Petition — Louisville & Jefferson County Metropolitan Sewer District v. City of Evansville

NOV 6 1979

IN THE

Mi@HAN BODAK, JR., CLERR

SUPREME COURT OF THE UNITED STATES.

October Term, 1979

nd 9-726

LOUISVILLE AND JEFFERSON COUNTY

METROPOLITAN SEWER DISTRICT,

Et Al., ° ‘ ° . Petitioners

versus

CITY OF EVANSVILLE, INDIANA, Et Al., - Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

FRED S. WHITE

BAMBERGER, FOREMAN, OSWALD & HAHN

708 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 425-1591

ROBERT G. BREETZ

STITES, McELWAIN & FOWLER

3400 First National Tower

Louisville, Kentucky 40202

Telephone: (502) 587-3400

Attorneys for Petitioner, Louisville and Jef-

ferson County Metropolitan Sewer District

EDWARD M. STEUTERMANN

WOOD, GOLDBERG AND PEDLEY

2800 First National Tower

Louisville, Kentucky 40202

Telephone: (502) 589-4440

Attorneys for Petitioners, Kentucky Liquid

Reeyeling, Inc., Donald Eugene Distler.

Charles W. Horn, Jr., and Joseph Alfred

Hess, Jr.

WESTERFIELO-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

Table of Cases and Statutes ..................55. ii

ican bakers ce Wee vscasdeceess 1

I 2

OPE TTT eT TEE 2

Statutory Provisions Involved ................... 2- 3

eee eee 3- 5

Reasons for Granting the Writ .................. 5-13

a Gy gan gs nb wiG's eee ves 14

Opinion and Order of the District Court (Appendix

ee I ee eee ae la- 6a

TABLE OF CASES AND STATUTES

—

Cases: PAGE

Committee for the Consideration of the Jones Falls

Sewage System v. Train, 5389 F. 2d 1006 (4th

ae a er er re err Perr re 9-10, 11

Georgia v. Tennessee Copper Co., 206 U.S. 230, 27

S. Ct. 618, 51 L. Ed. 1038 (1907) .............. 6, 7

Illinois v. Milwaukee, 406 U.S. 91, 92 S. Ct. 1385,

31 L. Ed. 2d 712 (1972) ..... 6, 7-8, 9, 10, 11, 12, 12-13

Parsell v. Shell Oil Co., 421 F. Supp. 1275 (D. Conn.

1976), aff'd mem. sub nom. East End Yacht Club

v. Shell Oil Co., 573 F. 2d 1289 (2d Cir. 1977) ..10, 12

Stream Pollution Control Board of the State of

Indiana v. United States Steel Corp., 512 F.2d.

Ne is Sides keen bee aS 9

United States v. Ira S. Bushey & Sons, Inc., 363 F.

Supp. 110 (D. Vt. 1973), aff’d mem., 487 F. 2d

1393 (2d Cir. 1973), cert. denied, 417 U.S. 976,

94 S. Ct. 3182, 41 L. Ed. 2d 1146 (1974) ........ 9

United States v. Stoeco Homes, Inc., 498 F. 2d 597

(3d Cir. 1974), cert. denied, 420 U. S. 927, 95

8. Ct. 1124, 43 L. Ed. 2d 397 (1975) ........... 9

Statutes:

ee eae ed dab Nas exekaanees Ks 2

Re eee ae ere oe 2, 3, 5

ND 4 dda Viena dc had vacbew'a tua 2-3, 7, 11, 13

Federal Water Pollution Control Act, 33 U.S.C.

ES ga picks pees hn shee ew ences Kees 3, 4

Safe Drinking Water Act, 42 U.S.C. § 300f, et seq.. 3,4

Rivers and Harbors Act of 1889, 33 U.S.C. ¢ 407,

_- SEPeP ere reer ets CEC CET CREE LTETE CELE EET +

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

LOUISVILLE AND JEFFERSON CouNTY METRO-

POLITAN SEWER District, Er At. - Petitioners

Vv.

City OF EVANSVILLE, INDIANA, Et AL. - Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to

review the judgment and order of the United States

Court of Appeals for the Seventh Circuit in City of

Evansville, Indiana, et al. v. Kentucky Inquid Recyc-

ling, Inc., et al., No. 78-1578, entered August 9, 1979.

OPINIONS BELOW

The decision and judgment of the Court of Appeals

is not yet reported. It is reprinted as Appendix B.

The decision and judgment of the United States Dis-

trict Court for the Southern District of Indiana, en-

tered on Mareh7, 1978 and March 23, 1978, respectively,

are not reported, and are reprinted as Appendix A.

bo

JURISDICTION

The judgment of the Court of Appeals was entered

on August 9, 1979. This Petition for Certiorari was

filed within ninety days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Should the application of the federal common law

of nuisance be expanded to permit municipalities, rep-

resenting local pecuniary interests rather than state

governmental interests, to invoke the jurisdiction of

the federal courts to pursue claims for money damages

allegedly sustained as a result of the pollution of a

navigable interstate waterway ?

STATUTORY PROVISIONS INVOLVED

This case involves the federal common law of nuis-

ance, the federal question statute, 28 U.S.C. § 1331(a)

and the diversity statute, § 1332(a).

28 U.S.C. § 1331(a) provides:

“The district courts shall have original jurisdic-

tion of all civil actions wherein the matter in con-

troversy exceeds the sum or value of $10,000, ex-

elusive of interest and costs, and arises under the

Constitution, laws, or treaties of the United

States.”’

98 U.S.C. § 1332(a) provides:

‘‘The district courts shall have original jurisdic-

tion of all civil actions where the matter in con-

3

troversy exceeds the sum or value of $10,000, ex-

clusive of interest and costs, and is between: (1)

citizens of different States; (2) citizens of a State,

and foreign states or citizens or subjects thereof ;

and (3) citizens of different States and in which

foreign states or citizens or subjects thereof are

additional parties.’’

STATEMENT OF THE CASE

The jurisdiction of the United States District Court

was invoked pursuant to 28 U.S.C. § 1331, 33 U.S.C.

§ 1251, et seg. and 42 U.S.C. § 300f, et seg. The United

States District Court dismissed the complaint for lack

of subject matter jurisdiction, and on appeal, the Court

of Appeals reversed the dismissal order, in part, hold-

ing that the plaintiffs stated a claim for relief under

the federal common law of nuisance and that the Dis-

trict Court had jurisdiction pursuant to 28 U.S.C.

§ 1331, the federal question statute.

On July 13, 1977, the Respondents, City of Evans-

ville, Indiana, City of Mt. Vernon, Indiana, and The

Waterworks Department of the Waterworks District

of the City of Evansville (hereinafter ‘‘Cities’’) filed

a class action complaint seeking money damages for

expenses allegedly incurred by them as a result of the

discharge of pollutants into the Ohio River. In their

complaint, Cities purported to represent all cities and

towns situated along the Ohio River between Louis-

ville, Kentucky and Cairo, Illinois. The complaint

alleged that the Petitioners, Louisville and Jefferson

County Metropolitan Sewer District (hereinafter

4

‘““MSD’’), Kentucky Liquid Recycling, Ine. (herein-

after ‘‘KLR’’), Donald Eugene Distler (hereinafter

‘Distler’’?), Charles W. Horn, Jr. (hereinafter

‘‘Horn’’), and Joseph Alfred Hess, Jr. (hereinafter

‘‘Hess’’), intentionally and unlawfully discharged

highly toxie chemicals, pollutants and refuse into the

Ohio River commencing in March, 1977, thereby neces-

sitating additional water purification treatment for all

cities and towns downstream from Louisville, Ken-

tucky that drew their drinking water from the River.

Although the complaint alleged, inter alia, that a nuis-

ance had been created, no equitable relief was sought,

and it was later conceded by Cities that the alleged

nuisance had been abated prior to the filing of their

complaint in July, 1977.

On September 20, 1977, Cities filed an amended

complaint, which, like the original, was in eight counts.

In addition to attempting to proceed under the federal

common law of nuisance, Cities also based their com-

plaint on the Federal Water Pollution Control Act, 33

U.S.C. § 1251 et seq., the Rivers and Harbors Act of

1899, 33 U.S.C. § 407 et seq., and the Safe Drinking

Water Act, 42 U.S.C. § 300f, ef seq. Further, state

common law claims were alleged under the theory of

pendant jurisdiction. On October 20, 1977, MSD filed

its Motion to Dismiss Plaintiffs’ Amended Complaint.

pursuant to Rule 12(b) (1), (2) and (3) of the Federal

Rules of Civil Procedure. The issues were briefed, and

on March 7, 1978, the United States District Court

dismissed, without prejudice, all of the federal claims

for lack of subject matter jurisdiction. Further, since

5

there was incomplete diversity of citizenship (peti-

tioner Hess is an Indiana citizen) and no other basis

for federal jurisdiction, the other claims based upon

pendant jurisdiction were also dismissed. Upon the

refusal of Cities to file a second amended complaint,

the dismissal crder was made final on March 23, 1978.

On appeal, the Court of Appeals upheld the dis-

missal order as to all counts of the amended complaint

except the count alleging a claim for relief based upon

the federal common law of nuisance. The Court of

Appeals held that Cities had stated a claim for relief

under the federal common law of nuisance and that the

District Court had jurisdiction pursuant to the federal

question statute, 28 U.S.C. § 1331. Accordingly, the

cause was remanded to the District Court for further

proceedings consistent with the Court’s decision. This

Petition for Writ of Certiorari is directed to the Au-

gust 9, 1979 decision and judgment of the Court of

Appeals.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals authorizes

municipalities and public corporations to pursue an

action in a federal district court based upon the federal

common law of nuisance wherein the only relief sought

is compensatory and punitive damages. Some of the

legal principles announced by the Court of Appeals in

support of its decision have been rejected in similar

eases by other Circuits, and the decision raises signifi-

cant new questions of law which should be decided by

this Court.

6

In Illinois v. Milwaukee, 406 U.S. 91, 92 S. Ct.

1385, 31 L. Ed. 712 (1972), this Court fashioned the

federal common law of nuisance, thereby permitting

the State of Illinois to file a suit in federal district

court to abate a nuisance arising out of the pollution of

an interstate navigable waterway. There is absolutely

no language in J/linois v. Milwaukee, supra, evidencing

the intent of this Court to apply the doctrine to cases

other than those involving State plaintiffs seeking

equitable relief to abate interstate water pollution.

Clearly, this Court found it significant that the plaintiff

was the State of Illinois seeking to protect and uphold

State interests. Mr. Justice Douglas cited with ap-

proval the following language from Georgia v. Ten-

nessee Copper Co., 206 U.S. 230, 27 S. Ct. 618, 51 L. Ed.

1038 (1907) :

‘¢ «The caution with which demands of this sort, on

the part of a State, for relief from injuries analo-

gous to torts, must be examined, is dwelt upon in

Missouri v. Illinois, 200 U. S. 496, 520, 521, 50

L. Ed. 572, 578, 579, 26 Sup. Ct. Rep. 268. But it

is plain that some such demands must be recog-

nized, if the grounds alleged are proved. When

the States by their union made the forcible abate-

ment of outside nuisances impossible to each, they

did not thereby agree to submit to whatever might

be done. They did not renounce the possibility of

making reasonable demands on the ground of their

still remaining quasi-sovereign interests; and the

alternative to force is a suit in this Court. Mis-

souri v. Illinois, 180 U.S. 208, 241, 45 L. Ed. 497,

512, 21 Sup. Ct. Rep. 331.’ 206 U.S., at 237, 27

S. Ct., at 619.’’ (Our emphasis)

7

406 U.S. at 105, 92 S. Ct. at 1893. Mr. Justice Douglas

also adopted the following citation from Georgia v.

Tennessee Copper Co., supra:

‘* ‘Tt is a fair and reasonable demand on the part

of a sovereign that the air over its territory should

not be polluted on a great scale by sulphurous acid

gas, that the forests on its mountains, be they

better or worse, and whatever domestic destruc-

tion they have suffered, should not be further de-

stroyed or threatened by the act of persons beyond

its control, that the crops and orchards on its hills

should not be endangered from the same source.

If any such demand is to be enforced this must be,

notwithstanding the hesitation that we might feel

if the suit were between private parties, and the

doubt whether for the injuries which they might

be suffering to their property they should not be

left to an action at law.’ Id., at 238, 27 8. Ct., at

619.’’ (Our emphasis)

406 U.S. at 105, 106, 92 S. Ct. at 1893. The above

citations taken from Georgia v. Tennessee Copper Co.,

supra, certainly reflect this Court’s concern for the

dilemma encountered by States attempting to abate

interstate water pollution. Private individuals, on the

other hand, providing diversity exists, have always had

a legal remedy for damages available to them in a fed-

eral district court with jurisdiction based upon 28

U.S.C. § 1332. Further, political subdivisions of a

State, such as Cities in the instant case, being ‘‘citi-

zens’’ for diversity purposes have the same remedies as

those available to individuals, and the Court so recog-

nized this fact in Illinois v, Milwaukee, supra, stating:

8

‘‘That being the case, a political subdivision in one

State would be able to bring an action founded

upon diversity jurisdiction against a political sub-

division of another State.’’

406 U.S. at 99, 92 S. Ct. at 13890. In addition to the

fact that a State plaintiff was involved in J/linois v.

Milwaukee, other considerations combined to persuade

this Court to recognize a federal common law remedy :

‘‘Thus, it is not only the character of the parties

that requires us to apply federal law. See Georgia

v. Tennessee Copper Co., . . . . [W]here there is

an overriding federal interest in the need for a

uniform rule of decision or where the controversy

touches basic interests of federalism, we have fash-

ioned federal common law... .”’

406 U.S&. at 106, n. 6, 92 S. Ct. at 13893, n. 6. This Court

eoncluded that the federal interests present in inter-

state water pollution were identical to those found, for

example, in disputes between States involving the equi-

table apportionment of interstate streams and boun-

daries, and it therefore held that federal common law

should be applied. Jilinois v. Milwaukee, 406 U.S. 91,

104, 105, 106, 92 S. Ct. 1385, 1393, 1394.

Virtually all of the decisions analyzed by this Court

in Illinois v. Milwaukee, supra, involved State plain-

tiffs asserting sovereign interests, and the relief sought

in those cases was equitable in nature. In concluding

its decision, this Court observed:

‘Thus, a State with high water-quality standards

may well ask that its strict standards be honored

9

and that it not be compelled to lower itself to the

more degrading standards of a neighbor. There

are no fixed rules that govern; these will be equity

suits in which the informed judament of the chan-

cellor will largely govern.’’ (Our emphasis)

406 U.S. at 108, 109, 92 S. Ct. at 1395.

Since Illinois v. Milwaukee, federal courts have been

reluctant to extend the doctrine of the federal common

law of nuisance beyond eases presenting the factual

situation described by this Court in its decision. Some

courts have permitted the federal government to pro-

ceed under the federal common law theory. See, for

example, United States v. Ira S. Bushey & Sons, Inc.,

363 F. Supp. 110 (D. Vt. 1973), aff’d, 487 F. 2d 1393

(2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S. Ct.

3182, 41 L. Ed. 2d 1146 (1974) ; United States v. Stoeco

Homes, Inc., 498 F. 2d 597 (3d Cir. 1974), cert.

denied, 420 U. 8. 927, 95 S. Ct. 1124, 43 L. Ed. 2d 397

(1975). The Seventh Circuit extended the doctrine to

a State agency in Stream Pollution Control Board of

the State of Indiana v. United States Steel Corp., 512

F. 2d 1036 (7th Cir. 1975). However, none of the

above decisions constituted a significant departure

from the rationale announced by this Court in J/linois

v. Milwaukee, supra, because in each of those cases,

state or federal sovereign interests were being asserted

and the relief sought was equitable in nature. The

Fourth Cireuit declined to extend the application of

the doctrine in a case involving private plaintiffs in an

intrastate pollution controversy. See Committee for

the Consideration of the Jones Falls Sewage System v.

10

Train, 5389 F. 2d 1006 (4th Cir. 1976). In Parsell v.

Shell Oil Co., 421 F. Supp. 1275 (D. Conn. 1976), aff’d

mem, sub nom., East End Yacht Club v. Shell Oil Co.,

573 F. 2d 1289 (2d Cir. 1977), a case involving private

plaintiffs seeking money damages in an intrastate pol-

lution dispute, the court refused to apply the federal

common law of nuisance. The Court, relying upon

Tilinois v. Milwaukee, supra, noted the absence of three

important factors which were necessary to justify the

application of the doctrine: first, the absence of a State

plaintiff; secondly, the pollution was not interstate in

nature; and thirdly, the prayer was for money damages

as opposed to equitable relief. 421 F. Supp. 1275, 1280-

1282. With respect to the prayer for money damages,

the Court noted:

‘*Part of the reason why the Supreme Court en-

couraged the development of the federal common

law of water pollution in Milwaukee was the need

for resolution of intricate and highly important

questions of the appropriate water quality stand-

ards to apply. As the Court said, ‘These will be

equity suits in which the informed judgment of the

chancellor will largely govern.’ 406 U.S. at 107-

108, 92 S. Ct. at 13895. A jury awarding damages

in an oil spill case with wholly intrastate impact

would be contributing to the development of evolv-

ing water quality standards only in the most ad hoc

way.”’

Parsell v. Shell Oil Co., supra, 421 F. Supp. at 1281-

1282.

Thus, with few exceptions, the application of the

federal common law of nuisance “*. . . has not been

11

extended beyond the abatement of public nuisances in

interstate controversies where the complainant is a

state and the offenders are creating extra-territorial

harm.’’ Committee for the Consideration of the Jones

Falls Sewage System v. Train, supra, 539 F, 2d at 1009.

In the instant case, the Court of Appeals exhibited

virtually no hesitation or concern about extending the

application of the doctrine of the federal common law

of nuisance to municipalities, stating:

‘‘The plaintiffs are municipal or public corpora-

tions, subdivisions of the state, that were required

to spend public funds because of pollution of an

interstate waterway by acts done in another state.

The interests of the state in this interstate pollu-

tion dispute are implicated in the same way such

interests were implicated in Illinois v. Milwaukee.”

(Footnote omitted)

Appendix B, Page 24a (hereinafter cited as ‘‘App. —,

p. —’’). Obviously, the Court of Appeals declined to

seriously consider the extensive analysis by this Court

in Illinois v. Milwaukee, supra, explaining the neces-

sity for a federal equitable remedy for States seeking

to abate interstate water pollution. More specifically,

the Court of Appeals failed to recognize that indi-

viduals, as well as public or private corporations and

municipalities, had a legal remedy for damages in a

federal district court of competent jurisdiction pur-

suant to 28 U.S.C. § 1332, long before this Court’s de-

cision in J/linois v. Milwaukee. The case at bar con-

stitutes nothing more than an action at law wherein

the plaintiffs have requested a jury and seek to recover

12

compensatory and punitive damages for expenses in-

curred by them as a result of the alleged commission

of a tort. The equitable remedy which resulted from

this Court’s decision in Illinois v. Milwaukee was

created for the purpose of abating interstate water

pollution, and as the Court in Parsell v. Sheli Oil Co.,

supra, observed :

‘*Tt will take a clearer indication than the opinion

in Illinois v. Milwaukee to persuade me that the

Supreme Court intends federal jurisdiction for a

common law claim to be available for every inci-

dent of pollution involving navigable waters.”’

421 F. Supp. at 1281.

Even if the Court of Appeals was correct in decid-

ing that a municipality should be allowed to invoke the

district court’s jurisdiction pursuant to the federal

common law of nuisance, there is no justification for

expanding the remedy available under the doctrine to

include the recovery of compensatory and punitive

damages. The Court of Appeals reasoned that if a

municipality was a proper party to pursue a claim

under the federal common law of nuisance, then the

nature of the remedy sought had nothing to do with

determining whether or not a federal court had juris-

diction over the claim. (App. B, pp. 26a-27a) Again,

the Court of Appeals failed to recognize that it was the

necessity of an equitable remedy that gave rise to the

creation of the doctrine of federal common law of nuis-

ance in the first instance in Illinois v. Milwaukee:

‘““The remedy sought by Illinois is not within the

precise scope of remedies prescribed by Congress.

13

Yet the remedies which Congress provides are not

necessarily the only federal remedies available.

‘It is not uncommon for federal courts to fashion

law where federal rights are concerned.’ ’’ (Cita-

tion omitted)

406 U.S. at 103, 92 S. Ct. at 1892. This Court per-

mitted the State of Illinois to pursue an action in fed-

eral district court to abate interstate water pollution

under the federal common law of nuisance because the

controversy touched upon ‘“‘basic interests of feder-

alism’’ and because of the ‘‘federal interest in the need

for a uniform rule of decision.’’ 406 U.S. at 105, n. 6,

92 S. Ct. 1393-1394, n. 6. Can it be said that the instant

ease involves a controversy which touches upon basic

interests of federalism or presents a federal need for

a uniform rule of decision? It is respectfully sub-

mitted that this question must be answered in the nega-

tive. Whether or not Cities recover money damages

for a tort arising out of the use of an interstate nav-

igable waterway does not involve federal interests any

more than those which would be found in a contro-

versy involving a tort arising out of the use of an inter-

state highway. In the past, 28 U.S.C. § 1332 has suf-

ficiently provided all citizens, including municipalities,

with a basis for invoking federal jurisdiction over tort

claims, and the case at bar presents no legitimate or

compelling reason to expand the jurisdiction of federal

district courts.

14

CONCLUSION

For these reasons, a writ of certiorari should be

issued to review the judgment and decision of the

Seventh Circuit.

Respectfully submitted,

Frep 8. WHITE

BAMBERGER, FOREMAN, OswaLD & HAHN

708 Hulman Building

Evansville, Indiana 47708

Telephone: (812) 425-1591

Rosert G. BREETZ

Stites, McELtwarin & Fow Ler

3400 First National Tower

Louisville, Kentucky 40202

Telephone: (502) 587-3400

Attorneys for Petitioner, Louisville

and Jefferson County Metropolitan

Sewer District

Epwarp M. STEUTERMANN

Woop, GOLDBERG AND PEDLEY

2800 First National Tower

Louisville, Kentucky 40202

Telephone: (502) 589-4440

Attorneys for Petitioners, Kentucky

Liquid Recycling, Inc., Donald Eu-

gene Distler, Charles W. Horn, Jr.,

and Joseph Alfred Hess, Jr.

ST eters

APPENDIX

la

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

EVANSVILLE DIVISION

City or Evansvitue, Inpiana et al

v. + No. EV 77-76-C

Kentucky Liquw Recyc.irng¢, Inc., et al |

ENTRY

This cause comes before the Court on the motion to

dismiss of defendant Louisville and Jefferson County

Metropolitan Sewer District (“MSD”) and on the Court’s

own motion pursuant to 28 U.S.C., Federal Rules of Civil

Procedure, Rule 12(h)(3), as to the other defendants, Ken-

tucky Liquid Recycling, Inc. (“KLR”), Donald Eugene

Distler (“Distler”), Charles W. Horn, Jr. (“Horn”) and

Joseph Alfred Hess, Jr. (“Hess”). The Court, being duly

advised in the premises does now submit its ruling.

Plaintiffs’ amended complaint in this action contains

seven numbered counts, three of which proceed on statutory

theories (counts two, six and seven) and four of which

proceed on common law theories (counts one, three, four

and five). Plaintiffs also make reference to a fourth statu-

tory theory in- their complaint, but not within a numbered

count.

I

Statutory Theories

A

Count Two

In this count, plaintiffs assert a cause of action based on

46 U.S.C. $740. That statute vstends the admiralty and

2a

maritime jurisdiction of the United States to include “all

eases of damage or injury, to person or property, caused

by a vessel on navigable water notwithstanding that such

damage or injury be done or consummated on land.” There

being no allegation, or even suggestion, that any damage

in this action was “caused by a vessel on navigable water,”

that statute does not extend jurisdiction of this Court to

inelude any claim of plaintiffs based on that statute. There-

fore, the Court lacks subject matter jurisdiction over

count two of plaintiffs’ amended complaint.

B

Count six

By this count, plaintiffs assert a cause of action based

on 33 U.S.C. $407. That statute does not give rise to a

private cause of action based upon its violation, notwith-

standing that such violation may arguably be established

in a common law action to show, for example, negligence

on the part of defendants. As there exists no private right

of action under 33 U.S.C. §407, this Court lacks subject

matter jurisdiction over count six of the amended com-

plaint.

C

Count seven

The claims asserted in this count are based upon the

Safe Drinking Water Act, 42 U.S.C. §300f, et seq. Civil

actions under that Act are authorized at 42 U.S.C. §300j-8

(a). However, such civil actions are subject to the sixty-

day notice requirement of 42 U.S.C. §300j-8(b). Com-

pliance with that requirement is a jurisdictional pre-

requisite to the bringing of an action under 42 U.S.C.

§300j-8(a). Plaintiffs have not alleged compliance with

42 U.S.C. §300j-8(b).

Plaintiffs, however, seek to avoid operation of that

limitation by asserting that their action is brought under

3a

28 U.S.C., §1331, and that this Court has jurisdiction over

this claim because of the “Savings Clause” at 42 U.S.C.

§300j-8(e). That “Savings Clause” acknowledges that the

right of action at 42 U.S.C. §300j-8(a) exists in addition

to all other rights of action the person bringing such ac-

tion may have, but does so in the sense of non-pre-emption

in this area of the law. Nothing in 42 U.S.C. §300j-8(e)

can be construed to authorize an action under 42 U.S.C.

§300j-8(a) being brought without compliance with the re-

quirements of 42 U.S.C. §300j-8(b). The general Federal

Question Jurisdiction statute, 28 U.S.C. §1331, does not

give this Court jurisdiction over the claims in count seven

of plaintiffs amended complaint. As the amended com-

plaint herein fails to allege any compliance with 42 U.S.C.

§300j-8(b), it appears that the Court lacks subject-matter

jurisdiction over the claims in count seven of plaintiffs

amended complaint.

D

33 U.S.C. $1251, et seq.

Though not contained in a numbered count, the amended

complaint herein refers to a claim under 33 U.S.C. §1201,

et seq. To the extent that plaintiffs thereby seek to assert

a claim based thereon, the Court shall review its jurisdic-

tion to adjudicate any such claim.

The analysis in part I-C of this Entry (immediately

preceding) applies with equal force here. A private right

of action under 33 U.S.C. §1251, et seq. is authorized by

33 U.S.C. §1365(a), and the jurisdictional sixty-day notice

requirement appears at 33 U.S.C. §1365(b). Again, plain-

tiffs have not alleged compliance with such requirement

and seek to proceed with a 33 U.S.C. §1365(a) action under

28 U.S.C. §1331, without compliance with 33 U.S.C. §1365

(b), arguing that a “Savings Clause,” 33 U.S.C. §1865(e)

authorizes their so proceeding. As with the discussion of

the 42 U.S.C. §300j-8(a) action above, 33 U.S.C. §1365(e)

da

merely preserves rights of action on theories other than

33 U.S.C. §1365(a), and does not give the Court jurisdic-

tion over a 33 U.S.C. §1365(a) action under 28 U.S.C, §1331

without compliance with 33 U.S.C. §1365(b) as argued by

plainiiffs. The Court has no subject matter jurisdiction

over plaintiffs’ claims based on 33 U.S.C. §1251, et seq.

II

Non-statutory Theories

A

Count One

The claim asserted by plaintiffs in count one of their

amended complaint is based on federal common law

nuisance. As acknowledged by MSD in their briefing on

their motion to dismiss, there exists at least one exception

to the abolition of the concept of “federal common law” in

Erie R.R. Co. v. Thompkins, 304 U. S. 64, 58 S. Ct. 817

(1938). That exception arises in dealing “with air and

water in their ambient or interstate aspects,” Illinois v.

City of Milwaukee, Wisconsin (1972), 406 U. S. 91, 92 S. Ct.

1385, 1392. It is on this exception that plaintiffs base their

claim in count one of the amended complaint.

It is observed that in Illinois v. Milwaukee, supra, and

in each case relied upon by the Supreme Court in that

decision, the action was brought be (sic) a State as plaintiff.

Such is not the case in this action. To date, the federal

common law concept of Jllinois v. Milwaukee, supra, has

not been extended beyond the abatement of public nuisances

in interstate controversies where the complainant is a

State. Plaintiffs by this action ask the Court to make

such an extension. The Court declines to do so.

The rights discussed in J/linois v. Milwaukee, supra, are

rights belonging to the offended State, not to various

entities within that State. This is in part evidenced by

the Supreme Court’s comparing the rights involved there

5a

with such issues as boundary disputes, 92 8. Ct. at 1393,

and apportionment of interstate waters, 92 8. Ct. at 1394.

Aiso reley it is that the Court there, in announcing the

exception to the abolition of federal common law, relied

considerably upon the plaintiff’s being a State. The plain-

tiffs herein represent only a part of the interests of the

State of Indiana and even less of the interests of the other

States they seek to represent by their class action allega-

tions.

As the rights sought to be enforeed by plaintiffs in

count one of their amended complaint do not exist in favor

of plaintiffs, the Court has no jurisdiction to adjudicate

such claims.

B

Counts Three, Four and Five

The claims asserted by plaintiffs in these counts of the

amended complaint are based upon non-federal common

law theories. As the Court has no jurisdiction over the

federal law claims of the amended complaint, the Court

has no pendant jurisdiction over counts three, four and

five. It appearing that plaintiffs are citizens of the State

of Indiana and that defendant Hess is a citizen of the State

of Indiana, jurisdiction over the claims in these counts

does not exist under 28 U.S.C. §1332. There appearing no

jurisdictional base in this Court for those claims, the Court

is without jurisdiction over the subject-matter of counts

three, four and five of the amended complaint in this action.

Iil

RULING

The Court is without subject-matter jurisdiction over

any of the claims set forth in plaintiffs amended complaint

in this action. Accordingly, that amended complaint is

hereby Dismissep on all theories and as to all parties. If

6a

no further amended complaint is filed herein by March 23,

1978, this action will be deemed dismissed without prej-

udice on all theories and as to all parties without further

action of the Court.

Dated: March 7, 1978.

(s) Cale J. Holder, Judge

United States District Court

ENTRY FOR MARCH 23, 1978

HON. CALE J. HOLDER, JUDGE

Based upon the Court’s entry of March 7, 1978, there

being no amended complaint filed herein by the plaintiffs,

this case is hereby Dismissep without prejudice on all

theories and as to all parties.

Copy to:

Thedore Lockyear

555 Sycamore St.

Evansville, Ind. 47708

Wood, Goldberg, Pedley & Stansbury

2800 First National Tower

Louisville, Kentucky 40202

Fred P. Bamberger

708 Hulman Bldg.

Evansville, Ind. 47708

Robert G. Breetz

3400 First National Tower

Louisville, Kentucky 40202

7a

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 78-1578

Crry or Evansviiie, Inprana, et al., - Plaintiffs-Appellants

Vv.

Kentucky Liquiy Recycirne, INc.,

et al., - - ts ee - Defendants-A ppellees

Appeal from the United States District Court

for the Southern District of Indiana

Evansville Division

No. EV 77-76-C—Cale J. Holder, Judge

Aravep Ocroser 24, 1978—Drcinep Aveust 9, 1979

Before Sprecuer, Tone, and Bauer, Circuit Judges.

Tons, Circuit Judge. Three Indiana municipal cor-

porations that use water from the Ohio River bring this

action to recover damages incurred because of defend-

ants’ discharges of contaminants into the river from Ken-

tucky. The most important question on this appeal is

whether plaintiffs have stated a claim over which the dis-

trict court had jurisdiction. We hold that a claim is stated

under the federal common law of nuisance and that the

court had jurisdiction pursuant to 28 U.S.C. § 1831.

Sa

Plaintiffs are Evansville, Indiana, the water works de-

partment of that city, and Mount Vernon, Indiana. De-

fendants are Kentucky Liquid Recycling, Ine., three of its

employees, and Louisville and Jefferson County Metro-

politan Sewage District. Plaintiffs allege that Kentucky

Liquid Refining discharged toxic chemicals into the sewer

system of the sewer district, and that the sewer district in

turn discharged these chemicals into the Ohio River, from

which plaintiffs draw water into their treatment plants. As

a result of these discharges, it is alleged, plaintiffs incurred

unusual treatment expense and other expenses, which they

seek to recover as damages. They also seek punitive

damages. Plaintiffs seek to represent a class of similarly

situated municipalities and water treatment facilities, for

whom similar relief is asked.

Although inartfully stated, several theories of federal

jurisdiction are discernible from the amended complaint:

(1) jurisdiction under 28 U.S.C. § 1331 over implied rights

of action under (a) § 13 of the Rivers and Harbors Act,

33 U.S.C. § 407, (b) the Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C. § 1251, et seq., and

(c) the Safe Drinking Water Act, 42 U.S.C. § 300f, e¢ seq.;

(2) jurisdiction under the citizen suit provisions of the

latter two statutes; and (3) jurisdiction under 28 U.S.C.

§ 1331 over a right of action under the federal common

law of nuisance. Plaintiffs also assert state law claims,

which, diversity of, citizenship being lacking, must rest on

pendent jurisdiction.!

In dismissing the amended complaint for lack of sub-

ject matter jurisdiction,? the district court held that viola-

1Allegations of admiralty jurisdiction appearing in the com-

plaint are not now relied on.

2The court did not rule on the alternative grounds for dismissal

asserted in the sewer district’s motion to dismiss, lack of juriscdic-

tion over the person and improper venue. See Rule 12(b)(2) and

(3), Fed. R. Civ. P.

Ya

tion of § 13 of the Rivers and Harbors Act did not give

rise to a private right of action. The possibility of imply-

ing a right of action under the other two Acts was not dis-

cussed; and, viewing the notice requirements for citizen

suits to enforce the requirements of the other two Acts

as jurisdictional prerequisites, the court found jurisdiction

lacking because of plaintiffs’ admitted failure to comply

with these requirements. The court rejected plaintiffs’

contention that the savings clause of either statute in

combination with 28 U.S.C. § 1331 provided an adequate

basis for federal court jurisdiction. In addition, the court

held that because plaintiffs were not states, jurisdiction

could not be sustained under 28 U.S.C. § 1331 and the

federal common law of nuisance. Having concluded that

it had no jurisdiction over the federal claims, the court dis-

missed the pendent state law claims.

L.

Rivers and Harbors Act

We agree with the district court that a private right

of action should not be inferred under § 13 of the Rivers

and Harbors Act,® which does not expressly create one.‘

333 U.S.C. § 407:

It shall not be lawful to throw, discharge, or deposit, or cause,

suffer, or procure to be thrown, discharged, or deposited .

from the shore, wharf, manufacturing establishment or mill

of any kind, any refuse matter of any kind or description

whatever other than that flowing from streets and sewers and

passing therefrom in a liquid state, into any navigable water

of the United States, or into any tributary of any navigable

water from which the same shall float or be washed into such

navigable water; ....

*Whether p'aintiffs have an implied cause of action under the

statute is not a question of jurisdiction. Burks v. Lasker, ——

U. S. —__, —— & n.5, 99 S. Ct. 1831, 1836 & n.5 (1979). There-

fore, if the implied right of action under discussion had been the

only right asserted, the complaint should have been dismissed for

failure to state a claim on which relief could be granted. Rule

12(b) (6), Fed. R. Civ. P.

10a

The Supreme Court has recently made it clear that

when Congress does not expressly create a private cause

of action, an intent to do so is not lightly to be inferred.

Touche Ross & Co. v. Redington, U. S. a

U.S.L.W. 4732 (1979); Shiffrin v. Bratton, U. S.

, 47 U.S.L.W. 3825 (1979) (vacating and remanding

for further consideration in light of Touche Ross); see

Cannon v. University of Chicago, U. S. _—, 99 S. Ct.

1946, 1967-1968 (majority opinion), 1968 (Rehnquist, J.,

concurring), 2985 (Powell, J., dissenting) (1979) ; Chrysler

Corp. v. Brown, U.S. ‘ , 99 S. Ct. 1705, 1725

(1979). (Referring to the four factors stated in Cort v.

Ash, 422 U. 8S. 66 (1975), the Court in Touche Ross ex-

plained that although each is “relevant,” they are not

necessarily entitled to equal weight, and, moreover,

[t]he central inquiry remains whether Congress in-

tended to create, either expressly or by implication,

a private cause of action. Indeed, the first three fac-

tors discussed in Cort—the language and focus of

the statute, its legislative history, and its purpose, see

422 U.S., at 78—are ones traditionally relied upon in

determining legislative intent.

47 U.S.L.W. at 4736. The Court also said,

To the extent our analysis in today’s decision differs

from that of the Court in [J. I. Case v.] Borak, [377

U. S. 426 (1964)], it suffices to say that in a series of

eases since Borak we have adhered to a stricter stand-

ard for the implication of private causes of action, and

we follow that stricter standard today.

Touche Ross v. Redington, supra, 47 U.S.L.W. at 4787

(citing Cannon).

Even before these recent Supreme Court decisions, the

Third Cireuit refused to infer a private right of action

lla

from sections of the Rivers and Harbors Act that are

analogous for present purposes,® and district courts

reached the same conclusion with respect to § 13.8

The first factor listed in Cort v. Ash is whether the

plaintiff is

“one of the class for whose especial benefit the statute

was enacted,” Texas & Pacific R. Co. v. Rigsby, 241

U. S. 33, 39 (1916) (emphasis supplied)—that is, does

the statute create a federal right in favor of the plain-

tiff?

422 U. S. at 78. Referring to this factor in Cannon, the

majority said,

the Court has been especially reluctant to imply causes

of actions under statutes that create duties on the part

of persons for the benefit of the public at large.

99 S. Ct. at 1954-1955 n.13; see also Touche Ross v. Red-

ington, supra, 47 U.S.L.W. at 4735. The duties created by

the provision relied on by plaintiffs in this case are for the

benefit of the public at large.’

*Red Star Towing and Transportation Co. v. Department of

Transportation of the State of New Jersey, 423 F. 2d 104, 105 & n.3

(3d Cir. 1970).

6E.g., Township of Long Beach v. City of New York, 445 F.

Supp. 1203, 1211-1212 (D. N.J. 1978); Parsell v. Shell Oil Co.,

421 F. Supp. 1275, 1277-1280 (D. Conn. 1976), aff’d sub nom. East

_— Club, Inc. v. Shell Oil Co., 573 F. 2d 1289 (2d Cir.

_ Plaintiffs’ status as municipalities or a municipal agency is

immaterial. For the language of the statute no more evidences an

intent to ‘‘especially’’ benefit a class of municipalities or their

agents than a class of private parties generally. Indeed, the Su-

preme Court has noted that ‘‘a principal beneficiary of the [Rivers

and Harbors] Act, if not the principal beneficiary, is the [Federal ]

Government itself.’’ Wyandotte Transportation Co. v. United

States, 389 U. S. 191, 201 (1967).

l2a

As for the second Cort v. Ash factor, neither party cites

any legislative history that might shed light on Congress’

intent.®

The third factor, the consistency of a private right of

action with “the underlying purposes of the legislative

scheme,” Cort v. Ash, supra, 422 U.S. at 78, is not helpful

to plaintiffs here. Section 17 of the Act, 33 U.S.C. § 413,

expressly delegates enforcement of the provisions of § 13

to the Department of Justice; and § 16 of the Act, 33 U.S.C.

§ 411, authorizes the district courts to award one-half of

any criminal fines imposed on violators of § 13 to “persons

giving information which shall lead to conviction.”® While

a private right of action would not be inconsistent with

either of these provisions, both suggest that Congress in-

tended to leave primary enforcement of the provision of

the Act to the Department of Justice. Cf. Red Star Towing

v. Department of Transportation, supra, 423 F. 2d at 105

& n.3.

The fourth Cort v. Ash factor seems to cut both ways,

for the cause of action asserted here, although perhaps

“one traditionally relegated to state law,” is not “in an

area basically the concern of the States.” 422 U.S. at 78.

No one factor is controlling. Here the first, and argu-

ably, the third factors weigh against implication of a priv-

ate right of action; the second and fourth are at best only

neutral. The central inquiry is Congressional intent,

Touche Ross v. Redington, supra, 47 U.S.L.W. at 4736, and

given the “stricter standard for the implication of private

8As noted in Cannon, ‘‘the legislative history of a statute that

does not expressly create or deny a private remedy will typically be

equally silent or ambiguous on the question.’’ 99 S. Ct. at 1956.

%«1E]very court which has considered the question has denied

to private plaintiffs the right to bring an action under the [Rivers

and Harbors] Act to recover in a qui tam action the percentage of

the fine which they might have been entitled to receive as informers

if an offense had been prosecuted to conviction.’’ Parsell v. Shell

Oil Co., supra, 421 F. Supp. at 1279 (collecting cases, id. n.9).

13a

causes of action,” id. at 4737, established in the Supreme

Court’s most recent decisions in this area, we think the

evidence insufficient to support the conclusion that Con-

gress intended to create a private right of action under § 13

of the Rivers and Harbors Act.’°

i

Federal Water Pollution Control Act

Relying primarily on National Resources Defense Coun-

cil v. Callaway, 524 F. 2d 79 (2d Cir. 1975), plaintiffs con-

tend that the district court erred in holding that jurisdic-

tion was lacking under the Federal Water Pollution Control

Act Amendments!'! because they had failed to comply with

the notice provisions of § 505.'* More specifically, plain-

10We note also that the conduct of which plaintiffs complain

may fall within the language of the statute excepting from its gen-

eral prohibition ‘‘refuse . . . flowing from streets and sewers

and passing therefrom in a liquid state, . . . .’’? 33 U.S.C. §407,

quoted in note 3, supra; see United States v. Dexter Corp., 507

I. 2d 1038 (7th Cir. 1975).

11The question is whether a right of action exists. See note 4,

supra.

1233 U.S.C. § 1365:

(a) Except as provided in subsection (b) of this section, any

citizen [defined in § 505(g), 33 U.S.C. § 1365(g)] may commence

a civil action on his own behalf—

(1) against any person . . . who is alleged to be in viola-

tion of (A) an effluent standard or limitation under this chap-

ter or (B) an order issued by the Administrator or a State

with respect to such a standard or limitation, or

(2) against the Administrator |of the Environmental Pro-

tection Agency| where there is alleged a failure of the Admin-

istrator to perform any act or duty under this chapter which

is not discretionary with the Administrator.

The [United States] district courts shall have jurisdiction, without

regard to the amount in controversy or the citizenship of the par-

ties to enforce such an effluent standard or limitation, or such an

order, or to order the Administrator to perform such act or duty,

as the case may be, and to apply any appropriate civil penalties

under section 1319(d) of this title.

(Footnote continued on following page)

Ita

tiffs contend that the district court had jurisdiction of their

FWPCA claims under 28 U.S.C. § 1331 by operation of the

“savings clause” contained in § 505.'*

In the cited case and an earlier case'* the Second Circuit

joined the District of Columbia Circuit, Natural Resources

Defense Council v. Train, 510 F. 2d 692, 698-703 (1975), in

holding that an action could be maintained against an ad-

ministrative official despite the plaintiff’s failure to comply

with the FWPCA’s 60-day notice requirement. We de-

clined to follow the latter decision in City of Highland Park

v. Train, 519 F. 2d 681, 693 (1975), cert. denied, 424 U.S.

(Footnote continued from preceding page)

(b) No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to sixty days after the plaintiff has given

notice of the alleged violation (i) to the Administrator,

(ii) to the State in which the alleged violation occurs, and

(iii) to any alleged violator of the standard, limitation, or

order, or

(B) 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, but in any such action in a

court of the United States any citizen may intervene as a

matter of right[,]

(2) under subsection (a) (2) of this section prior to sixty

days after the plaintiff has given notice of such action to the

Administrator,

except that such action may be brought immediately after such

notification in the ease of an action under this section respecting a

violation of sections 1316 and 1317(a) of this title. Notice under

this subsection shall be given in such manner as the Administrator

shall prescribe by regulation.

13*Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute or com-

mon law to seek enforcement of any effluent standard or limitation

or to seek any other relief. . . .’? 33 U.S.C. § 1865(e).

14Conservation Society of Southern Vermont, Inc. v. Secretary

of Transportation, 508 F. 2d 927, 938-939 & n.62 (2d Cir. 1974),

vacated for reconsideration in light of Aberdeen & Rockfish R.R.

Co. v. SCRAP, 422 U. S. 289, (1975) (National Environmental

Policy Act holding), 423 U. S. 809 (1975).

lida

927 (1976), a case arising under the Clean Air Amendments

of 1970, 42 U.S.C. §§ 1857a, et seg. In any event, these

three decisions of other circuits are inapplicable here. In

each, the court’s focus was on whether it had jurisdiction,'®

since the Administrative Procedure Act, 5 U.S.C. § 702,

provided for review of final agency actions. In none of

these cases did the court consider the propriety of implying

an independent private right of action under the FWPCA.

Compare Chrysler v. Brown, supra, 99 S. Ct. at 1725. In

the case at bar the APA is of course inapplicable; any

private right of action based on the FWPCA, other than

that conferred by the citizen suit provision, must be in-

ferred from the Act itself.

Plaintiffs’ failure to comply with the notice requirement

precludes reliance on § 505(a) as a basis for the action.

E.g., Commonwealth of Massachusetts v. United States

Veterans Administration, 541 F. 2d 119, 121 (1st Cir. 1976).

Furthermore, even if the requisite notice had been given,

§ 505(a) would not have authorized plaintiffs’ claim. That

provision authorizes a civil action against a party “alleged

to be in violation” of effluent standards or limitations pre-

seribed under the Act or an order of the Administrator or a

state with responsibility under the Act. It does not provide

for suits against parties alleged to have violated an effluent

standard or limitation in the past or for recovery of dam-

ages. The legislative history of the provision leaves little

doubt that neither class actions nor actions for damages

were contemplated:

Section 505 does not authorize a “class action.” In-

stead, it would authorize a private action by any citizen

or citizens acting on their own behalf. Questions with

The view of most circuits at the time was that § 10 of the Ad-

ministrative Procedure Act, 5 U.S.C. §§ 701-704, provided an inde-

pendent jurisdictional basis for judicial review of final agency

action. The Supreme Court held otherwise in Califano v. Sanders,

430 U. S. 99, 107 (1977).

loa

respect to traditional “class” actions often involve:

(1) identifying a group of people whose interests have

been damaged; (2) identifying the amount of total

damage to determine jurisdiction qualification ; and (3)

allocating any damages recovered. None of these is

appropriate in eitizen suits seeking abatement of vio-

lations of water pollution control requirements. It

should be noted, however, that the section would spe-

cifically preserve any vials or remedies under any

other law. Thus, if damages could be shown, other

remedies would remain available. Compliance with

requirements under this Act would not be a defense

to a common law action for pollution damges.'®

Thus, unless plaintiffs can establish some other basis for

this claim, the district court properly dismissed it.

Failure to comply with the notice provisions of § 505(b)

does not foreclose any other right to relief a plaintiff might

have. The “savings clause,” § 505(e), 33 U.S.C. ¢ 1865(e),

expressly preserves any such rights. Cf. City of Highland

Park v. Train, supra, 519 F. 2d at 691-693; see also Illinois

v. Milwaukee, F. 2d (7th Cir. 1979) (holding that

16S, Rep. No. 92-414, 92d Cong., Ist Sess. 81, reprinted in

[1972] U. S. Code cong. & Ad. News 3746-3747 ; sce also H.R. Rep.

No. 92-911, 92d Cong., 2d Sess. 133, reprinted in 1 A Legislative

History of the Water Pollution Control Act Amendments of 1972

753, 820 (1973) (noting that although the courts would be author-

ized to impose civil fines under § 309(d), 33 U.S.C. § 13819(d),

‘*lt|he penalties imposed would be deposited as miscellaneous re-

ceipts in the treasury and not be recovered by the citizen bringing

the suit’’). With one exception significant here, § 505 as adopted

‘‘is the same as the comparable provision of the Senate Bill

[S. 2770] and the House Amendment [H.R. 11896]. . . .’’ S. Rep.

No. 92-1236, 92d Cong., 2d Sess. 145 (Conference Report), re-

printed in [1972] U. S. Code Cong. & Ad. News 3776, 3823. In

both the Senate bill and the House bill, §505 contained numerous

exceptions to the 60-day waiting period required after notice. In

the bill as adopted all of these exceptions but two were eliminated,

Ibid.

l7a

the Federal Water Pollution Control Act does not preclude

a federal common law action under 28 U.S.C. § 1331). The

“savings clause” preserves rights “under any statute or

common law” but does not itself create any right. Assum-

ing that the Act itself is within the term “any statute”

(but see note 20 and accompanying text, infra), still no

right exists under the Act unless it can be inferred, because

none is expressed.

We therefore turn again to the standards discussed in

Part I, above, to determine whether such a right should

be inferred. Recognizing that “[t]he most accurate indi-

cator of the propriety of implication of a cause of action”

is the language of the statute, Cannon v. University of

Chicago, supra, 99 S. Ct. at 1954-1955 n.13, we shall again

proceed through the still relevant Cort v. Ash factors.

Plaintiffs cite no particular provision of the Act as

supporting their claim for relief, but presumably they rely

on § 301, 33 U.S.C. § 1311, which proscribes the discharge

of any pollutant except in compliance with the provisions

of the Act.’* Neither that section nor any other section of

the Act contains any suggestion that Congress intended to

confer a benefit or right on any particular segment of the

public.

Moreover, it is significant that the Act contains a section

specifically addressed to private rights of action, § 505,

which not only provides for citizen suits but also contains,

in subsection (e), a savings clause providing that nothing

in the section is to affect any right “under any statute or

common law.” Congress having thus specifically addressed

the subject of private remedies, it is reasonable to assume

that it said all that it intended on that subject. Cf. Touche

Ross v. Redington, supra, 47 U.S.L.W. at 4735.

17For a discussion of the provisions of the Act see Tinots v.

Milwaukee, _— F. 2d —— (7th Cir. 1979).

18a

Section 505 evidences a Congressional intent to care-

fully channel public participation in the enforcement of the

Act.'S Before commencing a citizen suit the plaintiff must

give notice not only to the alleged violator but also to the

Administrator and the state in which the violation occurs.’®

If either the Administrator or the state initiates adequate

enforcement proceedings, the private action is foreclosed,

although the complainant is authorized to intervene “as of

right.” § 505(b), 33 U.S.C. § 1865(b).

The legislative history of the Act contains no specific

answer to the question of whether § 301 creates a private

right of action. The reference to § 505 in the Senate Report

on S. 2770, quoted above, in referring, inter alia, to damage

actions, interprets the statutory phrase “under any statute

or common law” as “under any other law.” Even if this

was intended only as paraphrase, it suggests that a right

of action for damages must be found outside the Act

18S ee also § 101(e), 33 U.S.C. § 1251(e): ‘‘Publie participation

in the development, revision, and enforcement of any regulation,

standard, effluent limitation, plan or program established by the

Administrator or any State under this chapter shall be provided

for, encouraged, and assisted by the Administrator and the States.

The Administrator, in cooperation with the States, shall develop

and publish regulations specifying minimum guidelines for public

participation in such processes.’’ See generally Citizens for a

Better Environment v. EPA, —~ F. 2d — ~— (7th Cir. 1979) ;

S. Rep. No. 92-1236, 92d Cong., 2d Sess. 100 (Conference Report),

reprinted in [1972] U. S. Code Cong. & Ad. News 3776, 3777;

S. Rep. No. 92-414, 92d Cong., Ist Sess., 12, 79-82, reprinted in

[1972] U. S. Code Cong. & Ad. News 3668, 3679, 3745-3747 ; H. Rep.

No. 92-911, 92d Cong., 2d Sess. 79, 132, reprinted in 1 A Legisla-

tive History of the Water Pollution Control Act Amendments of

1972 753, 766, 819-821 (1973).

19See, e.g., S. Rep. No. 92-414, 92d Cong., Ist Sess. 79-80, re-

printed in [1972] U. S. Code Cong. & Ad. News 3668, 3745: ‘‘In

order to further encourage and provide for agency enforecement

the Committee has added a requirement that prior to filing a peti-

tion with a court, a citizen or group of citizens would first have to

serve a notice of intent to file such action on the Federal and State

Water Pollution Control Agency and the alleged polluter.’’

19a

itself.2° And Congress’ rejection of all but two of the

proposed exceptions to the requirement of a 60-day waiting

period for a citizen suit, see note 16, supra, reinforces the

evidence in § 505 itself of an intent to cireumscribe private

rights of action under the FWPCA.

What we have said about § 505 is also applicable with

respect to the third factor identified in Cort v. Ash, namely,

“is it consistent with the underlying purposes of the legis-

lative scheme to imply such a remedy for the plaintiff?”

422 U.S. at 78. Section 505 expresses Congress’ judgment

as to the kind and extent of private enforcement of the

FWPCA. In a private suit under § 505(a) a court, at the

behest of a private plaintiff, may enforce compliance with

effluent standards and limitations, require the Adminis-

trator to perform a duty to act, and impose civil penalties

under § 309(d), 33 U.S.C. § 1819(d). Implication of a

private remedy for damages under § 301 would be incon-

sistent with the congressional purpose implicit in the Act

of encouraging private participation in the enforcement of

the Act within the channels expressly provided. Cf. Touche

Ross v. Redington, supra, 47 U.S.L.W. at 4735-4736; Na-

tional Railroad Passenger Corp. v. National Association of

Railroad Passengers, 414 U.S. 458, 457-458 (1974) ;

T.1.M.E., Inc. v. United States, 359 U.S. 464, 470-471

(1959).

The enforcement scheme is adequate without an inferred

private right of action. The Administrator of the EPA is

given broad authority to enforce the provisions of the Act;

states assuming discharge permit authority are required to

20This language in the Senate Report might also have been in-

tended to state what was meant by the phrase ‘‘any statute or com-

mon law’’ rather than as a mere paraphrase. Thus, § 505(e)

would preclude the inference of any Congressional intent to create

a private right of action for damages under other provisions of the

FWPCA. Nevertheless, for purposes of analyzing the Cort v. Ash

factors we assume that the statement is only a paraphrase of the

statutory language.

20a

demonstrate adequate state law authority to insure com-

pliance. If a state fails to enforce the Act, the Adminis-

trator may do so, and, in the case of repeated failures to

enforce the Act, the Administrator may resume direct

authority for issuance of permits in that state. These

enforcement procedures are reinforced by the citizen suit

provisions of § 505, which also authorizes the award of

attorney’s fees and litigation costs to citizen plaintiffs.

We conclude that plaintiffs have not carried their

burden of establishing that Congress intended to create

a private right of action for damages against a violator

of the FWPCA in favor of a person injured by pollutant

discharges.

The amended complaint does not state a claim under

the FWPCA on which relief could be granted.

III.

Safe Drinking Water Act

Plaintiffs recognize in their brief that their assertion of

a right of action under the Safe Drinking Water Act is

subject to the same analysis as their claim to a right of

action under FWPCA.?:

We do not, however, even find it necessary to apply that

analysis, because defendants’ alleged conduct does not even

arguably violate the Safe Drinking Water Act. That Act

authorizes the Administrator of the EPA to prescribe

maximum contaminant levels in drinking water and specific

treatment techniques to reduce the level of contaminants in

drinking water.** With an exception not relevant here,?®

21The Safe Drinking Water Act, 42 U.S.C. § 300f, et seq., con-

tains, in 42 U.S.C. § 300j-8, a notice provision comparable to that

of § 505 of the FWPCA.

228ee 42 U.S.C. § 300g-1; for an overview of the statutory

scheme see Environmental Defense Fund v. Costle, 578 F. 2d 337,

339-340, 342-344 (D.C. Cir. 1978) (Leventhal, J.).

23S8e¢e 42 U.S.C. § 300h (underground injection of contaminants

that may endanger drinking water supplies).

2la

the Act does not purport to regulate discharges of pollu-

tants. It focuses on “public water systems,” see, e.g., 42

U.S.C. § 300g,*4 and attempts to insure that such systems

provide drinking water that meets minimal safety stand-

ards. See generally H.R. Rep. No. 93-1185, 93rd Cong., 2d

Sess., reprinted in [1974] U.S. Code Cong. & Ad. News

6454, 6456-6462.2° Plaintiffs point to no provision of the

Act within which defendants’ conduct even arguably falls;

we have found none. If this were the only basis asserted

for a federal cause of action subject to the district court’s

jurisdiction, plaintiffs’ claim would be “wholly insubstan-

tial and frivolous” and therefore within the narrow cate-

gory of claims that should be dismissed for lack of federal

jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536-543

(1974); Bell v. Hood, 327 U.S. 678, 682-683 (1946).

IV.

Federal Common Law

Plaintiffs’ assertion of a right of action under the fed-

eral common law of nuisance and federal jurisdiction over

such a claim under 28 U.S.C. § 1331,?* is well founded.

Defendants argue that, as the district court held, under

Illinois v. Milwaukee, 406 U.S. 91, 100 (1972), only a state

may file such an action. Plaintiffs do not seek to represent

24Public water system is defined as follows:

[A] system for the provision to the public of piped water for

human consumption, if such system has at least fifteen service

connections or regularly serves at least twenty-five individuals.

42 U.S.C. § 300f(4).

25 The purpose of the legislation is to assure that water supply

systems serving the public meet minimum national standards for

protection of public health.’’ H.R. Rep. No. 93-1185, supra, re-

printed in [1974] U. S. Code Cong. & Ad. News, supra, at 6454.

26°¢'The district courts shall have original jurisdiction of all civil

actions wherein the matter in controversy exceeds the sum or value

of $10,000 . . . , and arises under the . . . , laws, . . . of the

United States’’, 28 U.S.C. § 1131(a).

22a

the “quasi-sovereign interest,” Georgia v. Tennessee Copper

Co., 206 U.S. 230, 237 (1907), or the “ecological rights,”

Texas v. Pankey, 441 F. 2d 236, 240 (10th Cir. 1971), of the

State of Indiana. Because they are not states, they cannot

represent the interests of any other state, see Rule 23(a)

(3), Fed. R. Civ. P., and they do not seek to do so. They

seek only to recover for themselves and other similarly

situated municipal bodies damages for expenses they in-

curred because of defendants’ discharges of toxic chemicals

into drinking water supplies.

Since it was the Supreme Court’s opinion in Illinois v.

Milwaukee that firmly established the existence of a federal

common la-y of nuisance governing interstate water pollu-

tion, we take that opinion as our text in determining the

content and scope of that law. See also Texas v. Pankey,

supra, 441 F. 2d at 239-242. The Court did not address

itself in Illinois v. Milwaukee to the question of whether

parties other than states were protected by, or could in-

voke, that law, since the only plaintiff in that case was a

state. The Court’s opinion does, however, provide guidance

for resolution of the question before us.*7

The Court held that “laws” in 28 U.S.C. § 1331(a) in-

cludes federal common law as well as statutory law, 406

U.S. at 100, and declared that there is a federal common

law of nuisance applicable to interstate water pollution.

Id. at 103. Referring to the problem of water apportion-

ment, the Court said

“7Compare P. Bator, P. Mishkin, D. Shapiro, and H. Wechsler,

The Federal Courts and the*Federal System 806 (2d ed. 1973)

(‘Justice Douglas’ opinion [in Jllinois v. Milwaukee, 406 U. S. 91

(1972) | casts no light on the question whether federal common law

governs suits to abate interstate pollution brought by private par-

ties’’) with Note, Federal Common Law and Interstate Pollution,

85 Harv. L. Rev. 1439, 1439 (1972) (‘‘The holding in that case

[Illinois v. Milwaukee, 406 U. S. 91 (1972)| goes farther than the

holding in the [Texas v.] Pankey [441 F. 2d 236 (10th Cir. 1971) |

case . . . largely because the . . . Court indicated that fed-

eral common law-making power should be exercised in any inter-

state nuisance suit, regardless of the character of the parties, . . .).

23a

Rights in interstate streams, like questions of boun-

daries, “have been recognized as presenting federal

questions.” Hinderlider v. LaPlata Co., 304 U.S. 92,

110 {(1938)]. The question of apportionment of inter-

state waters is a question of “federal common law”

upon which state statutes or decisions are not con-

clusive.

406 U.S. at 105 (footnote omitted).?8 The Court’s footnote

6 is particularly suggestive of the correct resolution of the

issue in the case at bar:

Thus, it is not only the character of the parties that

requires us to apply federal law. . . . As Mr. Justice

Harlan indicated for the Court in Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 421-427 [(1964)],

where there is an overriding federal interest in the

need for a uniform rule of decision or where the con-

troversy touches basic interests of federalism, we have

fashioned federal common law. . . . Certainly these

same demands for applying federal law are present in

the pollution of a body of water such as Lake Michigan

bounded, as it is, by four States.

Id. at 105 (citations omitted).

Whatever the result should be when the plaintiff is a

private party or when no interstate effects are alleged,?°

28In Hinderlider, the plaintiff was not a state but a ditch com-

pany complaining of Colorado’s interference with its rights to

draw water from the LaPlata River. Colorado defended on the

ground that its action was authorized by an interstate compact

approved by Congress.

-29In Committee for Jones Falls Sewage System v. Train, 539

F. 2d 1006 (4th Cir, 1976) (in bane), a divided court refused to

extend Illinois v. Milwaukee to an action brought by an association

of community organizations and citizens in which there was no in-

terstate effect. Even though state plaintiffs were present in Reserve

Mining Co. v. EPA, 514 F. 2d 492, 520, 521 (8th Cir. 1975) (in

(Footnote continued on following page)

2ta

there can be little doubt that the reasons the Supreme

Court found compelling for declaring a federal common law

of interstate water pollution are applicable here. The

plaintiffs are municipal or public corporations, subdivisions

of the state, that were required to spend public funds be-

cause of pollution of an interstate waterway by acts done

in another state. The interests of the state in this inter-

state pollution dispute are implicated in the same way such

interests were implicated in Illinois v. Milwaukee.*°

The sewer district asserts that a passage from New

Jersey v. New York, 345 U.S. 369 (1953), quoted in Illinois

v. Milwuakee, supra, 406 U.S. at 96-97, supports the view

that only a state may maintain a suit based on the federal

common law. The portion of the passage relied on is as

follows:

The City of Philadelphia represents only a part of the

citizens of Pennsylvania who reside in the watershed

(Footnote continued from preceding page)

banc), the court held Illinois v. Milwaukee inapplicable because no

interstate effects were alleged. See also Parsell v. Shell Oil Co.,

421 F. Supp. 1275, 1281 (D. Conn. 1976), aff’d sub nom. East End

Yacht Club v. Shell Oil Co., 573 F. 2d 1289 (2d Cir. 1977). But

see Stream Pollution Control Board v. United States Steel Corp.,

512 F. 2d 1036, 1039-1040 & n.9 (7th Cir. 1975) ; Ira 8S. Bushey &

Sons v. United States, 346 F. Supp. 145 (D.Vt. 1972), aff’d, 487

F. 2d 1393 (2d Cir. 1973), cert. denied, 417 U. S. 976 (1974).

30Cf. Hinderlider v. LaPlata River & Cherry Creek D. Co., 304

U. 8. 92, 110 (1938) (interstate water apportionment) ; see also

Georgia v. Tennessee Copper Co., 206 U. S. 230, 238 (1907) (im-

plicitly assuming that even a private party might file suit to enjoin

interstate air pollution) ; Committee for James Falls Sewage System

v. Train, supra, 539 F. 2d at 1009, n.8. Originating in Pennsyl-

vania, the Ohio River is the boundary between Ohio and West Vir-

ginia, Ohio and Kentucky, Indiana and Kentucky, and Illinois and

Kentucky, and empties into the Mississippi River. Each of these

states has an interest in the use of the river, but the laws of one

state cannot control the use of the river by citizens of other states.

See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 427 (1964)

(Hinderlider ‘‘implies that no State can undermine the federal

interests in equitably apportioned interstate waters even if it deals

with private parties’’).

25a

area of the Delaware River and its tributaries and

depend upon those waters. If we undertook to evalu-

ate all the separate interests within Pennsylvania, we

could, in effect, be drawn into an intramural dispute

over the distribution of water within the Common-

wealth ....

As the rest of the passage quoted in Illinois v. Milwaukee,

supra, 406 U.S. at 97, demonstrates, the language will not

bear the construction asserted by the sewer district:

Our original jurisdiction should not be thus ex-

panded to the dimensions of ordinary class actions.

An intervenor whose state is already a party should

have the burden of showing some compelling interest

in his own right, apart from his interest in a class with

all other citizens and creatures of the state, which

interest is not properly represented by the state.

The issue in New Jersey v. New York was whether Phila-

delphia should be permitted to intervene in an original

action in the Supreme Court in which Pennsylvania was

already a party. What the Court said in addressing that

issue has no bearing on whether a party other than a state

can maintain a federal common law nuisance action in a

district court.

So far there is little authority on the question we decide.

At least one district court has held that a municipality can

state a claim for relief under the federal common law of

interstate water pollution. Township of Long Beach v.

City of New York, 445 F. Supp. 1203, 1214 (D.N.J. 1978).

Both the Second and Third Circuits have indicated that the

United States can state a claim for relief under the federal

common law.*!

31United States v. Ira S. Bushey & Sons, 346 F. Supp. 145

(D. Vt. 1972) (Oakes, J.), aff'd, 487 F. 2d 1393 (2d Cir. 1978),

cert. denied, 417 U. S. 976 (1974) ; United States v. Stoeco Homes,

(Footnote continued on following page)

26a

Defendants also contend that plaintiffs’ request for

damages rather than injunctive relief somehow precludes

the district court’s exercise of jurisdiction. None of the

defendants cites any authority for that proposition, and we

have discovered none.** We have held that plaintiffs are

appropriate parties to maintain the cause of action as-

serted. The question of what relief, if any, they may be

entitled to is independent of the court’s power to hear and

decide the merits of the claim. See Davis v. Passman,

U.S. —_, 99 S. Ct. 2264, 2274 n.18 (1979).°* Whether

or not defendants have breached any obligations for which

they should be held liable to plaintiffs will be determined

by judge-made rules. The consequences of any breach of

duty imposed by the courts are necessarily also determined

by the courts. Cf. International Brotherhood of Electrical

Workers v. Foust, ___. U. S. —_, 99 S. Ct. 2121, 2125

(Footnote continued from preceding page)

498 F. 2d 597, 611 (3d Cir. 1974), cert. denied, 420 U. S. 977

(1975) ; see also Stream Pollution Control Board v. United States

Steel Corp., 512 F. 2d 1036, 1040 n.9 (7th Cir. 1975) ; United States

v. United States Steel Corp., 356 F. Supp. 556, 558 (N.D. Ill. 1973).

32The sewer district seems to assert that the Supreme Court’s

decision in Illinois v. Milwaukee, supra, establishes a request for

equitable relief as a ‘‘criterion’’ for maintaining a claim under the

federal common law of interstate water pollution. We disagree.

Plaintiffs in that case sought equitable relief because of the nature

of the claimed injury. See Illinois v. Milwaukee, supra, __ F. 2d

at. The Supreme Court’s discussion of Illinois’ right to main-

tain the action, therefore, focused on that type of claim. We find

nothing in the opinion that supports the conclusion that equitable

relief is exclusive or that a request for such relief is essential.

33Nor is the relief sought ordinarily determinative of whether a

plaintiff has a cause of action. ‘‘If a litigant is an appropriate

party to invoke the power of the courts, it is said that he has a

‘cause of action’ under the statute, and that this cause of action is

a necessary element of his ‘claim.’ So understood, the question

whether a litigant has a ‘cause of action’ is analytically distinct

and prior to the question of what relief, if any, a litigant may be

entiled to receive.’’ Davis v. Passman, _ U. S. ___, 99 S. Ct.

2264, 2274 (1979).

27a

(majority opinion), 2128 (Blackmun, J., concurring)

(breach of union’s duty of fair representation) (1979). The

remedies appropriate for the violation of duties imposed

under the federal common law of water pollution will neces-

sarily depend upon the facts in a particular case. L.g.,

Illinois v. Milwaukee, supra, F’, 2d at We hold

only that a request for damages does not preclude the exer-

cise of jurisdiction of a claim arising under the federal

common law of interstate water pollution.**

Accordingly, the district court had subject matter juris-

diction of plaintiffs’ claim under the federal common law

of interstate water pollution.*®

V.

Venue and Personal Jurisdiction

Since we should affirm a district court judgment on any

ground supported by the record on appeal, our disposition

of the federal common law claim would ordinarily lead us

to consider any other substantial ground urged for affirm-

84Additional support for the conclusion we reach on this point

may be found in the Supreme Court’s references to the law of

‘*publie nuisanee.’’ Illinois v. Milwaukee, supra, 406 U.S. at 106,

107 ; see also Vermont v. New York, 417 U. S. 270, 275 n.5 (1974).

For in such suits plaintiffs found to meet the ‘‘particular injury’’

requirements for maintaining a suit for public nuisance tradition-

ally have been awarded damages or equitable relief depending upon

the circumstances. See generally Prosser, Private Action for Pub-

lie Nuisance, 52 Va. L. Rev. 997 (1966) ; Prosser, Handbook of the

Law of Torts 602-606 (4th ed. 1971). ‘‘Once the existence of a

nuisance is established, the plaintiff normally has three possible

remedies: an action for the damages which he has suffered, equita-

ble relief by injunction, and abatement by self help.’’ Jd. at 602.

35We express no judgment on the extent to which the sewer dis-

trict may have a sovereign immunity defense since neither party

has adequately briefed the issue, both stating, in effect, that the

question does not affect jurisdiction. But cf. United States v.

Testan, 424 U. S. 392 (1976).

28a

ance.*® Nevertheless, in this case we think it wise to defer

consideration of the sewer district’s contention that the.

Indiana long-arm statute,*7 applicable here by force of

Rule 4(e), Fed. R. Civ. P.,*° is insufficient to permit the

’6The sewer district’s improper venue claim is adequately an-

swered by our decision in Illinois v. Milwaukee, supra, __ F. 2d

at __, rejecting a similar argument. Leroy v. Great Western

United Corp., __ U. 8S. ——_, 47 U.S.L.W. 4844 (1979), decided

after our decision in J/linois v. Milwaukee, supra, does not require

a contrary conclusion.

In Great Western, the Court noted that if it is ‘‘not clear that

the claim arose in only one specific district a plaintiff may choose

between those two . . . districts that with approximately equal

plausibility may be assigned as the locus of the claim.’’ 47 U.S.L.W.

at 4847. But in the case before it the Court found that there was

‘“‘only one obvious locus. . . .’’ Jbid. Interstate water pollu-

tion disputes, however, fall within the first category. See Illinois v.

Milwaukee, supra, 406 U. S. at 108, n.10; Illinois v. Milwaukee,

supra, __. F.. 2d at __._ For, in such disputes, proof of injury

to the complainant is a significant aspect of the litigation. See

generally Illinois v. Milwaukee, supra, ___. F. 2d at ___. The de-

fendant’s actions will commonly occur in a district other than that

in which the injury is suffered, but it cannot be said that the ‘‘bulk

of the relevant evidence and witnesses,’’ Leroy v. Great Western,

supra, 47 U.S.L.W. at 4847, will be located in either district.

37Trial Rule 4.4, Indiana Rules of Trial Procedure, reprinted in

Ind. Stat. Ann.: Court Rules, Book 1 (Burns), in relevant part,

is as follows:

(a) Acts serving as a basis for jurisdiction. Any person or

organization that is a non-resident of this state, . . . , sub-

mits to the juridiction of the courts of this state as to any

action arising from the following acts committed by him or

his agent:

(1) doing any business in this state ;

(2) causing personal injury or property damage by an

act or omission done within this state;

(3) causing personal injury or property damage in this

state by an occurrence, act or omission done outside this

state if he regularly does or solicits business or engages in

any other persistent course of conduct, or derives substantial

revenue or benefit from goods, materials, or services used,

consumed, or rendered in this state ;

38F.9., Illinois v. Milwaukee, supra, __ F. 2d at __— n.8;

Lakeside Bridge & Steel Co. v. Mountain State Construction Co.,

597 F. 2d 596, 598 (7th Cir. 1979).

29a

exercise of personal jurisdiction, a contention the trial

judge found it unnecessary to reach because of his holding

on subject matter jurisdiction. If the issue were governed

by Illinois law, our decision in Illinois v. Milwaukee, supra,

F. 2d , sustaining in personam jurisdiction, would

be controlling. Indiana’s long-arm statute is different from

that of Illinois, however. The parties have cited no Indiana

decision construing the relevant provisions of the statute,

and our research has revealed none. Although federal

district courts sitting in Indiana have stated that the

“Indiana long-arm statute was intended to extend personal

jurisdiction of courts sitting in this state, . . ., to the

limits permitted under the due process clause of the four-

teenth amendment,” Oddi yv. Mariner-Denver, Inc., 461 F.

Supp. 306, 308 (S.D. Ind. 1978),*" the specific statutory pro-

visions appear to be more limited.

Subsection (2) of the Indiana long-arm statute refers

to “an act or omission done within this state.” We cannot

determine whether the Indiana courts will conclude that

this phrase includes only acts physically done within the

state or also includes acts physically done outside the state

but causing some injury within .t; either construction is

possible.*” Subsection (3) of the Indiana statute suggests

39Valdez v. Ford, Bacon, and Davis, Texas, 62 F.R.D. 7, 10, 14

(N.D. Ind. 1974); Byrd v. Whitestone Publications, Inc., 27 Ind.

Dee. 617, 619 (S.D. Ind. 1971); see also Pearson v. Furnco Con-

struction Co., 563 F. 2d 815, 819 (7th Cir. 1977). But ef. Chulchian

v. Franklin, 392 F. Supp. 2038, 205 (S.D. Ind. 1975).

And it does seem that that was their intent: ‘‘The adoption of

this rule will expand the in personam jurisdiction of the courts of

this state to the limits permitted under the Due Process Clause

of the Fourteenh Amendment.’’ Civil Code Study Commission,

Comments to Rule 4.4, quoted in Valdez v. Ford, Bacon, supra,

62 F.R.D. at 10. The Comments are reprinted in W. Harvey,

1 Indiana Practice, 298-305 (1969).

40The Indiana statute is based in part on the Illinois long-arm

statute, Ill. Rev. Stat. ch. 110, § 17; the New York long-arm statute,

7B McKinney’s Consolidated Laws of New York § 302, is also based

in part on the Illinois statute. Yet, the courts of Illinois and New

(Footnote continued on following page)

30a

the narrower construction, since the broader construction

would create considerable overlap between the provisions

of subsections (2) and (3). Nevertheless, if it is correct

that the legislature intended to expand Indiana state court

jurisdiction to the limits of the due process clause, a broad

construction may be warranted.t! This issue of Indiana

statutory law should be decided in the first instance by a

district judge sitting in Indiana, who will be more familiar

with Indiana law and practice than we are.*?

(Footnote continued from preceding page)

York have come to opposite conclusions concerning the scope of

virtually identical phrases in their long-arm statutes. Compare

Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d

432, 435-436, 176 N. E. 2d 761, 762-763 (1961) (construing the

phrase ‘‘tortious act within this state’’) with Longines-Wittnauer

Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.S. 2d 443, 460, 261

N. Y. 8S. 2d 8, 21, 209 N. E. 2d 68, 77, cert. denied sub nom.

Estwing Mfg. Co. v. Singer, 382 U. S. 905 (1965) (construing the

phrase ‘‘tortious act within the state’’). See also Harvey v. Chemie

Grunenthal, 354 F. 2d 428, 431 (2d Cir.), cert. denied, 384 U. S.

1001 (1965) (construing the New York long-arm statute).

*1Also, it seems apparent that the three subsections were not

intended to be mutually exclusive. All three might be applicable,

for example, in a products liability action against an Illinois manu-

facturer that has no place of business in Indiana but regularly sells

its products there.

*20Only the sewer district presses this claim on appeal. The

other defendants moved to dismiss the amended complaint ‘‘for

improper venue and failure to comply with the provision[s| of

. . . 28 U.S. Code 1891(a) and . . . 28 U.S. Code Section

1341(b) . . . ,’’ [R. 88] but in their memorandum in support

of the motion seemed to argue in addition that the court had no

personal jurisdiction, concluding with the following statement:

Plaintiffs have not, and cannot, allege facts sufficient to sup-

port venue or personal jurisdiction in this Court, and the .

Complaint must be dismissed.

{R. 91-92.| In responding to this motion to dismiss, however,

plaintiffs only addressed the venue contention. If on remand these

defendants do in fact raise the issue, the court should consider

whether it has been preserved.

Whether or not these defendants have waived the objection by

failure to raise it, Rule 54(b), Fed. R. Civ. P., and 28 U.S.C.

§ 1292(b) provide available avenues for review of the court’s deci-

sion on the personal jurisdiction issue as it relates to the sewer dis-

trict should the court make the requisite findings.

3la

VI.

State Law Claims

We affirm the district -court’s dismissal of the three

state law claims. “[I]t is federal common law and not

state statutory or common law that controls in this case,”

Illinois v. Milwaukee, supra, F. 2d at n.53; see

Illinois v. Milwaukee, supra, 406 U.S. at 103 & n.5, 107 & ©

n.9,* -

Accordingly, the district court’s judgment is affirmed

in part and reversed and remanded in part for further

proceedings consistent with this opinion.

ArrirMepD In Part, Reversep AnD Remanvep Iy_ Part.

A true Copy: ‘

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

43Although federal common law controls, federal statutes as

well as state statutory and common laws are nonetheless highly

relevant. Illinois v. Milwaukee, supra, 406 U. S. at 103 & n.5,

107 & n.9; Illinois v. Milwaukee, supra, —_— F. 2d at __; ef. United

States v. Kimbell Foods, —— U. 8. , 47 US.L.W. 4342, 4345-

4349 (1979) ; see generally Mishkin, The Variousness of ‘*Federal

Law’’: Competence and Discretion in the Choice of National and

State Rules for Decision, 105 U. Pa. L. Rev. 797 (1957).