Walker et al v. East Chicago City of

Filing 83

OPINION AND ORDER: Court GRANTS 39 Motion to Dismiss as to all claims against the City of East Chicago and Mayor Anthony Copeland in his individual and official capacities. Court DENIES AS MOOT 20 Motion to Dismiss and 55 Rule 12(f) Moti on to Strike. Court GRANTS 60 Motion to Dismiss as to all claims against Atlantic Richfield Company and BP Products North America Inc. ARCO's 62 request for judicial notice is DENIED. Court GRANTS IN PART 63 Motion to Dismiss as to plaintiffs' claims under § 1983 (Counts I-IV), conspiracy (Count V), trespass (Count IX), as well as claims for injunctive relief and punitive damages. Court DENIES IN PART 63 Motion to Dismiss as to plaintiffs' claims for personal injury (Count VI) and negligence (Count X). DuPont's 65 request for judicial notice is DENIED. Signed by Senior Judge James T Moody on 9/29/2017. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LASHAWNDA WALKER, individually and )
as next friend of her children, D.W., a minor, )
M.H., a minor, Z.H., a minor and M.W.,
)
a minor; KIMBERLY HUNTER, individually )
and as next friend of her child, M.C., a minor; )
AMOS WILLIAMS; ROBIN CLINTON,
)
individually and as next friend of her
)
children, J.S. Jr., a minor, J.C., a minor, and
)
A.S., a minor; MARK STENSON; LATASHA )
EDWARDS, individually and as next friend )
of her child, B.H., a minor, and DIONNE
)
HENDERSON, individually and as next
)
friend of her children, C.B., a minor, and
)
A.H., a minor,
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF EAST CHICAGO; ANTHONY
)
COPELAND, individually and in his official )
capacity as Mayor of the City of East Chicago; )
BP PRODUCTS NORTH AMERICA INC.;
)
E I DU PONT DE NEMOURS and
)
COMPANY; and ATLANTIC RICHFIELD
)
COMPANY,
)
)
Defendants.
)

No. 2:16 CV 367

OPINION and ORDER
Plaintiffs, former residents of the West Calumet Public Housing Complex (“the
Complex”), bring these claims under Indiana law and 42 U.S.C. § 1983 stemming from
their exposure to lead and arsenic contamination at the site of the Complex. Defendants,

1

Mayor Anthony Copeland and the City of East Chicago (collectively, “the City
Defendants,” or “the Mayor” and “the City”) have filed a motion to dismiss. (DE # 39.)1
Defendants Atlantic Richfield Company and BP Products North America Inc.
(collectively, “ARCO”) have filed a motion to dismiss. (DE # 60.) Defendant E. I. du
Pont de Nemours and Company (“DuPont”) has filed a motion to dismiss. (DE # 63.)
Also pending are motions for judicial notice filed by ARCO (DE # 62) and DuPont (DE
# 65) and the City Defendants’ Rule 12(f) motion to strike portions of plaintiffs’
response to their motion to dismiss (DE # 55).
I.

BACKGROUND
At the time of filing the complaint, the individual plaintiffs had been residents of

the Complex for between 3 and 11 years. (Id.) The Complex is located within the USS
Lead Superfund Site where the ground is “highly contaminated with lead and arsenic.”
(DE # 36-1.) The site is currently the subject of a Consent Decree in the cause of United
States v. Atlantic Richfield Company, et al., No 2:14-CV-312-PPS-PRC (“the Cleanup
Action”).
Plaintiffs’ amended complaint states that DuPont and ARCO “entered into an

1

The City Defendants have also filed a previous motion to dismiss. (DE # 20.)
However, that motion to dismiss was made moot when plaintiffs filed their second
amended complaint. (DE # 36.) Therefore, the first motion to dismiss (DE # 20) is
denied as moot.
2

agreement with the EPA2 and IDEM3 for a $26 million cleanup of lead and arsenic
contamination in East Chicago.” (DE # 36 at ¶ 25.) Plaintiffs contend that the parties to
this agreement “failed to provide notice to the [p]laintiffs or the general public
regarding the agreement . . . or the underlying circumstances which detrimentally
affected the property, health and lives of the [p]laintiffs.”(Id.) They allege that the
combined actions of the defendants exposed them to “extremely high levels of lead,
arsenic and other potentially harmful contaminants.” (Id. at ¶ 26.)
They further contend that DuPont and ARCO (“the Corporate Defendants”) are
responsible for depositing the pollutants on the site of the Complex (Id. at ¶ 36), and
that all of the defendants wrongfully concealed the facts of the contamination from
plaintiffs, causing further injury (Id. at ¶ 35). Plaintiffs allege that Mayor Copeland’s
wrongful acts “were a manifestation of the City of East Chicago’s own wrongful acts,”
namely, policies and customs supporting the “deliberate concealment of dangers
affecting the [p]laintiffs.” (Id. ¶¶ 27-28)
As a result of all defendants’ actions, plaintiffs allege that they have suffered
past, present, and future personal injuries including: “various health problems, weight
loss, shortened life expectancy, miscarriage, physical pain and suffering, mental
anguish, medical expenses, medical monitoring expenses, wage loss, brain and
developmental injuries, cognitive deficits, lost earning capacity, aggravation and

2

United States Environmental Protection Agency

3

Indiana Department of Environmental Management
3

exacerbation of pre-existing conditions and contract damages.” (Id. at ¶ 14.)
On November 16, 2016, plaintiffs filed a second amended complaint, bringing ten
counts against defendants. Count I is a claim brought under § 1983 for violation of
plaintiffs’ substantive due process rights on a theory of state-created danger (Id. at
¶¶ 38-53); Count II is a § 1983 claim for violations of the Fourteenth Amendment’s
Equal Protection Clause and Privileges and Immunities Clause (Id. at ¶¶ 54-61); Count
III is another substantive due process claim alleging a violation of plaintiffs’ right to
bodily integrity (Id. at ¶¶ 62-74); Count IV is a procedural due process claim for the
deprivation of a contractually-created property right (Id. at ¶¶ 75-81); Count V is a
conspiracy claim (Id. at ¶¶ 82-85); Count VI is a personal injury claim against the
Corporate Defendants (Id. at ¶¶ 86-95); Count VII is a claim for breach of contract and
implied warranty against the City Defendants (Id. at ¶¶ 96-105); Count VIII is a claim
for fraudulent misrepresentation against the City Defendants (Id. at ¶¶ 106-114); Count
IX is a trespass claim against all defendants (Id. at ¶¶ 115-121); Count X is a negligence
claim against all defendants (Id. at 122–131).

II.

LEGAL STANDARD
Defendants have moved to dismiss plaintiffs’ claims under Fed. R. Civ. P.

12(b)(6) for failure to state a claim upon which relief may be granted. A judge reviewing
a complaint under a Rule 12(b)(6) standard must construe it in the light most favorable
to the non-moving party, accept well-pleaded facts as true, and draw all inferences in
the non-movant’s favor. Erickson v. Pardus , 551 U.S. 89, 93 (2007); Reger Dev., LLC v.
4

Nat’l City Bank, 595 F.3d 759, 763 (7th Cir. 2010). Under the liberal notice-pleading
requirements of the Federal Rules of Civil Procedure, the complaint need only contain
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). To satisfy Rule 8(a), “the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson,
551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“While the federal pleading standard is quite forgiving, . . . the complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011);
Twombly, 550 U.S. at 555, 570. A plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To meet this standard, a complaint
does not need detailed factual allegations, but it must go beyond providing “labels and
conclusions” and “be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citing Sanjuan v. Am. Bd. of Psychiatry & Neurology, 40 F.3d 247,
251 (7th Cir. 1994) among other authorities). As the Seventh Circuit recently explained,
a complaint must give “enough details about the subject-matter of the case to present a
story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
However, plaintiffs do not need to plead facts that establish each element of a
cause of action and, “[a]t this stage the plaintiff receives the benefit of imagination, so
long as the hypotheses are consistent with the complaint.” Sanjuan, 40 F.3d at 251. Even

5

if the truth of the facts alleged appears doubtful, and recovery remote or unlikely, the
court cannot dismiss a complaint for failure to state a claim if, when the facts pleaded
are taken as true, a plaintiff has “nudged their claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 555, 570.
III.

DISCUSSION
A.

Plaintiffs’ § 1983 Claims

Counts I-IV of the complaint bring claims under 42 U.S.C. § 1983. Plaintiffs bring
these claims against all defendants. The court will first evaluate these claims as to the
Corporate Defendants before turning to the City Defendants.
i.

§ 1983 Claims Against the Corporate Defendants

To state a claim under § 1983, a plaintiff must allege (1) a deprivation of a right
secured by the Constitution or laws of the United States (2) by a person acting under
color of state law. Windle v. City of Marion, Ind., 321 F.3d 658, 661 (7th Cir. 2003). When
bringing a § 1983 claim against a defendant who is not a government official or
employee, a plaintiff must raise sufficient allegations that the private entity acted under
color of state law. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th Cir.
2009). “At its most basic level, the state action doctrine requires that a court find such a
‘close nexus between the State and the challenged action’ that the challenged action
‘may be fairly treated as that of the State itself.’” Id. at 823 (quoting Jackson v. Metro
Edison Co., 419 U.S. 345, 351 (1974)).
ARCO and DuPont each contend that plaintiffs’ complaint fails to state a § 1983

6

claim against them because it does not sufficiently allege that they were acting under
color of state law. (DE ## 61 at 3-6, 64 at 8-9.) In response, plaintiffs argue that the
Corporate Defendants were state actors by virtue of the Consent Decree that settled
claims brought against them in the Cleanup Action. (DE ## 70 at 5-6, 71 at 5-6.) In
particular, plaintiffs argue that the settlement in the Cleanup Action afforded the
Corporate Defendants with a release from liability for certain state and federal claims in
exchange for $26 million dollars of funding for the cleanup effort. (Id.) Thus, they argue,
the Consent Decree provided the Corporate Defendants with protection from liability,
and this protection incentivized the Corporate Defendants in remaining silent about the
health hazards for residents of the Complex. (Id.)
Plaintiffs lean heavily on the Seventh Circuit’s formulation of the state actor
doctrine from a case that predates the Supreme Court’s articulation of the “close nexus”
standard in Jackson v. Metro Edison Co., 419 U.S. 345, 351 (1974). Plaintiffs argue that,
because of the Consent Decree, the Corporate Defendants received “aid, comfort, or
incentive” from the government such that they qualify as state actors under § 1983.
(DE ## 70 at 5, 71 at 5 (quoting Lucas v. Wis. Elec. Power Co., 466 F.2d 654-56 (7th Cir.
1972).)
Whether or not the Lucas articulation is still good law after Jackson, plaintiffs’
claims stretch the state actor doctrine beyond its limits. Lucas itself stated that a private
defendant acts under color of state law only if the government’s support is “substantial,
measured by either its contribution to the effectiveness of defendant’s conduct, or

7

perhaps by its defiance of conflicting national policy.” 466 F.2d at 656. None of the
allegations in the amended complaint amount to “substantial support” providing “aid,
comfort, or incentive.”
To begin with, the alleged contamination of the site happened decades ago, long
before the Consent Decree could even be contemplated, let alone counted upon as
incentive or support. It is also worth pointing out that the release from liability in the
Consent Decree was not a mere gratuity. Rather, the Consent Decree was the
culmination of an action brought by the government against the Corporate Defendants
and obligated the Corporate Defendants to pay at least $26 million towards the cleanup
efforts. (DE # 36 at ¶ 25.) The fact that the settlement of that lawsuit included a release
of certain claims does not thereby transform the Corporate Defendants into state actors.
If that was the case, nearly any private entity that is prosecuted by the government and
then subsequently enters into a settlement would similarly qualify as a state actor. Such
an outcome would distort the state actor doctrine beyond recognition and the case law
bears this out.
In Lucas, the sole case provided in support of plaintiffs’ claims, the Seventh
Circuit held that a public utility provider was not a state actor even though the
government had effectively granted it a monopoly over the provision of electricity. 466
F.2d at 656-58. The court remarked that the support derived therefrom was “at best,
insignificant,” and thus, the plaintiffs could not proceed on their claims under § 1983.
Id. at 658. The alleged “aid, support and comfort” in this case – release from liability in

8

exchange for over $26 million – falls well short of that provided in Lucas, and in neither
case is there such a “close nexus” that the Corporate Defendants can be considered state
actors for purposes of § 1983. See also Bus. Realty Inv. Co. v. Insituform Techs., Inc., 564 F.
App’x 954, 956-57 (11th Cir. 2014) (holding that a private contractor hired by County to
perform services pursuant to environmental consent decree was not a state actor).
ARCO and DuPont’s motions to dismiss are granted as to plaintiffs’ § 1983 claims.
ii.

§ 1983 Claims Against the City Defendants

The City Defendants have also moved to dismiss plaintiffs’ claims under § 1983.
The City Defendants attack the sufficiency of the allegations and also highlight the
Mayor’s lack of personal involvement in the alleged violations. (DE # 40 at 5-7.)
Plaintiffs’ § 1983 claims against the City are governed by the municipal liability
standards set forth in Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658
(1978). Under Monell, a local government may not be sued under § 1983 for an injury
caused solely by its employees or agents. Id. at 694. Rather, “a plaintiff must show the
existence of an “official policy” or other governmental custom that not only causes but
is the “moving force” behind the deprivation of constitutional rights.” Teesdale v. City of
Chicago, 690 F.3d 829, 834 (7th Cir. 2012) (citing Estate of Sims v. Cty. of Bureau, 506 F.3d
509, 514 (7th Cir. 2007)). Thus, the City can only be held liable where there is “(1) an
express policy that causes a constitutional deprivation when enforced; (2) a widespread
practice that is so permanent and well-settled that it constitutes a custom or practice; or
(3) an allegation that the constitutional injury was caused by a person with final

9

policymaking authority.” Teesdale, 690 F.3d at 834 (internal quotation marks and citation
omitted).
Plaintiffs’ Monell claims fall under the third variety and they have identified
Mayor Copeland as the individual who exercised final policymaking authority on
behalf of the City on all matters relating to public housing. (DE # 49 at 5.) Furthermore,
all of plaintiffs’ claims for municipal liability appear to be premised on the idea that the
East Chicago Housing Authority (the “ECHA”) is an agency of the City and that the
Mayor exercises final policymaking authority over the ECHA. (See DE # 36 at ¶ 18
(“ECHA is an arm of the CITY OF EAST CHICAGO and carried out the policies and
procedures of the City.”); DE # 49 at 2 (“The City for years continued to provide public
housing to people including the [p]laintiffs, all the while representing that the City
would provide safe housing.”); id. (“The City and its Mayor failed to maintain the
public housing complex in a safe and livable manner and failed to warn its residents of
the dangers, which were known.”).) The ECHA is not a party to this lawsuit.
Plaintiffs’ assumption regarding the ECHA is contrary to Indiana law. Pursuant
to Ind. Code. § 36-7-18-14, Indiana Housing Authorities, like the ECHA, are municipal
corporations and thus, “as ‘municipal corporations,’ housing authorities are legal
entities separate from the City itself that may sue and be sued in their own name.”
Brenston v. Dedelow, No. 2:03 CV 156, 2005 WL 2204870, at *5 (N.D. Ind. Sept. 7, 2005)
(citing Indiana Attorney General Opinion, 1989 Ind. Op. Att’y Gen No.2 (Feb. 10, 1989)
(stating that municipal corporations are not departments, boards, commissions or

10

agencies of the City)). Thus, insofar as plaintiffs’ injuries were caused by the policies
and wrongful acts of the ECHA, the City Defendants are not subject to vicarious
liability and cannot be held liable absent allegations of direct involvement. See Magee v.
Hous. Auth. of S. Bend, No. 3:09 CV 337, 2010 WL 3000660, at *6 (N.D. Ind. July 28, 2010)
(dismissing claims seeking to hold mayor “vicariously liable for wrongful conduct on
the part of the [Housing Authority] because of his appointment and removal
authority”). Thus in evaluating plaintiffs’ § 1983 claims, it is necessary to parse out
which allegations can be ascribed to the Mayor acting on behalf of the City and which
allegations apply solely to the ECHA, which is not a party to this lawsuit.
a.

Substantive Due Process - State-Created Danger

Plaintiffs’ first § 1983 claim is for a violation of the Due Process Clause under the
state-created danger doctrine. See DeShaney v. Winnebago Cty. Dept. of Soc. Serv., 489
U.S. 189 (1989). According to the Seventh Circuit, three principles govern the analysis of
a state-created danger claim: (1) “in order for the Due Process Clause to impose upon a
state the duty to protect its citizens, the state, by its affirmative acts, must create or
increase a danger faced by an individual;” (2) “the failure on the part of the state to
protect an individual from such a danger must be the proximate cause of the injury to
the individual;” and (3) “because the right to protection against state-created dangers is
derived from the substantive component of the Due Process Clause, the state’s failure to
protect the individual must shock the conscience.” King ex rel. King v. East St. Louis Sch.
Dist. 189, 496 F.3d 812 at 817-818 (7th Cir. 2007).

11

Plaintiffs argue that the “City promised to provide the [p]laintiffs with safe
housing . . . [and] continued to rent to the [p]laintiffs over the course of many years, all
the while knowing” of the dangers posed by the contamination. (DE # 49 at 4.)
However, setting aside any actions of the ECHA, the amended complaint is entirely
devoid of any allegations that the Mayor himself undertook any affirmative acts that
created the danger and proximately caused plaintiffs’ injuries.
Plaintiffs’ lease agreements, attached as exhibits to the complaint, are clearly
between the individual plaintiffs and the ECHA - not the City and the Mayor. (See DE
# 36-2.) Thus, any implied promise of safe housing or other aspects of the landlordtenant relationship cannot be fairly attributed to the Mayor and the City. The only
concrete allegation of the Mayor’s involvement is based on a letter to residents of the
Complex, notifying them of the contamination and advising residents that “it is in your
best interest to temporarily relocate your household to safer conditions.” (DE # 36-1.) In
this letter, the Mayor also indicates that he ordered the City Health Department to offer
lead testing to the residents and their families. (Id.) Thus, the only allegations pertaining
to the Mayor’s direct involvement appear to be efforts to mitigate the health risks for
residents of the Complex. Plaintiffs have failed make sufficient allegations that the
Mayor and the City affirmatively created a danger and failed to protect the plaintiffs in
a conscience-shocking manner. The City Defendants’ motion to dismiss is granted as to
Count I.

12

b.

Fourteenth Amendment Equal Protection and Privileges and Immunities
Clauses

Plaintiffs’ second § 1983 claim against the City Defendants alleges violations of
plaintiffs’ rights under the Equal Protection and Privileges and Immunities Clauses of
the Fourteenth Amendment. Plaintiffs allege that all of the defendants “acted in concert
and by joint action” to violate plaintiffs’ rights. (DE 36 at ¶ 55.) Plaintiffs allege that the
residents of the Complex “predominately consist[ed] of African Americans and other
minorities” and assert that “the City had no compelling interest for discriminating
against and treating the [p]laintiffs differently because of their race.” (Id. at ¶¶ 57-58.)
To succeed on an equal protection claim, plaintiffs must allege that the City’s
policies had a discriminatory effect and that defendants were motivated by a
discriminatory purpose. Alston v. City of Madison, 853 F.3d 901, 906 (7th Cir. 2017) (citing
Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th Cir. 2001). “Discriminatory purpose
means more than simple knowledge that a particular outcome is the likely consequence
of an action; rather, discriminatory purpose requires a defendant to have selected ‘a
particular course of action at least in part because of its adverse effects on a particular
group.’” Alston, 853 f.3d at 907 (quoting Chavez, 251 F.3d at 645) (internal quotations
omitted); McCleskey v. Kemp, 481 U.S. 279, 298 (1987). Defendants contend that the
amended complaint does not contain any allegations that the City Defendants acted
with discriminatory purpose. (DE # 40 at 13.)
Plaintiffs do not directly respond to the City Defendants’ arguments in favor of

13

dismissal. Nor do they offer any case law in support of their Fourteenth Amendment
claims. At most, plaintiffs make an oblique reference to their minority status in a section
of their response brief addressing the Mayor’s individual liability. There, they assert
that “[t]he Mayor ordered that the [p]laintiffs (poor racial minorities) be removed from
their homes, without compensation.” (DE # 49 at 6.) The court can find no such
allegation in the amended complaint, and it is unclear if this statement is offered in
support of their Fourteenth Amendment claim. Even so, this argument at best points
towards discriminatory effect rather than discriminatory purpose. Alston, 853 F.3d at
908 (“True enough, [plaintiff’s] statistics show disparate impact: . . . [y]et that does not
lead to the inescapable conclusion that the defendants acted with discriminatory
intent.”) The City Defendants’ motion to dismiss is granted as to Count II.
c.

Substantive Due Process - Bodily Integrity

The third § 1983 claim is for violations of plaintiffs’ substantive due process right
to bodily integrity. The right to “substantive due process is ‘very limited,’” Viehweg v.
City of Mount Olive, 559 F. App’x 550. 552 (7th Cir. 2014) (quoting Tun v. Whitticker, 398
F.3d 899, 900 (7th Cir. 2005)) and the Due Process Clause “does not purport to supplant
traditional tort law in laying down rules of conduct to regulate liability for injuries that
attend living together in society.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128
(1992) (internal citations omitted). “Furthermore, to survive a motion to dismiss a claim
for deprivation of substantive due process, a plaintiff must allege facts tending to
suggest that the government’s action was arbitrary.” Naperville Smart Meter Awareness v.

14

City of Naperville, 69 F. Supp. 3d 830, 839 (N.D. Ill 2014) (citing Jeffries v. Turkey Run
Consol. Sch. Dist., 492 F.2d 1, 3-4 (7th Cir. 1974).
Plaintiffs do not allege that the City Defendants directly contaminated their
homes. At most, plaintiffs allege that City policy allowed for ECHA to build and
operate public housing in an area with contaminated soil, thus increasing their risk of
injury. However, such allegations of risk exposure do not state a claim for deprivation
of the right to bodily integrity under the Fourteenth Amendment. See Naperville, 69 F.
Supp. 3d at 939 (collecting cases) (no claim for deprivation of bodily integrity against
city that allegedly exposed residents to greater risk of injury from radio waves emitted
by “smart” utility meters); Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 453-54 (6th
Cir. 2002) (holding that public school employees lacked Fourteenth Amendment claim
after being exposed to asbestos-contaminated materials, because school officials had not
“engaged in arbitrary conduct intentionally designed to punish the [employees]”); Hood
v. Suffolk City Sch. Bd. 469 F. App’x 154, 159 (4th Cir. 2012) (school employee’s claims for
deprivation of bodily integrity failed despite school board’s knowledge of dangerous
conditions caused by excessive mold and bacteria growth). Plaintiffs’ claims do not
amount to an arbitrary deprivation of their right to bodily integrity. The motion to
dismiss is granted as to Count III.
d.

Procedural Due Process - Deprivation of a Contractually Created
Property Right

Plaintiffs’ fourth § 1983 claim asserts violations of their procedural due process

15

rights stemming from the deprivation of a contractually created property right. The
amended complaint alleges that plaintiffs “entered into lease agreements with the
[ECHA] which is authorized to carry out rental abilities by the City of East Chicago, as
its agent.” (DE # 36 at ¶ 76.) The complaint continues that the defendants “deprived
[plaintiffs] of their contractually based property right, pursuant to their lease
agreements, without proper notice or hearing.”(Id. at ¶ 78.)
Here again, plaintiffs have conflated the ECHA, an independent municipal
corporation, organized under Indiana law, with the City and Mayor of East Chicago.
The sole concern of these allegations relates to plaintiffs’ rental agreements with the
ECHA. None of the allegations detail any personal involvement on the part of the
Mayor, implementing policy on behalf of the City. The motion to dismiss is granted as
to Count IV.
B.

Plaintiffs’ State Law Claims
i.

Conspiracy

Count V of plaintiffs’ amended complaint is a claim of conspiracy against all
defendants. (DE # 36 at ¶¶ 82-85.) Plaintiffs allege that “the [d]efendants had an
agreement together to unlawfully and deliberately deprive [p]laintiffs of their rights, to
misrepresent the West Calumet Housing Complex as safe and to expose the [p]laintiffs
to lead, arsenic and other potentially harmful chemicals.” (Id. at ¶ 83.) In their
respective motions, defendants argue that this single, conclusory allegation of a
conspiracy is insufficient to state a claim for relief.

16

ARCO argues that, beyond pointing to the Consent Decree itself, plaintiffs have
failed “to allege an unlawful agreement between [ARCO] and other defendants,
rendering their civil conspiracy claim fatally defective.” (DE # 61 at 19-20.) DuPont
raises a similar argument in its motion. (DE # 64 at 13-14.) The City Defendants, for
their part, offer wide-ranging legal support behind their contention that plaintiffs “have
failed to specifically allege an agreement to carry out the alleged events essential for a
claim of conspiracy.” (DE # 40 at 18-19.)
Plaintiffs’ response briefs fail to address defendants’ arguments regarding the
civil conspiracy claim. As a result, plaintiffs have abandoned this claim. Alioto v. Town of
Lisbon, 651 F.3d 715, 721 (7th Cir. 2011), Chappey v. Ineos USA LLC, No. 2:08-CV-271-RL,
2009 WL 790194, at *2 (N.D. Ind. Mar. 23, 2009), Campbell v. Supervalu, Inc., 565
F.Supp.2d 969, 974 n.6 (N.D. Ind. 2008). Defendants’ motions to dismiss are granted as
to the conspiracy claim in Count V of the amended complaint.
ii.

Personal Injury and Negligence Against the Corporate Defendants

Count VI of the amended complaint raises a personal injury claim against the
Corporate Defendants. Plaintiffs allege that the Corporate Defendants “contributed to
more than a century of lead and arsenic contamination” at the site of the Complex and
contributed to plaintiffs’ exposure to those substances. (DE # 36 at ¶¶ 88-89.) Plaintiffs
assert that the Corporate Defendants failed to act on their “duty to prevent their
operations from contaminating the environment” at the site of the Complex and failed
to clean up the contamination and inform plaintiffs of the dangerous environment.

17

(Id. at ¶ 91.)
Count X of the complaint brings a negligence claim against all defendants.4
Plaintiffs contend that defendants owed a duty to plaintiffs and “breached said duty by
failing to maintain [the Complex] in a reasonably safe condition” and failing to warn
plaintiffs of the danger. (Id. at ¶ 124.)
Under Indiana law, the “essential elements for a negligence action are (1) a duty
owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury
proximately caused by the breach of duty.” Yost v. Wabash Coll., 3 N.E.3d 509, 515 (Ind.
2014) (quotation marks omitted). To determine whether a duty exists, the court must
balance “(1) the relationship between the parties, (2) the reasonable foreseeability of
harm to the person injured, and (3) public policy concerns.” Id. “[T]he foreseeability
component of duty requires a more general analysis of the broad type of plaintiff and
harm involved, without regard to the facts of the actual occurrence.” Goodwin v. Yeakle’s
Sports Bar & Grill, Inc., 622 N.E.3d 384, 390 (Ind. 2016).
a.

Personal Injury and Negligence Claims Against ARCO

ARCO has moved to dismiss plaintiffs’ personal injury and negligence claims on
the basis that it owed no duty to plaintiffs. ARCO contends that, under Indiana law, “[a]
prior owner-defendant that long ago allegedly contaminated industrial property owes
no duty . . . to a plaintiff who now resides on the land.” (DE # 61 at 16.) ARCO cites to

4

The court will separately address plaintiffs’ negligence claims against the City
Defendants alongside plaintiffs’ other state law claims against the City Defendants.
18

an opinion from the Southern District of Indiana in the case of Wickens v. Shell Oil Co.,
No. 1:05-CV-645, 2006 WL 3254544, at *7 (S.D. Ind. Nov. 9, 2006). In that case, the court
explained that imposing a duty in circumstances like the present would be
unreasonable in that “future owners may not be known or even contemplated” at the
time the contamination occurred and that imposing such a duty “would unreasonably
interfere with a landowner’s right of ownership.” Id., see also Sanyo N. Am. Corp., No.
1:06-CV-405, 2008 WL 2691095, at *5 (S.D. Ind. July 3, 2008) (“[I]t is unreasonable to hold
a prior landowner responsible in tort for actions taken approximately forty years before
the current owner acquired the land.”).
ARCO has also filed a notice of supplemental authority (DE # 80), arising out of a
related case that is currently pending in this district, Rolan, et al. v. Atlantic Richfield Co.,
et al., No 1:16-CV-357-TLS-SLC, 2017 WL 3191791 (N.D. Ind. July 26, 2017). That case,
like the present one, involves claims brought by other residents of the Complex against
ARCO and DuPont. In addition to federal claims, the plaintiffs also raised state tort
claims for negligence and nuisance. The court granted ARCO’s motion to dismiss on
those claims after determining that ARCO, as a prior owner, owed no duty to the
current inhabitants of the land on which the Complex was situated. Rolan, 2017 WL
3191791 at *15-17.
In deciding the motion to dismiss, Judge Springmann concluded that “none of
the three factors for finding a duty” were present in the plaintiffs’ complaint. Id. at * 17.
First there was no relationship between the plaintiffs and ARCO and thus, “it was not

19

reasonably foreseeable that the land would be converted into a residential housing
complex at the time that [ARCO] was operating its plant there.” Id. Second, “as it was
unclear that tenants would reside there in the future, it was not reasonably foreseeable
that [ARCO]’s conduct would cause harm to [tenants] decades later.” Id. Lastly, the
court found that public policy considerations did not “weigh in favor of holding
[ARCO] to a duty to future, unknown possessors of its own land. Id. (citing Sanyo N.
Am. Corp., 2008 WL 2691095, at *5; Wickens, 2006 WL 3254544, at *7).
Plaintiffs’ response brief does not offer any contrary authority on the issue of
whether ARCO owed a duty to residents at the Complex. (See DE # 70 at 7.) However,
this issue is dispositive and cannot be sidestepped. For the very same reasons
highlighted in Rolan, the court finds that the amended complaint fails to allege facts that
would establish a duty under Indiana law. As such, ARCO’s motion to dismiss is
granted as to plaintiffs’ personal injury and negligence claims.
b.

Personal Injury and Negligence Claims Against DuPont

DuPont raises two grounds in its motion to dismiss plaintiffs’ personal injury
and negligence claims. First, DuPont argues that plaintiffs failed to show that DuPont
owed them a duty. (DE # 64 at 10.) Second, DuPont argues that plaintiffs did not
adequately plead that DuPont proximately caused the contamination. (Id. at 11.)
DuPont raised both of these arguments in Rolan. However, their motion to dismiss did
not enjoy the same success as ARCO’s motion. Here again, Judge Springmann’s analysis
of these issues is instructive.

20

For purposes of evaluating the existence of a legal duty, there is a crucial
distinction to be made between ARCO and DuPont. Whereas ARCO previously owned
the parcel upon which the Complex was built, DuPont was the owner of a neighboring
parcel of land. This difference carries great weight under Indiana law. While a former
owner owes no duty to a subsequent resident, a formerly neighboring property owner
can be sued for “negligent conduct that may have caused the contamination” on a
plaintiff’s property even though the plaintiff “did not contract with [the defendant].”
KB Home Indiana, Inc., v. Rockville TBD Corp., 928 N.E.2d 297, 307 (Ind. Ct. App. 2010).
In Rolan, the court found that DuPont owed a duty to the tenants under Indiana
law, noting: “First, the parties stand in a relationship as possessors of interests in
neighboring properties. Second it was reasonably foreseeable that [DuPont]’s alleged
conduct could harm the neighboring property and any possessor’s interest therein. . . .
Finally, public policy favors the protection of property rights and prevention of
unwanted harm to property.” 2017 WL 3191791, at *18.
The court in Rolan similarly rebuffed DuPont’s argument regarding causation,
observing that plaintiffs need not plead that DuPont’s contamination was “the
proximate cause, but only a proximate cause” of plaintiffs’ injuries in order to succeed
on a negligence claim. Id. (citing Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126,
1129 (Ind. Ct. App. 2010)). Nothing in the present case warrants a different outcome
than Rolan. At this stage, the amended complaint sufficiently provides facts to support a
finding of duty and adequately alleges proximate causation. DuPont’s motion to

21

dismiss is denied as to plaintiffs’ claims for personal injury and negligence.
iii.

Trespass Claims Against the Corporate Defendants

Count IX of plaintiffs’ complaint raises a claim of trespass against the Corporate
Defendants. Plaintiffs allege that the Corporate Defendants’ “negligent, grossly
negligent, willful and/or wanton conduct and or failures to act caused contaminants
(namely lead and arsenic) to enter upon [the Complex] and subsequently onto
[p]laintiffs’ person.” (DE # 36 at ¶ 116.) Plaintiffs further allege that the Corporate
Defendants had exclusive control over the premises of [the Complex] at all relevant
times.” (Id. at ¶ 117.)
Plaintiffs’ claim for trespass fails by its very own terms. To state a claim for civil
trespass under Indiana law, plaintiffs must allege two elements: “[f]irst, the plaintiff
must show that he possessed the land when the alleged trespass occurred. Second, the
plaintiff must demonstrate that the trespassing defendant entered the land without a
legal right to do so.” KB Home, 928 N.E.2d at 308.
The alleged trespass in this case is the soil contamination at the site of the
Complex. By the terms of the complaint, this contamination occurred decades ago,
when the Corporate Defendants “had exclusive control over the premises.” That is, the
alleged trespass happened long before the Complex was built and before the plaintiffs
took possession of the land. Moreover, the alleged trespass happened at a time when
the Corporate Defendants had control over the premises and thus, naturally had a legal
right to conduct business operations thereupon.

22

Plaintiffs respond that “it is plausible that [] toxins were disturbed and went
airborne” during the cleanup effort. (DE # 70 at 9.) However, the amended complaint
does not contain any such allegation that the Corporate Defendants, themselves
conducted the cleanup effort. More importantly, plaintiffs ignore the fact that the recent
cleanup effort was conducted pursuant to a court order in the Cleanup Action, and thus,
they cannot satisfactorily allege that this trespass occurred in the absence of legal
authority.
This outcome follows a line of similar cases that have foreclosed a trespass cause
of action under Indiana law. See KB Home, 928 N.E.2d at 309 (“Simply put, because KB
did not have possession of the land at the time of the alleged trespass, KB did not have
a trespass action against Rockville.”); Lily Indus., Inc. v. Health-Chem Corp., 974 F. Supp.
702, 709 (S.D. Ind. 1997) (“[T]his court concludes that Indiana would not permit
plaintiffs to sue the prior owner of their property for trespass based on actions the prior
owner took while in lawful possession of the property that are alleged to have
continued to affect that same property after the change of possession.”); Sanyo N. Am.
Corp. v. Avco Corp., No. 1:06 CV 405, 2008 WL 2691095, at *6 (S.D. Ind. July 3, 2008)
(“[A]pplying Indiana law to the facts here, Sanyo’s claim must fail because there is no
evidence that Avco contaminated the property at a time during which it was not also
the owner of the property.”). Plaintiffs’ claim fares no better. The Corporate
Defendants’ motions to dismiss are granted as to the trespass claim in count IX.
iv.

State Law Claims Against the City Defendants

23

Plaintiffs bring state law claims against the City Defendants for breach of
contract and implied warranty (Count VII), fraudulent misrepresentation (Count VII),
trespass (Count IX), and negligence (Count X). Mayor Copeland and the City of East
Chicago move to dismiss these claims on the merits and also raise an affirmative
defense under the Indiana Tort Claims Act. (DE # 40 at 6-7, 19 n.2.)
a.

Trespass and Negligence

The court now turns to plaintiffs’ state law tort claims for trespass and
negligence. Under the Indiana Tort Claims Act (the “ITCA”) a claim against a political
subdivision is barred unless notice is filed with: (1) the governing body of that political
subdivision and (2) the Indiana political subdivision risk management commission
within one hundred eighty days after the loss occurs. Ind. Code § 34-13-3-8. A person
may not initiate a suit against a government entity unless the person’s claim has been
denied in whole or in part. Ind. Code § 34-13-3-13. “Merely filing a complaint is
insufficient notice under the ITCA.” Alexander v. City of S. Bend, 256 F. Supp 2d 865, 876
(N.D. Ind. 2003) (citing Kantz v. Elkhart Cty. Highway Dep’t, 701 N.E.2d 608, 616 (Ind. Ct.
App. 1998) (holding that the notice of a claim under the ITCA and the complaint in a
resultant suit are two separate documents, the latter being filed only after the denial of
the claim by a governmental entity)).
In addition to the notice requirement, the ITCA also provides immunity from
liability to governmental employees acting within the scope of their employment if a
loss results from “[t]he adoption and enforcement of or failure to adopt or enforce a law

24

. . . unless the act of enforcement constitutes false arrest or false imprisonment.” Ind.
Code § 34-13-3-3(8); Miller v. City of Anderson, 777 N.E.2d 1100, 1103 (Ind. Ct. App.
2002).
The City Defendants argue that plaintiffs’ allegations against Mayor Copeland
pertain to acts undertaken within the scope of his employment and thus, he is entitled
to immunity under the ITCA. (DE # 40 at 7.) More fundamentally, the City Defendants
assert that plaintiffs have entirely failed to comply with the notice requirement of the
Act. (Id. at 19 n.2.) They assert that no such notice has been filed and highlight
Paragraph 24 of the amended complaint which reads: “[t]he [p]laintiffs have begun to file
their tort claims with the State of Indiana, the City of East Chicago, and the United
States Agencies, as applicable.” (DE # 36 at ¶ 24 (emphasis added).)
Plaintiffs’ response impliedly concedes that the required notice under the ITCA
has not been filed either before or after the commencement of this suit. Rather, plaintiffs
argue that the ITCA is “inapplicable” because plaintiff brings constitutional claims
under § 1983 and the pendent claims are against the Mayor in his individual capacity,
while the ITCA only acts to bar pendent official capacity claims. (DE # 49 at 9.)
Plaintiffs’ assertion is simply incorrect. It is true that the ITCA does not bar
§ 1983 claims and also acts to bar pendent official capacity claims. See Estate of Conner by
Conner v. Ambrose, 990 F.Supp 606, 617 (N.D. Ind. 1997) (“Accordingly, plaintiffs’ § 1983
claims are not precluded by the Indiana Tort Claims Act. However, all of plaintiffs’
pendent state law claims as to any defendants in their official capacity are precluded by

25

the Act.”). However, it is also true that the ITCA applies to state law tort claims brought
against governmental actors in their individual capacity. “A plaintiff cannot avoid the
notice requirements [of the ITCA] simply by suing a governmental employee in his or
her individual capacity.” Sowell v. Dominguez, No. 2:09 CV 47, 2011 WL 294758, at *12
(N.D. Ind. Jan. 26, 2011) (citing Schreiber v. Lawrence, No. 1:02 CV 1319. 2003 WL
1562563, at *5 (S.D. Ind. Mar 4, 2003). Notice is required “if the act or omission causing
the plaintiff’s loss is within the scope of the defendant’s employment.” VanValkenburg v.
Warner, 602 N.E.2d 1046, 1049 (Ind . Ct. App. 1992).
Plaintiffs’ allegations against Mayor Copeland solely concern his functions as the
Mayor of the City of East Chicago. Thus, notice was required under the ITCA. By the
very terms of the complaint, notice was not served prior to the commencement of this
lawsuit, therefore plaintiffs’ state law tort claims are barred by the ITCA and dismissal
is appropriate. Alexander, 256 F. Supp. 2d at 877. The City Defendants’ motion to
dismiss is granted as to Count VII and Count VIII.
b.

Breach of Contract and Implied Warranty and Fraudulent
Misrepresentation

The City Defendants move to dismiss plaintiffs’ claims for breach of contract on
the basis that the amended complaint fails to allege the necessary elements of their
claim. (DE # 40 at 20.) To prove a breach of contract, plaintiffs must show the existence
of a contract, breach of that contract, and damages. Norwood Promotional Products, LLC,
v. KustomKoozies, LLC, 835 F. Supp. 2d 685, 697 (S. D. Ind. 2011).

26

The contracts in question, attached as exhibits to the amended complaint, are the
plaintiffs’ lease agreements at the Complex. The City Defendants point out that neither
Mayor Copeland nor the City of East Chicago were parties to those lease agreements
which were contracts between plaintiffs and the ECHA. Again, the ECHA is not a party
to this lawsuit.
City Defendants argue that the ECHA, is a distinct entity from the City which
exercises its own authority, independently from the Mayor. Plaintiffs’ counterargument
is that the Mayor appoints the commissioners of the housing authority. (DE # 49 at 8.)
Thus, while acknowledging that the “housing authority may make and execute
contracts,” plaintiffs contend that official ECHA authority cannot be exercised without a
majority vote of the commissioners appointed by the mayor. (Id. (citing Bragg v. City of
Muncie, 930 N.E.2d 1144, 1148 (Ind. Ct. App. 2010)). Plaintiffs’ theory, offered without
legal support, is that the Mayor’s appointment authority allows for vicarious liability
for any breach of the ECHA lease agreements.
Plaintiffs are again mistaken. As discussed above, under Ind. Code. § 36-7-18-14,
the ECHA, is a municipal corporation, “separate from the City itself that may sue and
be sued in [its] own name.” Brenston, 2005 WL 2204870, at *5. Plaintiffs’ amended
complaint does not allege that Mayor Copeland had any personal involvement with the
contracts at issue. Thus, the City Defendants cannot be held liable for any alleged
breach of the express or implied terms of the lease agreements. See Magee v. Hous. Auth.
of S. Bend, No. 3:09 CV 337, 2010 WL 3000660, at *6 (N.D. Ind. July 28, 2010) (dismissing

27

claims seeking to hold mayor “vicariously liable for wrongful conduct on the part of the
[Housing Authority] because of his appointment and removal authority”). The City
Defendants’ motion to dismiss plaintiffs’ breach of contract claim is granted.
Plaintiffs’ fraudulent misrepresentation claim is similarly defective. Plaintiffs
allege that “[t]hroughout the term of tenancy and at signing of the respective tenant
leases, the City of East Chicago and its Mayor fraudulently misrepresented to the
[p]laintiffs that [the Complex] was safe and fit for human habitation.” (DE # 36 at
¶ 107.)
Under the heightened pleading standards of Rule 9(b), the pleading must state
with particularity the circumstances constituting fraud. Camasta v. Jos. A. Bank Clothiers,
761 F.3d 732, 737 (7th Cir. 2014). While the precise level of particularity depends on the
facts of the case, the pleading “ordinarily requires the who, what, when, where and
how of the fraud.” Id. (internal quotations omitted).
Plaintiffs’ misrepresentation claim fails to clear the heightened standard under
Rule 9(b). The amended complaint lacks any allegations that the Mayor had any direct
involvement in the formation of the lease agreements. As with the breach of contract
claim, plaintiffs’ theory of recovery is premised on the Mayor’s vicarious liability for the
ECHA’s alleged wrongdoing.
Plaintiffs argue in their response that “[t]he City and Mayor directed the City’s
public housing” and “knew that reporting the [C]omplex as safe to the [p]laintiffs was a
lie.” (DE # 7-8.) Yet, the amended complaint contains no allegations of Mayor Copeland

28

ever personally “reporting” anything to the individual plaintiffs. Under Indiana law the
ECHA is a legally distinct entity and the City Defendants cannot be held vicariously
liable for any alleged fraud perpetrated by the ECHA. The City Defendants’ motion to
dismiss is granted as to plaintiffs’ fraudulent misrepresentation claim.
C.

Standing

DuPont has also moved to dismiss the amended complaint for lack of standing.
(DE # 64 at 4-6.) To establish Article III standing, plaintiffs must establish (1)”injury in
fact,” that is either “concrete and particularized” or “actual and imminent” rather than
merely conjectural or hypothetical; (2) causal connection such that the injury is “fairly . .
. trace[able] to the challenged action of the defendant; and (3) that it is “likely” that the
injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992).
DuPont argues that plaintiffs’ amended complaint fails under all three elements.
First they argue that the alleged injuries from exposure to lead and arsenic are not
concrete and particularized. (DE # 64 at 5.) They also contend that the alleged injury is
not fairly traceable to DuPont, arguing that plaintiffs “do not and cannot credibly allege
that all of the harm they suffered was the result of DuPont’s conduct.”(Id.) Last, they
argue that plaintiffs fail to satisfy the redressability prong of Article III standing. (Id. at
6.)
DuPont raised identical arguments in Rolan, where the court noted that
“DuPont’s argument conflates the requirements for adequately alleging a claim with the

29

requirements of standing.” 2017 WL 3191791, at *5 (citing Ariz. State Legislature v. Aris.
Indep. Redistricting Comm’n, 135 S.Ct. 2652, 2663 (2015) (“[O]ne must not confuse
weakness on the merits with the absence of Article III standing.”)). The court held that
“[e]ven if the Plaintiffs’ allegations do not survive the Defendants’ Rule 12(b)(6) Motion,
they satisfy the standing requirements of Article III of the Constitution because they
sufficiently plead a ‘case or controversy.’” Id.
The amended complaint before the court sufficiently meets the requirements of
Article III standing. To begin with, the exposure to harmful contaminants and the loss
of enjoyment of their property are sufficiently “concrete and particularized” injuries to
satisfy the first prong. See id., (“For purposes of standing, ‘risk of contamination’ is an
‘actual and imminent’ injury.”) (citing Covington v. Jefferson Cty., 358 F.3d 626, 638 (9th
Cir. 2004); Carlough v. Amchem Prods., Inc., 834 F. Supp. 1437, 1457 (E.D. Pa. 1993)
(“[E]xposure to [hazardous substances] causes immediate bodily injury . . ., even if
disease is not manifested until much later.”) (internal quotation marks omitted)).
Second, plaintiffs’ allegations identify DuPont and ARCO as the source of the
contaminants and both parties are named in the suit as joint-tortfeasors. Because
DuPont does not point to any other possible source of the contamination that is not
before the court, the injuries cited in the complaint are fairly traceable to the defendants.
Sierra Club v. Franklin Cty. Power of Ill., LLC, 546 F.3d 918 at 926-27 (“[w]here a plaintiff
has pointed to a polluting source as the seed of his injury, and the owner of the
polluting source has supplied no alternative culprit, the ‘fairly traceable’ requirement

30

can be said to be fairly met.”) (citing Friends of the Earth v. Gaston Copper Recycling
Corp., 204 F.3d 149, 162 (4th Cir. 2000) (internal quotation marks omitted). Lastly,
DuPont’s argument regarding redressability is entirely without merit. Plaintiffs’ request
for compensatory damages satisfies the Article III requirement. Rolan, 2017 WL 3191791,
at *5 (citing King v. Ind. Supreme Ct., No. 14-CV-1092, 2014 WL 5798583, at *4 (S.D. Ind.
Nov. 7, 2014). DuPont’s motion to dismiss for lack of Article III standing is denied.
D.

Statute of Limitations

The Corporate Defendants have also moved to dismiss the amended complaint
on the basis that plaintiffs’ personal injury and § 1983 claims are barred by the statute of
limitations. (DE ## 61 at 22; 64 at 20.) Under Indiana law, plaintiffs must bring personal
injury claims within two years of the time that the cause of action accrues. Ind. Code.
§ 34-11-2-4. This limitation period also applies to claims brought under § 1983. Caldwell
v. Marshall, No. 2:16 CV 210, 2016 WL 6835289, at *1 (N.D. Ind. Nov. 21, 2016). Once “a
claimant knows, or in the exercise of ordinary diligence, should have known of the
injury,” the limitations period begins to run. Cooper Indus., LLC v. City of S. Bend, 899
N.E.2d 1274, 1280 (Ind. 2009).
“[A] motion to dismiss based on [the] failure to comply with the statute of
limitations should only be granted where the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense. . . . In other words, the plaintiff
must affirmatively plead himself out of court; the complaint must plainly reveal that the
action is untimely under the governing statute of limitations.” Chicago Bldg. Design P.C.

31

v. Mongolian House, Inc., 770 F.3d 610, 613-14 (7th Cir. 2014) (citing United States v. Lewis,
411 F.3d 838, 842 (7th Cir. 2005) (internal quotations omitted).
The Corporate Defendants cite to facts from the public record indicating that the
EPA initiated its remediation efforts at the USS Lead Superfund Site as far back as 2006,
and over the course of the next ten years, published various press releases and
advertisements, and hosted public forums relating to the efforts. (DE ## 61 at 23; 64 at
21.) From these facts, defendants argue that it is indisputable that residents of the
Complex would have known or should have known about the facts underlying their
claims.
Defendants each cite a similar string of cases in support of their motions, all of
which are distinguishable from the present case in that they were decided at the
summary judgment stage. See Cooper Indus. LLC, v. City of S. Bend, 899 N.E.2d 1274, 1280
(Ind. 2009) (granting summary judgment where the City solicited and acquired
numerous environmental reports for well over ten years before commencing suit);
McFarland Foods Corp. v. Chevron Corp., No. IP99-1489-C-H/G, 2001 WL 238084, at *1
(S.D. Ind. Jan. 5, 2001) (granting summary judgment based on undisputed facts showing
knowledge of claims outside of limitations period); Bernstein v. Bankert, 1:08-CV0427RLY-DML, 2010 WL 3893121, at *9 (N.D. Ind. Sept. 29, 2010) (same); Schuchman/Samberg
Investment, Inc. v. Hoosier Penn Oil. Co. Inc., 58 N.E.3d 241, 244 (Ind. Ct. App. 2016)
(appeal of summary judgment based on statute of limitations); Martin Oil Mktg. Ltd. v.
Katzioris, 908 N.E.2d 1183, 1185 (Ind. Ct. App. 2009) (same).

32

Plaintiffs in this case have not “plead themselves out of court” with respect to the
statute of limitations. The Corporate Defendants ask the court to hold that plaintiffs
were on inquiry notice based upon a series of sporadic publications from the EPA
dating back to 2006. Yet, based on the amended complaint, some of the plaintiffs had
not even lived in the Complex for longer than three years prior to 2016, well after the
publication of a number of the communications that are alleged to have put plaintiffs on
notice. Still others may not have even been born at the time of publication.5 At this
stage, based on the amended complaint, the court cannot conclude that plaintiffs knew
or should have known of their injuries outside of the limitations period. See Rolan, 2017
WL 3191791, at * 12 (“For the Court to make such a determination at this stage would
require a factually intensive endeavor [that would be] inappropriate for a motion to
dismiss.”); (citing 766347 Ontario Ltd. v. Zurich Capital Mkts., Inc., 249 F. Supp. 2d 974,
988 (N.D. Ill. 2003) (denying motion to dismiss for federal securities claim because
“inquiry notice is often a question of fact”)). The Corporate Defendants’ motion to
dismiss is denied as to the statute of limitations.
E.

Failure to Join Required Parties

DuPont has moved under Rule 12(b)(7) to dismiss the amended complaint for

5

ARCO correctly recognizes that, under Indiana law, the statute of limitations is
tolled for minor children until they reach the age of majority (see Ind. Code §§ 1-1-45(a)(24), 34-11-6-1), and therefore limits their argument to claims brought by the adult
plaintiffs. (DE # 61 at 22 n.9.)
33

failure to join required parties as defined by Rule 19(b).6 (DE # 64 at 17.) The
determination of whether a party is indispensible under Rule 19(b) involves a three-step
inquiry: (1) whether the party is “required” for the resolution of the plaintiff’s claims;
(2) whether joinder of the party is “feasible”; and (3) if the party is required but joinder
is not feasible, whether the party is “indispensible” under Rule 19(b) such that the case
must be dismissed in the party’s absence. Wilbur v. Locke, 423 F.3d 1101, 1111-12 (9th
Cir. 2005). “If a person who is required to be joined if feasible cannot be joined, the court
must determine whether, in equity and good conscience,” to allow the action to
“proceed among the existing parties or . . . be dismissed.” Fed. R. Civ. P. 19(b). The rules
list four factors that a court should consider in determining whether and how to
proceed. The factors include, (1) prejudice to the remaining parties, (2) options for the
court to mitigate such prejudice, (3) whether a judgment would be adequate absent the
required party, and (4) whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder. Id. at 19(b)(1)-(4). “The Rule 19(b) inquiry is a
context sensitive one which may vary from case to case.” Two Shields v. Wilkinson, 790
F.3d 791, 798 (8th Cir. 2015) (citing Provident Tradesmens Bank & Tr. Co. v. Patterson, 390
U.S. 102, 118-19 (1968)).
DuPont argues that, based on plaintiffs’ allegations, the EPA, IDEM and ECHA

6

The City Defendants also raised the issue of failure to join required parties. (DE
# 40 at 7.) However, as discussed above, their motion to dismiss has been granted
pursuant to Rule 12(b)(6) and the court need not consider their motion under Rule
12(b)(7).
34

are all indispensible parties. (DE # 64 at 17.) DuPont highlights the fact that plaintiffs’
§ 1983 claims “are based, in part, on allegations that the policies and procedures of the
EPA, IDEM and ECHA contributed to the wrongdoing by government officials.
(Id. (citing DE # 36 at ¶ 41).) Likewise, they point out that “plaintiffs’ fraud and
misrepresentation claims directly implicate EPA and IDEM by alleging ‘concealment by
the Corporate Defendants, EPA or IDEM of information material to the rights of the
Plaintiffs and the general public’” (Id. at 18 (quoting DE # 36 at ¶ 32).)
However, plaintiffs’ § 1983 claims and claims for fraud and misrepresentation
have been dismissed pursuant to Rule 12(b)(6). The only remaining claims against
DuPont are plaintiffs’ state law claims for personal injury and negligence. DuPont does
not raise a compelling argument that the EPA, or IDEM are necessary to the resolution
of plaintiffs’ state law claims. Meanwhile, to the extent that ECHA is a necessary party
for plaintiffs’ state law claims, ECHA is not entitled to sovereign immunity and thus,
joinder would not be infeasible under the second element of the Rule 19 indispensable
party analysis.7 Because DuPont cannot demonstrate that the EPA, IDEM and ECHA
are indispensible parties, the motion to dismiss pursuant to Rule 12(b)(7) is denied.
F.

Injunctive Relief and Punitive Damages

DuPont also moves to dismiss plaintiffs’ claims for injunctive relief and punitive

7

DuPont effectively concedes this point in its memorandum in support of its
motion to dismiss. (DE # 64 at 19 n.15) DuPont’s arguments in its reply memorandum
focus solely on the indispensability of the EPA and IDEM without making reference to
the ECHA. (See DE # 73 at 12-13.)
35

damages. DuPont argues that plaintiffs’ request for injunctive relief is legally deficient
because plaintiffs do not allege any specific unlawful practices on the part of DuPont
that “will persist in the future.” (DE # 64 at 22 (citing Offor v. Ill. Dept. Of Human Servs.
No. 11 C 7296, 2013 WL 170000, at * 3 (N.D. Ill. Jan 16, 2013) (holding plaintiff failed to
state a claim for injunctive relief because he alleged no continuing wrongful conduct)).)
DuPont also contends that any injunctive relief in this case would be preempted by the
Consent Decree in the Cleanup Action. (Id.)
As to punitive damages, DuPont argues that plaintiffs have failed to show that
DuPont “acted with fraud, malice, gross negligence or oppression” or that “the public
interest would be served by the deterrent effect of punitive damages.” (Id. (citing
Stuhlmacher v. Home Depot U.S.A. Inc., No. 2:10 CV 467, 2011 WL 1792853, at *6 (N.D.
Ind. May 11, 2011). )
Plaintiffs do not respond to either argument in their response to DuPont’s
motion to dismiss. Therefore, plaintiffs have abandoned their claims for injunctive relief
and punitive damages against DuPont. Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th
Cir. 2011), Chappey v. Ineos USA LLC, No. 2:08-CV-271-RL, 2009 WL 790194, at *2 (N.D.
Ind. Mar. 23, 2009), Campbell v. Supervalu, Inc., 565 F.Supp.2d 969, 974 n.6 (N.D. Ind.
2008).
G.

City Defendants’ Motion to Strike

The City Defendants have also moved to strike potions of plaintiffs’ response to
their motion to dismiss. (DE # 56.) Specifically, defendants object to eight exhibits that

36

were attached to plaintiffs’ response to the motion to dismiss. Defendants argue that the
new exhibits were not attached to the amended complaint and thus, fall outside the
pleadings and may not properly be considered when ruling on a motion to dismiss
under Rule 12(b)(6). (DE # 56 at 2.) However, the eight exhibits in question did not
factor into the court’s analysis of the pending motions to dismiss. Therefore, the motion
to strike is denied as moot.
IV.

CONCLUSION
For the foregoing reasons, the court
(1) GRANTS the City Defendants’ motion to dismiss (DE # 39) as to all claims

against the City of East Chicago and Mayor Anthony Copeland in his individual and
official capacities.
(2) DENIES AS MOOT that the City Defendants’ prior motion to dismiss (DE
# 20).
(3) DENIES AS MOOT the City Defendants’ Rule 12(f) motion to strike. (DE
# 55.)
(4) GRANTS ARCO’s motion to dismiss (DE # 60) as to all claims against
Atlantic Richfield Company and BP Products North America Inc.
(5) ORDERS that ARCO’s request for judicial notice (DE # 62) is DENIED.
(6) GRANTS, in part, DuPont’s motion to dismiss (DE # 63) as to plaintiffs’
claims under § 1983 (Counts I-IV), conspiracy (Count V), trespass (Count IX), as well as
claims for injunctive relief and punitive damages.

37

(7) DENIES, in part, DuPont’s motion to dismiss (DE # 63) as to plaintiffs’ claims
for personal injury (Count VI) and negligence (Count X).
(8) ORDERS that DuPont’s request for judicial notice is DENIED.
SO ORDERED.
Date: September 29, 2017
s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

38