dispose of the TCE and
other hazardous substances.

Plaintiffs seek to enjoin Defendants from allowing further
contamination of their properties, require Defendants to abate the
alleged health risk of such contamination, require Defendants to

fully investigate and remediate the contamination of their


B. RULE 23 (b)

Since Plaintiffs have successfully met the requirements of
Rule 23(a), the Court must determine whether they have satisfied
one of the subsections of Rule 23(b). Although Plaintiffs maintain
their cause of action satisfies all three subsections, the Court
will begin by analyzing Plaintiffs’ claim under Rule 23(b) (3)
Under Rule 23(b) (3), Plaintiffs must show “questions of law or fact
common to the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other methods for the fair and efficient adjudication
of the controversy.” Fed.R.Civ.P. 23(b) (3).

“Considerable overlap exists between Rule 23(a)(2)’s
commonality prerequisite and 23(b) (3). Rule 23(a) (2) requires that
common issues exist; Rule 23(b) (3) requires that they predominate.”
Demitropoulos v. Bank One Milwaukee, N.A., 915 F. Supp. 1399, 1419
(N.D. Ill. 1996). Additionally, a finding of commonality will
likely satisfy a finding of predomination. Heastie, 125 F.R.D. at
677. Like the Rule 23(a) (2) standard, issues are considered to
predominate when there is a “common nucleus of operative fact”
among all the class members. Halverson v. Convenient Food Mart,
Inc., 69 F.R.D. 331, 335 (N.D. Ill. 1974).

Defendants argue Plaintiffs do not satisfy Rule 23(b) (3)

because individual questions of fact predominate over questions

14


(finding that although there will be individualized questions of
proof in a ground water contamination case, the common questions of
whether or not there was contamination and whether or not the
defendant should be liable predominate). The Court agrees this
cause of action arises out of the same alleged course of conduct by
Defendants and common questions predominate over individual ones.

Regarding the differences in the proposed class members’
properties, “[i]t is very common for Rule 23(b) (3) class actions to
involve differing damage awards for different class members.” De
La Fuente, 713 F.2d at 233; see also Heastie, 125 F.R.D. at 675
(“The necessity of answering individual questions after answering
common questions will not prevent a class action.”) This Court is
satisfied that while differences in the proposed class members’
properties would admittedly touch the calculation of damages,
commonality predominates over these differences and class
certification is proper. See Sterling, 855 F.2d at 1197 (“[T]he
mere fact that questions peculiar to each individual member of the
class remain after the common questions of the defendant’s
liability have been resolved does not dictate the conclusion that
a class action is impermissible[.]”)

Regarding the second prong of a Rule 23(b) (3) analysis, the
Court may consider a number of factors in determining whether a

class action is the superior means of adjudication. “These factors

16


and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq.
(“CERCLA”) and the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. § 6901 et seq. (“RCRA”). Plaintiffs also allege
negligence, private nuisance, trespass, and willful and wanton
misconduct.

The Court now has before it Plaintiffs’ Motion to Certify
Class filed pursuant to Fed. R. Civ. Pro. 23. For the reasons set
forth below, the Motion to Certify Class is GRANTED.

The Court also has before it Honeywell’s Motion to Dismiss
Counts IV and V of Plaintiffs’ Amended Complaint. For the reasons
set forth below, the Motion to Dismiss is DENIED.

BACKGROUND

The following facts are taken from Plaintiffs’ Amended
Complaint. Lockformer existed as an Illinois corporation from
approximately December 6, 1946 until it merged into and became a
division of Met-Coil on approximately October 27, 2000. Since
approximately June 2000, Mestek has owned and operated Met-Coil.

At all relevant times, Lockformer has owned and operated a
metal fabrication and manufacturing facility located at 711 Ogden
Avenue, Lisle, Illinois (“Lockformer Property”). Met-Coil owns
property adjacent to the Lockformer Property (“Met~Coil Property”).
Plaintiffs reside in properties south and  hydrologically

downgradient from the Lockformer and Met-Coil Properties.


the statutes in question and the relief sought are so similar in
this case that the Congressional intent of avoiding duplicitous
suits can be satisfied only by precluding Plaintiffs’ case. In
Hudson, though, the court recognized the language of the RCRA
“seems to suggest that any state action, to qualify as barring the
RCRA action, must be brought under the act itself.” Id. at 256.
The court found a citizens’ suit was precluded because the state
did not reference any statute as governing their complaint. Id.
Therefore, the court found “it is impossible to say that any
lawsuit arising out of an occurrence which implicates the RCRA is
not being brought pursuant to the statute.” Id. at 255 (emphasis
in original). In this case, though, the Illinois EPA specifically
brought its case under the Illinois Environmental Protection Act.
Therefore, there is no ambiguity the Court needs to resolve and the
Court finds that Hudson is not persuasive to overlook the plain
language of the RCRA. See No. CA River Watch v. Humboldt
Petroleum, Inc., No. C 00 1329 VRW, 2000 WL 1639524, at **2~3 (N.D.
Cal. Oct. 30, 2000) (rejecting the application of Hudson because
the state action was clearly brought under state law and not under
the RCRA).

Finally, the Court finds because discovery has not yet
commenced, it is presumptive at this early stage to declare the

relief sought by Plaintiffs in this case is exactly the same as the

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

THERESA MEJDRECK, DANIEL MEJDRECK,
MARY BENO and MARK BENO,
individually and on behalf of
those persons similarly situated,

Plaintiffs,
No. 01 C 6107

JUDGE WILLIAM J. HIBBLER

of MET-COIL SYSTEMS CORPORATION, a
Delaware corporation, MET-COIL
SYSTEMS CORPORATION, a Delaware
corporation, MESTEK, INC., a
Pennsylvania corporation, and
HONEYWELL INTERNATIONAL, INC., a
Delaware corporation,

)
)
)
)
)
)
)
)
)
)
THE LOCKFORMER COMPANY, a division )
)
)
)
)
)
)
)
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

Theresa Mejdreck, Daniel Mejdreck, Mary Beno and Mark Beno
(collectively “Plaintiffs”) have brought a claim individually, and
on behalf of a class of persons similarly situated, against The
Lockformer Company, a division of Met-Coil Systems Corporation, a
Delaware corporation (“Lockformer”) ; Met-Coil Systems Corporation,
a Delaware corporation (“Met-Coil”); Mestek, Inc., a Pennsylvania
corporation (“Mestek”); and Honeywell International Inc., a
Delaware corporation (“Honeywell”) (collectively “Defendants”) ;

pursuant to the Comprehensive Environmental Response Compensation

a

a4


this case is not adequate. First, Defendants point to the fact
Plaintiffs’ counsel is also representing the class of plaintiffs in
LeClercq. Defendants concludes: (1) the failure of Dr. Roy Ball,
an expert in the LeClercg case, to include some of this case’s
proposed class members in the plume of contamination is a potential
conflict of interest; and (2) the recovery of damages in the
LeClercg case would jeopardize a recovery in this case. Regarding
Dr. Ball’s inquiry, what Dr. Ball considered to be the plume of
contamination was, according to documents provided by Defendants,
an estimate. The proposed class members that fall outside the
alleged plume do not fall far. Plaintiffs will certainly bear the
burden at trial of establishing all class members are affected by
the contamination. But, at this early point, the Court finds no
reason to believe this alleged discrepancy should defeat
Plaintiffs’ adequacy of representation. Regarding Defendants’
second point, Defendants offer no evidence an award for damages in
the LeClercg case would render an award in the present case
unattainable. At this time, the Court finds no reason to call into
question Plaintiffs’ adequacy of representation.

Second, Defendants claim Plaintiffs cannot adequately
represent the proposed class because their wells tested below 5
ppb. As a result of these tests, the Illinois Department of Public

Health (“IDPH”) informed Plaintiffs the pollution did not threaten

12


common to the entire class. Defendants support this proposition by
putting forth much the same argument as they did regarding
commonality and typicality: the proposed class members’ properties
are so different that it would be impossible to try this case as a
class action, as issues of causation -and damages would require
individualized proof. Defendants primarily rely on the findings in
Thomas v. FAG Bearings Corporation, 846 F. Supp. 1400, 1404 (W.D.
Mo. 1994) and Church v. General Electric Co., 138 F. Supp. 2d 169,
182 (D. Mass. 2001), and argue, in cases of contamination, issues
of causation and damages predominate over the question of
defendant’s liability, and certification is therefore improper.
Plaintiffs claim the common question of whether Defendants
contaminated the area in question is not only shared by all
proposed class members, but predominates over any differences
between the individual properties. See Sterling v. Velsicol Chem.
Corp., 855 F.2d 1188, 1197 (6 Cir. 1988) (finding that a
contamination case arises out of a single course of conduct by the
defendants and class certification is therefore proper); Fietsam
v. Connecticut Gen. Life Ins. Co., No. 93 C 916, 1994 WL 323313, at
*5 (N.D. I11. June 27, 1994) (finding that common questions of law
or fact will predominate when there is a common course of conduct
that leads to injury of all the proposed class members); Bates v.

Tenco Services, Inc., 132 F.R.D. 160, 163-164 (D.S.Cc. 1990)

15