City of East St. Louis, Illinois v. Monsanto Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CITY OF EAST ST. LOUIS, )

)

Plaintiff, )

)

vs. ) Case No. 3:21-cv-232-DWD

)

MONSANTO CO., PHARMACIA LLC, )

and SOLUTIA, INC., )

)

Defendants. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Before the Court are Defendants’ Combined Motion to Dismiss Certain Request

for Relief under Federal Rule of Civil Procedure 12(b)(1) (Doc. 145) and Plaintiff’s Motion

to Dismiss Defendants’ Counterclaim (Doc. 138) under Rule 12(b)(1) and (6). The Motions

are now fully briefed and ripe for a ruling. (Docs. 142, 143, 146, 147). Consistent with the

reasoning that follows, each Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

This case was removed from the Circuit Court of St. Clair County, Illinois. (Doc.

1). Plaintiff filed a Second Amended Complaint for Damages and Abatement (“Second

Amended Complaint”) (Doc. 129) against all Defendants, alleging a public nuisance

(Count I), violations of Plaintiff’s Municipal Code (§ 50-71 (Nuisance)) (Count II),

abatement under Plaintiff’s Municipal Code (§§ 50-79 and 62-2) (Count III), a continuing

trespass (Count IV), a design defect (Count V), a failure to warn and instruct (Count VI),

and negligence (Count VII). (Doc. 1, generally). Plaintiff’s allegations pertain to “the

contamination of vast swaths of its land with polychlorinated biphenyls… manufactured

in Defendants’ Monsanto Plant in adjacent Sauget, Illinois.” (Doc. 129, pg. 1).

Also, Defendants filed a Counterclaim (Doc. 130) under 42 U.S.C. § 1983 for certain

alleged constitutional violations by Plaintiff under the color of state law. Specifically,

Defendants allege: (1) due process violations related to Plaintiff’s arbitrary and vague

enforcement of its ordinances (Count I); (2) due process violations stemming from

Plaintiff’s oppressive delay in prosecution (Count II); (3) violations of the Ex Post Facto

Clause due to Plaintiff’s attempt to retroactively penalize Defendants’ conduct under its

ordinances (Count III); (4) violations of the excessive fines clause due to the “punitive and

grossly disproportionate” nature of the penalties in relation to the gravity of the alleged

conduct (Count IV); and (5) an equal protection violation due to the “malicious or

improper application” of Plaintiff’s ordinances (Count V). (Doc. 130, generally).

II. ANALYSIS

Now, Defendants move to dismiss certain relief, requested in the Second

Amended Complaint under Plaintiff’s ordinances, pursuant to Rule 12(b)(1). Plaintiff, for

its part, moves to dismiss Defendants’ Counterclaim under Rule 12(b)(1) and (6).

A. Defendants’ Combined Motion to Dismiss

Certain Request for Relief Under Rule 12(b)(1) (Doc. 145)

In Count II, Plaintiff invokes § 50-71(a) of its Municipal Code, which states: “No

person shall create, commit, permit or continue a nuisance of any kind or description

in, upon or about any private property or public place within the city which may affect

the health, comfort or convenience of persons residing or doing business in the

vicinity.” City of East St. Louis, Illinois, Municipal Code § 50-71(a). As the sole request

for relief, aside from interest and any other relief thought just and proper by the Court,

Count II states: “The East St. Louis Municipal Code further provides…that each violation

of East St. Louis, Ill., Municipal Code § 50-71(a) ‘shall be punished by a fine not exceeding

$750.00’ and that ‘[e]ach day any violation of any provision of this Code or of any

ordinance shall constitute a separate offense.’ ” (Doc. 129, pg. 28) (quoting City of East St.

Louis, Illinois, Municipal Code § 1-15(a)). By extension, § 1-15(a), which is the primary

subject of the Defendants’ Combined Motion to Dismiss under Rule 12(b)(1), states:

Whenever in this Code or in any ordinance of the city any act is prohibited

or declared to be unlawful or an offense, or whenever in such Code or

ordinance the doing of any act is required or the failure to do any act is

declared to be unlawful, where no specific penalty is provided therefor,

the violation of any such provision of this Code or any ordinance shall be

a misdemeanor, to the extent permitted by 65 ILCS 5/1-2-1.1, and, in any

case, shall be punished by a fine not exceeding $750.00 and/or

imprisonment not exceeding six months. Each day any violation of any

provision of this Code or of any ordinance shall constitute a separate

offense.

City of East St. Louis, Illinois, Municipal Code § 1-15(a).

Moreover, the statute enabling the enactment of § 1-15(a) of Plaintiff’s Municipal

Code, namely, § 1-2-1.1 of the Illinois Municipal Code, states:

The corporate authorities of each municipality may pass ordinances, not

inconsistent with the criminal laws of this State, to regulate any matter

expressly within the authorized powers of the municipality, or incidental

thereto, making violation thereof a misdemeanor punishable by

incarceration in a penal institution other than the penitentiary not to exceed

6 months. The municipality is authorized to prosecute violations of penal

ordinances enacted under this Section as criminal offenses by its corporate

attorney in the circuit court by an information, or complaint sworn to,

charging such offense. The prosecution shall be under and conform to the

rules of criminal procedure. Conviction shall require the municipality to

establish the guilt of the defendant beyond reasonable doubt.

65 ILCS 5/1-2-1.1; (Doc. 145, pg. 2).

In their Motion, Defendants argue § 1-15(a) imposes state criminal penalties, such

that the Court lacks subject matter jurisdiction to award the $750 fines requested in Count

II for violations of § 50-71(a). (Doc. 145, pgs. 1-3). Further, Defendants argue Plaintiff’s

request for fines under § 1-15(a), rather than imprisonment, “does not change the criminal

nature of the relief requested.” (Doc. 145, pg. 3). Notably, though, Defendants suggest the

Court only lacks subject matter jurisdiction over the relief sought in Count II. (Docs. 145,

pgs. 4-5; 147, pg. 3). Defendants note Plaintiff seeks abatement in the Second Amended

Complaint, generally, and in Count III, specifically. (Doc. 147, pgs. 1-2). Defendants

emphasize, as at the time of removal, Plaintiff’s claims are civil and diversity exists. (Doc.

145, pg. 5). When arguing for a dismissal of the § 1-15(a) relief and against a remand, as

Plaintiff seeks in the alternative, Defendants state the Court cannot “remand a case in its

entirety where there is subject matter jurisdiction over some portion.” (Doc. 145, pg. 5).

In response, Plaintiff argues “this is a civil case, daily fines included.” (Doc. 146,

pg. 3). Although subject matter jurisdiction cannot be waived, Plaintiff argues Defendants

should be bound by their initial position that this is a civil action. (Doc. 146, pgs. 3, 9-10).

In addition, Plaintiff suggests “there is no basis” to conclude the fines contemplated by

§ 1-15(a) represent criminal, as opposed to civil, penalties. (Doc. 146, pg. 4). Plaintiff

points out that a municipality’s authority to collect fines for ordinance violations is a civil

function in Illinois, and Defendants are not natural persons who may be incarcerated

under § 1-15(a). (Doc. 146, pgs. 10-11). As such, Plaintiff suggests Defendants “focus[] on

a…punishment (imprisonment)” that they do not face in this litigation. (Doc. 146, pgs. 12,

15-16). Since Defendants cannot be deprived of liberty through imprisonment, and “not

all violations punishable by Section 1-15(a) are misdemeanors” requiring imprisonment,

Plaintiff argues there is no reason to extend the additional procedural protections

contained in § 1-2-1.1 of the Illinois Municipal Code to Defendants. (Doc. 146, pgs. 12-14).

Even if § 1-15(a) imposes criminal penalties, however, Plaintiff argues a remand of the

entire case or, at least of Count II, is the proper remedy. (Doc. 146, pgs. 4, 16-17, 21).

Plaintiff reasons, if § 1-15(a) imposes criminal penalties, then it would have never been

appropriate to remove the case, as “Defendants understood when they removed the

citations that the City sought fines under…Section 1-15(a).” (Doc. 146, pgs. 4-5, 17-19).

Now, under Rule 12(b)(1), a party may assert a lack of subject matter jurisdiction

in a motion to dismiss. Fed. R. Civ. P. 12(b)(1). As is widely known, the Court must

dismiss an action, at any time, if it finds a lack of subject matter jurisdiction. Fed. R. Civ.

P. 12(h)(3); Golemine, Inc. v. Town of Merrillville, Indiana, 652 F. Supp. 2d 977, 980 (N.D. Ind.

2009). Moreover, as Defendants note, it is commonly understood that the Court lacks

subject matter jurisdiction over state criminal matters. See U.S. v. Brown, 58 F. Supp. 3d

115, 120-21 (D.C. 2014) (citing Beal v. Missouri Pacific R.R. Corp., 312 U.S. 45, 49-50 (1941);

Jerome v. U.S., 318 U.S. 101, 104-05 (1943); U.S. v. Hudson, 11 U.S. 32, 32-34 (1812)).

In Illinois, prosecutions of municipal ordinances solely for the collection of fines

“have long been treated as quasi-criminal in character but civil in form.” See City of

Danville v. Hartshorn, 53 Ill. 2d 399, 401-02 (1973); accord Young v. City of Pekin, 2015 IL App

(3d) 140484-U, ¶ 25; see also City of Decatur v. Chasteen, 19 Ill. 2d 204, 216 (1960) (“An action

to recover a penalty for the violation of a municipal ordinance, though quasi-criminal in

character, is civil in form and is ordinarily termed a civil action and not a criminal

prosecution.”). But the Illinois Code of Civil Procedure only “appl[ies] to the prosecution,

through the judicial system, of violations of ordinances passed pursuant to…section 1-2-

1 of the Illinois Municipal Code…or home rule authority for which the penalty does not

include the possibility of a jail term.” Ill. S. Ct. Rs. 570, 571 (Emphasis added.);

see also Village of Downers Grove v. Village Square III Condominium Ass’n, 2022 IL App (2d)

210098, ¶ 70 (“[W]hen…the violation of an ordinance does not carry the possibility of a

jail term, the Code of Civil Procedure applies.”). However, if the violation of an ordinance

carries the possibility of imprisonment, as a result of being passed pursuant to section 1-2-

1.1 of the Illinois Municipal Code, then the action is criminal in nature and implicates the

criminal rules of procedure. See Village of Cary v. Pavis, 171 Ill. App. 3d 1072, 1075 (1988)

(“Where the corporate authorities pass an ordinance to regulate a matter within their

corporate powers and provide for a penalty of incarceration, section 1–2–1.1 of the Illinois

Municipal Code…provides, in part, that the prosecution ‘shall be under and conform to

the rules of criminal procedure’ and the municipality must ‘establish the guilt of the

defendant beyond a reasonable doubt.’ ”); Peoria County v. Schielein, 87 Ill. App. 3d 14, 15-

17 (1980) (holding case with a complaint, filed against a person for violating an ordinance,

was a criminal proceeding implicating criminal rules, where, inter alia, violations of the

ordinance were punishable, as a misdemeanor, by fines and/or the possibility of

imprisonment); Chau v. Chicago Public School Dist. No. 299, 2013 IL App (1st) 111244-U,

¶ 45 (“It is clear that violations of section 13.1 of the School Code are criminal in nature

because the possibility of imprisonment is a penalty; thus, it is subject to the protections

of the Constitution.”); City of Braidwood v. Williams, 2012 IL App (3d) 110757-U, ¶ 11

(“[O]ur lawmakers have established that rules of criminal procedure must be followed in

a prosecution for ordinance violations where a conviction could result in incarceration.”).

It is notable, too, that the Supreme Court has outlined considerations for assessing

whether a punishment is criminal or civil. See Hudson v. U.S., 522 U.S. 93, 99 (1997);

see also Nelson v. Town of Paris, 78 F.4th 389, 392, 395 (7th Cir. 2023) (Seventh Circuit

employing the considerations to assess whether a town’s ordinance pertaining to

residency restrictions on sex offenders was punitive); City of Neodesha v. BP Corp. North

America Inc., 176 F. Supp. 3d 1233, 1243-48 (D. Kan. 2016) (employing the considerations

to assess whether municipal waste ordinances provided civil penalties, such that the case

involved civil actions that could be removed under 28 U.S.C. § 1441(a)). The assessment,

initially, is a matter of statutory construction. See Hudson, 522 U.S. at 99 (citing Helvering

v. Mitchell, 303 U.S. 391, 399 (1938)). That is, the Court first inquires as to “whether the

legislature, ‘in establishing the penalizing mechanism, indicated either expressly or

impliedly a preference for one label or the other.’ ” See id. (citing U.S. v. Ward, 448 U.S.

242, 248 (1980)); accord Nelson, 78 F.4th at 395. Importantly, if the Court finds the

legislature intended to impose a criminal punishment, then the law is penal and the

inquiry ends. See Nelson, 78 F.4th at 395 (quoting Smith v. Doe, 538 U.S. 84, 92 (2003)).

Second, even if the legislature indicated an intent for a civil penalty, the Court asks

“ ‘whether the statutory scheme was so punitive either in purpose or effect…as to

‘transfor[m] what was clearly intended as a civil remedy into a criminal penalty.’ ”

See Hudson, 522 U.S. at 99 (quoting Ward, 448 U.S. at 248-49; Rex Trailer Co. v. U.S., 350

U.S. 148, 154 (1956)); accord Nelson, 78 F.4th at 395. As part of this inquiry, courts have

looked to certain “useful guideposts.” See id. (quoting Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-69 (1963)); Nelson, 78 F.4th at 395, 398 (outlining five of the “useful

guideposts”). The “useful guideposts” must be considered in relation to the statute on its

face, “and ‘only the clearest proof’ will override the legislative intent and operate to

transform a civil remedy into a criminal penalty.” See id. (quoting Ward, 448 U.S. at 249).

Here, the Court cannot escape the conclusion that § 1-15(a) is criminal both in

nature and in substance. Whenever “any act is prohibited or declared to be unlawful or

an offense” by Plaintiff’s Municipal Code or ordinances, and there is “no specific

penalty…provided therefor,” as the parties appear to agree is the case as to § 50-71, the

violation “shall be a misdemeanor to the extent permitted by 65 ILCS 5/1-2-1.1.” City of

East St. Louis, Illinois, Municipal Code § 1-15(a) (Emphasis added.). At the hearing on the

instant Motion, Plaintiff sought to avoid this conclusion by relying on the language “to

the extent permitted by 65 ILCS 5/1-2-1.1.” However, the Court finds no inconsistencies

between what is allowed by § 1-2-1.1 of the Illinois Municipal Code and what Plaintiff

enacted with § 1-15(a). There is nothing in the record that would support the argument

that Plaintiff did not clearly intend to pass an ordinance that regulated matters within its

municipal powers by making certain violations of its Municipal Code or ordinances “a

misdemeanor punishable by incarceration in a penal institution other than the

penitentiary not to exceed 6 months.” 65 ILCS 5/1-2-1.1. In passing the ordinance,

Plaintiff enacted a “penal ordinance[]” that authorized prosecutions for violations of its

Municipal Code or ordinances, such as § 50-71, as criminal offenses requiring conformity

with criminal procedure rules. Id.

In short, § 1-15(a) does precisely what is permitted by § 1-2-1.1—it makes all

violations subject to its penalties a misdemeanor and, in any case, it provides for the

possibility of “a fine not exceeding $750 and/or imprisonment not exceeding six months.”

City of East St. Louis, Illinois, Municipal Code § 1-15(a); see also 730 ILCS 5/5-4.5-60

(defining a Class B misdemeanor as including, inter alia, “a determinate sentence of not

more than 6 months” and/or a minimum fine of $75 or “[a] fine not to exceed $1,500 for

each offense or the amount specified in the offense”). The Court finds, while Illinois

generally treats cases seeking only fines as quasi-criminal in character but civil in form,

§ 1-15(a)’s authorization of imprisonment and/or fines renders that ordinance criminal in

nature. Compare Hartshorn, 53 Ill. 2d at 401-02; Young, 2015 IL App (3d) 140484-U, ¶ 25;

Chasteen, 19 Ill. 2d at 216; with Ill. S. Ct. Rs. 570, 571; Village Square III Condominium Ass’n,

2022 IL App (2d) 210098, ¶ 70; Schielein, 87 Ill. App. 3d at 15-17; Chau, 2013 IL App (1st)

111244-U, ¶ 45; Williams, 2012 IL App (3d) 110757-U, ¶ 11. The Court emphasizes that the

language of § 1-15(a) commands this conclusion because the City expressly indicated a

preference for a criminal punishment. See Hudson, 522 U.S. at 99; Nelson, 78 F.4th at 395.

In reaching its conclusion, the Court finds Plaintiff’s other arguments to the

contrary are unpersuasive. In particular, the Court finds it cannot arrive at a conclusion

of whether § 1-15(a) is civil or criminal in nature based solely on the fact that the corporate

Defendants are not subject to incarceration as a matter of fact or as a matter of Plaintiff’s

discretion. That argument by Plaintiff oversimplifies the issue. For one thing, generally,

corporations and their officers and directors are subject to criminal prosecutions and

penalties. See, e.g., Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1018-19 (7th Cir.

2011); U.S. v. Doig, 950 F.2d 411, 412 (7th Cir. 1991); U.S. v. Segal, 299 F. Supp. 2d 840, 845

(N.D. Ill. 2004). If the Court focused on the effect on these Defendants, rather than on the

language of § 1-15(a), it would fail to capture whether § 1-15(a), when enacted as a

generally applicable ordinance, was intended to be civil or criminal in nature. Also, in

criminal cases, the imposition of a penalty is a judicial function, and “[o]ne cannot select

procedural rules to be applied to a particular case by voluntarily waiving the possibility

of certain statutory penalties for a given offense.” See Schielein, 87 Ill. App. 3d at 17.

Having found § 1-15(a) is criminal in nature, the Court must decide the proper

way forward in this case. Diversity jurisdiction remains satisfied, as it was at the time of

removal; however, in light of the above conclusion, the Court lacks subject matter

jurisdiction over the only relief specifically requested by Plaintiff in Count II.

Notably, “[i]f at any time before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); accord

Matter of Continental Cas. Co., 29 F.3d 292, 293-94 (7th Cir. 1994). This provision has been

the subject of much discussion among courts addressing issues similar to those presented

in this case. As their decisions indicate, the Courts have not always spoken in unison on

the issues. The Court begins, as it must, with the guidance from our Supreme Court.

In Wisconsin Department of Corrections v. Schacht, the Supreme Court decided

whether claims, subject to an Eleventh Amendment bar, destroyed removal jurisdiction.

See 524 U.S. 381, 386 (1998). The Supreme Court noted, as to removal jurisdiction, courts

look at the case at the time it was filed in the state court. See id. at 390 (citing St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938)). The Supreme Court also noted

its case was akin to that in which “a later event…destroy[ed] previously existing

jurisdiction,” which causes “a federal court…[to] keep a removed case.” See id. at 391

(citing St. Paul Mercury Indem. Co., 303 U.S. at 293-95; Phelps v. Oaks, 117 U.S. 236, 240-241

(1886); Kanouse v. Martin, 15 How. 198, 207-10 (1853); Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 n. 7 (1988) (Emphasis in original.)). Since the case fell within the original

jurisdiction of the federal courts at the time of removal, the Supreme Court found the

later invocation of the Eleventh Amendment placed the particular claim beyond the power

of the federal courts but it did not destroy removal jurisdiction over the entire case. See id.

Also, under the plain language of § 1447(c), the Supreme Court rejected the

respondent’s argument that “if the ‘district court lack[ed] subject matter jurisdiction’ over

any claim, then every claim, i.e., the entire ‘case,’ [had to] be ‘remanded’ to the state court.”

See id. at 391-92 (Emphasis in original.). The Supreme Court emphasized “[a]n ordinary

reading” of § 1447(c) reveals that it references situations where a federal court lacks

subject matter jurisdiction over a case and not simply over one claim within a case. See id. at

392 (quoting § 1447(c)); see also Lutostanski v. Brown, 88 F.4th 582, 588 (5th Cir. 2023)

(stating “§ 1447(c) requires the court to remand the ‘case,’ not discrete claims.”);

compare 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim…if…the district court has dismissed all claims over which it has

original jurisdiction.”). Nevertheless, the Supreme Court acknowledged, “[c]onceivably,

one might also read the statute’s reference to ‘case’ to include a claim within a case as

well as the entire case,” such that a remand of the relevant claims, but not the entire case,

would be required. See Schacht, 524 U.S. at 392. These different readings of § 1447(c) were

inconsequential in Schacht. See id. The Supreme Court reiterated its conclusion as follows:

A State’s proper assertion of an Eleventh Amendment bar after removal

means that the federal court cannot hear the barred claim. But that

circumstance does not destroy removal jurisdiction over the remaining

claims in the case before us. A federal court can proceed to hear those other

claims, and the District Court did not err in doing so.

See id. at 392-93.

Notwithstanding the Supreme Court’s recognition of § 1447(c)’s “ordinary

reading,” some courts have acted pursuant to the other “[c]onceivabl[e]” reading of that

statute by remanding some, but not all, of the claims to the state court. See id. at 392;

see also Gabriel, LLC v. PMG Mid Atlantic, LLC, No. 21-TDC-2961, 2023 WL 6879091, *3 (D.

Md. Oct. 18, 2023); Tarpon Transp. Servs., Inc. v. Total Quality Logistics, LLC, No. 20-cv-2656,

2021 WL 3111641, *3 (M.D. Fla. July 22, 2021); Buscema v. Wal-Mart Stores East LP, 485 F.

Supp. 3d 1319, 1330-33 (D. N.M. 2020); Machlan v. Procter & Gamble Co., 77 F. Supp. 3d

954, 960-61 (N.D. Cal. 2015), abrogated on other grounds, Davidson v. Kimberly-Clark Corp.,

889 F.3d 956 (2018); California v. Northern Trust Corp., No. 12-cv-1813, 2013 WL 1561460,

*5-6 (C.D. Cal. April 10, 2023). At base, the divergent views of the courts can best be

attributed to differences of opinion on how to read § 1447(c) in light of the Schacht.

In Lee v. American National Insurance Company, the Ninth Circuit recognized Schacht

“makes clear that a district court may not under § 1447(c) remand a case in its entirety

where there is subject matter jurisdiction over some portion of it.” See 260 F.3d 997, 1002

(9th Cir. 2001). Similarly, Lee acknowledged, under Schacht, a “case must be remanded

only if subject matter jurisdiction is lacking over the entire case, and not over just some of

the…claims.” See id. at 1006 (citing Schacht, 524 U.S. at 392) (Emphasis added.). Since the

district court lacked jurisdiction to decide only some, but not all, of the claims, the Ninth

Circuit in Lee concluded the district court “could not have remanded…[the] entire case.”

See id. Whether the defective claims were dismissed by the district court or by the

plaintiff, the Ninth Circuit noted that there should be no obstacle to the refiling of the

claims in the state court, as the plaintiff apparently had viable and timely claims. See id.

When reaching these conclusions, however, the Lee court stated that it did not have

to decide whether the district court could remand only the defective claims, as that was

not the position taken on appeal. See id. at 1007. As an aside, though, the Lee court noted:

Schacht left open the possibility that § 1447(c) might permit a district court

to retain claims over which the court has subject matter jurisdiction, but

remand those over which it lacks jurisdiction. 524 U.S. at 392, 118 S.Ct.

2047. (“Conceivably, one might also read [§ 1447(c)’s] reference to ‘case’ to

include a claim within a case as well as the entire case....[This reading]

requires remand only of the relevant claims, and not the entire case.”). Some

support for this interpretation of § 1447(c) derives from the historical

origins of the term “civil action” in the removal statutes. See Charles D.

Bonanno Linen Serv. Inc. v. McCarthy, 708 F.2d 1, 11 (1st Cir. 1983); Langford

v. Gates, 610 F. Supp. 120, 122 (C.D. Cal. 1985). For the procedural reasons

delineated in the text, however, we have no occasion in this case to decide

whether such a partial remand would be appropriate.

Id. at 1007 n. 8.

Here, Defendants seek for the Court to dismiss only the relief requested under § 1-

15(a) in Count II of the Second Amended Complaint. Plaintiff seeks a remand of the entire

case or, at the very least, of Count II to the Circuit Court of St. Clair County. Based upon

the above-cited authorities, the Court cannot agree with Defendants or Plaintiff.

On the one hand, in light of the “ordinary reading” of § 1447(c) discussed in

Schacht and its progeny, the Court disagrees with Plaintiff that a full remand of this case

is appropriate. Also, the Court disagrees with Plaintiff that, if § 1-15(a) is criminal in

nature, then a remand of the entire case would have been appropriate at the time of the

removal to this Court. As noted by the parties in their briefing and at the hearing on this

Motion, the parties were diverse at the time of the removal and only two out of the three

original claims alleged by Plaintiff, none of which remain in this case, implicated § 1-15(a)

as a penalty. The third claim, which arose under § 94-91 of Plaintiff’s Municipal Code,

has its own specific penalty. See City of East St. Louis, Illinois, Municipal Code § 94-91(c).

Further, a partial remand of Count II is unwarranted. The substantive claim presented by

Count II, namely, a violation of § 50-71 of Plaintiff’s Municipal Code, was never filed in

the Illinois state courts. (Doc. 1-1, pgs. 2, 19, 36). To the contrary, Count II was alleged for

the first time in this case when Plaintiff filed its First Amended Complaint. (Doc. 29, pg.

18). As such, the Court is of the opinion that neither a full remand of the case nor a partial

remand of Count II is appropriate.

On the other hand, Defendants are correct that Plaintiff seeks abatement in the

Second Amended Complaint, generally, and in Count III, specifically.1 However,

1Count III invokes §§ 50-79 and 62-2 of Plaintiff’s Municipal Code. (Doc. 129, pgs. 29-31). Section

50-79 states: “Whenever any nuisance shall be found on any premises within the city, the officials are

authorized to cause such nuisance to be summarily abated in such a manner as may be directed.” City of

East St. Louis, Illinois, Municipal Code § 50-79. Section 62-2 states: “The health department shall cause all

abatement is not requested in Count II. Again, as alluded to above, the only relief

specifically requested in Count II are the fines contemplated by § 1-15(a). Here, no

argument is presented that Plaintiff is unable to seek those fines for violations of § 50-71.

Therefore, since the Court lacks subject matter jurisdiction to grant that relief, the Court

finds it is appropriate under the circumstances of this case for Count II to be DISMISSED

without prejudice. See Parker v. Fed. Highway Admin., No. 22-cv-291, 2022 WL 17103830,

*3 (S.D. Ind. Nov. 21, 2022) (remand could not be granted where “ordinary reading” of

§ 1447(c), recognized in Schacht, does not contemplate a “partial remand,” so the court

could only remand the case or dismiss the claims over which it lacked subject matter

jurisdiction); City of Almaty, Kazakhstan v. Ablyazov, No. 15-cv-5345, 2021 WL 1180058, *6-

7 (S.D. N.Y. March 29, 2021) (dismissing claims without prejudice because, although the

Supreme Court has not definitively decided whether § 1447(c) authorizes a remand of

individual claims, the “ordinary reading” of § 1447(c), recognized in Schacht, “strongly

suggest[s] that it does not,” especially where the claims did not originate in state court

and § 1447(c), unlike § 1441(c), refers to the “case” and not to the severance and remand

of “claims”). Accordingly, Defendants’ Combined Motion to Dismiss Certain Request for

Relief under Rule 12(b)(1) (Doc. 145) is GRANTED in part and DENIED in part.

B. Plaintiff’s Motion to Dismiss Defendants’ Counterclaim (Doc. 138)

Defendants’ Counterclaim arises under § 1983 and alleges constitutional

violations related to Plaintiff’s application of §§ 1-15, 50-71, 50-79, and 62-2 of its

nuisances to be abated or removed which it may deem prejudicial or obnoxious to the public health or

comfort and shall make such sanitary regulations as it may think necessary or expedient to prevent the

introduction or spreading of any contagious, malignant, infectious or pestilential disease.” Id. § 62-2.

Municipal Code. (Doc. 130, pg. 1).2 Defendants assert, “[b]y applying the Ordinances…

under a novel interpretation advanced by its outside counsel, the City…violates the Due

Process, Ex Post Facto, Excessive Fines, and Equal Protection provisions of the United

States Constitution.” (Doc. 130, pgs. 1-2). Defendants seek injunctive relief and a

declaration that the ordinances are unconstitutional as applied. (Doc. 130, pgs. 2, 13).

Now, Counts II, III, IV, and V appear to rely exclusively on Plaintiff’s application

of §§ 1-15 and 50-71. See, e.g., (Doc. 130, pg. 9) (“If the City claims that it is not interpreting

and applying differently its…Ordinances, and if the facts of this case reveal that the City

had a basis to pursue its Ordinance claims and theories years or even decades ago…then

the nearly 50 years of alleged ‘daily penalty’ liability will be the result of the City’s delay

in bringing the claims, such delay being oppressive, punitive, prejudicial and violative of

due process.”); (Doc. 130, pg. 10) (“The City seeks to penalize Defendants for trace levels

of PCBs allegedly present on City-owned property before the penalty provisions of the

Ordinances were added in the 1970s, as well as after. The City thus attempts to attach

new legal consequences beginning in the early 1970s, to events that predated the daily-

penalty ordinance.”); (Doc. 130, pg. 11) (“The City has alleged that its Code has a general

penalty clause which applies to all Ordinance violations and contends that, using that

provision (City Code § 1-15), it can assess daily penalties going back to the enactment of

the provision in the early 1970s.”); (Doc. 130, pg. 12) (“[T]he Ordinances at issue have

never been applied to the passive migration of substances invisible to the naked eye and

2Plaintiff has stated “[t]he ordinance claims remaining at issue are those under Section 50-71, which

is governed by Section 1-15(a), and Sections 50-79 and 62-2, which provide for the abatement or removal of

nuisances.” (Doc. 140, pg. 7 n. 6).

measured in parts per billion….[T]he City has never sought to collect daily penalties for

alleged Ordinance violations for the days, weeks, months, years or decades preceding the

issuance of a citation for such violations; instead, Defendants anticipate that discovery

will show the City’s starting point for collecting daily penalties has always been the date

a citation was issued, or the scheduled hearing date for such citation.”).

By virtue of the Court’s ruling with respect to Defendants’ Combined Motion to

Dismiss Certain Request for Relief under Rule 12(b)(1), however, Defendants’ bases for

asserting Counts II, III, IV, and V no longer exist. The dismissal of Count II of Plaintiff’s

Second Amended Complaint, without prejudice, means Plaintiff is not presently seeking

to apply §§ 1-15 or 50-71 against Defendants. Accordingly, the aforementioned Counts

are not ripe. See Amling v. Harrow Industs. LLC, 943 F.3d 373, 377-78 and n. 1 (7th Cir.

2019); Wisconsin Right to Life State Political Action Committee v. Barland, 664 F.3d 139, 148

(7th Cir. 2011); see also Golemine, Inc. v. Town of Merrillville, Indiana, 652 F. Supp. 2d 977,

981 (N.D. Ind. 2009) (“When a claim is not ripe, a court lacks subject matter jurisdiction.”).

For this reason, Counts II, III, IV, and V are DISMISSED without prejudice.

Likewise, Count I appears, at least partially, to also challenge Plaintiff’s

application of §§ 1-15 and 50-71. (Doc. 130, pg. 7) (“The Ordinances on their face provided

no notice that Defendants could be penalized for the alleged presence of trace levels of

PCBs on City-owned property.”). However, it is not altogether clear, based on

Defendants’ allegations, whether they are challenging Plaintiff’s application of §§ 1-15,

50-71, 50-79, and 62-2. Accordingly, the Court finds Count I must also be DISMISSED

without prejudice. For these reasons, the Motion to Dismiss Defendants’ Counterclaim

under Rule 12(b)(1) and (6) is GRANTED in part and DENIED in part. Defendants are

granted leave to refile their Counterclaim, if at all, within 21 days in light of these rulings.

III. CONCLUSION

Defendants’ Combined Motion to Dismiss Certain Request for Relief under Rule

12(b)(1) (Doc. 145) is GRANTED in part and DENIED in part. Count II of Plaintiff’s

Second Amended Complaint is DISMISSED without prejudice. Plaintiff’s Motion to

Dismiss Defendants’ Counterclaim under Rule 12(b)(1) and (6) is also GRANTED in part

and DENIED in part. Defendants’ Counterclaim is DISMISSED without prejudice.

SO ORDERED.

Dated: March 12, 2024

s/ David W. Dugan

__________________________

DAVID W. DUGAN

United States District Judge