Bennett v. City of Centreville

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CORNELIUS BENNETT, )

EARLIE FUSE, )

)

Plaintiffs, )

)

vs. ) Case No. 20-cv-530-DWD

)

CITY OF CENTREVILLE, )

TOWNSHIP OF CENTREVILLE, )

COMMONFIELDS OF CAHOKIA, )

MARIUS “MARK” JACKSON, )

CURTIS MCCALL, )

LAMAR GENTRY, )

DENNIS TRAITEUR, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

This matter comes before the Court on several motions:

Doc. 127: Defendants’ Joint Motion to Dismiss Based on Primary Jurisdiction;

Doc. 138: Defendant City of Centreville’s Joint Motion to Bar the Supplemental Report

of Plaintiffs’ Expert Jose A. Constantine;

Doc. 141: Defendants’ Joint Motion for Summary Judgment;

Doc. 146: Plaintiffs’ Motion to Strike Defendant’s Reply at Doc. 144;

Doc. 150: Plaintiffs’ Motion to Bar Defendants’ Untimely Documents and for

Sanctions; and

Doc. 159: the Parties’ Joint Motion to Continue Trial Date and for Status Conference.

The Court has reviewed all relevant memorandum, responses, and replies (Docs. 134;

136; 139; 142; 143; 144; 147; 148; 151; 152; 153). The Court also heard arguments on

Defendants’ Joint Motion to Dismiss Based on Primary Jurisdiction (Doc. 137), in

connection with a similar motion in the related case Centreville Citizens for Change et al. v.

City of Cahokia Heights et al., SDIL Case No. 21-842-DWD. After considering the

arguments and briefing of the Parties, the Court issues the following rulings.

Background

Plaintiffs Cornelius Bennett and Earlie Fuse bring this action against Defendants

City of Centreville, Township of Centreville, Commonfields of Cahokia, Marius “Mark”

Jackson, Curtis McCall, LaMar Gentry, and Dennis Traiteur (collectively referred to

herein as “Defendants”) related to Defendants’ alleged indifference to the subpar

stormwater and sewage disposal systems causing frequent stormwater and raw sewage

to invade Plaintiffs’ homes and yards in the City or Township of Centreville, Illinois, now

known as Cahokia Heights, Illinois. Plaintiffs’ Amended Complaint (Doc. 60) asserts six

claims:

Count I: 42 U.S.C. § 1983 Claim for violations of the Fifth Amendment’s Taking

Clause of the United States Constitution

Count II: Violation of Eminent Domain Clause of the Illinois Constitution

Count III: Negligent Trespass related to Sanitary Sewer Back Ups

Count IV: Negligent Trespass related to Stormwater Flooding (against Centreville

and Township of Centreville)

Count V: Negligence related to Stormwater Flooding (against Centreville and

Township of Centreville)

Count VI: Negligence related to Sewer Back Ups

(Doc. 60). Counts I, II, III, and VI are asserted against all Defendants. Counts IV and V

are brought against only Defendants City of Centreville and the Township of Centreville.

Plaintiffs seek monetary damages and injunctive relief.

Doc. 127: Defendants’ Joint Motion to Dismiss Based on Primary Jurisdiction

Defendants ask the Court to dismiss or stay this matter pending resolution of the

United States Environmental Protection Agency’s administrative proceedings with

Cahokia Heights based on the “doctrine of primary jurisdiction.” See Stoll v. Kraft Foods

Glob., Inc., No. 1:09-CV-0364-TWP-DML, 2010 WL 3702359, at *1 (S.D. Ind. Sept. 6, 2010)

(the “doctrine of primary jurisdiction allows a federal court to refer a matter extending

beyond the ‘conventional experiences of judges’ or ‘falling within the realm of

administrative discretion’ to an administrative agency with more specialized experience,

expertise, and insight.’”) (citing Leib v. Rex Energy Operating Corp., No. 06-CV-802-JPG-

CJP, 2008 WL 5377792, at *14 (S.D. Ill. Dec. 19, 2008) (quoting In re StarNet, Inc., 355 F.3d

634, 639 (7th Cir. 2004)). “When a court chooses to exercise primary jurisdiction, it does

not dismiss the litigation but stays it pending the results of the agency's resolution of the

issue, and the action resumes after the agency's decision if that decision has not resolved

the entire controversy.” Leib, 2008 WL 5377792, at *14 (citing Baker v. IBP, Inc., 357 F.3d

685, 688 (7th Cir. 2004); Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299

F.3d 643, 651 (7th Cir. 2002)).

The Seventh Circuit has used this doctrine to refer questions of statutory

interpretation to relevant agencies. For example, the Seventh Circuit referred the

interpretation of the word “location” as found in the telephone “number portability”

provision of the Federal Communications Commission Telecommunications Act of 1996,

47 U.S.C. § 153(37) to the Federal Communications Commission (“FCC”). See In re

StarNet, Inc., 355 F.3d at 639. In making this referral, the Seventh Circuit emphasized that

the FCC did not have exclusive jurisdiction over the interpretation, but that its input was

the “logical place for the judiciary to start.” Id. (“Only the FCC can disambiguate the

word ‘location’; all we could do would be to make an educated guess. And although the

FCC’s position would be subject to review by the judiciary for reasonableness, the

agency’s views are the logical place to start.”).

The Circuit has also declined to invoke the doctrine when it would “facilitate an

end run around” citizen suits authorized by statute, such as when the administrative

proceedings were informal or would not address the relief raised in the citizen suit. See

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998) (finding the doctrines

of primary jurisdiction doctrine or abstention inappropriate to bar a citizen suit brought

under the Resource Conservation and Recovery Act (“RCRA”) because there were no

formal administrative proceedings in progress that the suit would disrupt and those

administrative proceedings would not address the concerns raised in the citizens’ suit);

Ryan v. Chemlawn Corp., 935 F.2d 129, 132 (7th Cir. 1991) (declining to apply the doctrine

of primary jurisdiction when both parties agreed that the EPA could not provide the

plaintiff with any form of compensatory or punitive damages, and speculating what role

the EPA could even play in the suit).

In considering whether the relevant administrative proceedings are “formal” or

“informal”, it is important to note that the doctrine of primary jurisdiction differs from

statutory bars to citizen suits based on the “diligent prosecution” of an action by federal

or state agencies. See, e.g., 33 U.S.C. § 1365(b)(1)(B) (citizen suits under the Clean Water

Act are barred “if the Administrator or State has commenced and is diligently

prosecuting a civil or criminal action in a court of the United States, or a State to require

compliance with the standard, limitation, or order[.]”). Instead, the Seventh Circuit has

explained, that even if a citizen suit is not statutorily barred by a formal administrative

proceeding, appropriate circumstances may still exist to apply the doctrine of primary

jurisdiction. See PMC, Inc., 151 F.3d at 619 (explaining that although the citizens’ suit

under RCRA was not statutorily barred, “there may be room for applying the doctrines

of abstention or primary jurisdiction (different labels for the same thing, in this context)

in cases in which a state has a formal administrative proceeding in progress that the

citizens’ suit would disrupt [.]”).

According to Defendants, a stay of the current proceedings is appropriate because

the United States Environmental Protection Agency, and the Illinois Environmental

Protection Agency (collectively referred to herein as the “Agencies”) have been working

with Cahokia Heights to address the sanitary sewer overflows at issue in Plaintiffs’

complaint for years, and Defendants believe some, if not all, of the injunctive relief in

Plaintiffs’ complaint may be resolved by those ongoing efforts. Specifically, on August

16, 2021, Cahokia Heights entered into an Administrative Order on Consent (“AOC”)

with the United States EPA (Doc. 127-2, at Exhibit 7, pp. 143-157). Under the AOC,

Cahokia Heights agreed to undertake several projects to address the Agencies’ concerns

regarding the conditions of Cahokia Heights’ sewer system and lift stations, including

requiring Cahokia Heights to:

1. Execute a series of interim operations and maintenance actions,

including staff training, preparing a lift station status report, and

submitting a lift station inspection and maintenance plan;

2. Develop and implement a Capacity, Management, Operations and

Maintenance Program;

3. Prepare and implement investigation plans to identify and better

understand both wet weather and dry-weather sanitary sewer

overflows; and

4. Prepare and implement a corrective action plan to eliminate all known

dry-weather sanitary sewer overflows.

(Doc. 127-2, pp. 149-152). According to Defendants, Cahokia Heights has been timely

implementing the requirements of the AOC, and the now approved Capacity,

Management, Operations, and Maintenance Program.

In addition to the AOC, Cahokia Heights is implementing system repairs with

grant funding from the Illinois EPA, which requires Cahokia Heights to complete certain

construction activities by June 30, 2025 (Doc. 127-2, at Ex. 8, pp. 158-223). The Illinois EPA

also approved Cahokia Heights’ Construction Activities Strategies (“CAS”) for the

project (Doc. 127-2, at Exhibits 9-11, pp. 224-299), and Defendants represent that design

and construction is underway. Finally, Defendants maintain that they are in the process

of negotiating a civil Consent Decree to govern the final stages of the system repair that

would reflect the Agencies’ judgment of what additional measures are necessary to

complete the corrective action and prevent future sanitary sewer overflows and potential

violations of the Clean Water Act (Doc. 127-1, at ¶ 15).

Defendants argue that dismissal or a stay of these proceedings would be

appropriate while the Agencies are overseeing the repairs in the Administrative Order

on Consent and negotiating the civil Consent Decree with Cahokia Heights. Defendants

request dismissal, but also offer August 30, 2025 as a potential stay date. This date

allegedly represents the end date for the current repair work funded by the Illinois EPA

grant.

Plaintiffs oppose the Motion for at least three reasons (Doc. 134). First, Plaintiffs

object to the timing of Defendants’ Motion, arguing that it was filed more than two years

after Defendants answered the amended complaint. Second, Plaintiffs argue that the

doctrine of primary jurisdiction does not apply to this case because the case only involves

individual claims. Finally, Plaintiffs submit, that even if the doctrine does apply, the stay

factors sharply favor denying the stay because the Administrative Order on Consent does

not conflict with Plaintiffs’ claims, which are properly before the Court, and because

applying the doctrine would disserve judicial economy. Alternatively, Plaintiffs ask that

the Court consider bifurcating Plaintiffs’ injunctive claims so Plaintiffs can continue with

their monetary damages claims and stormwater claims which are not covered by the

current administrative plans.

The Court is not persuaded that Defendants’ Motion is untimely or that it is unable

to exercise its authority to refer portions of this proceeding to the administrative Agencies

working with Cahokia Heights to alleviate or repair some, if not all, of the structural

repairs at issue in Plaintiffs’ Complaint and plaguing the larger community area.1

Indeed, one of the principles underlying the doctrine of primary jurisdiction is the Court’s

ability to invoke the doctrine based on an individualized evaluation of each case. See

Bradford Sch. Bus Transit, Inc. v. Chicago Transit Auth., 537 F.2d 943, 949 (7th Cir. 1976)

(“There is no fixed formula for the invocation of the doctrine of primary jurisdiction and

the decision whether to apply it depends upon a case by case determination of whether,

in view of the purposes of the statute involved and the relevance of administrative

expertise to the issue at hand, a court ought to defer initially to the administrative

agency.”); see also In re StarNet, Inc., 355 F.3d at 639 (referring matter to the FCC while on

appeal).

And the Court sees vast wisdom in permitting the United States Environmental

Protection Agency and Illinois Environmental Protection Agency to provide guidance

and manage the highly technical and expensive repairs needed to the water and sewer

infrastructure. In re StarNet, Inc., 355 F.3d at 639 (the “doctrine of primary jurisdiction

allows a federal court to refer a matter extending beyond the ‘conventional experiences

of judges’ or ‘falling within the realm of administrative discretion’ to an administrative

agency with more specialized experience, expertise, and insight.’”). Thus, the relevant

issue here is not whether the Court can cede some of its jurisdiction here to the

1Based on the current record, there does not appear to be a material dispute of fact that Plaintiffs have faced

devastating living conditions caused by the underserviced and deteriorating water and sewer systems in

the community. This finding in no way constitutes a finding of liability or causation, but, reviewing the

evidence in the record most favorable to Plaintiffs – the non-moving parties here – there is no genuine

debate that their lives and property have been impacted by the consistent sanitary sewer overflows from

the past decades.

administrative agencies, but whether it should. Of course, this does not mean the timing

of Defendants’ request is without concern. Indeed, Plaintiffs’ complaints regarding the

Agencies’ ability to effectively – and timely – complete the repairs they have been

requesting for decades is highly significant here.

The Seventh Circuit has adopted a “case by case” approach in determining when

the doctrine of primary jurisdiction should apply. Ryan, 935 F.2d at 131 (citing Bradford

School Bus Transit, Inc., 537 F.2d at 949) (“There is no fixed formula for the invocation of

the doctrine of primary jurisdiction and ‘the decision whether to apply it depends upon

a case by case determination … .’”). In making this determination, the Court considers

the strong policy reasons that exist for applying the primary jurisdiction doctrine,

namely, that the doctrine: (1) promotes consistency and uniformity, particularly where

the development of the law is dependent upon administrative policy; (2) administrative

agencies are uniquely qualified to handle certain complex areas outside of the

conventional expertise of courts; and (3) it serves judicial economy because, if a dispute

is fully resolved by an agency, the court need not intervene. Ryan, 935 F.2d at 131; see also

Stoll, 2010 WL 3702359, at *5

Although the Seventh Circuit has not articulated an exclusive list of factors for

applying the doctrine of primary jurisdiction, some district courts have found it

appropriate to weigh numerous factors, including:

(1) whether the Court is being called on to decide factual issues not within

the conventional experience of judges; question at issue is one within the

conventional experience of judges; (2) whether the Defendants could be

subjected to conflicting orders of both the Court and the administrative

agency; (3) whether relevant agency proceedings have actually been

initiated; (4) whether the agency has demonstrated diligence in resolving

the issue or has instead allowed the issue to anguish; and (5) whether the

Court can fashion the type of relief requested by the plaintiff.

Stoll, 2010 WL 3702359, at *5 (collecting cases).

Here, the Court FINDS that the strong policy reasons behind the primary

jurisdiction doctrine would be served in this case by a limited referral to the

environmental Agencies. There is no dispute that the environmental Agencies are aware

and involved with the extensive issues plaguing Plaintiffs’ communities. Nor is there a

dispute over the Agencies’ unique qualifications for handling the complex issues here, or

their ability to fashion and oversee appropriate remedies to the physical infrastructure

required to address the injunctive relief issues in Plaintiffs’ Complaint. Judicial economy

would further be served by enlisting the Agencies’ oversight here, as they are uniquely

equipped to effect and enforce remediation efforts over these repairs. Further, should the

Agencies be successful in compelling the remediation of the issues raised in the injunctive

portion of Plaintiff’s Complaint, the Court will alleviate any risk of subjecting the parties

to conflicting orders from the Court and the administrative Agencies, or worse, from

subjecting the parties to a Court Order that does not fully address the practical, and

potentially changing, needs of the infrastructure repairs. Accordingly, the Court will

GRANT Defendants’ Motion to Stay, in part, and REFER this matter to the

environmental Agencies for assistance in evaluating and resolving the injunctive relief

portion of Plaintiffs’ Complaint.

Nevertheless, despite these findings, the Court is gravely concerned with issues of

diligence here. This case has been pending for years, and that Plaintiffs have invested

time and resources in litigating this case and bringing their grievances to the attention of

the Court and the administrative Agencies. Thus, the Court is very concerned with

Plaintiffs’ claims being set to languish without concrete and diligent actions from the

Agencies. Indeed, while the record before the Court does not give the Court a reason to

question Defendants’ intentions in working with the environmental Agencies to

consummate a consent decree or make necessary repairs, the Court is equally cognizant

that Plaintiffs and the Court have heard reports of these negotiations for years, without

having direct access to the process, direction, or progress of the repairs. Although these

concerns do not outweigh the Court’s prior findings that a limited referral of this case is

necessary and prudent, the Court will require regular status reports from Defendants and

the environmental Agencies on the progress of the referral, and the status of the alleged

forthcoming consent decree.

These status reports shall be filed no less frequently than every 90 days in the

public record and be made available to Plaintiffs and their counsel. The Court wishes to

impress upon the Defendants that the information contained in these status reports must

be thorough and specific to, and not mere summaries of, the work done, the progress

made, the plans implemented, and anticipated timelines for each step of progress

forecasted. This is because, upon the filing of each status report, the Court will re-evaluate

the progress and diligence of the ongoing repairs, and if it becomes apparent to the Court

that the referral no longer serves the interest of justice, judicial economy, or is prejudicial

to any of the parties, the Court will revise the referral or consider bifurcating these

proceedings. However, at this juncture, the wisdom of permitting the environmental

agencies to evaluate and fashion a practical and effective remedy here should first be

explored.

For these reasons, the Court GRANTS, in part, Defendants’ Motion to Stay (Doc.

127), and REFERS the following issues to the consideration of the United States

Environmental Protection Agency and the Illinois Environmental Protection Agency:

1. The scope and nature of the repairs that would be necessary to

address the requested injunctive relief in Plaintiffs Earlie Fuse and Cornelius

Bennett’s Complaint at Doc. 60, including how to ensure: (1) stormwater and

wastewater are not deposited or diverted onto Plaintiffs’ properties; (2) all pump

and lift stations are working at adequate capacity; (3) the necessity and locations

required for the installation of new pump or lift stations and/or sewer lines; and

(4) any other recommended repairs to the infrastructure issues identified in

Plaintiffs’ Complaint;

2. The progress of Cahokia Heights’ compliance with its obligations

under the above-identified Administrative Order on Consent; Capacity,

Management, Operations and Maintenance Program; Constructive Activities

Strategies; and any other like orders, agreements, or obligations with the United

States Environmental Protection Agency and the Illinois Environmental Protection

Agency related to the issues identified in Plaintiffs’ Complaint;

3. The specifics of whether, when, and to what extent the existing

Administrative Order on Consent; Capacity, Management, Operations and

Maintenance Program; Constructive Activities Strategies; and any other like

orders, agreements, or obligations with the with the United States Environmental

Protection Agency and the Illinois Environmental Protection Agency will address

the requested injunctive relief in Plaintiffs’ Complaint at Doc. 60; and

4. The progress and anticipated completion date of Cahokia Heights’

negotiations with the United States Environmental Protection Agency and the

Illinois Environmental Protection Agency to enter into a civil Consent Decree, and

the specifics of the corrective action contemplated in the forthcoming Consent

Decree.

In accordance with this referral, these proceedings are STAYED in their entirety

for 90-days, or until further order of the Court. The current trial setting and final pretrial

conference are therefore VACATED, and the parties’ Joint Motion to Continue Trial Date

and for Status Conference (Doc.159) is DENIED as moot. By February 1, 2024,

Defendants are DIRECTED to file a status report with the Court, detailing the progress

made by the Agencies in addressing the Court’s referred issues above.

Defendants are DIRECTED to send a copy of this Order to their contacts and

representatives at the United States Environmental Protection Agency and the Illinois

Environmental Protection Agency, and to provide public access to this Order.

The parties are further granted leave to petition the Court to modify the current

stay and referral should appropriate circumstances exist to do so.

Doc. 141: Defendant’s Joint Motion for Summary Judgment

Defendants seek summary judgment on Plaintiffs’ claims, arguing that they are

entitled to immunity under the Illinois Tort Immunity Act (Doc. 142). Defendants

maintain that the underfunding and infrastructure failures were discretionary budgeting

decisions made by Defendants after balancing the needs of other municipal interests, thus

resulting in policy determinations that are entitled to immunity. Defendants also seek

summary judgment on Plaintiffs’ takings claims, arguing that Plaintiffs cannot establish

that the alleged harm to their properties arose from governmental action. Plaintiffs

oppose the Motion (Doc. 147).

Summary judgment is proper if the movant shows that there is no genuine issue

as to any material fact and they are entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a). “Factual disputes are genuine only if there is sufficient evidence for a reasonable

jury to return a verdict in favor of the non-moving party on the evidence presented, and

they are material only if their resolution might change the suit's outcome under the

governing law.” Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013) (citation and

internal quotation marks omitted). In deciding a motion for summary judgment, the court

must view the evidence in the light most favorable to, and draw all reasonable inferences

in favor of, the non-moving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962,

965 (7th Cir. 2013) (citation omitted).

The Illinois Tort Immunity Act, 745 Ill. Comp. Stat. Ann. 10/2-109, governs

whether and under what circumstances local governmental entities are immune from

liability in civil actions. Andrews v. Metro. Water Reclamation Dist. of Greater Chicago, 2019

IL 124283, at ¶ 23. Sections 2-109 and 2-201 of the Tort Immunity Act provide:

A local public entity is not liable for an injury resulting from an act or

omission of its employee where the employee is not liable. 745 Ill. Comp.

Stat. Ann. 10/2-109.

Except as otherwise provided by Statute, a public employee serving in a

position involving the determination of policy or the exercise of discretion

is not liable for an injury resulting from his act or omission in determining

policy when acting in the exercise of such discretion even though

abused.” 745 Ill. Comp. Stat. Ann. 10/2-201 (2012).

“Read together, these sections shield a municipality from liability for the discretionary

acts or omissions of its employees.” Andrews, 2019 IL 124283, at ¶ 23 (citing Smith v.

Waukegan Park Dist., 231 Ill. 2d 111, 118 (2008)).

Because the Tort Immunity Act “is in derogation of the common law, it must be

construed strictly against the public entity seeking immunity”, and the public entity or

employee asserting the defense “bears the burden of proving it is entitled to that

immunity.” Andrews, 2019 IL 124283 (citing Snyder v. Curran Twp., 167 Ill. 2d 466, 477

(1995), Van Meter v. Darien Park Dist., 207 Ill. 2d 359, 370 (2003)). The Illinois Supreme

Court has outlined a twofold test for determining whether a municipality is entitled to

discretionary immunity:

The municipal defendant must establish that (1) the employee held either a

position involving the determination of policy or a position involving the

exercise of discretion and (2) the employee engaged in both the

determination of policy and the exercise of discretion when performing the

act or omission from which the plaintiff's injury resulted.

Andrews v. Metro. Water Reclamation Dist. of Greater Chicago, 2019 IL 124283, at ¶ 27

(emphasis in original). “Policy determinations” are “decisions requiring the public entity

or employee to balance competing interests and make a judgment call as to what

solutions will best serve each of those interests.” Andrews, 2019 IL 124283 (citing Harrison

v. Hardin Cnty. Cmty. Unit Sch. Dist. No. 1, 197 Ill. 2d 466, 472 (2001)). These interests may

include safety, convenience, and cost. Andrews, 2019 IL 124283 (citing West v. Kirkham,

147 Ill. 2d 1, 11 (1992)).

“Exercises of discretion are those that are ‘unique to a particular public

office.’” Andrews, 2019 IL 124283 (citing Snyder, 167 Ill. 2d at 474). “An employee's act or

omission will be deemed discretionary where the employee has exercised ‘personal

deliberation and judgment in deciding whether to perform a particular act, or how and

in what manner that act should be performed.'” Andrews, 2019 IL 124283 (quoting Monson

v. City of Danville, 2018 IL 122486, ¶ 30). “Determining whether an act or omission is

discretionary should be made on a case-by-case basis depending on the particular facts

and circumstances.” Andrews, 2019 IL 124283 (citing Snyder, 167 Ill. 2d at 474). Further,

to invoke immunity under section 2-201, the municipality must present evidence that it

made a “conscious decision” with respect to the acts or omissions alleged in the

complaint, and the failure to do so is “fatal.” Id. at ¶ 31.

Here, Defendants argue that all individual Defendants faced the challenge of

balancing competing interests with a limited budget, thus requiring them to make policy

decisions and exercise discretion entitled to immunity under the Tort Immunity Act. As

examples, Defendants point to testimony from Defendants McCall, Traiteur, Jackson, and

Gentry, which show generally that Defendants knew of the ongoing infrastructure issues

and desire to find funding sources for those repairs, but that the City’s budget could not

support those repairs such that Defendants prioritized other projects (Docs. 142-1, 142-2,

142-3, 142-4).

Plaintiffs object to Defendants’ immunity argument because Defendants failed to

raise the defense in any of its Answers filed in this matter (Doc. 147). Indeed, Defendants

did not include this defense in its answers (Docs. 62, 64, 65). However, in the context of

the Tort Immunity Act, “an affirmative defense is not waived, despite the fact that it was

not raised in an answer to a complaint, if the defense is subsequently raised without

objection in a motion for summary judgment.” See Donath v. Vill. of Plainfield, 2020 IL

App (3d) 190762, ¶18; see also Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005)

(excusing waiver of affirmative because plaintiff “was not prejudiced; he was aware of

the exhaustion issue even when he filed his complaint, and he confronted the defense in

responding to the motion for summary judgment”). Plaintiffs argue that they were

prejudiced by Defendants raising their affirmative defense during their motion for

summary judgment. The Court is inclined to agree that Defendants were not dilatory in

raising their immunity defense. However, because the Court finds that material issues

of fact are in dispute over this issue such that Defendants are not entitled to summary

judgment, the Court finds that Plaintiffs were not prejudiced by the late raising of this

defense. Further, due to the Court’s imposition of the limited stay detailed above, should

Plaintiffs determine they need additional relief related to this defense so to avoid

prejudice at trial, Plaintiffs may present an appropriate motion to the Court for

consideration.

Turning to the merits of Defendants’ immunity defense, the Court finds that

material issues of fact are in dispute over this issue, such that Defendants are not entitled

to summary judgment. Some of the evidence in the record supports Defendants’ view

that they made conscious decisions to not allocate funding or complete repairs for the

issues in Plaintiffs’ Complaint. However, much of the active decision-making, to the

extent it can be considered conscious decision-making, appears to have occurred after the

Illinois EPA and United States EPA’s involvement in the case, in or about 2019-2021. Prior

to that time, evidence in the record supports Plaintiffs’ view that Defendants were not

making affirmative decisions concerning these issues and were not otherwise

deliberating on how to prioritize the ongoing infrastructure issues in light of the city’s

budgeting concerns.

For example, Centerville’s former Mayor and Street Administrator both testified

that they did not know Centreville had any obligations to maintain certain stormwater

ditches, lift stations, or the sanitary sewer system until about 2019 (Doc. 147-14; Doc. 147-

16). Specifically, Defendant Jackson, who served as Mayor of Centreville from 2007 to

2021, testified to not knowing that the city had any obligation to maintain certain

stormwater ditches, in part, because his administration never reviewed agreements that

the city entered into before their tenure:

Q. When you became the mayor, what was the -- what was the process of

you taking over from your predecessor?

[Mr. Jackson] Pretty much we went in, and we were -- we discussed things

that had been going on. But we didn't, like, open up file cabinets and look

at file cabinets and what was supposed to be done by the new

administration.

Q. And at no point did you ever -- well, let me ask you this. Let me say that.

That was coming out wrong. At any point after becoming mayor, did you

go through the filing cabinet and review agreements that the City may have

entered into before your tenure?

[Mr. Jackson]. No, ma'am.

Q. At no point in your -- in the entire 16 years that you were mayor?

[Mr. Jackson]. Only when -- no, I didn't.

(Doc. 147-14, pp. 15-16; see also Doc. 147-14, pp. 3-4). Similarly, Defendant Allen,

Centerville’s former Street Administrator, testified that he did not know his job included

maintaining lift stations or the sanitary sewer system until 2019 “when someone from the

EPA” told him (Doc. 147-16, pp. 3, 8).

Further, as for the specific decision-making procedures for reviewing budget

proposals or for prioritizing the allocation of funds to specific projects, Centerville’s

former Treasurer, Ms. Millard, testified that there was no city budget prepared during

her eight-year tenure, from approximately 2014-2021, because “there wasn’t money to do

nothing.” (Doc. 147-20, p. 6). Centreville’s former General Manager, Dennis Traiteur,

also testified that from 2003 to 2001, he never approached the board to request funding

for the ongoing inflow and infiltration issues because he believed the board would not

want to raise rates to afford the cost of repairs (Doc. 147-17, pp. 11-13). However, Mr.

Traiteur also confirmed that Defendants never asked for or prepared estimates for those

repairs, and otherwise did not have a priority list for allocating funding to certain repairs:

Q. Okay. So then how did you know what the cost was going to be? And

I'm going to back up. What was the approximate cost to resolve the inflow

and infiltration issues in the system?

A. I do not know.

Q. Okay. So then how did you know that it would be too costly and that the

board would not approve it because it would raise rates?

A. Through discussions with the board, we knew that it would be very

costly to make improvements to the sewer lines in that area because of

the age of the sewer lines.

Q. Okay. But nobody had any documents prepared that they were

consulting with that gave them the actual costs?

A. No. There was no engineer estimates produced.

Q. Okay. And outside of engineers, you didn't collect any information, or

the board didn't collect any information that gave them a cost of what it

would take to resolve the inflow and infiltration?

A. No.

Q. Okay. And why?

A. Why did we not prepare?

Q. Why didn't you -- why didn't you -- yeah. Why didn't you figure out

how much it was going to -- why didn't you obtain a price quote for how

much it would cost to resolve these issues in the system?

A. We -- we had so many other issues to deal with in our district that we

just did not address it.

Q. Okay. What were the other areas that you had to deal with?

A. We had water main relocations. We had other lift stations that needed

to be replaced. Various different projects going on constantly in our

system.

Q. Okay. And so then was there a prioritization system that you all were

using to determine which lift stations and which locations would be

prioritized as far as funding for resolution of issues?

A. Did we prepare an actual priority list? No.

(Doc. 147-17, pp. 11-13).

As for their actions to secure funding resources for the infrastructure repairs,

Defendant Jackson testified that he did not recall actively reaching out for funding

resources from any County, State, or agency until 2018 or 2019 (Doc. 142-1, pp. 233-36).

Similarly, Defendant Gentry, Centreville’s former City Administrator and TIF Director,

who also oversaw the City’s finances, testified that Centerville had not had an

opportunity to apply for a federal grant since 2004 (Doc. 147-15, pp. 30-31).

While there is some evidence in the record that Defendants were engaging in some

decision making concerning the ongoing infrastructure issues and allocation of the City’s

limited financial resources, other parts of the record show that Defendants were unaware

of the City’s obligations to maintain the stormwater ditches, lift stations, and sewer

systems, or to prepare annual budgets. Thus, a reasonable jury could infer that

Defendants did not make any decision, let alone a conscious decision, about these issues

because they did not know they held an obligation to make them in the first place.

Moreover, it is not outwardly apparent from the record that Defendants engaged in any

deliberate procedure or decision-making process concerning the allocation (or non-

allocation) of funds to the underlying sewer systems. See Andrews, 2019 IL 124283

(“Policy determinations” are “decisions requiring the public entity or employee to

balance competing interests and make a judgment call as to what solutions will best serve

each of those interests).

The Illinois Supreme Court instructs that immunity under the Tort Immunity Act

is not available for nondecisions. See Andrews, 2019 IL 124283 (“In the absence of a

judgment call and a weighing of risks and benefits, there is nothing to protect. . . .

[I]mmunizing a nondecision would reward public officials and employees who ignore

problems instead of addressing them. It also would broaden the scope of discretionary

immunity well beyond what the legislature intended.”). Thus, to be entitled to immunity,

the statute requires “that the act or omission giving rise to the injuries must constitute

both an exercise of discretion and a determination of policy.” Id. at ¶ 37. “This language

requires that the entity or person claiming immunity must have made an actual decision

to take no action given the circumstances.” Id. Here, there are material questions of fact

as to whether Defendants made any affirmative decisions to not proceed with

infrastructure repairs, and instead allocate funding to other projects, or whether

Defendants even sought to determine an estimate of the costs that would be needed to

make those repairs. Given the conflicting evidence in the record, genuine issues of fact

exist as to whether Defendants’ actions could be characterized as discretionary versus

ministerial. Because it is inappropriate to resolve these issues or weigh evidence at this

stage, see Washington v. Haupert, 481 F.3d 543, 551 (7th Cir. 2007), summary judgment is

not appropriate.

Summary judgment is also not appropriate on Plaintiffs’ takings claims. A

property owner possesses an “actionable Fifth Amendment takings claim when the

government takes his property without paying for it.” Knick v. Twp. of Scott, Pennsylvania,

139 S. Ct. 2162, 2167 (2019). Regularly recurring government-induced flooding of a

property can also constitute to a compensable “taking” for purposes of the Fifth

Amendment. See Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23, 32

(2012) (“[W]here real estate is actually invaded by superinduced additions of water,

earth, sand, or other material ... so as to effectually destroy or impair its usefulness, it is a

taking, within the meaning of the Constitution.”) (citing Pumpelly v. Green Bay &

Mississippi Canal Co., 80 U.S. 166 (1871)). To establish a taking, Plaintiffs must show that

the government directly and proximately caused the flooding. See Ministerio Roca Solida,

Inc. v. United States, 156 Fed. Cl. 346, 365 (2021).

Defendants maintain that they took no affirmative government actions which

directly and proximately caused the alleged damaged to Plaintiffs’ property (Doc. 142).

Instead, Defendants proffer that the chronic flooding is caused by a lack of governmental

action and/or other stormwater conditions in the area, and any alleged inaction on their

parts in not funding or maintaining the sewer infrastructure cannot constitute intentional

affirmative action to support Plaintiffs’ takings claims (Doc. 142) (citing St. Bernard Par.

Gov't v. United States, 887 F.3d 1354, 1360–62 (Fed. Cir. 2018) (takings claims must be

based “on affirmative government acts,” and the government cannot be liable for a mere

“failure to act.”)). However, here there are material issues of fact in dispute as to whether

the damage to Plaintiffs’ properties resulted from affirmative government actions

authorized by Defendants.

There is evidence in the record that suggests Defendants authorized some repairs

to lift stations on an “as needed basis” in response to communications received or

violation notices issued from the environmental Agencies, opposed to a systemic

approach. (Doc. 142-1, p. 32) (Marius Jackson compared his approach to fixing the

ongoing sewerage issues as a “Band-Aid” that would never repair the actual problem);

(Doc. 147-12) (Correspondence from the Illinois EPA indicating that additional sewer

overflow complaints were received, and encouraging Defendants to conduct periodic

investigations to better plan for sewer repairs and replacements); (Doc. 147-16, pp. 21-22)

(Corey Allen testified that the procedure for investigating residential complaints

involved him physically inspecting an address after being provided with the information

from City Hall, but that there was no real system in place for him to communicate that he

had addressed the concern unless he needed to hire an outside contractor or vendor);

(Doc. 147-17, p. 13) (Dennis Traiteur testified that the City had no priority list for

determining which lift stations and locations would be prioritized for repair or

replacement).

Plaintiffs further testified that these fragment repairs sometimes resulted in

unfinished work and contributed to the worsening conditions on their properties. (Doc.

147-13, ¶¶ 7-10) (Plaintiff Bennett stated that some work performed by the City to the

ditches in his front yard was left unfinished, resulting in a large tree blocking the ditch,

which obstructed the ability for water to flow and contributed to the worsening

conditions on his property). Accordingly, whether these fragmented actions caused or

contributed to the ongoing sewage overflows on Plaintiffs’ properties is a material

dispute of fact that is inappropriate for resolution at summary judgment. See Washington,

481 F.3d at 551 (the Court does not make credibility determinations or weigh the evidence

at summary judgment). For these reasons, Defendants’ Motion for Summary Judgment

(Doc. 141) is DENIED.

Remaining Motions

Finally, based on the above findings, the Court DENIES, without prejudice,

Defendant Centerville’s Motion to Bar the Supplemental Report of Plaintiff’s Expert Jose

A. Constantine (Doc. 138) and Plaintiffs’ Motion to Bar Defendants’ Untimely Documents

and for Sanctions (Doc. 150). To the extent the issues raised in these motions are relevant

to the admissibility of documents and testimony at trial, the parties are granted leave to

refile the motions upon the lifting of the above stay of proceedings. Plaintiff's Motion to

Strike the Reply at Doc. 144 (Doc. 150) is also DENIED.

SO ORDERED.

Dated: January 5, 2024 Dp LI

J y Qn |

DAVID W. DUGAN

United States District Judge

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