Case 3:10-cv JPG -PMF Document 234 Filed 10/11/11 Page 1 of 6 Page ID #9055

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1 Case 3:10-cv JPG -PMF Document 234 Filed 10/11/11 Page 1 of 6 Page ID #9055 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS CITY OF GREENVILLE, ILLINOIS et al. Individually and on behalf of all others similarly situated, JURY DEMANDED Plaintiffs, v. Case No JPG SYNGENTA CROP PROTECTION, INC. and SYNGENTA AG, Defendants. SYNGENTA CROP PROTECTION, LLC S MOTION TO DISMISS NOW COMES Defendant Syngenta Crop Protection, L.L.C. ( Syngenta, through its respective attorneys, and brings this motion to dismiss, along with an accompanying memorandum in support, and asks this Court to dismiss Count V and paragraph (e of the prayer of Plaintiffs Second Amended Complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b(6. INTRODUCTION This lawsuit was filed by Plaintiffs to force a single manufacturer of a federally regulated and approved product, atrazine, to pay for Plaintiffs costs of doing business. The named Plaintiffs are local public water providers (a mixture of cities, villages, districts and private companies located in six different states, Illinois, Missouri, Kansas, Indiana, Ohio, and Iowa, which have brought this proposed class action on behalf of themselves and all similarly situated public water providers located in those six states, excluding water providers that have brought lawsuits for atrazine contamination 1

2 Case 3:10-cv JPG -PMF Document 234 Filed 10/11/11 Page 2 of 6 Page ID #9056 individually or as part of a certified class. 1 The Plaintiffs allege that Syngenta, one of many manufacturers of the herbicide atrazine and atrazine containing products, is responsible for the costs associated with expensive water filtration systems to filter atrazine (along with all other contaminants from their raw water sources due to alleged potential health hazards associated with atrazine. Plaintiffs demand past, present and future costs related to this business expenditure, as well as punitive damages and attorney s fees. 2 Plaintiffs also now assert Count V for declaratory relief in their Second Amended Complaint. BRIEF BACKGROUND 1. Regulatory History Atrazine and herbicides containing atrazine are not new products. As Plaintiffs recognize, U.S. farmers have used atrazine successfully since 1959, for more than 50 years. 3 Atrazine is a highly effective and regulated herbicide, which has been studied extensively by the Environmental Protection Agency of the United States ( EPA. Public water systems, like Plaintiffs here, are required to test their finished water for many different substances, including atrazine, at points where the water enters the distribution system. 40 CFR (h(2. Since 1991, the EPA has set a Maximum Contaminant Level ( MCL of 3 parts per billion (3 ppb for atrazine on an average annualized basis. 56 Fed. Reg (Jan. 30, 1991; 40 CFR (b. And the states where Plaintiffs and their water sources are located have adopted this atrazine MCL as a matter of state law. Plaintiffs have operated their public water systems for Second Amended Complaint (Doc. 229, at 40. Doc. 229, at p. 30, Prayer for Relief. Id. at 31. 2

3 Case 3:10-cv JPG -PMF Document 234 Filed 10/11/11 Page 3 of 6 Page ID #9057 decades, have been aware of atrazine and the atrazine MCL standard, and have tested for atrazine in their finished water for many years. 2. Litigation History Plaintiffs are not the first public water systems to attempt to get an atrazine manufacturer to pay for the costs associated with removing atrazine from one s raw water. This tactic was first tried by a Louisiana and an Ohio water system, which brought a proposed nationwide class action on behalf of themselves and all similarly situated public and community water systems in federal court in Alabama, more than a decade ago. That lawsuit was dismissed after the court determined those plaintiffs lacked standing and their case was not ripe for adjudication. Iberville Parish Waterworks Dist. No. 3 v. Novartis Crop Protection, Inc., 45 F.Supp.2d 934 (S.D. Al. 1999, affirmed without opinion, 204 F.3d 1122 (11 th Cir Next, in 2004, the Holiday Shores Sanitary District filed a proposed class action lawsuit on behalf of a limited group of Illinois water districts and authorities against Syngenta and Growmark, Inc., a local distributor, in the Third Judicial Circuit Court of the State of Illinois, Madison County. That suit was filed by the same attorneys who filed this matter. The Holiday Shores complaint was amended multiple times over the years, and the most recently filed Second Amended Class Action Complaint added additional Illinois water districts as named plaintiffs, greatly expanded the class definition and factual allegations, and dismissed all property damage claims. The Holiday Shores litigation is still pending, along with other similar atrazine class action lawsuits filed separately in Illinois state court by the same plaintiffs and plaintiffs counsel against 3

4 Case 3:10-cv JPG -PMF Document 234 Filed 10/11/11 Page 4 of 6 Page ID #9058 other atrazine product manufacturers that are not parties to this litigation. 4 The first Holiday Shores judge, Judge Stack, granted in part and denied in part, the defendants original motion to dismiss that matter. Notably, Judge Stack dismissed the prayers for declaratory relief asserted by the plaintiffs in Holiday Shores. SUMMARY OF BASIS TO DISMISS CLAIMS Plaintiffs Second Amended Complaint adds Count V for declaratory relief under 28 U.S.C Plaintiffs count for declaratory relief does not present an actual controversy. Count V is duplicative of Plaintiffs trespass and nuisance claims. Furthermore, Plaintiffs improperly seek to declare the rights of potential future litigants. And in a similar setting in Illinois state court such claims for declaratory relief were dismissed on motion for failure to state a claim. Furthermore, Plaintiffs are attempting to usurp the primary jurisdiction of the EPA through their declaratory claim. Count V of Plaintiffs Second Amended Complaint and paragraph (e of the prayer for relief related to Plaintiffs claim for declaratory relief should be dismissed. CONCLUSION WHEREFORE, Defendant Syngenta Crop Protection, L.L.C. requests that this Court dismiss Plaintiffs claim for declaratory relief, pursuant to Fed. R. Civ. P. 12(b(6, and grant all other relief that this Court deems appropriate. 4 The following atrazine cases are pending in Madison County, Illinois: Holiday Shores Sanitary District v. Syngenta Crop Protection, Inc., and Growmark, Inc., Case No L ; Holiday Shores Sanitary District v. Sipcam Agro USA Inc., and Growmark, Inc., Case No L ; Holiday Shores Sanitary District v. Drexel Chemical Company, and Growmark, Inc., Case No L ; Holiday Shores Sanitary District v. United Agri Products, Inc., d/b/a UAP Loveland Products Inc., and Growmark, Inc., Case No L ; Holiday Shores Sanitary District v. Makhteshim-Agan of North America, Inc., and Growmark, Inc., Case No L ; and Holiday Shores Sanitary District v. Dow AgroSciences LLC, and Growmark, Inc., Case No L Second Amended Complaint (Doc. 229, at pp

5 Case 3:10-cv JPG -PMF Document 234 Filed 10/11/11 Page 5 of 6 Page ID #9059 Respectfully submitted, REEG LAWYERS, LLC /s/ Kurtis B. Reeg Kurtis B. Reeg, ARDC # North Brentwood Blvd. Suite 950 St. Louis, MO Telephone: ( Facsimile: ( kreeg@reeglawfirm.com Michael A. Pope Christopher M. Murphy McDermott Will & Emery LLP 227 W. Monroe Street Chicago, Illinois ( (phone ( (fax Mark C. Surprenant Adams and Reese LLP 4500 One Shell Square New Orleans, Louisiana Telephone: ( ATTORNEYS FOR DEFENDANT SYNGENTA CROP PROTECTION, LLC 5

6 Case 3:10-cv JPG -PMF Document 234 Filed 10/11/11 Page 6 of 6 Page ID #9060 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been filed electronically with the Clerk of the Court to be served by operation of the Court s electronic filing system, this 11 th day of October, 2011, to: Stephen M. Tillery, Esq. Christie R. Deaton, Esq. Christine J. Moody, Esq. Michael E. Klenov, Esq. Korein Tillery, L.L.C. U.S. Bank Plaza 505 North 7 th Street, Suite 3600 St. Louis, MO Telephone: ( Facsimile: ( ATTORNEYS FOR PLAINTIFFS with a copy sent via United States mail, properly addressed and postage paid, upon the following counsel: Scott Summy, Esq. Celeste Evangelisti, Esq. Baron & Budd 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX Telephone: ( Facsimile: ( Patricia S. Murphy Murphy Law Office PO Box 220 Energy, IL Telephone: ( Facsimile: ( ATTORNEYS FOR PLAINTIFFS /s/ Kurtis B. Reeg 6