1

The Land Trust closed in June 2003 and thus is only a nominal plaintiff. Amend.

Compl. ¶ 2. 

2

Where it makes sense to do so, the court refers to the Neumanns, NIMM, and the Land

Trust collectively as “plaintiffs.”

3

Plaintiffs also originally sued Clear Lam Packaging, Inc. (“Clear Lam”) and Web Tool

and Manufacturing Inc. (“Web Tool”). Web Tool was dismissed as a party by this court’s order

on July 20, 2004, and Clear Lam was dismissed as a party by this court’s order on August 3,

2004. Therefore, the Hopmayers are the only remaining defendants as to Counts I, II, III, and

IX, which originally named Clear Lam and Web Tool as defendants. 

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RALPH NEUMANN, et al., )

)

Plaintiffs, )

v. ) Case No. 03 C 8769

)

CARLSON ENVIRONMENTAL, INC., ) Judge Joan B. Gottschall

et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Ralph Neumann and William Neumann (collectively “Neumanns”), NIM Plastics

Corporation (“NIMM”), and Chicago Title and Trust Co. as Trustee for Trust No. 1108324

(“Land Trust”)1

 sued Carlson Environmental, Inc. (“Carlson”) for consumer fraud (Count V),

breach of contract (Count VI), negligence (Count VII), and negligent misrepresentation (Count

VIII). Plaintiffs2

 sued Gary and Marlene Hopmayer (collectively “Hopmayers”)3 for violation of

Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act

(“CERCLA”) (Count I), violation of the Illinois Joint Tortfeasors Contribution Act (Count II),

violation of the Illinois Environmental Protection Act (Count III), fraud (Count IV), and

violation of Section 113(f) of CERCLA (Count IX). 
4

On May 9, 2005, the court granted Carlson’s motion to dismiss based solely on

Carlson’s argument that plaintiffs’ complaint was untimely. On November 30, 2005, however,

the court granted plaintiffs’ motion to reconsider and reinstated Carlson as a defendant in this

case. At a status hearing, Carlson correctly noted that the court had never considered its

arguments (other than timeliness) that Counts V and VII should be dismissed. Thus, the court

considers now those remaining arguments.

5

The facts contained in this section are derived from plaintiffs’ amended complaint. 

2

Carlson has moved to dismiss all counts against it,4

 and the Hopmayers have moved to

dismiss all counts against them. The Hopmayers have also moved to strike plaintiffs’ jury

demand and request for attorneys’ fees in Counts I and IX, and plaintiffs’ request for

compensatory damages in Count IX. Additionally, plaintiffs have moved to strike three of the

exhibits attached to the Hopmayers’ motion to dismiss. As discussed more fully below,

Carlson’s motion to dismiss is denied; the Hopmayers’ motion to dismiss is granted in part and

denied in part; the Hopmayers’ motion to strike is granted in part and denied in part; and

plaintiffs’ motion to strike is denied as moot.

I. Background5

The Neumanns are the principals of NIMM and the beneficiaries of the Land Trust. In

March 2000, plaintiffs made an offer on real property located in Elk Grove Village, Illinois (“the

Property”). Plaintiffs allege that the Hopmayers did not disclose the presence of underground

storage tanks (“USTs”), environmental contaminants, or hazardous substances despite the fact

that the Hopmayers covenanted that four USTs existed on the property when they purchased it in

1984. The USTs were abandoned on the Property, plaintiffs allege, after the Hopmayers had

purchased it. 

The 2000 purchase contract allowed plaintiffs 30 days to conduct a due diligence

examination of the property, including a physical examination and a Phase I Environmental Site
6

A determination of the presence of RECs means that the subject property contains, or

likely contains, hazardous substances under conditions that indicate a past release of such

hazardous substances. 

3

Assessment. To that end, plaintiffs contracted with Carlson to conduct the Phase I assessment. 

On April 4, 2000, Carlson completed this assessment and issued a written report (“Phase I

Report”). As part of this assessment, Carlson was to review available land use records. The

Phase I Report stated that no USTs were located on the Property, even though records of the Fire

Department of the Village indicated that four USTs existed on the Property. The Phase I Report

also concluded that no recognized environmental conditions (“RECs”)6 existed on the Property

and that no additional subsurface investigations were warranted or recommended. Plaintiffs

allege they relied on this assessment and the Hopmayers’ failure to disclose any environmental

issues when plaintiffs purchased the property from the Hopmayers.

Approximately two years later, plaintiffs attempted to sell the Property, and the

prospective buyer contracted with Carlson to perform another environmental assessment of the

Property – a Phase I Update (“Update”). The Update, based on a review of relevant Fire

Department Records, uncovered that four USTs were present on the Property, and the sale

consequently failed. In the Update, Carlson stated that because there was no information

available “regarding the abandonment of the USTs, and whether any leaks or breaches had

occurred,” the USTs’ presence constituted a historical recognized environmental condition. 

At plaintiffs’ request, Carlson conducted a subsurface soil investigation of the Property to

determine the impact of the USTs in addition to what, if any, further investigation should be

conducted. In that investigation, Carlson determined that the Property’s soil did not contain any

volatile organic compounds (“VOCs”) in excess of the limits provided by Illinois law.

In June 2003, plaintiffs entered into negotiations with another buyer. When this buyer
4

had the Property assessed, it was determined that five compounds contained in the soil exceeded

limits permitted by Illinois law, namely, Benzene, Cis-1, 2-Dichloroethene, Tetrachloroethene,

Toluene, and Trichloroethene. It was also determined that the Property contained eight VOCs at

concentrations higher than allowable under Illinois law. Consequently, plaintiffs were able to

sell the Property only on the condition that they remove the USTs, remediate the soil to the

extent necessary to obtain a comprehensive No Further Remediation (“NFR”) letter from the

Illinois EPA, and deposit $300,000 in an escrow account to cover any further remediation costs.

Plaintiffs allege that the Hopmayers, as owners of the Property prior to plaintiffs, knew of

the USTs and failed to disclose their presence to plaintiffs prior to the sale of the Property. 

Additionally, plaintiffs allege that the Hopmayers directed the abandonment and closure of the

USTs in a manner that led to their improper disposal, as well as to the Property’s contamination. 

II. Discussion

In reviewing a motion to dismiss for failure to state a claim, the court reviews all facts

alleged in the complaint and any reasonable inferences drawn from those facts in the light most

favorable to the plaintiff. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326

(7th Cir. 2000). The court will grant the motion only if it appears that the plaintiff cannot prove

any set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A. Carlson’s Motion to Dismiss

1. Consumer Fraud (Count V)

Carlson argues that plaintiffs’ claim for consumer fraud should be dismissed because

plaintiffs fail to allege certain elements of the cause of action with specificity, and Carlson

argues that such specificity is required by Fed. R. Civ. P. 9(b). In particular, Carlson argues that

“plaintiffs do not allege that CEI knowingly made false statements, nor do they allege that CEI
7

Since Carlson initially assumed that Count V was a claim for common law fraud and

learned through the response to the motion to dismiss that it was in fact a statutory claim under

the Illinois Consumer Fraud Act, Carlson complains that it “needs to know exactly what cause of

action is being alleged in order to respond to Count V of the Complaint.” Reply, at 9. Because a

plaintiff is not required to plead the statute or legal theories upon which a claim may be based,

however, Carlson’s mistaken interpretation of plaintiffs’ complaint does not affect the analysis,

and plaintiffs may proceed under the Illinois Consumer Fraud Act. See Shah v. Intercontinental

Hotel Chicago Operating Corp., 314 F.3d 278, 282 (7th Cir. 2002).

5

intended that plaintiffs rely on the false statements CEI made.” Memo. in Support of Carlson’s

Mot. to Dismiss, at 7 (emphasis in original). In response, plaintiffs argue that Count V is a claim

under the Consumer Fraud Act, 805 ILCS 505/1, et seq., which does not require that a plaintiff

prove that the defendant knowingly made a false statement. Pl.’s Response, at 10. Plaintiffs

argue that their complaint is sufficiently pled as to the remaining elements. In reply, Carlson

contends that plaintiffs have failed to plead the elements of a claim under the Consumer Fraud

Act with specificity.7

For a private cause of action under the Illinois Consumer Fraud Act, the plaintiff must

prove: “(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the

plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct

involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by

the deception.” Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149 (2002). 

Carlson argues that “[p]laintiffs have alleged no reason why Carlson, either knowingly or

unknowingly, wanted to induce the Plaintiffs to purchase the Property in 2000.” Reply, at 10. 

The court notes that, to state a cause of action, plaintiffs need not plead Carlson’s motivation

behind the deceptive act, but only that defendant intended plaintiff to rely on the deception. 

Additionally, Carlson argues that plaintiffs have not alleged with specificity how they

were deceived by the alleged misrepresentations or how they were damaged as a proximate
8

The court notes that, although plaintiffs have pled the elements with specificity, Rule

9(b) does not apply to pleading the elements. Federal Rule of Civil Procedure 9(b) states that “In

all averments of fraud . . . , the circumstances constituting fraud . . . shall be stated with

particularity.” Fed. R. Civ. P. 9(b). Under the Rule, the plaintiff is required to plead only “the

who, what, when, where, and how: the first paragraph of any news story.” Hemenway v.

Peabody Coal Co., 159 F.3d 255, 261 (7th Cir. 1998). Carlson has not argued that the complaint

fails to plead the “who, what, when, where, and how” of the alleged fraud, as required by Rule

9(b). 

6

cause of the misrepresentations. The elements, however, are self-evident from the allegations in

the complaint. Plaintiffs allege that they were deceived because they thought the property was

free of environmental hazards when it was not. Amend. Compl. ¶¶ 19, 21, 22, 23, 24, 25, 79. 

Plaintiffs have also pled how they were damaged as a proximate result of the alleged fraud. 

Amend. Compl. ¶¶ 25, 33, 43, 79.8

 The motion to dismiss Count V is denied. 

2. Negligence (Count VII)

Carlson argues that plaintiffs’ claim for negligence in Count VII is barred under the

economic loss doctrine, commonly known as the Moorman Doctrine. Carlson reasons that

because its duty to plaintiffs was purely contractual (i.e. its duty properly to inspect, research,

and conduct a final technical report concerning the environmental status of the Property), the

Moorman doctrine bars plaintiffs’ recovery in tort for the purely economic damages requested. 

In Moorman Manufacturing Co. v. Nat’l Tank Co., 91 Ill. 2d 69, 91 (1982), the Illinois

Supreme Court held that a plaintiff “cannot recover for solely economic loss under the tort

theories of strict liability, negligence, and innocent misrepresentation.” The Illinois Supreme

Court has recognized three exceptions to the general rule: (1) where the plaintiff sustained

damage, such as personal injury or property damage, resulting from a sudden or dangerous

occurrence, id. at 86; (2) where the plaintiff's damages were proximately caused by defendant’s

intentional, false representation, id. at 88-89; and (3) where the plaintiffs’ damages were
9

Carlson has not moved to dismiss Count VIII for negligent misrepresentation, which

alleges that Carlson was in the business of supplying information to others.

7

proximately caused by a negligent misrepresentation by a defendant in the business of supplying

information for the guidance of others in their business transactions, id. at 89.9 

In Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill.2d

137, 161-62 (1994), the Illinois Supreme Court discussed the Moorman doctrine in the context of

claims for professional malpractice. The Court stated: “The evolution of the economic loss

doctrine shows that the doctrine is applicable to the service industry only where the duty of the

party performing the service is defined by the contract that he executes with his client. Where a

duty arises outside of the contract, the economic loss doctrine does not prohibit recovery in tort

for the negligent breach of that duty.” Id. at 162. By this, the Court meant that where something

other than contract gives rise to a duty (such as an attorney’s professional duty to provide

competent representation) the Moorman doctrine does not preclude recovery for breach of that

duty in tort.

In making this distinction, Illinois courts have held that the Moorman doctrine barred

malpractice actions for negligence against engineers, Fireman’s Fund Insurance Co. v. SEC

Donahue, Inc., 281 Ill. App. 3d 789 (1st Dist. 1996); and architects, 2314 Lincoln Park West

Condominium Assoc. v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill.2d 302 (1990). These courts

have held that the Moorman doctrine applies to bar such claims against engineers and architects

because they produce tangible products (and the terms of producing a tangible product are more

susceptible to reduction in a contract). Fireman’s Fund, 281 Ill. App. 3d at 796; 2314 Lincoln

Park West, 136 Ill.2d at 313-14. 

In contrast, Illinois and federal courts have held that the Moorman doctrine does not bar
8

malpractice actions for negligence against attorneys, Collins v. Reynard, 154 Ill.2d 48 (1993);

accountants, Congregation of the Passion, 159 Ill.2d 137; insurance brokers, Kanter v.

Deitelbaum, 271 Ill. App. 3d 750 (1st Dist. 1995); investment consultants, Chicago Housing

Authority v. J.A. Hannah Investment Advisory Service, Inc., Civ. No. 95 C 5251, 1996 WL

328033 (N.D. Ill. May 9, 1996) (denying motion to dismiss); and, most relevant to the present

matter, environmental consultants, Tribune Co. v. Geraghty & Miller, Inc., No. 97 C 1889, 1997

WL 438836 (N.D. Ill. July 25, 1997).

In this case, plaintiffs’ negligence claim is based on Carlson’s alleged professional

malpractice in preparing the incorrect environmental review and report. In Tribune Co., 1997

WL 438836, at *3, on facts very similar to the instant case, another court in this district denied

an environmental consultant’s motion to dismiss a professional negligence claim. Plaintiff in

that case hired the environmental consultant to conduct a Phase I environmental site assessment

in connection with a real estate transaction, and the consultant concluded incorrectly in an

assessment and written report that that the property at issue was asbestos-free. Id. at *1. 

Holding that the Moorman Doctrine did not preclude plaintiff’s negligence claim, the court

reasoned that although defendant’s services culminated in a written report, the value of the

defendant’s services was in the “analytical work summarized in the report.” Id. at *3. The court

reasoned that an environmental consultant provides services more akin to an attorney or

accountant, than an architect or engineer, and held that the defendant had not established as a

matter of law that the Moorman Doctrine barred plaintiff’s claim. Id. (“In contrast to the

relationship between an attorney or an accountant and [his] client, the relationship between an
10Carlson’s reliance on NBD Bank v. Krueger Ringier, Inc., 292 Ill. App. 3d 691 (1st

Dist. 1997), and Singer v. Bulk Petroleum Co., 9 F. Supp. 2d 916 (N.D. Ill. 1998), does not

change the analysis. In those cases, plaintiffs brought negligence claims against a seller and

lessee, respectively, whose duties were purely contractual. The subject of the Carlson’s motion

involves the performance of a professional service giving rise to duties outside of any contract,

and thus potential tort liability.

11Because the court grants the motion to dismiss Count IX below, the court need not

address the Hopmayers’ argument that Burford abstention applies to Count IX as well.

9

architect and his client produces something tangible, such as a plan that results in a structure.”).10

Because Carlson’s particularized knowledge and expertise gave rise to a duty

independent of its contract with plaintiffs (its professional duty to provide an accurate

environmental assessment) and because the primary service provided to plaintiffs was intangible,

this court agrees with the court in Tribune Co. that the Moorman doctrine does not bar a claim

for negligence based on professional malpractice by an environmental consultant. The motion to

dismiss Count VII is denied.

B. Hopmayers’ Motion to Dismiss

1. Section 107 of CERCLA (Count I)

Count I alleges a cause of action against the Hopmayers under Section 107(a) of

CERCLA, 42 U.S.C. § 9607(a), for response costs plaintiffs have incurred in addressing

contaminants on their property, which was sold to them in 2000 by the Hopmayers. Plaintiffs

maintain that the Hopmayers are “responsible parties” under CERCLA because they were

owners or operators of the property at the time hazardous substances were disposed of on the

property.

The Hopmayers argue that the court should abstain from consideration of Count I, citing

Burford v. Sun Oil Company, 319 U.S. 315 (1943).11 Burford abstention is appropriate when a
10

claim raises difficult questions of state law bearing on policy problems of substantial public

importance, the importance of which transcends the result of the individual case at bar or when

the exercise of federal review would be disruptive of state efforts to establish a coherent policy

with respect to matters of substantial public concern. Here, the Hopmayers argue, Illinois has a

program called the LUST (“leaking underground storage tank”) Program which imposes liability

only upon the owner or operator of an underground storage tank (“UST”), neither of which

includes the Hopmayers. Plaintiffs are attempting to do an “end around” the Illinois LUST

program, the Hopmayers argue, by seeking to impose liability on parties not liable under the

LUST program. The Hopmayers argue:

Were the plaintiffs allowed to maintain their [Section 107(a)] action, they would

expand the universe of parties liable for leaking USTs in Illinois to encompass

parties other than those that the State of Illinois has specifically determined

should be liable as a matter of state environmental policy. Such an action is in

derogation of state law and clearly interferes with Illinois’ ongoing efforts to

establish a coherent, unified statewide policy governing liability of LUST sites.

 

Memorandum in Support of Motion to Dismiss at 11. 

Further, the Hopmayers argue, Burford abstention is appropriate in this case because

Illinois provides a forum for the litigation of LUST claims, and it is a forum which stands in an

appropriate relationship of technical oversight or concentrated review as to such claims. 

Plaintiffs, the Hopmayers assert, are proceeding with corrective action under the LUST program

by submitting their site investigations and corrective actions plans to Illinois Environmental

Protection Act (“IEPA”), with approval power in the IEPA and the right of appeal to “the

Board,” a body created as an independent board under the IEPA with five “technically qualified”

members with authority to review determinations by the IEPA, and to conduct proceedings on

complaints charging violations of the Act. The Board has exclusive jurisdiction over private

enforcement actions under the IEPA, including actions seeking cost recovery from responsible
11

parties under the Illinois LUST program.

The party requesting abstention bears the burden of demonstrating that abstention is

warranted. Morton College Bd. of Trustees v. Town of Cicero, 18 F. Supp. 2d 921, 924 (N.D. Ill.

1998). Here, the Hopmayers appear to argue that abstention is appropriate because an exercise

of federal jurisdiction would “be disruptive of state efforts to establish a coherent policy with

respect to a matter of substantial public concern.” General Ry. Signal Co. v. Corcoran, 921 F.2d

700, 708 (7th Cir. 1991) (quoting Colorado River Water Conservation Distr. v. United States,

424 U.S. 800, 814 (1976)). 

If there were any indication in Illinois law that Illinois’ decision to impose liability only

on owners or operators was intended to be punitive, the Hopmayers’ argument that plaintiffs are

attempting to disrupt the Illinois scheme might have some merit. Then it could be argued that

using CERCLA to bring in additional responsible parties in some way undermines the state law

scheme. But the Hopmayers have cited nothing to suggest, and the court finds it hard to believe,

that Illinois has a public policy which requires punishing hapless owners like the plaintiffs who

did nothing to create the hazardous condition of the property. Rather, in the absence of anything

pointing to another conclusion, the court assumes that Illinois has chosen the owner as the

responsible party in order to ensure that the party controlling the property fixes the problem. 

How Illinois’ policy would in any way be undermined by a CERCLA ruling that the owner can

seek financial assistance from other parties is hard for this court to imagine. Illinois law requires

the owner to correct the problem. CERCLA appears to support that policy by giving the owner

other pockets to provide financial assistance.

That the court does not understand how a CERCLA ruling could in any way interfere

with any Illinois policy is enough to reject the Hopmayers’ Burford abstention argument. But
12In their Response to the Hopmayers’ motion to dismiss, plaintiffs move to strike three

exhibits attached to the Hopmayers’ motion: (1) the affidavit of Gary S. Hopmayer; (2) a LUST

incident report; and (3) a letter from the Illinois EPA to Ralph Neumann. Such exhibits are

improper, plaintiffs argue, because a Rule 12(b)(6) motion is limited to the face of the complaint. 

Pls.’ Response, at 4. The Hopmayers cite these exhibits as factual background and in support of

their abstention argument. The court finds it unnecessary to consider these exhibits in deciding

the motion to dismiss. Accordingly, plaintiffs’ motion to strike is denied as moot. 

12

the court notes in addition that the argument rests on a patent fallacy: that in the case of a

conflict between an action to enforce a federal statute and a state regulatory scheme, abstention

is appropriate. Where there is a conflict between the enforcement of plaintiffs’ CERCLA rights

and the Illinois regulatory scheme, the Supremacy Clause of the Constitution makes clear that

the enforcement of the federal policy embodied in CERCLA takes precedence. See U.S. CONST.

ART. VI, CL. 2. Since the court sees no conflict, but rather sees the Illinois enforcement scheme

as being promoted by the policies of CERCLA, there is no need to reach this issue.

The Hopmayers’ motion insofar as it asks this court to abstain under Burford is denied.12

2. Illinois Environmental Protection Act (Count III)

Count III asserts a cause of action for damages against the Hopmayers under sections

5/12(a) and (d) and 5/21(a) and (e) of the IEPA, which are various statutory prohibitions against

pollution. 415 ILCS 5/12 (a), (d); 415 ILCS 5/21 (a), (e). The Hopmayers contend both that (1)

the court lacks jurisdiction over this claim because exclusive jurisdiction over citizen

enforcement actions lies in the Illinois Pollution Control Board, and (2) there is no private right

of action under the Act. 

As authority for the first proposition, the Hopmayers rely on §31(d) of the Illinois

Environmental Protection Act, 415 ILCS 5/31(d), which describes the circumstances in which a

person may file a complaint with the Board. The cited section says nothing about court actions,

and says nothing about exclusive jurisdiction. The Hopmayers also cite one administrative
13

decision, People v. State Oil Co., PCB No. 97-103, 1999 Ill. Env. LEXIS 391 (August 19, 1999). 

 In that case, the Board had to decide whether a cross-complaint filed before the Board was

barred by res judicata because the claim asserted in the cross-complaint had been previously

adjudicated by the Circuit Court of McHenry County. Deciding that jurisdiction over such

claims was exclusive to the Illinois Pollution Control Board, and that the Circuit Court

accordingly lacked jurisdiction to decide the claim, the Board concluded that the cross-complaint

was not barred by res judicata. 

Plaintiffs do not take issue with the statutory citation upon which the Hopmayers rely,

415 ILCS 5/31(d). Plaintiffs respond by arguing that the Pollution Control Board has “primary

jurisdiction,” and not exclusive jurisdiction over such claims, and, based on the authority of

People v. NL Industries, 152 Ill.2d 82 (1991), there is concurrent jurisdiction, at least in

instances where it would undermine judicial economy to require a plaintiff to split closely related

claims between the Board and the courts. In NL, the Cook County State’s Attorney, on behalf of

the Illinois EPA, filed suit in the Circuit Court of Cook County against various parties who had

at various times been owners of certain polluted land seeking to recover cleanup costs and to

impose various fees and penalties. The Circuit Court dismissed the action, finding that the State

had failed to exhaust its administrative remedies, depriving the Circuit Court of jurisdiction. The

appellate court affirmed, but the Illinois Supreme Court reversed, holding that “circuit courts

possess concurrent jurisdiction over cost-recovery actions . . . .” 152 Ill.2d at 99.

The parties’ arguments about the proper court for such an action, however, overlooks a

far larger problem: the question of whether there is a private right of action under the IEPA. 

Three recent cases in this court, reasoning from the principles for implying a private right of

action set forth by the Illinois Supreme Court in Fisher v. Lexington Health Care, Inc., 188 Ill.2d
14

455 (1999), have concluded that a private right of action cannot be implied. In Fisher, the court

made clear that the implication of a private right of action is appropriate only if: (1) the plaintiff

is a member of the class for whose benefit the statute was enacted; (2) the plaintiff’s injury is one

the statute was designed to protect; (3) a private right of action is consistent with the underlying

purpose of the statute; and (4) implying a private right of action is necessary to provide an

adequate remedy for statutory violations. Id. at 460. 

Three judges of this court, reasoning from the principles articulated in Fisher, have ruled

that there is no private right of action under the IEPA. In Chrysler Realty Corp. v. Thomas

Industries, Inc., 97 F. Supp. 2d 877, 881 (N.D. Ill. 2000), Judge Gettleman held that there is no

private right of action under the IEPA because a private right of action is not necessary to

provide an adequate remedy for violations of the act, given that the existing legislative scheme

allowing for both judicial enforcement by the state, and citizens’ suits before the Board

adequately vindicates the statutory purposes. In Norfolk Southern Ry. Co. v. Gee Co., No. 98 C

1619, 2001 WL 710116 at *16 (N.D. Ill. June 25, 2001), Judge Pallmeyer followed Judge

Gettleman’s conclusion. In Great Oak, L.L.C. v. Begley Co., No. 02 C 6496, 2003 WL 880994

at *5 (N.D. Ill. March 5, 2003), Judge Guzman reached the same result. These cases

acknowledge a line of precedent in this District stemming from Krempel v. Martin Oil

Marketing, Inc., No. 95 C 1348, 1995 WL 733439 (N.D.Ill. Dec. 8, 1995), in which Judge Grady

of this court reached the contrary result. However, the cases refusing to imply a private right of

action rely on the Fisher decision’s clear articulation of a very high standard for implication of a

private right of action, a decision announced four years after Krempel. This court agrees that the

Fisher standard compels the conclusion that a private right of action in unnecessary to vindicate

the purposes of the IEPA. Count III is dismissed.
15

3. Illinois Joint Tortfeasors Contribution Act (Count II)

Additionally, the Hopmayers seek the dismissal of plaintiffs’ claim under the Illinois

Joint Tortfeasors Contribution Act (“Contribution Act”), 740 ILCS 100/2. The Contribution Act

provides a remedy when two or more persons are subject to liability in tort arising out of the

same injury, and one tortfeasor has paid more than his pro rata share of that liability. 740 ILCS

100/1; see also People v. Brockman, 143 Ill.2d 351, 366 (1991). Relying on the proportionate

liability scheme set out in the IEPA, the Hopmayers argue that they have no liability under that

Act since they merely controlled the property during the time contamination occurred or

continued, and mere ownership or control of the property does not give rise to liability for

response costs under Illinois law.

The Amended Complaint adequately states a basis for a finding of liability against the

Hopmayers. It alleges that, after the Hopmayers negotiated their purchase of the Property, they

directed that the tanks be filled and abandoned in a manner which resulted in contamination of

the Property, as well as the migration and exacerbation of the contamination, causing them to be

liable for remediation of the contamination under the IEPA.

Alternatively, the Hopmayers argue that if the court dismisses plaintiffs’ IEPA claim, it

must also dismiss plaintiffs’ Contribution Act claim. The Hopmayers argue that because their

liability under the Contribution Act is wholly dependant on their liability under the IEPA,

dismissal of plaintiffs’ IEPA count requires dismissal of plaintiffs’ Contribution Act claim. 

Although, as concluded above, plaintiffs cannot maintain their IEPA Count, plaintiffs may

proceed independently on their Contribution Act claim.

In Illinois, “there need not be actual tort liability in order to state a cause of action for

contribution.” Soo Line RailRoad Co. v. Tang Industries, Inc., 998 F. Supp. 889, 898 (N.D. Ill.
16

1998) (quoting People v. Brockman, 143 Ill.2d 351, 371 (1991)). Rather, in order to state a

contribution claim, the plaintiff need show only that the “persons from whom contribution is

sought are potentially capable of being held liable in a court of law or equity.” Brockman, 143

Ill.2d at 371; Doyle v. Rhodes, 101 Ill.2d 1, 10 (1984) (holding that defendants with tort

immunity are potentially liable in tort until their immunity is established). Thus, this court’s

conclusion that plaintiffs cannot maintain their IEPA action is not dispositive of their Illinois

Contribution Act claim. See Brockman, 143 Ill.2d at 367 (“It is conceivable that a party could

bring a third-party claim where no private cause of action would be permitted”); see also NBD

Bank v. Krueger Ringier, 292 Ill. App. 3d 691, 697 (1st Dist. 1997).

Although plaintiffs cannot maintain an IEPA claim, plaintiffs (and the Hopmayers) may

be prosecuted by the Illinois Attorney General or Illinois State’s Attorney – the parties

undisputedly responsible for the IEPA’s enforcement. See generally 415 ILCS 5/31; see also

Great Oak, 2003 WL 880994, at *5. The Hopmayers do not contest that plaintiffs’ allegations

constitute IEPA violations. Rather, the Hopmayers argue that this court lacks the jurisdiction to

hear the merits of the plaintiffs’ IEPA claim. Because plaintiffs have sufficiently pled that the

Hopmayers violated the IEPA by their alleged sealing and abandonment of the subject USTs,

and because such conduct potentially subjects them to tort liability in actions that may be

brought by the Illinois Attorney General or State’s Attorneys, the motion to dismiss Count II is

denied.

4. Fraud (Count IV)

The Hopmayers also move to dismiss Count IV for fraud, arguing that the complaint fails

to allege that at the time of the sale, the Hopmayers knew about the contamination of which

plaintiffs complain and that the sales contract, which is attached to the complaint and therefore
17

can be considered in ruling on this motion, places no obligation on the Hopmayers to disclose

known information about the environmental condition of the property. Further, the Hopmayers

argue, any reliance by the plaintiffs on any misrepresentations or omissions made by the

Hopmayers was unreasonable, since plaintiffs had the ability to discover the truth for

themselves. The court finds that plaintiffs have adequately alleged a claim for fraud.

The court rejects the Hopmayers’ argument that the complaint does not allege that the

Hopmayers knew of the presence of environmental contamination on the Property at the time of

the sale to NIM. The Amended Complaint alleges: “The Hopmayers knowingly concealed the

presence of USTs, hazardous substances and environmental contamination on the Property from

Plaintiffs to influence Plaintiffs’ purchase of the property . . . .” Amend. Compl. ¶ 76. Drawing

all inferences in favor of plaintiffs, as the court must on a motion to dismiss, the court finds that

plaintiffs have sufficiently alleged that the Hopmayers knew of the environmental contamination

on the Property. 

Next, the Hopmayers argue that the sales contract placed no obligation on them to

disclose known information about the environmental condition of the property. As part of their

sales contract, the Hopmayers argue, the parties expressly agreed that the Illinois Responsible

Property Transfer Act (“RPTA”) did not apply to the transaction. Regrettably, the Hopmayers

have not seen fit to cite the portion of the sales contract on which they rely; the court has found

references to the RPTA in the contract but the form in which the contract has been provided to

the court renders these references totally ambiguous. Moreover, even if the RPTA does not

apply to this transaction, it is not at all clear that the Hopmayers are exempt from normal

contractual obligations of good faith. In any event, this issue has not been presented to the court

in an adequate manner, either factually or legally, to permit a ruling at this time. 
18

Finally, the court agrees with plaintiffs that the reasonableness of their reliance is not a

matter susceptible to resolution on a motion to dismiss. The motion to dismiss Count IV is

denied.

5. Section 113(f) of CERCLA 113(f) (Count IX)

In Count IX, plaintiffs seek contribution from the Hopmayers under §113(f) of CERCLA. 

After the briefing on the motion to dismiss was completed, the Supreme Court decided Cooper

Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004). In Cooper, the Supreme Court held

that contribution under §113(f) may be sought by a party only during or following a civil action

brought against that party. Thus, the Hopmayers argue that parties like plaintiffs appear to be,

whose liability does not depend on a civil action brought against them, have no remedy under

§113(f). Plaintiffs have not responded to the Hopmayers’ argument, set forth in their Motion for

Leave to Cite Additional Authority, and the court concludes they have no dispute with the

Hopmayers’ argument based on Cooper. The motion to dismiss Count IX is granted.

C. Hopmayers’ Motion to Strike

The Hopmayers also move to strike plaintiffs’ jury demand as to Counts I and IX, request

for attorneys’ fees in Counts I and IX, and request for compensatory damages in Count IX. 

Because Count IX has been dismissed, the court need resolve only whether plaintiffs are entitled

to plead the jury demand and attorneys’ fees requested in Count I of the Amended Complaint.

Under Rule 12(f) of the Federal Rules of Civil Procedure, “the court may order stricken

from any pleading any insufficient defense or any redundant, immaterial, impertinent, or

scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored because

normally, they serve only to cause delay. Heller v. Midwhey Powder Co., Inc., 883 F.2d 1286,

1294 (7th Cir. 1989). Nevertheless, where “motions to strike remove unnecessary clutter from
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the case, they serve to expedite, not delay.” Id. 

1. Plaintiffs’ Jury Demand

“A party is entitled to a jury in a civil action where the Seventh Amendment or statute

provides such a right.” U.S.A. v. Ekberg, No. 01 C 50457, 2004 WL 793313, at *1 (N.D. Ill.

April 12, 2004) (citing Tull v. United States, 481 U.S. 412, 417 (1987)). CERCLA does not

expressly provide a right for jury trial. Id. Further, the Seventh Amendment’s jury trial

guarantee generally does not extend to equitable claims. Simler v. Conner, 372 U.S. 221, 222

(1963). 

With respect to Count I, which seeks cost recovery pursuant to 42 U.S.C. § 9607, such

actions are not entitled to a jury trial because they are equitable in nature and seek “restitution or

reimbursement of the costs [plaintiff] expended in order to respond to the health and

environmental danger presented by hazardous substances.” Ekberg, 2004 WL 793313, at *1

(quoting United States v. Northeastern Pharmaceutical & Chemical Co. Inc., 810 F.2d 726, 749

(8th Cir. 1986)); see also Hatco Corp. v. W.R. Grace & Co.-Conn., 59 F.3d 400, 412 (3d Cir.

1995); State of New York v. Lashkins Arcade Co., 91 F.3d 353, 362 n.7 (2d Cir. 1996));

Consolidated City of Indianapolis v. Union Carbide Corp., No. 02-CV-1340, 2003 WL

22327833, at *2 (S.D. Ind. 2003) (“Although the Seventh Circuit has not addressed the instant

issue, both district courts within this circuit that have considered the issue concluded that

plaintiffs asserting CERCLA recovery of response claims are not entitled to jury trials because

their claims are equitable in nature.”) (citing Metal Processing Co., Inc. v. Amoco Oil Co., 173

F.R.D. 244, 247 (E.D. Wis. 1997); GL Indus. of Mich., Inc. v. Forstmann Little & Co., 800 F.

Supp. 695, 698-99 (S.D. Ind. 1991)). 

Because plaintiffs’ Count I is a cost-recovery action – both restitutionary and equitable in
20

nature – plaintiffs are not entitled to a jury trial on that Count, and the Hopmayers’ motion to

strike plaintiffs’ jury demand as to Count I is granted.
13Following the Key Tronic decision, lower courts have held the following types of

counsel fees to be recoverable in CERCLA actions: (1) those incurred in connection with the

search for potentially responsible parties (“PRPs”); “(2) fees related to client conferences

regarding site work and cleanup matters, site visits to review cleanup and conferences with

technical staff; (3) fees associated with investigatory efforts to identify contaminants on the

property; (4) fees related to costs of EPA monitoring or oversight of remedial action.” Sealy

Connecticut, Inc. v. Litton Industries, Inc., 93 F. Supp. 2d 177, 190-91 (D. Conn. 2000) (internal

citations omitted). “In contrast, the following types of costs have been found not recoverable

under CERCLA: (1) costs incurred in negotiating a consent decree with the EPA; and (2) costs

of audits conducted by plaintiff committee of PRPs to review expenses charged by EPA to

committee with regard to the cleanup.” Id. Plaintiffs should keep factually detailed records to

support any claim for attorney’s fees.

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2. Plaintiffs’ Attorneys’ Fees Request

The Hopmayers also argue that plaintiffs’ request for attorneys’ fees as to Count I should

be stricken. Citing Key Tronic Corp. v. United States, 511 U.S. 809 (1994), the Hopmayers

argue that because plaintiffs’ request for attorneys’ fees is not sufficiently narrow so as to

exclude counsel fees not “closely tied” to the cost of the cleaning up the water pollution at issue,

plaintiffs’ request should be stricken.

Under the long-standing “American rule,” parties are not entitled to an award of

attorneys’ fees absent explicit statutory authorization. Alyeska Pipeline Serv. Corp. v.

Wilderness Society, 421 U.S. 240, 247 (1975). Although CERCLA §107 does not expressly

permit the award of attorneys’ fees, the Key Tronic Court held that attorney work “that is closely

tied to the actual cleanup” is a recoverable expense under CERCLA §107(a)(4)(B). 511 U.S. at

820. The Key Tronic Court held that attorney work that assisted in identifying potentially

responsible parties was recoverable as “a necessary cost of response” under CERCLA because

such activity “increases the probability that a cleanup will be effective and get paid for.” Id.

13 

It is unclear at this time how much, if any, of the plaintiffs’ attorney’s fees will be

recoverable under the foregoing standard. Nevertheless, because plaintiffs may be able to show
22

that some of their attorney costs are “closely tied” to the actual cleanup of the water pollution at

issue, the Hopmayers’ motion to strike plaintiffs’ request for attorney’s fees is denied.

III. Conclusion

For the foregoing reasons, Carlson’s motion to dismiss Counts V and VII is denied; the

Hopmayers’ motion to dismiss is granted in part and denied in part; the Hopmayers’ motion to

strike is granted in part and denied in part; and plaintiffs’ motion to strike is denied as moot.

ENTER:

__/s/_________________________

Joan B. Gottschall

United States District Judge

Dated: April 20, 2006