Parko v. Shell Oil Co.

295 F.R.D. 279, 2013 WL 4721382, 2013 U.S. Dist. LEXIS 125188
District Court, S.D. Illinois·Decided September 3, 2013·No. Civil No. 12-336-GPM·Published

Opinion

MEMORANDUM AND ORDER

MURPHY, District Judge.

Plaintiffs, owners of real property in the Village of Roxana, Illinois, allege on their own and on behalf of a putative class, that Defendants, current and former owners and operators of an oil refinery in Roxana, caused [282] or allowed hazardous petroleum by-products to contaminate their property (Doc. 5-2). Plaintiffs claim negligence, trespass, public nuisance, private nuisance, unjust enrichment, and medical monitoring causes of action (Doc. 5-2). Currently pending before the Court is Plaintiffs’ motion to certify class and for appointment of class counsel (Docs. 49, 50, 51). Plaintiffs’ proposed class definition is as follows:

All the persons (including non-governmental entities) who 'own real property in the Village of Roxana, Illinois that includes any portion of any of the parcels on the Village map listed in the table attached hereto as Attachment A.

(Doc. 49). “Attachment A” is a four-page table listing Roxana land parcels by block and lot number, totaling 387 parcels (Doc. 49-1). Defendants oppose certification, arguing Plaintiffs lack standing, the proposed class is fatally overbroad, and the proposed class fails to satisfy the requirements of Rule 23 (Docs. 65, 66). For the following reasons, Plaintiffs’ motion to certify class and for appointment of class counsel is GRANTED.

Standing

Standing is a jurisdictional requirement. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir.2009). It is “an indispensable part of the plaintiffs case,” not merely a pleading concern. Id. A plaintiff must show: “(1) that she has suffered a concrete and particularized injury that is either actual or imminent; (2) that the injury is fairly traceable to the defendant; and (3) that it is likely that a favorable decision will redress that injury.” Milwaukee Police Ass’n v. Board of Fire & Police Com’rs of City of Milwaukee, 708 F.3d 921, 926 (7th Cir.2013), quoting Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). Defendants claim Plaintiffs here fail to show the first two elements (Doc. 66, p. 7). In order to show the requisite “injury in fact,” a plaintiff “must establish that he has sustained or is immediately in danger of sustaining some direct injury. Abstract injury is not enough.” Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517, 528 (7th Cir.2001), quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). To establish that the injury is “fairly traceable” to the defendant’s acts, a plaintiff must establish a causal connection between the two and show that the injury did not result from some independent act of a third party not before the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A plaintiff does not, however, necessarily lack standing “merely because the defendant is one of several persons who caused the harm.” Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 500 (7th Cir. 2005).

Defendants argue there is no cognizable injury because the evidence of contamination is based on unreliable data from Plaintiffs’ expert Samuel Marquis (Doc. 66, p. 7-8). According to Defendants, Mr. Marquis’s model projections indicate that hazardous petroleum by-products are present across Roxana, but an environmental engineering firm hired by Shell, URS Corporation, took samples indicating that the majority of wells in Roxana were not impacted (Doc. 66, p. 14). Essentially, URS Corporation’s groundwater reports contradict Mr. Marquis’s conclusions, and URS has actually done sampling, so Mr. Marquis’s conclusions must be wrong ... and without evidence of town-wide contamination there is no actual injury. Defendants also excerpt named Plaintiffs’ Jeana Parko and Janice Cobine who state to the effect: ‘the reason I think my property is contaminated is my attorneys told me so,’ and ‘my property has never been tested for contamination,’ respectively (Doc. 66, p. 14-15). If Plaintiffs don’t even know they’ve been injured, Defendants reason, there cannot be a particularized, concrete injury.

Defendants also argue there is no causation, as Plaintiffs’ experts have not ruled out alternative causes of contamination. Peter Zeeb, who produced a hydrogeologie expert report for Defendants (analyzing in part Mr. Marquis’s report), opines that there are “other potential sources of petroleum hydrocarbons that could have been released to the environment ... located adjacent to the purported class area and/or they are located along groundwater flow lines that would pass [283] through the potential source location and through the purported class area” (Doc. 66-7, pp. 22, 26-28). The Illinois Emergency Management Agency database and contains at least five incidents that might be alternative causes of hydrocarbon contamination, according to Mr. Zeeb: (1) the release of 140 gallons of unleaded gasoline by the Clark Oil Company caused by a corroded pipe and reported January 23,1989; (2) the release of an unknown amount of gasoline at TruStreet Properties, which was a self-service station, reported on September 27, 2006; (3) the release of 500 gallons of fuel oil by the Elfgen Land Trust reported on March 8, 1993; (4) the release of an unknown amount of gasoline by Piasa Motor Fuels, a gasoline service station, reported on July 1, 2000; and (5) the release of an unknown amount of gasoline by Piasa Motor Fuels reported July 28, 2000 (Doc. 66-7, p. 26-28). Additionally, a report by Environmental Data Resources Inc. indicates underground 300-gallon-capac-ity kerosene storage tanks registered with the State Fire Marshall’s office exist in the purported class area (Doc. 66-7, p. 28).

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Parko v. Shell Oil Co., 295 F.R.D. 279, 2013 WL 4721382, 2013 U.S. Dist. LEXIS 125188 (S.D. Ill. 2013).

295 F.R.D. 279 (Parko v. Shell Oil Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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