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1

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANTONIO SOLIS, JUAN SOLIS, and

JUAN RANGEL, individually and

on behalf of all others

similarly situated,

Plaintiffs,

-vsHILCO REDEVELOPMENT LLC, et

al.,

Defendants. 

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Case No. 20-cv-02348

Chicago, Illinois

March 23, 2022

10:18 a.m.

TRANSCRIPT OF TELEPHONIC PROCEEDINGS

BEFORE THE HONORABLE MARTHA M. PACOLD

TELEPHONIC APPEARANCES:

For the Plaintiffs: MR. SCOTT R. RAUSCHER

Loevy and Loevy

311 North Aberdeen Street, 3rd Floor

Chicago, IL 60607

(312) 243-5900

Scott@loevy.com

For Defendants Hilco

Redevelopment, LLC, 

HRE Crawford LLC, 

And HRP Exchange

55, LLC: MR. BRENDAN EDWARD RYAN

Kirkland & Ellis

300 North LaSalle Street

Chicago, IL 60654

(312) 862-3620

Brendan.ryan@kirkland.com

Court Reporter:

KATHLEEN M. FENNELL, CSR, RPR, RMR, FCRR

Official Court Reporter

United States District Court

219 South Dearborn Street, Suite 1426

Chicago, Illinois 60604

Telephone: (312) 435-5569

Kathleen_Fennell@ilnd.uscourts.gov

* * * * * * * * * * * * * * * * * *

PROCEEDINGS REPORTED BY CERTIFIED STENOGRAPHER

TRANSCRIPT PRODUCED WITH A COMPUTER

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2

APPEARANCES: (Continued)

For Defendant

Controlled

Demolitions, Inc.: MR. ANDREW PAUL RICE

Sanchez & Daniels

333 West Wacker Drive, Suite 500

Chicago, IL 0606

(312) 641-1555

Arice@sanchezdh.com

For Defendant Marine

Technology

Solutions, LLC: MR. THOMAS JAMES LYMAN, III

Smith Amundsen, L.L.C. 

150 North Michigan Avenue, Suite 3300

Chicago, IL 60601

(312) 894-3200

Tlyman@salawus.com

For Defendant MCM

Management Corp.: MR. EDWARD A. DEVRIES

Wilson Elser Moskowitz Edelman & Dicker

55 West Monroe Street, Suite 3800

Chicago, IL 60603

(312) 704-0550

Edward.devries@wilsonelser.com

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(Proceedings heard in open court:) 

THE COURTROOM DEPUTY: Good morning. The United

States District Court for the Northern District of Illinois is

now in session, the Honorable Martha M. Pacold presiding. 

20 C 2348, Solis versus Hilco Redevelopment. 

Counsel, if you can state your name for the record, we'll

start with plaintiffs' counsel. 

MR. RAUSCHER: Good morning. Scott Rauscher for the

plaintiffs. 

MR. RYAN: Good morning, your Honor. This is Brendan

Ryan on behalf of defendants, Hilco Redevelopment, LLC, HRE 

Crawford, LLC, and HRP Exchange 55, LLC. 

MR. DEVRIES: Good morning, your Honor. This is

Edward Devries from Wilson Elser on behalf of MCM Management. 

MR. LYMAN: Good morning, your Honor. This is Tom

Lyman, L-Y-M-A-N, on behalf of Marine Technology Solutions. 

MR. RICE: Good morning, your Honor. Andrew Rice on

behalf of Controlled Demolitions, Inc. 

THE COURT: All right. Good morning, everyone. 

Can I just ask is there anyone else who's planning to

participate in the hearing? 

All right. Thanks. Sounds like we have everyone

then. 

Let me first just say thank you for your patience

with the rescheduling of the hearing and also with starting a 

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little bit late this morning. 

Let me also just ask if you're not speaking if you

could please just mute your line. That would -- that would

make things easier in case there's any kind of feedback. 

Let me also before I -- so we're here for a ruling on

the motion to dismiss, and I am prepared to proceed to the

ruling. Before I do that, let me just ask is there anything

about the status of the case or any type of developments that

you'd like to bring to my attention before I turn to the

ruling? 

MR. RYAN: On behalf of the Hilco defendants, we

don't have anything, your Honor. 

MR. RAUSCHER: That would be the same for plaintiffs, 

Judge. 

THE COURT: Okay. 

MR. DEVRIES: Nothing from MCM. Thank you. 

THE COURT: Thanks then, and I'll go ahead and turn

to the ruling then. 

Let me also just say up front about the format of the

hearing or, I'm sorry, of the ruling, that I will be giving

the ruling from the bench today and I will give my reasons

from the bench. 

And so first of all, I just appreciate your bearing

with me because it will take some time to walk through the

ruling and the reasoning. 

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I also wanted to let you know that I will be giving

all my reasons from -- during the ruling today on the record. 

I do not plan to issue a separate written order, and the

reason for that is just speed. I can get you a decision

faster with this format, and so that's really why I'm doing

that. 

So if anyone needs the reasoning, then I would

recommend that you order the transcript. I will issue a 

minute entry that summarizes and gives the bottom line, but

the reasoning will be on the record here. 

So with that, let me then turn to the ruling. And, 

again, I'll just ask for your patience as I walk through it. 

Plaintiffs Antonio Solis, Juan Solis, and Juan Rangel

brought this putative class action against defendants who were

involved in the demolition of a smokestack in the Little

Village neighborhood of Chicago. 

Plaintiffs allege that the April 2020 smokestack

demolition towards the beginning of the COVID pandemic

resulted in a toxic dust cloud that coated Little Village and

caused harm to plaintiffs and the putative class. Defendants

have moved to dismiss all of plaintiffs' eight claims. 

And I will give reasons for each of these particular

claims, but just to summarize up front, I will grant in part

and deny the motion. 

So Counts I, ultra hazardous activity, II, 

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negligence, and IV, private nuisance, may proceed. 

Count V, trespass, is dismissed without prejudice to

the extent that it sounds in intentional trespass, but the

claim may go forward as a negligent trespass claim. 

Counts VI for battery and assault, or assault and

battery, VII, medical monitoring, and VIII, Title VI, are

dismissed without prejudice in their entirety for all

plaintiffs. 

Count III, negligent infliction of emotional

distress, is dismissed without prejudice as to plaintiff -- 

plaintiffs Jose Solis and Juan Rangel but survives for

plaintiff Antonio Solis. 

Going forward then are the following claims: For

Antonio Solis: Count I, ultrahazardous activity; Count II, 

negligence; Count III, negligent infliction of emotional

distress; Count IV, private nuisance; Count V, negligent

trespass. 

For plaintiff Jose Solis: Count I, ultrahazardous

activity; Count II, negligence; Count IV, private nuisance; 

Count V, trespass, negligent trespass. 

For plaintiff Juan Rangel: Count I, ultrahazardous

activity; Count II, negligence; Count IV, private nuisance; 

Count V, negligent trespass. 

The remaining counts are dismissed. 

Because this is the first dismissal of any claims, 

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all dismissals are without prejudice, and plaintiffs will be

given an opportunity to amend their complaint. This case has

already been referred to Judge Harjani for discovery and

settlement. I will expand that referral to include setting

deadlines for amended pleadings. 

I will also direct the parties to exhaust settlement

possibilities in light of this ruling, and then I will ask the

parties to submit a joint status report on the case generally

and to include any update on settlement by six weeks from

today. 

So that's the summary, and I'll now walk through the

details. 

In terms of the background and the factual

allegations, those allegations are in the first amended

complaint, and so I'm going to assume that the parties are

familiar with that complaint. I'm assuming all well-pleaded

facts alleged in the complaint are true. I am construing them

in the light most favorable to plaintiffs. 

I will then turn to the legal standard. 

When reviewing a motion to dismiss under

Rule 12(b)(6), as I mentioned, I accept as true all factual

allegations in the complaint and draw all permissible

inferences in plaintiffs' favor. 

To survive a motion to dismiss, a plaintiff must

allege enough facts to state a claim to relief that is

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plausible on its face. A claim has facial plausibility when

the plaintiff pleads factual content that allows the Court to

draw the reasonable inference that the defendant is liable for

the misconducts alleged. 

Federal pleading standards do not require detailed

factual allegations, but they require more than an unadorned, 

the-defendant-unlawfully-harmed-me accusation. Naked

assertions devoid of further factual enhancement are

insufficient, and it is the defendants' burden to establish

the complaint's insufficiency. 

Turning then to the analysis of the individual

claims. Beginning with some points about the ultrahazardous

and negligence-based claims, so that would be Counts I, II, 

III and VII, defendants contend that the named plaintiffs

cannot recover on any of their negligence-based claims, 

meaning negligence, negligent infliction of emotional

distress, trespass to the extent that's based in negligence, 

private nuisance, and medical monitoring, and their claim for

ultrahazardous activity. 

Defendants contend that, under Illinois law, a 

plaintiff may not recover damages under a negligence theory or

strict liability without a present injury. Defendants contend

that plaintiffs here have alleged only increased risk of

future harm without any alleged present harm. According to

defendants, mere exposure to a hazardous substance is not a 

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present injury under Illinois tort law. 

In response, plaintiffs argue that defendants' 

argument for dismissal depends on defendants' own version of

the facts that contradicts the complaint and that that

approach is improper at the motion to dismiss stage and, in

and of itself, warrants denial of the motion to dismiss. 

Plaintiffs contend that they have alleged injuries to their

persons and property, and they contend that the complaint

alleges all the elements of a negligence claim under Illinois

law. 

Plaintiffs contend that defendants have imposed a far

too stringent pleading standard. They also argue that

Illinois law recognizes exposure to harmful substances as an

injury. 

I'll start with the plaintiffs' negligence count and

then address defendants' other arguments that all

negligence-based counts and the strict liability claim must

also be dismissed. 

So starting with negligence, Count II, defendants

contend that the named plaintiffs here have not alleged a 

present physical injury sufficient to assert a negligence

claim under Illinois tort law. Neither Jose Solis nor Juan

Rangel has alleged that they were physically harmed by

defendants' alleged negligence. Only Antonio Solis alleges to

have come into contact with the dust and suffered physical

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side effects after that contact. 

Jose Solis alleges that the dust invaded his property

and accumulated in his home. 

Juan Rangel and Antonio Solis allege that they are

property owners in Little Village and that the remnants of the

dust cloud coated their neighborhoods. These allegations -- 

so Antonio Solis is alleging physical side effects. Juan

Rangel and Jose Solis are alleging that they are property

owners and that the remnants of the dust cloud coated their

neighborhood. 

So there are different types of allegations here as

between the plaintiffs, but these allegations are sufficient

to state claims for negligence. 

Negligence requires duty, breach, causation, and

damage. Damage can be -- there can be either damage, 

personal-injury-type damage, or there can be property damage. 

See Clancey v. McBride, 388 Illinois 35, 38 (1929); see also

Dargie v. East End Bolders Club 346, Ill. App. 480, 491

(1952). So there can be -- there can be negligence claims

either for injury to person or injury to property. 

Under Illinois law, when a plaintiff's negligence

claim is premised upon injury to person, a plaintiff must

allege a present physical injury. In that circumstance, it is

not sufficient for a plaintiff to allege an increased risk of

future harm. In Berry v. City of Chicago, 2020 IL 124999, the

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Illinois Supreme Court analyzed its prior decisions and held

that "an increased risk of harm is not itself an injury" for

purposes of tort law. Berry, 2020 IL 124999, paragraph 33. 

See also paragraph 38. 

More precisely, Berry held: "A plaintiff who suffers

bodily harm caused by a negligent defendant may recover for an

increased risk of future harm as an element of damages, but

the plaintiff may not recover solely for the defendant's 

creation of an increased risk of harm." Berry, 2020

IL 124999, paragraph 38. See also Williams v. Manchester, 228

Ill.2d 404, 425 (2008). 

At least one other court in this district has applied

Berry in an analogous context and has concluded that a 

plaintiff must allege a present physical injury to support a 

negligence claim, again, when the negligence claim is a 

personal -- a claim for personal injury. Leslie v. Medline

Industries, 2021 WL 4477923 (N.D. Ill., September 30, 2021), 

read Berry as requiring that "in a negligence action, a 

plaintiff must allege a present physical injury, especially to

recover damages for future harm connected to that injury." 

Id. at *9. 

So applying these principles here with respect to

Antonio Solis's claim, the complaint alleges that Antonio

Solis was in his house when the dust cloud from the demolition

"descended" and that the dust "seeped" into his home. Docket

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13, paragraph 10. Antonio Solis alleges that he "later

experienced headaches when he went outside as well as a sore

throat." Id.

Accepting these allegations as true and drawing all

reasonable inferences in Antonio Solis's favor, these

allegations are sufficient to allege that Antonio Solis

suffered a physical injury in the immediate aftermath of the

demolition due to the dust cloud and that this injury may have

been caused by defendants' negligent conduct. 

Defendants allege that Antonio Solis's injuries are

de minimis and insufficient to establish the present physical

injury requirement of an Illinois tort claim. They cite

Sondag v. Pneumo Abex Corp., 2016 IL App (4th) 140918, in

which a plaintiff claimed that defendant's tape contained

asbestos and caused him to develop pleural plaques and

interstitial fibrosis. However, that case I believe is

distinguishable in that it was first -- it involved products

liability claims, and so that is -- that is one distinction. 

It also was decided on appeal from the denial of a 

motion for a directed verdict, and that's apparent from

paragraph 1 of the case, which refers to the evidence before

the jury. And so contrary to defendant's assertion, Sondag

does not stand for the broad proposition that plaintiffs must

allege facts at the pleading stage establishing that they

suffered from some significant ongoing or chronic harm. 

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Sondag appears to have addressed a specific question

related to products liability actions and at a later stage

than we are -- this motion is at in this case. 

Defendants also argue that the plaintiffs' alleged

injury must be ongoing. However, while Berry requires that a 

plaintiff must plead a present injury in order to recover

damages for an increased risk of future harm, Berry does not

necessarily require plaintiffs' present injury to be ongoing. 

See Berry at paragraph 38. Defendants argue that Antonio

Solis's injuries are de minimis, are not ongoing, and do not

create a risk of future harm, but these issues are not

appropriate for resolution at the pleading stage because they

relate to the question of Antonio Solis's damages rather than

failure to plead a negligence claim. 

Furthermore, defendants have not cited case law from

Illinois suggesting that even minor de minimis injuries are

insufficient to state a claim for negligence. 

Also, Illinois requires fact pleading, a more

rigorous standard than federal notice pleading. Custom

Classic Automobiles v. Axalta Coating Systems, 2020 WL 7319569

at *4, note 8, (N.D. Ill. December 11, 2020), but in federal

court, federal pleading standards apply. See Windy City Metal

Fabricators v. CIT Tech Financial Services, 536 F.3d 663, 670

(7th Cir. 2008). At this stage, all that Antonio Solis must

plead is that he suffered a present injury attributable to the

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defendants' negligent conduct, which he has. 

Additionally, Antonio Solis, Jose Solis, and Juan

Rangel all allege that they are property owners in Little

Village. A claim for negligence can be supported, as I 

mentioned earlier, based upon damage to person or damage to

property. While the complaint does not allege that Jose Solis

has suffered any physical injury from the dust cloud, it does

allege that the dust "left a thick residue in and around his

home." Docket 13, paragraph 11. The complaint further

alleges that "the dust has even penetrated inside the homes of

community members, requiring significant cleaning just to make

those residences safe and habitable." Paragraph 73. 

Again, construing these facts in the light most

favorable to plaintiff, it is plausible that the defendants' 

negligent actions caused damage to Jose Solis's property by

leaving a layer of dust in and around his home that required

significant cleanup. 

As to plaintiffs Antonio Solis and Juan Rangel, both

allege that they are property owners and that dust accumulated

in their neighborhoods. Drawing all reasonable inferences in

their favor, these allegations are also enough for me to infer

that the dust coated their properties and caused damage. 

In short, as to Count II, which is negligence, the

motion to dismiss is denied with respect to all plaintiffs. 

Defendants contend that if plaintiffs' negligence

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claim fails, then all other claims with negligence as an

element, as well as plaintiffs' strict liability claim, must

also be dismissed. This would pertain to Counts I, III, IV

and V. Plaintiffs contend that defendants waived this

argument by not sufficiently developing it in their briefs. 

However, because I have found and as I've just

explained, all plaintiffs have pleaded enough to state claims

for negligence, there is no reason to reach this dispute, and

so the argument that plaintiffs have failed to plead lack of

damages sufficient to state a negligence claim is not a basis

to dismiss any of the other negligence-based claims or

plaintiffs' strict liability claim. 

Turning next to Count III, which is the negligent

infliction of emotional distress claim. Defendants argue that

plaintiffs failed to state a claim for negligent infliction of

emotional distress, which I'll refer to as NIED, because

plaintiffs have not suffered a physical injury or impact. 

Plaintiffs respond that a direct-victim NIED claim

requires either contemporaneous physical impact or injury, not

both. Docket 93 at page 27. They contend that they have

alleged physical injuries to their persons and property caused

by the defendants' toxic dust cloud and that there can be no

reasonable dispute that the complaint, taken as true, alleges

that plaintiffs suffered a contemporaneous physical impact

sufficient for direct-victim NIED liability by coming in

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contact with the dust plume. Id. at 27. 

Plaintiffs further argue that because they have

alleged a physical impact from the dust cloud, they were not

also required to allege physical injury resulting from the

distress caused by defendants' negligent conduct. Id. at 28. 

Both parties concede that plaintiffs are proceeding

under a direct-impact NIED theory rather than a bystander

theory. However, the plaintiffs seem to dispute the current

state of law on the physical impact or injury requirement of

direct-impact NIED claims. 

The parties' briefs primarily rely on three Illinois

Supreme Court cases to make their respective arguments: 

Rickey v. Chicago Transit Authority, 98 Ill.2d 546 (1983), 

Pasquale v. Speed Products Engineering, 166 Ill.2d 337 (1995), 

and Schweihs v. Chase Home Finance, 2016 IL 120041. 

Rickey and Pasquale concerned plaintiffs proceeding

under bystander NIED theories. Rickey held that a bystander

who was in a zone of physical danger and who, because of the

defendant's negligence, has reasonable fear for his own safety

has a cause of action for physical injury or illness resulting

from emotional distress. "This rule does not require that the

bystander suffer a physical impact or injury at the time of

the negligent act, but it does require that he must have been

in such proximity to the accident in which the direct victim

was physically injured, that there was a high risk to him of

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physical impact. The bystander, as stated, must show physical

illness or illness as a result of the emotional distress

caused by the defendant's negligence." 98 Ill.2d at 555. 

Pasquale, however, concerned a case of strict

liability, not negligence. It reaffirmed the Illinois rule

that "there exists in Illinois no recovery for emotional

distress under a theory of strict liability." 166 Ill.2d at

321. 

Schweihs clarified the state of the law on NIED

direct-impact claims. The Illinois Supreme Court held that

"precedent makes clear that a direct victim's claims for

negligent infliction of emotional distress must include an

allegation of contemporaneous physical injury or impact ... 

this court did not eliminate the impact rule for negligent

infliction of emotional distress claims brought by direct

victims." 2016 IL 120041, paragraph 38. 

Thus, Illinois law does require that direct-impact

victims allege a contemporaneous physical injury or physical

impact. The question then is whether plaintiffs' complaint

alleges either one of those. Neither party cites good case

law on what Illinois courts consider a physical impact or

sufficient physical injury to support an NIED claim. 

Defendants point out that the U.S. Supreme Court in

Metro-North Commuter Railroad Company v. Buckley held that

under the Federal Employers Liability Act, or FELA, an NIED

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plaintiff's long exposure to asbestos dust did not constitute

physical impact as that term was used in another court

decision interpreting FELA. 521 U.S. 424, 432 (1997). While

Buckley presents a compelling case for why the term "physical

impact" under traditional tort law does not encompass contact

that amounts to no more than an exposure, id., Illinois law

allows an NIED claim where a plaintiff suffers a physical

impact or physical injury. Schweihs, 77 N.E.3d at 58. 

Here, applying federal pleading standards and drawing

all reasonable inferences in favor of plaintiffs, Antonio

Solis has sufficiently pleaded a physical injury from the

defendants' negligent conduct. He alleges that he suffered

physical symptoms -- headache and sore throat -- in the

immediate aftermath of being exposed to defendants' dust cloud

caused by defendants' negligence. 

As to Jose Solis and Juan Rangel, however, the

complaint does not allege that they ever came into direct

contact with the dust cloud or suffered any physical injury

because of it. While plaintiffs attempt to rely on the more

general allegations of the harm that the dust cloud caused to

residents of Little Village as a whole, at this stage in the

proceedings, Jose Solis and Juan Rangel must rely on the

specifics of their own experience in order to survive the

motion to dismiss. 

And Count III is dismissed without prejudice with

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respect to Jose Solis and Juan Rangel. 

Turning to medical monitoring, Count VII. Defendants

argue that medical monitoring is not an independent tort in

Illinois. Plaintiffs state that although defendants may be

correct that the Illinois Supreme Court has not yet weighed in

on whether this unbroken line of cases recognizing medical

monitoring claims under Illinois law is correct, defendants do

not suggest that the Illinois Supreme Court has ever

questioned the existence of such a claim either. 

Medical monitoring is not an independent claim under

Illinois law but is a form of damages that a plaintiff who

asserts a successful negligence claim may seek. 

In the Berry case, the Illinois Supreme Court said, 

"Simply pleading a need for medical monitoring prompts the

question: Why is medical monitoring needed? Plaintiffs

themselves allege in their complaint that the need for medical

monitoring is based on their increased risk of harm." Without

an increased risk of future harm, plaintiffs would have no

basis to seek medical monitoring. In other words, plaintiffs' 

allegation that they required diagnostic medical testing is

simply another way of saying they have been subjected to an

increased risk of harm, and in a negligence action, an

increased risk of harm is not an injury. 

"A plaintiff who suffers bodily harm caused by a 

negligent defendant may recover for an increased risk of

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future harm as an element of damages, but the plaintiff may

not recover solely for the defendant's creation of an

increased risk of harm." That's from Berry, 2020 IL 124999 at

paragraphs 37 to 38, and in particular that portion of that

quotation that says that a plaintiff who suffers bodily harm

caused by a negligent defendant may recover for an increased

risk of future harm as an element of damages, but the

plaintiff may not recover solely for the defendants' creation

of an increased risk of harm. 

If a plaintiff's negligence claim failed in Berry

because risk of future harm is merely an element of damages

and is not an injury in and of itself, then as a matter of

logic, medical monitoring cannot be an independent tort. 

Plaintiffs' brief argues that courts have repeatedly

recognized that Illinois permits medical monitoring claims as

an independent tort, see docket 93 at page 30, and then

includes a long string cite of cases. However, all of these

cases were decided pre-Berry. Nor did any of them explicitly

recognize medical monitoring as an independent cause of

action. 

To be clear, this is not to say that a plaintiff like

Antonio Solis who has alleged a negligence claim based on a 

physical injury cannot recover as a form of damages medical

monitoring. So, again, there's not a rule that bars a 

plaintiff like Antonio Solis from seeking medical monitoring

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as a form of damages, but medical monitoring itself is not an

independent claim that -- or independent count that plaintiffs

can bring as an independent, free-standing claim. 

And so the medical monitoring claim, Count VII, is

dismissed without prejudice for all plaintiffs. 

And I also would add that other plaintiffs, like Jose

Solis and Juan Rangel, have not suffered physical injury, and

so I -- I guess I would question whether, you know, under the

language in Berry, whether those types of plaintiffs could

recover because, again, Berry says a plaintiff who suffers

bodily harm caused by a negligent defendant may recover for an

increased risk of future harm as an element of damages. So

the premise of that language is that it is a plaintiff who

suffers bodily harm that can seek damages for medical

monitoring. 

Turning to ultrahazardous activity, which is Count I, 

defendants argue that plaintiffs have failed to state an

ultrahazardous activity claim. They claim that because the

complaint alleges that the smokestack could have been

demolished in a safe manner -- i.e., with the exercise of

reasonable care -- plaintiffs cannot, as a matter of law, 

state a claim for strict liability. 

Plaintiffs respond that they have adequately alleged

a strict liability claim, that the Restatement factors do

support their claim, and that this Court should not dismiss

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the strict liability claim merely because plaintiffs have also

alleged a negligence claim. 

They argue that even if they could not ultimately

succeed on their strict liability claim, they are entitled to

plead alternative theories of relief. 

Plaintiffs could not ultimately recover under both a 

theory of negligence and strict liability. See Indiana Harbor

Belt Railroad Company v. American Cyanamid Company, 916 F.2d 

1174, 1179 (7th Cir. 1990); see also Nave v. Rainbo Tire

Service, 123 Ill. App. 3d, 585, 591 (1984). 

But plaintiffs are entitled to plead alternative

theories of relief at the pleading stage, regardless of

consistency. See Federal Rule of Civil Procedure 8(d)(3); see

also Lindgren v. More, 907 F.Supp. 1183, 1190 (N.D. Ill. 

1995). 

Defendants rely on Campos v. BP Products, 2014

WL 5858625 (N.D. Ill., November 12, 2014), where plaintiffs

allege both strict liability and negligence claims against

defendants who sold and stored petcoke, a dust-like byproduct

of crude oil refining. The court dismissed because

plaintiffs' strict liability claim because plaintiffs have not

alleged that petcoke can never be stored safely -- to the

contrary, they allege that enclosing, covering, or spraying

petcoke with water would reduce the likelihood of harm. Id.

at 8. 

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Here, defendants point to two paragraphs in

plaintiffs' complaint, paragraphs 93 and 94, and argue that

plaintiffs allege that adequate controls could have been put

in place to eliminate emission of dust. Docket 76 at page 27. 

But plaintiffs' complaint actually states that each of the

defendants knew or should have known that the demolition and

disposal would generate large amounts of dust laden with

harmful substances, that such dust would be geographically

disseminated by wind, and that such dust would likely be

carried to the plaintiffs' properties and residences and

expose the plaintiffs if not adequately controlled. Docket

13, paragraph 93. 

Unlike in Campos, plaintiffs have not definitively

pleaded themselves out of a strict liability claim by alleging

that there was actually a safe way to conduct the demolition. 

And, again, plaintiffs can proceed on both theories regardless

of their consistency, and so I will not dismiss the

ultrahazardous activity claim merely because plaintiffs have

also alleged negligence. 

Ultimately, disposition of the ultrahazardous

activity claim is not appropriate at the pleading stage. 

Because this question turns on a myriad of Restatement

factors, this question is better left for summary judgment

after the parties have developed the record. 

Whether an activity is ultrahazardous and subjects

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the defendant to strict liability depends on six factors: (a) 

existence of a high degree of risk of some harm to the person, 

land, or chattels of others; (b) likelihood that the harm that

results from it will be great; (c) inability to eliminate the

risk by the exercise of reasonable care; (d) extent to which

the activity is not a matter of common usage; (e) 

inappropriateness of the activity to the place where it is

carried on; and (f) extent to which its value to the community

is outweighed by its dangerous attributes. In re Chicago

Flood Litigation, 680 N.E.2d 265, 279 (Ill. 1997). 

Defendants are correct that whether an activity is

abnormally dangerous is a question of law. See American

Cynamid, 916 F.2d at 1176. Defendants argue that courts

routinely dismiss ultrahazardous activity claims where the

complaint alleges that the activity can be made safer by the

exercise of care. They primarily rely on American Cynamid on

this point. But American Cynamid was resolved on appeal from

a grant of summary judgment. 916 F.2d at 1175 to 76.

It's true that American Cynamid reiterated that

questions of strict liability are questions of law resolved by

the Court, but the case does not suggest that courts must

resolve the question at the pleading stage. To the contrary, 

the decision left open the possibility that there could be

questions of fact related to determinations of strict

liability. Id. at 1182. 

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In short, while it is true that some federal courts

resolve this question at the pleading stage, see Dominick's 

Finer Foods v. Amoco Oil, No. 93 C 4210, 1993 WL 524808, (N.D. 

Ill. December 15, 1993), there is no rule requiring that this

question be resolved now. 

The parties vigorously debate the Restatement

factors, but many of these factors depend upon factual

questions that I cannot resolve at the pleading stage and that

would be better left until there is a full record. And while

ultimately whether defendants engaged in an ultrahazardous

activity is a question of law, I'm not prepared to say that

defendants' activity here was not ultrahazardous without

further development of the record. 

It is also not the case that, as a matter of law, 

demolition is per se not an ultrahazardous activity. 

Defendants' briefing relied significantly on Great American

Insurance Company of New York v. Heneghan Wrecking and

Excavating Company, 2015 IL App (1st) 133376. There, the

Illinois appellate court found, after applying the Restatement

factors, that in the circumstances of that case, the

demolition of a building did not support a finding of strict

liability. Id., paragraph 38. The court's determination was

highly dependent on the specific facts and circumstances of

that case. Great American also was resolved on an appeal from

a summary judgment order. 

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In short, plaintiffs have adequately pleaded a claim

for ultrahazardous activity, can proceed under both a theory

of negligence and the theory of strict liability, and I will

not definitively resolve the question of whether defendants

engaged in an ultrahazardous activity at this point in the

litigation. 

So the motion is denied with respect to Count I for

all plaintiffs. 

Turning to assault and battery, which is Count VI. 

Defendants next argue that plaintiffs failed to state claims

for assault and battery because the complaint fails to allege

that defendants intended plaintiffs to be touched by dust or

intended to create a reasonable fear of an imminent touching. 

According to defendants, both assault and battery require a 

showing of malice, and because the complaint alleges that

defendants took steps to prevent the spread of dust, 

defendants could not have also intended for the plaintiffs to

have been touched by the dust. Defendants also argue that for

the battery claim, being touched by dust is not physical

contact. 

Plaintiffs respond that Illinois law does not require

malice but merely requires that defendants acted willfully and

wantonly in causing the harmful contact. Plaintiffs argue

that they have pleaded the necessary mental state to support

their assault and battery claims because the complaint alleges

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that defendants acted deliberately in exposing the plaintiffs

to harmful substances and with blatant disregard for the

consequences of their action. 

Plaintiffs have not pleaded sufficiently a claim for

assault and battery. 

Beginning with battery: Battery is an intentional

tort. Fiala v. Bickford Senior Living Group, 2015 IL App (2d) 

150067, paragraph 20. "Battery is defined as the willful

touching of another person. ... The touching may be by the

aggressor or a substance or force put in motion by the

aggressor. ... An action for battery does not depend on the

hostile intent of the defendant but on the absence of the

plaintiff's consent of the contact. ... To be liable for

battery, the defendant must have done some affirmative act

intended to cause an unpermitted contact." Pechan v. DynaPro, 

Inc., 251 Ill. App. 3d 1072, 1084 (1993). "The element of

intent is defined in at least two ways: Either an intent to

touch or an intent to harm or offend by the touch." Fiala,

2015 IL App (2d) 150067, paragraph 20. "The gist of the

action for assault and battery is malice, which implies a 

wrong inflicted on another with evil intent or purpose." 

Mitchell v. United States, 2005 WL 2850113 at *2 (N.D. Ill., 

October 26, 2005). 

Plaintiffs rely on a case from 1946, Smith v. 

Georgeoff, 329 IL App. 444 (1946), to support the proposition

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that, for a battery claim, "proof of express malice is

unnecessary and malice can be inferred from wanton and willful

or reckless disregard of the plaintiff's rights." However, 

Smith concerned a case in which a tavern owner violently threw

out a patron, and the patron sustained injuries. Id. at 446. 

The patron sued, alleging claims for assault and battery. In

the trial court, defendant alleged a defense that a tavern

owner is permitted to throw out an inebriated patron, but lost

at trial and appealed. Id. The Illinois appellate court

determined that a tavern owner is allowed to throw out

inebriated patrons but may only use as much force as is

reasonably necessary to do so and held that the evidence in

this case indicated that more force was used than was

necessary. Id. The court stated: "While it is true that

proof of acts negligently done will not sustain a charge of

assault and battery, the evidence in the instant case shows

conduct which is much stronger than a mere negligent attempt

to eject plaintiff. Similarly, proof of express malice is

unnecessary, and malice can be inferred from wanton and

willful or reckless disregard the plaintiff's rights." Id. at

447. 

Smith reflects that the evidence in that case was

enough to support a judgment that the defendant did indeed

batter the plaintiff by using more force than necessary to

eject plaintiff from defendant's tavern. Such a judgment

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could be supported by proof that a defendant acted in wanton

and willful disregard for a plaintiff's rights. But Smith did

not supplant the general rule that battery is an intentional

tort and requires that a defendant "must have done some

affirmative act, intended to cause an unpermitted contact." 

Mink v. University of Chicago, 460 F. Supp. 713, 717 (N.D. 

Ill. 1978); Pechan, 251 Ill. App. 3d at 1084. 

On this point, Pechan is instructive. There, a 

plaintiff sued her ex-employer, alleging battery due to

injuries sustained from secondhand smoke. 251 Ill. App. 3d at

1074. The defendant employer allowed employees to smoke at

its facility, and Illinois law permits claims against an

employer for intentional injuries where the employer

"expressly authorizes" the injurious activity. Id. at 1084. 

In determining whether plaintiff's battery claim was

properly dismissed for failure to state a claim, the appellate

court noted that "the cause of action for express

authorization to commit battery hinges on the intents of the

employee smokers. We must decide whether the employees who

smoked did so with the intent that the emitted smoke touched

nonsmokers such as Pechan." Id. 

The court ultimately deferred the dismissal of the

claim because "the act of smoking generally is not done with

the intent of touching others with emitted smoke. Pechan has

not alleged that any of the office's smokers intended that she

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be exposed to their smoke or that reasonable persons should

have known that their smoke would have contacted Pechan in

sufficient quantity to reasonably cause the damages claimed." 

Id. at 1085 to 86. 

In short, although plaintiffs' briefing argues

otherwise, battery in Illinois does require an allegation of

intent to cause offensive contact. See also Censke v. United

States, 27 F. Supp. 3d 920, 932 (N.D. Ill. 2014).

Here, plaintiffs have not pleaded intent, nor have

they pleaded factual content that would allow a reasonable

inference that defendants intended to cause offensive contact

when they undertook the demolition of the smokestack. 

While the complaint alleges that the defendants did

not utilize adequate containment measures to prevent the dust

cloud from spreading, these allegations by themselves do not

give rise to a reasonable inference that defendants acted with

the intent of causing offensive bodily contact. Moreover, the

complaint does not allege that defendants' failure to use

adequate containment measures occurred with the intent of

causing plaintiffs' offensive bodily contact. 

The count for battery alleges: "The manner in which

the demolition and disposal of the Crawford Coal Plant site

was conducted on April 11, 2020, released dust and other

particulate matter into the Little Village community. 

Residents of Little Village, including the named plaintiffs

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and class members, were forced to breathe the dust and

particulate matter. This action, taken willfully by the

defendants in a manner described more fully throughout this

complaint, constituted contact by the defendants to which

plaintiffs did not consent." Docket 13, paragraph 115. And

so that language says "taken willfully". 

The battery count does not allege that the defendants

undertook the demolition with the intent of causing harmful

bodily contact to plaintiffs. Instead, it alleges that

defendants intentionally demolished the smokestack. It is

true that under the federal pleading standards, no magic words

are necessary to state a claim, but here plaintiffs have

alleged, again, that defendants intentionally demolished the

smokestack, but have not alleged that defendants did so with

the actual intent of bringing about offensive bodily contact

with plaintiffs. Plaintiffs' complaint stops short of

alleging that defendants undertook any of these actions with

the intent of causing plaintiffs offensive bodily contact. 

Because plaintiffs have not pleaded intent, there is

no need to reach defendants' additional argument that contact

with the dust does not constitute contact for purposes of a 

battery claim. 

Turning to assault, "An assault can be defined as an

intentional, unlawful offer of corporal injury by force, or

force unlawfully directed, under such circumstances as to

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create a well-founded fear of imminent peril, coupled with the

apparent present ability to effectuate the attempt if not

prevented." Parrish v. Donahue, 110 Ill. App. 3d, 1081, 1083

(1982). 

For the same reasons plaintiffs have not alleged

intent in their battery claims, they also have not alleged the

required intent to plead an assault claim. 

So Count VI, which alleges assault and battery, is

dismissed without prejudice in its entirety for all

plaintiffs. 

Turning to trespass, which is Count V. Defendants

argue that plaintiffs' trespass claim, whether based in

negligence or alleged as intentional tort, fails. As for

intentional trespass, defendants contend that plaintiffs

failed to allege that defendants intended to send dust onto

plaintiffs' property. And to the extent that the trespass

count alleges negligent trespass, defendants also urge

dismissal of the trespass count on the ground that it is

duplicative of plaintiffs' negligence claim. 

Plaintiffs argue against dismissal of this count

because, according to plaintiffs, plaintiffs' theory of

intentional trespass is straightforward. Plaintiffs allege

that defendants knew that their uncontrolled demolition would

cause harmful substances to invade plaintiffs' property, 

proceeded with the demolition anyway, and thereby caused such

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an invasion to occur. Plaintiffs argue that defendants knew

with a high degree of certainty that their actions would lead

to the intrusion of the property of Little Village residents, 

including plaintiffs. 

Plaintiffs also assert that a claim for negligent

trespass would not be duplicative of the negligence count

because, in a negligent trespass action, the focus of the

inquiry, according to plaintiffs, is on the foreseeability of

the invasion onto the property. Plaintiffs contend that if

such a negligent intrusion is shown, the plaintiff can recover

for actual damages proximately caused by the ultimate

intrusion, even if the chain of causation between the original

negligent act and the downstream harm would be too attenuated

in a generic negligence action. 

The complaint here does not specify whether the claim

for trespass sounds in negligence or intent. Illinois law

recognizes a tort for intentional trespass and negligent

trespass. Dial v. City of O'Fallon, 81 Ill.2d 548 (1980), 

said, "The conduct which today forms the basis of liability

for the invasion of the interest in the exclusive possession

of land may be of three general types: (1) conduct intended

to cause an intrusion on the plaintiff's premises; (2) 

negligent conduct that causes an intrusion; and (3) conduct

that is ultrahazardous and causes an intrusion, so that

liability is said to be strict or absolute. The second type

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of invasion listed above is now governed by the general

principles of negligence, and the third is thought of as

included in the principles governing extrahazardous conduct, 

leaving only the first type of invasion wherein recovery may

be sought purely on the basis of the tort of trespass." Dial,

81 Ill.2d at 553. 

Turning first to intentional trespass, "Trespass is

an intentional invasion of the exclusive possession and

physical position of land. ... One can be liable in trespass

for an intrusion by a thing or third person if he acts with

knowledge that his conduct will, to a substantial degree of

certainty, result in the intrusion. ... In other words, a 

person must know with a high degree of certainty that the

intrusion will naturally follow from his act before liability

for trespass attaches." Freese v. Buoy, 217 Ill. App. 3d, 

234, 244 (1991). 

Plaintiffs agree that intentional trespass under

Illinois law requires a high degree of certainty that an

intrusion of another's property will result from the act of

the defendant. Docket 93 at pages 46 to 47. Plaintiffs point

to paragraphs 91 to 93 of the complaint, which they contend

allege in no uncertain terms that defendants knew with a high

degree of certainty that their actions would lead to the

intrusion upon plaintiffs' property. 

However, paragraphs 91 to 93 allege more generally

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that the defendants knew or should have known that their

actions would have caused damage from the dust cloud. Those

paragraphs do not contain allegations giving rise to a 

plausible inference that defendants knew with a high degree of

certainty that their actions would have caused an intrusion

upon plaintiffs' property. 

Moreover, the allegations in paragraphs 110 to 113

related to the trespass count generally allege: (1) that

defendants' demolition and disposal caused the dust cloud that

invaded plaintiffs' property, paragraph 11; (2) that

defendants are aware that they caused the disposal and

invasion of the dust on plaintiffs' properties but have failed

to remove the dust, paragraph 112; and (3) that the discharge

of dust was unreasonable and unlawful and has interfered with

plaintiffs' use and enjoyment of their properties. 

Paragraph 113. 

However, even assuming all the facts alleged in the

complaint are true and taking all reasonable inferences in

plaintiffs' favor, the complaint falls short of alleging a 

high degree of certainty on defendants' part that their

actions would have caused an intrusion upon plaintiffs' 

property. 

And so the trespass claim is dismissed without

prejudice for all plaintiffs to the extent that it alleges a 

claim for intentional trespass. 

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Turning to negligent trespass, defendants urge

dismissal of plaintiffs' trespass claim to the extent it is

based in negligence as duplicative of plaintiffs' negligence

claim. 

It is sometimes the case that courts will dismiss or

strike duplicative claims if they contain the same factual

allegations and the same injury. Meadoworks v. Linear Mold & 

Engineering, 2020 WL 419422 at *2 (N.D. Ill. July 21, 2020). 

However, it is unclear whether negligence and negligent

trespass are truly one and the same claim under Illinois law. 

There is one case that suggests that negligent

trespass in Illinois is generally governed by the principles

of negligence, and that is the Dial case that I cited earlier, 

so Dial v. City of O'Fallon, 81 Ill.2d 548, 553 (1980). 

And Dial said, as I mentioned before, that the second

type of invasion listed above is now governed by the general

principles of negligence, and that -- that statement in Dial

is referring back to negligent conduct that causes an

intrusion. So based on that language from Dial, there is some

argument that it's effectively the same claim, meaning

negligence and negligent trespass are effectively the same

claim. 

On the other hand, when you continue reading in Dial

to the next paragraph, Dial turns to the Restatement Second of

Torts, and it cites the Restatement Second of Torts

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Section 165 for the point that one is liable for negligent or

reckless intrusion on land if he thereby causes harm to a 

legally protected interest, and the Restatement Section 165

that Dial cites is a portion of the Restatement that addresses

liability for intrusions resulting from reckless or negligent

conduct and abnormally dangerous activities. So it's a 

portion of the Restatement that specifically focuses on

trespass type -- or on intrusions, so it's just not clear from

Dial whether, on the one hand, Dial was saying that negligent

trespass is subsumed into negligence generally, or whether

Dial was saying that negligent trespass claims continue to be

governed by this Restatement, Section 165, which looks to be

geared particularly to intrusions, in other words, trespasses, 

not negligence generally. 

So Dial itself is not entirely clear on this, and

defendants have cited no Illinois case law holding that a 

plaintiff cannot, as a matter of law, plead both a negligence

claim and a negligent trespass claim. It is defendants' 

burden to establish that they are entitled to the relief that

they are requesting, meaning dismissal of the negligent

trespass count as duplicative of negligence, and defendants

have not carried this burden here. 

Accordingly, this claim will not be dismissed or

stricken with respect to any plaintiff. All plaintiffs have

alleged that they own property in Little Village and that the

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dust accumulated in their neighborhoods. Jose Solis

specifically alleges that the dust invaded his property. 

These allegations are sufficient to infer that -- or to state

a plausible claim that defendants' negligent conduct caused an

invasion of the plaintiffs' property. 

Now, if the claims are ultimately seeking -- are

presenting different theories of relief for the same damages, 

then, of course, there cannot be a double recovery based on

multiple theories of relief, but that is not an issue that I 

need to address at this point. 

So the motion to dismiss is denied with respect to

Count V, trespass, to the extent that that claim sounds in

negligence. 

Turning to private nuisance, which is Count IV, 

defendants argue for dismissal of plaintiffs' private nuisance

because (1) plaintiffs have alleged only de minimis injuries

from the dust and not a substantial invasion of their

properties, according to defendants; (2) again, according to

defendants, plaintiffs did not allege that defendants

intentionally sought to disturb their enjoyment of their

properties; (3) any private nuisance claim based on negligence

is duplicative of plaintiffs' negligence claim; and (4) 

defendants' actions were reasonable. 

Plaintiffs respond that they are misapplying federal

notice pleading standards, that plaintiffs have pleaded

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adequate damages to their property, and that they have pleaded

a private nuisance claim based on both negligence and intent. 

Plaintiffs may proceed on a negligent private

nuisance claim. 

"A private nuisance is a substantial invasion of

another's interest in the use and enjoyment of his or her

land. ... The invasion must be either intentional or negligent

and unreasonable. ... In determining whether particular

conduct constitutes a nuisance, the standard is the conduct's 

effect on a reasonable person. ... The Illinois Supreme Court

has frequently stated that a nuisance must be physically

offensive to the senses to the extent that it makes life

uncomfortable. ... An invasion constituting a nuisance can

include noise, smoke, vibration, dust, fumes, and odors

produced on the defendants' land and impairing the use and

enjoyment of neighboring land. ... Whether the complained-of

activity constitutes a nuisance is generally a question of

fact. Dobbs v. Wiggins, 401 Ill. App. 3d 367, 375 to 76

(2010). 

A claim for negligent private nuisance is not

duplicative of a negligence claim. The elements of a private

nuisance claim are slightly different from a general

negligence claim because a private nuisance claim requires

that an intrusion not only be undertaken negligently, but also

must be physically offensive to a reasonable person. 

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Furthermore, defendants complain or argue that

plaintiffs have alleged only de minimis injuries. While it is

true that a private nuisance claim requires a substantial

invasion of property, this is a question for the trier of

fact. Defendants specifically rely on In re Chicago Flood

Litigation, 176 Ill.2d 179, 203 (1997), which stated that "the

conclusory allegation of unspecified property damage is

insufficient to show that their damages are recoverable in

tort and cannot withstand a motion to dismiss." However, it

is not clear that that court made the statement with respect

to the substantial invasion element of private nuisance. 

Moreover, Illinois requires fact pleading, which is a more

rigorous standard than federal notice pleading. 

Similarly, whether defendants' demolition of the

smokestack was reasonable is a question of fact that's not

appropriate for disposition at the pleading stage. 

Defendants' reliance on Great American 2015 IL App (1st) 

133376, is not persuasive because that case did not concern a 

private nuisance claim. 

As to a claim for intentional private nuisance, for

the same reasons that plaintiffs' trespass, battery, and

assault claims did not plead intent, their private nuisance

does not plead intent either. There are no allegations in the

complaint suggesting that defendants acted with the intent of

disturbing plaintiffs' enjoyment of their properties. 

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The claim for private nuisance, Count IV, thus

survives for all plaintiffs, and the motion to dismiss that

count is denied. 

Turning to Title VI, which is Count VIII. Defendants

contend that plaintiffs' Title VI claim must be dismissed

because, according to defendants, (1) plaintiffs have failed

to plead intentional discrimination, and (2) plaintiffs, 

again, according to defendants, have failed to allege that

defendants received federal funding. 

Title VI provides that "no person in the United

States shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the

benefits of, or be subject to discrimination under any program

or activity receiving federal financial assistance." And that

is a quotation from 42 U.S.C. Section 2000d. 

Title VI prohibits intentional discrimination. 

Alexander v. Sandoval, 532 U.S. 275, 280 (2001). "To state a 

claim under Title VI, plaintiffs must allege facts satisfying

two elements: (1) that they have been intentionally

discriminated against on the grounds of race; and (2) that

defendants are recipients of federal financial assistance." 

Khan v. Midwestern University, 147 F.Supp.3d 718, 720 (N.D. 

Ill. 2015). 

Taking all the allegations of the complaint as true, 

plaintiffs' allegations are not sufficient to draw a 

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reasonable inference that defendants intentionally

discriminated against plaintiffs. While defendants' 

conduct -- or I'm sorry. The Rule 12(b)(6) plausibility

inquiry is context specific. "It is rarely proper to draw

analogies between complaints alleging different sorts of

claims; the type of facts that must be alleged depend on the

legal contours of the claim." EEOC v. Concentra Health

Services, 496 F.3d 773, 782 (7th Cir. 2007). 

While defendants' conduct might have been negligent, 

the complaint does not plausibly allege any type of intent on

defendants' part to intentionally discriminate against

plaintiffs. 

The complaint lacks factual allegations giving rise

to a plausible inference that defendants intentionally

discriminated against plaintiffs in demolishing the

smokestack. The complaint alleges that defendants had

knowledge that the Little Village has suffered historic

environmental wrongs, a tragic and unfortunate circumstance, 

and the complaint alleges that the defendants were negligent

in the demolition. 

Nonetheless, the complaint does not plausibly allege

that defendants undertook the demolition with the intent of

discriminating against plaintiffs. 

Because plaintiffs have not adequately pleaded a 

Title VI claim on the issue of intent, there is no need to

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reach the question of whether plaintiffs have sufficiently

pleaded that defendants were recipients of federal funding. I 

would, however, note that I did see another case dismissing a 

Title VI claim on this basis for conclusory allegations on

this point, which the sole allegation in this case on that

point seems quite similar to the allegation in that case just

in that both allegations were upon information and belief. 

And that case is Shebley v. United Continental Holdings, 2020

WL 2836796 at *5. 

And so Count VI -- or, I'm sorry -- Count VIII is

dismissed without prejudice for all plaintiffs. 

And to summarize then, and I gave a similar summary

towards the beginning, but I'll just attempt to summarize

again and to wrap up. 

So the motion, which is Docket 75, is granted in part

and denied in part. Counts I, ultrahazardous activity; II, 

negligence; and IV, private nuisance, may proceed. 

Count V, trespass, is dismissed without prejudice to

the extent it sounds in intentional trespass, but the claim

may go forward as a negligent trespass claim. 

Count VI, for assault and battery; VII, medical

monitoring; and VIII, Title VI, are dismissed without

prejudice in their entirety for all plaintiffs. 

Count III, negligent infliction of emotional

distress, is dismissed without prejudice as to plaintiffs Jose

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Solis and Juan Rangel but survives for plaintiff Antonio

Solis. 

Going forward then are the following claims: I, 

ultrahazardous -- I'm sorry. For plaintiff Antonio Solis: I, 

ultrahazardous activity; II, negligence; III, negligent

infliction of emotional distress; IV, private nuisance; V, 

trespass in negligence. 

For Jose Solis: I, ultrahazardous activity; II, 

negligence; IV, private nuisance; V, negligent trespass. 

For Juan Rangel: I, ultrahazardous activity; II, 

negligence; IV, private nuisance; V, negligent trespass. 

Again, all dismissals are without prejudice. 

Plaintiffs are given an opportunity to amend the complaint if

they would like to do so. 

The referral to Judge Harjani is expanded to include

setting a deadline for amended pleadings. Again, I'll direct

the parties to exhaust settlement possibilities in light of

this ruling. 

And I will direct the parties to submit a joint

status report on the status of the case generally, including

settlement efforts, by six weeks from today, which is May 4th. 

And that concludes the ruling today. Thank you, 

everyone, for your time and for your participation. Take

care. 

MR. RAUSCHER: Thank you, your Honor. 

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MR. RYAN: Thank you, your Honor. 

MR. DEVRIES: Thank you.

MR. LYMAN: Thank you.

(Which were all the proceedings heard.)

CERTIFICATE

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/Kathleen M. Fennell March 30, 2022

Kathleen M. Fennell Date

Official Court Reporter

EXHIBIT B