UNITED STATES BANKRUPTCY COURT NORTHERN · PDF fileParaday and Bastida were re-filed in the Cook County Circuit Court (Chancery ... Midwest Generation debtor by the Edison Mission

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UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

In re: ) Chapter 11

)

EDISON MISSION ENERGY, et al,. ) Case No. 12-49219 (JPC)

)

Debtors. ) (Jointly Administered)

MOTION TO LIFT AUTOMATIC STAY TO ALLOW CONTINUANCE OF

PROCEEDINGS IN ILLINOIS STATE COURT

Greg Paraday, et al., v. Midwest Generation, LLC, Case No. 2012-CH-1575

(hereinafter “Paraday”) and Eulalio Bastida, et al. v. Midwest Generation, LLC, Case No.

2012-CH-1576 (hereinafter “Bastida”) by and through their attorneys, Peter W. Macuga of

Macuga, Liddle, and Dubin, P.C, hereby move this Honorable Court, pursuant to 11 U.S.C.

§ 362(d) and Bankruptcy Rule 4001, to enter an Order lifting the automatic stay and allow

Paraday and Bastida, to proceed with the two separate pending class litigation cases against

debtor, Midwest Generation, LLC., under the condition that no judgment obtained by either

Paraday and Bastida will be enforced against Midwest Generation LLC. until the conclusion

of Debtor’s Chapter 11 Bankruptcy proceeding. In support, Paraday and Bastida say as

follows:

INTRODUCTION

1. By this motion, Paraday and Bastida seek an order lifting the automatic stay

imposed on the separate state class action cases Greg Paraday, et al., v. Midwest

Generation, LLC, Case No. 2012-CH-1575 and Eulalio Bastida, et al. v. Midwest

Generation, LLC, Case No. 2012-CH-1576. (See Exhibit 1-2).

Case 12-49219 Doc 505 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Main Document Page 1 of 5

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2. As stated below Paraday and Bastida are entitled to an order pursuant to 11

U.S.C. § 362(d) to lift the automatic stay to allow Paraday and Bastida to proceed

against Midwest Generation, LLC for their class action property damage claims.

Both Paraday and Bastida will not enforce any judgment against Midwest

Generation, LLC until the conclusion of Midwest Generation, LLC’s Chapter 11

Bankruptcy proceeding.

JURISDICTION & VENUE

3. This Court has jurisdiction and venue under 28 U.S.C. § 1334, 28 U.S.C. § 1408,

and 11 U.S.C. § 362(d).

BACKGROUND

4. Originally, these cases were filed in U.S. District Court on May 25, 2011 but

were dismissed due to lack of subject matter jurisdiction on October 26, 2011. (See

Exhibit 3-6).

5. Paraday and Bastida were re-filed in the Cook County Circuit Court (Chancery

Division) against Midwest Generation on January 17, 2012 for claims of negligence,

gross negligence, nuisance, trespass and strict liability. Plaintiffs have expended

substantial sums in conducting pre-litigation discovery and have already secured an

Expert Report discussing Defendants’ responsibility for class Plaintiffs’ substantial

property damage. Defendants have already been denied a Motion to Dismiss and

have re-filed a Second Motion to Dismiss in the Cook County Circuit Court.

ARGUMENT

I. PARADAY AND BASTIDA ARE ENTITLED TO MODIFICATION OF THE

AUTOMATIC STAY TO ALLOW THE CONTINUATION OF THEIR STATE

COURT CLAIMS


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6. Paraday and Bastida are entitled to an order lifting the automatic stay in this

case pursuant to 11 U.S.C. § 362(d)(1). On request of a party in interest and after

notice and a hearing, the court shall grant relief from an automatic stay for cause.

Id.

7. As no clear definition of ‘cause’ in the Bankruptcy Code exists, discretionary

relief from automatic stay must be determined on a case by case basis. In re

Benalcazar, 283 B.R. 514, 535-36 (Bankr. N.D. Ill. 2002).

8. In determining whether to lift an automatic stay for cause, the 7th

Circuit has

examined three requirements: a) whether any great prejudice to either the bankrupt

estate or the debtor will result from continuation of the civil suit; b) whether the

hardship to the [non-bankrupt party] by maintenance of the bankruptcy stay

considerably outweighs the hardship of the debtor, and c) whether the creditor has a

probability of prevailing on the merits. Matter of Fernstrom Storage & Van Co.,

938 F.2d 731, 735 (7th Cir. 1991).

9. The pending Paraday and Bastida property damage class action cases are not

connected with the bankruptcy proceeding and will not interfere with that

proceeding or jeopardize the debtors’ bankruptcy estate as Plaintiff will defer on the

collection of any judgments that may be rendered in favor of the class Plaintiffs’

until the close of Debtor’s Chapter 11 bankruptcy proceeding.

10. Plaintiffs in Paraday and Bastida have conducted substantial subpoena discovery

with the Illinois Department of Environmental Quality, the Environmental Protection

Agency, other public and private agencies and archives, have conducted a great

number of interviews of putative class members, including clergy and local


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association leaders, and have expended substantial sums in the Expert

Reports already generated by Plaintiffs against the two Midwest Generation facilities.

Plaintiffs’ two Expert Reports are each the result of air and odor dispersion and air

and odor modeling which delineate the distance Defendant’s odors and particulate fall

onto Plaintiffs’ properties. Each of Plaintiffs’ Expert Reports is separately supported

by over 7,000 pages of supporting data. Plaintiffs’ Expert Reports have long been

supplied to the Defendants. Over 300 persons have requested immediate inclusion as

named parties in the respective putative class actions. A continuing bankruptcy stay

substantially delays the class litigation of Plaintiffs’ property damage claims due to

Midwest Generation air pollution. Matter of Fernstrom Storage & Van Co., 938 F.2d

731, 737 (7th Cir. 1991).

11. A lift of the automatic stay from application to Paraday and Bastida will allow

both classes to continue to litigate their claims against the Midwest Generation

debtor. The Paraday and Bastida putative classes will include thousands of Plaintiffs,

by already received individual complaints and the parameters of the Expert Reports,

that possess property damage claims against the Midwest Generation Defendants. The

adjudication of class action claims is a long and complex process and indefinite

delays will further distance Plaintiffs from judgments upon their claims.

12. For the above stated reasons, Paraday and Bastida, respectfully request that this

Honorable Court lift the already applied automatic stay of proceedings with respect

to the Debtor Midwest Generation only in order to continue both already filed state

court class action cases.


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WHEREFORE, Paraday and Bastida respectfully request that this Honorable Court

enter an Order lifting, terminating, or modifying the automatic stay imposed upon the

Midwest Generation debtor by the Edison Mission Energy general bankruptcy petition as that

stay relates to the pending litigation in the Circuit Court of Cook County, Chancery Division,

Illinois, Case No. 2012-CH-1575 and Case No. 2012-CH-1576, to allow Paraday and

Bastida to proceed under the condition that no judgment be enforced until the conclusion of

debtors Chapter 11 bankruptcy proceeding.

Respectfully submitted,

By:/s/ Peter W. Macuga, II

PETER W. MACUGA II, ESQ. (P 28114)

MACUGA, LIDDLE, & DUBIN, P.C.

Attorneys for Plaintiff

975 East Jefferson Avenue

Detroit, MI 48207

313-392-0015

[email protected]


mailto:[email protected]

REQUIRED STATEMENT

TO ACCOMPANY MOTIONS FOR RELIEF FROM STAY

All Cases: Debtor(s) ________________________________________ Case No. _______________ Chapter _____

All Cases: Moving Creditor ____________________________________________ Date Case Filed ____________

Nature of Relief Sought: Lift Stay Annul Stay Other (describe) ___________________________

Chapter 13: Date of Confirmation Hearing ______________________ or Date Plan Confirmed ________________

Chapter 7: No-Asset Report Filed on ______________________________ No-Asset Report not Filed, Date of Creditors Meeting ___________________________________

1. Collaterala. Homeb. Car Year, Make, and Model ___________________________________________c. Other (describe)______________________________________________________

2. Balance Owed as of Petition Date $ _________________________Total of all other Liens against Collateral $_____________________

3. In chapter 13 cases, if a post-petition default is asserted in the motion, attach a payment history listing the amounts and dates of all payments received from the debtor(s) post-petition.

4. Estimated Value of Collateral (must be supplied in all cases) $ ___________________________

5. Defaulta. Pre-Petition Default

Number of months _____ Amount $ _____________________

b. Post-Petition Defaulti. On direct payments to the moving creditor

Number of months _____ Amount $ _____________________

ii. On payments to the Standing Chapter 13 TrusteeNumber of months _____ Amount $ _____________________

6. Other Allegationsa. Lack of Adequate Protection § 362(d)(1)

i. No insuranceii. Taxes unpaid Amount $ _____________________iii. Rapidly depreciating assetiv. Other (describe) _______________________________________________________

b. No Equity and not Necessary for an Effective Reorganization § 362(d)(2)

c. Other “Cause” § 362(d)(1)i. Bad Faith (describe)____________________________________________________ii. Multiple Filingsiii. Other (describe) _______________________________________________________

d. Debtor’s Statement of Intention regarding the Collaterali. Reaffirm ii Redeem iii. Surrender iv. No Statement of Intention Filed

Date: _____________________________ _______________________________________________ Counsel for Movant

(Rev. 12 /21/09)

Case 12-49219 Doc 505-1 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Statement Accompanying Relief From Stay Page 1 of 1

Midwest Generation, LLC 12-BK-49218 11

Greg Paraday, et al. and Eulalio Bastida, et al. 12/17/12

✔

✔

✔ To Proceed with Illinois State Court Class Action Claims

✔

2/13/13 S/Peter W. Macuga

Case 12-49219 Doc 505-2 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 1 Page 1 of 14




























UNITED STATES DISTRICT COURT


)GREGORY HODUL, LINDA HODUL, )PATRICIA BROWDER, ANDY CHAN, )

AMY CHAN, and GERALD MEAD-LUCERO, ))

Individually and on Behalf of All Others )Similarly Situated, Plaintiff Putative )

Class Representatives, ))

)) Case No.) Hon.

v. ))

MIDWEST GENERATION, LLC, )FISK FACILITY, )

Defendants. )

)

JAUREGUI & ASSOCIATES, P.C.ARTURO JAUREGUI (6296296)ANSELMO DURAN (6189928)

Attorneys for Plaintiffs120 West Madison St., Suite 400

Chicago, IL 60602(312) 781-9103


PETER W. MACUGA II (P28114)STEVEN D. LIDDLE (P45110)KEVIN J. MCGINESS (P73281)

Attorneys for Plaintiffs975 East Jefferson Avenue

Detroit, MI 48207-3101(313) 392-0015

_____________________________________________________________________/

PLAINTIFFS’ CLASS ACTION COMPLAINT

NOW COME the Plaintiff Putative Class Representatives Gregory Hodul, Linda

Hodul, Patricia Browder, Andy Chan, Amy Chan, and Gerald Mead-Lucero, individually and

on behalf of all others similarly situated, by and through their attorneys, Jauregui &

Associates P.C., Arturo Jauregui, and Macuga, Liddle, Dubin, P.C., Peter W. Macuga, II,

Case: 1:11-cv-03524 Document #: 1 Filed: 05/25/11 Page 1 of 14 PageID #:1Case 12-49219 Doc 505-4 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 1 of 14

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(hereinafter "Plaintiffs") and state in support of their Class Action Complaint against

Defendant, MIDWEST GENERATION, LLC, (hereinafter “Midwest Generation” or

"Defendant"), as follows:

NATURE OF THE ACTION

1. This action is necessary to protect the property rights of Plaintiffs, and all

others similarly situated, which have been unreasonably interfered with resulting from the

physical invasion of Plaintiffs' person and property by falloutparticulate and contaminants,

thereby causing material injury to Plaintiffs' person and property through negligence, gross

negligence, nuisance, trespass and strict liability.

2. Plaintiffs bring this action on behalf of themselves and all others who have

similarly suffered from fallout particulate and air contaminants. The reason for not joining

all potential class members as Plaintiffs is that, upon information and belief, there are

thousands of potential plaintiffs, thereby making it impractical to bring them before the

Court. All Plaintiffs reside in the neighborhoods which are within one (1) mile of Defendant

and which contain over 13,786 homes and approximately 43,347 residents.

3. There are many persons who have been similarly affected and the question

to be determined is one of common and general interest to many persons constituting the

class to which Plaintiffs belong, and the group is so numerous as to make it impracticable

to bring them all before the Court, for which reason Plaintiffs initiate this litigation for all

persons similarly situated pursuant to the Federal Rule of Civil Procedure 23.

4. Issues and questions of law and fact common to the members of the Class

predominate over questions affecting individual members and the claims of Plaintiffs,


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Gregory Hodul, Linda Hodul, Patricia Browder, Andy Chan, Amy Chan, and Gerald Mead-

Lucero, and all others similarly named and those similarly situated, are typical of the claims

of the Class.

5. The maintenance of this litigation as a Class Action will be superior to other

methods of adjudication in promoting the convenient administration of justice.

6. Plaintiffs, Gregory Hodul, Linda Hodul, Patricia Browder, Andy Chan, Amy

Chan, and Gerald Mead-Lucero, and all others similarly named and those similarly

situated, and the law firms of Jauregui & Associates, P.C. and Macuga, Liddle, & Dubin,

P.C., will fairly and adequately assert and protect the interests of the Class.

7. Defendant is a State of Delaware Limited Liability Company with its primary

business address at One Financial Place, 440 South LaSalle Street, Suite 3500, Chicago,

Illinois, 60605.

8. Defendant operates a coal fired electrical generation facility located at 1111

West Cermak Road, in the County of Cook, State of Illinois.

9. The Defendant’s operation, maintenance, and control of the coal fired

electrical generation facility has caused to the Plaintiff Class Representatives and all others

similarly situated within the one (1) mile diameter described similar property damages, the

inhalation of similar odors, the deposit of similar particulate coal dust and thereby caused

similar damages to the personal and real property of the Class Representatives and all

others similarly situated within the one (1) mile radius of the Defendant’s facility.

10. The operation of Defendant’s coal fired electrical generation facility at 1111

West Cermak Road, Chicago, Illinois has been the subject of numerous and constant


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complaints of the residents of the surrounding neighborhood, by organizations in the

surrounding neighborhood area, by protests of interested persons within the surrounding

area, and by government action, all of which has failed to compel Defendant to cease the

improper operation of its facility and to continue Defendant’s invasion of Plaintiffs’

properties by air contaminants, odors, chemicals, and particulates which thereby cause

damage to Plaintiffs’ properties.

JURISDICTION

11. Jurisdiction is proper in this matter pursuant to 28 USC §1332 as all Plaintiffs

named and unnamed are residents of the State of Illinois and Defendant is a corporate

entity of the State of Delaware. Diversity Jurisdiction is satisfied in this controversy as

claims exceed $75,000.

Plaintiff Putative Class Representatives

12. At all times relevant hereto, Plaintiffs, Gregory and Linda Hodul, have resided

at 1125 W. 25th Street, City of Chicago, County of Cook, State of Illinois.

13. At all times relevant hereto, Plaintiff, Patricia Browder, has resided at 3016 S.

Lloyd Street, City of Chicago, County of Cook, State of Illinois.

14. At all times relevant hereto, Plaintiffs, Andy and Amy Chan, have resided at

2128 South China Place, City of Chicago, County of Cook, State of Illinois.

15. At all times relevant hereto, Plaintiff, Gerald Mead-Lucero, has resided at

2113 W. 21st

Place, City of Chicago, County of Cook, State of Illinois.


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GENERAL ALLEGATIONS

16. On occasions too numerous to list, Plaintiffs' person and property including

Plaintiffs' neighborhood, residences, and yards, were physically invaded by fallout

particulate and air contaminants.

17. The fallout particulate and air contaminants which invaded Plaintiffs' person

and property originated from Defendant, Midwest Generation, LLC, is located in the City of

Chicago, at 1111 West Cermak Road, in the County of Cook, State of Illinois (hereinafter

the "facility"). At its facility, that operates a coal fired electrical generation plant.

18. The Defendant, as part of its normal business operations, generates, utilizes,

and discharges into the open atmosphere, including but not limited to, the following

chemicals: arsenic compounds, barium compounds, chromium compounds, copper

compounds, dioxin and dioxin-like compounds, hydrochloric acid, hydrogen fluoride, lead

compounds, manganese compounds, mercury compounds, nickel compounds, polycyclic

aromatic compounds, sulfuric acid, vanadium compounds, and zinc compounds.

19. The Defendant knew or should have known that some of the chemicals they

generate, utilize and discharge in its normal business operations, including but not limited

to, arsenic compounds, chromium compounds, dioxin and dioxin-like compounds, and

mercury compounds are extra hazardous and are known human carcinogens.

20. The Defendant, as part of its normal business operations, has admitted that it

has discharged into the atmosphere chemicals including, but not limited to, arsenic

compounds, barium compounds, chromium compounds, copper compounds, dioxin and

dioxin-like compounds, hydrochloric acid, hydrogen fluoride, lead compounds, manganese


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compounds, mercury compounds, nickel compounds, polycyclic aromatic compounds,

sulfuric acid, vanadium compounds and zinc compounds.

21. The Defendant is within one (1) mile of Plaintiffs and Plaintiffs’ properties and

Defendant chemical and particulate discharges have invaded and caused substantial

damage to, substantial loss of use of, and substantial interference with Plaintiffs, and

Plaintiffs’ properties.

22. The chemicals utilized by Defendant and discharged by Defendant are

harmful and noxious and have caused substantial damage to, substantial loss of use of,

and substantial interference with, Plaintiffs and Plaintiffs properties.

23. The fallout types emitted by the Defendant’s facility have been described by

residents of the surrounding neighborhood as a very heavy black particulate or black

powder, or white powder/ash/dust that requires constant cleaning and that makes Plaintiffs

prisoners in their homes and has precluded them from full use and enjoyment of their

properties.

24. It is Plaintiffs' information and belief that Defendant knew of the improper

construction, and operation of the facility, which allows discharge of chemicals, odors, air

pollutants, and particulates, or allowed the improper construction, and operation of the

facility, of the coal fired power plant, which allows discharge of chemicals, odors, air

pollutants, and particulates, and exercises exclusive control and/or ownership over the

facility.

25. The Defendant knew when Defendant purchased the facility that the plant

had been constructed in the year 1903 and had never been the subject of installation of air


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pollution control equipment to restrict, cease, or otherwise capture pollutants, chemicals,

odors, and particulate emitted fallout by the facility into the ambient atmosphere within one

(1) mile of the facility.

26. Defendant continues to operate at 1111 West Cermak Road, in the County of

Cook, State of Illinois, the coal fired electrical generation plant without proper or best

available technology, or any air pollution control equipment, and thereby knowingly allows

Plaintiffs properties within one (1) mile of the facility to be invaded by chemicals, air

pollutants, odors, and particulates emitted by the facility thereby causing damage to the

Plaintiffs properties.

27. As a direct and proximate result of Defendant’s negligence in constructing

and/or engineering and/or designing and/or operation and/or maintenance of the facility,

Plaintiffs' person and/or property have been invaded by particulates and contaminants.

28. The invasion of Plaintiffs' person and property by particulates, odors, and air

contaminants has caused Plaintiffs to suffer property damages.

29. The invasion of Plaintiffs' property by particulates, odors, and air

contaminants has or will cause diminution in the market value of Plaintiffs’ property and

has interfered with Plaintiffs’ use and enjoyment of their property.


contaminants has caused Plaintiffs to suffer injuries including, but not limited to, exposure

to horrific particulates and air contaminants. Defendant is vicariously liable for all damages

suffered by Plaintiffs, caused by Defendant’s employees, representatives, and agents,

who, during the course and scope of their employment, allowed or failed to correct the


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problem which caused particulates, odors, and air contaminants to physically invade

Plaintiffs’ person and property.

31. All emissions from Defendant’s coal fired facility, whether gaseous, chemical,

or particulate, will immediately combine with atmospheric dust to form industrial particulate

which immediately will fall onto Plaintiffs’ properties thereby causing damage to Plaintiffs’

properties.

NUISANCE

32. In the operation of their facility, Defendant utilizes chemicals and chemical

compounds to operate a coal fired electrical generation plant.

33. In the operation of their facility, Defendant discharges fallout, odors, and

chemicals and chemical substances which are invasive, some of which are extra

hazardous.

34. Defendant by and through current technological processes and current

engineering standards could and should preclude the discharge of any particulates and

extra hazardous substances onto Plaintiffs’ properties.

35. A condition or activity which unreasonably interferes with the use of property

is a nuisance.

36. Plaintiffs did not consent for particulates and air contaminants to physically

invade their person and property.

37. By causing particulates and air contaminants accumulated and controlled by

Defendant to physically invade Plaintiffs' person and property, Defendant substantially and

unreasonably interfered with Plaintiffs' use and enjoyment of their property.


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38. Defendant’s substantial and unreasonable interference with Plaintiffs' use

and enjoyment of their property constitutes a nuisance for which the Defendant is liable to

Plaintiffs for all damages arising from such nuisance, including compensatory and

exemplary, relief.

NEGLIGENCE AND/OR GROSS NEGLIGENCE

39. In constructing, maintaining, operating, controlling, engineering and/or

designing the facility, Defendant have a duty to exercise ordinary care and diligence so that

particulates and air contaminants do not invade Plaintiffs' person or property.

40. Defendant knowingly breached its duty to exercise ordinary care and

diligence when they improperly constructed, maintained, operated, engineered and/or

designed the facility and knew, or should have known, that such actions would cause

Plaintiffs' person and property to be invaded by particulates and air contaminants.

41. As a direct and proximate result of the failure of Defendant to exercise

ordinary care, Plaintiffs' person and property are physically invaded by particulates and air

contaminants.

42. As a direct and proximate result of Defendant’s negligence in operating

and/or constructing and/or engineering and/or maintaining its facility, Plaintiffs' person and

property are exposed to and invaded by particulates and air contaminants.

43. As a direct and proximate result of the invasion of Plaintiffs' person and

property by particulates and air contaminants, Plaintiffs have suffered injuries.

44. As a direct and proximate result of Defendant’s release of particulates and air

contaminants, the Plaintiffs' have suffered mental anguish, suffering, anxiety,


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embarrassment, humiliation, distress, agony and other related nervous conditions and

emotional sequelae.

45. The conduct of Defendant in knowingly allowing conditions to exist, which

caused particulates and air contaminants to physically invade Plaintiffs' person and

property, constitutes gross negligence as it demonstrates a substantial lack of concern for

whether an injury resulted to Plaintiffs.

46. Defendant is vicariously liable for the negligence and/or gross negligence of

their employees, representatives, and agents, who, during the course and scope of their

employment, allowed or failed to correct the problem which caused particulates and air

contaminants to physically invade Plaintiffs' person and property.

47. Defendant’s gross negligence entitles Plaintiffs to an award of punitive

damages.

TRESPASS

48. Defendant intentionally, recklessly, willfully, wantonly, maliciously and

negligently failed to construct, maintain and/or operate the facility which caused the

invasion of Plaintiffs' person and property by particulates, air contaminants, and other

airborne pollutants on dates too numerous too mention.

49. As a direct and proximate result of the foregoing conduct of Defendant,

particulates, air contaminants, and airborne pollutants accumulated upon, entered upon,

settled upon and physically invaded Plaintiffs' person and property.

50. It was reasonably foreseeable that Defendant’s failure to properly construct,


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maintain and/or operate the facility could result in an invasion of Plaintiffs' possessory

interests.

51. As a further direct and proximate result of the foregoing conduct of

Defendant, Plaintiffs suffered substantial damages to their persons and property as alleged

herein.

52. The particulates, air contaminants, and airborne pollutants which entered,

settled and physically invaded Plaintiffs' land and property interfered with Plaintiffs'

interests in the exclusive possession of Plaintiffs' land and property and constituted a

continuous trespass upon Plaintiffs' property.

53. Plaintiffs did not consent for particulates, air contaminants, and other airborne

pollutants to physically invade their land and property.

54. The Defendant’s actions, which resulted in the trespass upon Plaintiffs' land

and property were, and continue to be, intentional, willful, and malicious and made with a

conscious disregard for the rights and safety of Plaintiffs, entitling Plaintiffs to

compensatory, exemplary, injunctive and punitive relief.

STRICT LIABILITY




airborne pollutants on dates too numerous to mention.

56. Defendant’s failure to adequately construct, maintain and/or operate the

facility has contaminated Plaintiffs’ property, chattels and persons by substances widely


12

accepted and regulated as hazardous substances that create a high degree of risk of some

harm.

57. The hazardous substances underDefendant’s ownership and/or control have

contaminated Plaintiffs’ property, chattels and persons creating a harm that is great.

58. There is no safe way to release the hazardous chemicals owned and/or

controlled by Defendant that simply results in dumping or allowing the chemicals or

contaminants to settle onto Plaintiffs’ property.

59. The release of hazardous chemicals of the type owned and/or controlled by

Defendant onto Plaintiffs’ property is not a matter of common usage and/or occurrence.


Defendant in the manner in which Defendant releases them is inappropriate in any

location, but especially inappropriate in close proximity to a residential neighborhood.

61. Defendant’s method of releasing hazardous chemicals into Plaintiffs’

residential neighborhood is not, and was not, essential to the continuing function of

Defendant’s activities. As such, the value of this type of release to the community is

nonexistent.

62. Defendant’s release of hazardous chemicals into the Plaintiffs’ residential

neighborhood renders Defendant strictly liable to Plaintiffs for all damages arising from

such conduct, including compensatory and exemplary relief.

WHEREFORE, named Plaintiffs on behalf of themselves and putative class

members respectfully demand:

1. A class be certified;

2. Judgment against the Defendant and in favor of the named Plaintiffs and


13

putative class members for:

(a) Compensatory damages subject to proof;

(b) Punitive damages in accordance with Illinois law and as otherwise

supported by the evidence of the misconduct of the Defendant, and being

that amount necessary to “punish and discourage” Defendant “and others

from similar conduct in the future”;

(c) Reasonable attorneys’ fees in accordance with Illinois law and any

applicable federal rules;

(d) Interest until the date of judgment;

(e) Post-judgment interest at the rate of 12% per annum until paid;

(f) The “costs” of maintaining the action in accordance with the Illinois

Supreme Court Rules and the Federal Rules of Civil Procedure;

(g) For any and all further relief, including equitable relief, to which named

Plaintiffs and putative class members may be entitled;

(h) Opportunity with leave of Court to amend this Complaint to conform to the

evidence; and

(i) Trial by jury on all issues so triable.

Dated: May 25, 2011 Respectfully submitted,

JAUREGUI & ASSOCIATIES, P.C.

/s/____Arturo Jauregui___Arturo Jauregui

Attorney for Plaintiff

120 West Madison St., Suite 400

Chicago, IL 60602(312) 781-9103


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Of Counsel admitted pending Pro Hac Vice


Peter W. Macuga, IIAttorney for Plaintiff

975 E. Jefferson AvenueDetroit, MI 48207-3101(313) 392-0015


UNITED STATES DISTRICT COURT


)GEMMA ROJAS, FRANCISCO ROJAS, )

ESTELA LIMON, ELIGIO LIMON, )JOSEFINA CAMARGO, and )

CUVIER CAMARGO, a Putative Class ))

Individually and on Behalf of All Others )Similarly Situated, Plaintiff Putative )Class Representatives, )

))

) Case No.) Hon.

v. ))

MIDWEST GENERATION, LLC, )

CRAWFORD FACILITY, )Defendant. )

JAUREGUI & ASSOCIATES, P.C.

ARTURO JAUREGUI (6296296)ANSELMO DURAN (6189928)

Attorneys for Plaintiffs120 West Madison St., Suite 400

Chicago, IL 60602(312) 781-9103

MACUGA, LIDDLE, & DUBIN, P.C.PETER W. MACUGA II (P28114)

STEVEN D. LIDDLE (P45110)KEVIN J. MCGINESS (P73281)

Attorneys for Plaintiffs975 East Jefferson AvenueDetroit, MI 48207-3101

(313) 392-0015_____________________________________________________________________/

PLAINTIFFS’ CLASS ACTION COMPLAINT

NOW COME the Plaintiff Putative Class Representatives, Gemma Rojas, Francisco

Rojas, Estella Limon, Eligio Limon, Josefina Camargo, and Cuvier Camargo, individually

and on behalf of all others similarly situated, by and through their attorneys, Jauregui &


2

Associates P.C., Arturo Jauregui, and Macuga, Liddle, Dubin, P.C., Peter W. Macuga, II,

(hereinafter "Plaintiffs") and state in support of their Class Action Complaint against

Defendant, MIDWEST GENERATION, LLC, (hereinafter “Midwest Generation” or

"Defendant"), as follows:

NATURE OF THE ACTION

1. This action is necessary to protect the property rights of Plaintiffs, and all

others similarly situated, which have been unreasonably interfered with resulting from the

physical invasion of Plaintiffs' person and property by falloutparticulate and contaminants,

thereby causing material injury to Plaintiffs' person and property through negligence, gross

negligence, nuisance, trespass and strict liability.

2. Plaintiffs bring this action on behalf of themselves and all others who have

similarly suffered from fallout particulate and air contaminants. The reason for not joining

all potential class members as Plaintiffs is that, upon information and belief, there are

thousands of potential plaintiffs, thereby making it impractical to bring them before the

Court. All Plaintiffs reside in the residential neighborhoods which are within one (1) mile of

Defendant and which contain over 8,002 homes and approximately 33,510 residents.

3. There are many persons who have been similarly affected and the question

to be determined is one of common and general interest to many persons constituting the

class to which Plaintiffs belong, and the group is so numerous as to make it impracticable

to bring them all before the Court, for which reason Plaintiffs initiate this litigation for all

persons similarly situated pursuant to the Federal Rule of Civil Procedure 23.

4. Issues and questions of law and fact common to the members of the Class


3

predominate over questions affecting individual members and the claims of Plaintiffs,

Gemma Rojas, Francisco Rojas, Estela Limon, Eligio Limon, Josefina Camargo, and

Cuvier Camargo, and all others similarly named and those similarly situated, are typical of

the claims of the Class.

5. The maintenance of this litigation as a Class Action will be superior to other

methods of adjudication in promoting the convenient administration of justice.

6. Plaintiffs, Gemma Rojas, Francisco Rojas, Estela Limon, Eligio Limon,

Josefina Camargo, and Cuvier Camargo, and all others similarly named and those similarly

situated, and the law firms of Jauregui & Associates, P.C. and Macuga, Liddle, & Dubin,

P.C., will fairly and adequately assert and protect the interests of the Class.

7. Defendant is a State of Delaware Limited Liability Company with its primary

business address at One Financial Place, 440 South LaSalle Street, Suite 3500, Chicago,

Illinois, 60605.

8. Defendant operates a coal fired electrical generation facility located at 3501

S. Pulaski Road, in the County of Cook, State of Illinois.

9. The Defendant’s operation, maintenance, and control of the coal fired

electrical generation facility has caused to the Plaintiff Class Representatives and all others

similarly situated within the one (1) mile diameter described similar property damages, the

inhalation of similar odors, the deposit of similar particulate coal dust and thereby caused

similar damages to the personal and real property of the Class Representatives and all

others similarly situated within the one (1) mile radius of the Defendant’s facility.

10. The operation of Defendant’s coal fired electrical generation facility at 3501


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S. Pulaski Road, Chicago, Illinois has been the subject of numerous and constant

complaints of the residents of the surrounding neighborhood, by organizations in the

surrounding neighborhood area, by protests of interested persons within the surrounding

area, and by government action, all of which has failed to compel Defendant to cease the

improper operation of its facility and to continue Defendant’s invasion of Plaintiffs’

properties by air contaminants, odors, chemicals, and particulates which thereby cause

damage to Plaintiffs’ properties.

JURISDICTION

11. Jurisdiction is proper in this matter pursuant to 28 USC §1332 as all Plaintiffs

named and unnamed are residents of the State of Illinois and Defendant is a corporate

entity of the State of Delaware. Diversity Jurisdiction is satisfied in this controversy as

claims exceed $75,000.

Plaintiff Putative Class Representatives

12. At all times relevant hereto, Plaintiffs, Gemma and Francisco Rojas, have

resided at 4124 W. 31st

Street, City of Chicago, County of Cook, State of Illinois.

13. At all times relevant hereto, Plaintiff, Patricia Browder, has resided at 3016 S.

Lloyd Street, City of Chicago, County of Cook, State of Illinois.

14. At all times relevant hereto, Plaintiffs, Estela and Eligio Limon, have resided

at 3012 S. Komensky, City of Chicago, County of Cook, State of Illinois.

15. At all times relevant hereto, Plaintiffs, Josefina and Cuvier Camargo, have

resided at 3142 S. Kedvale, City of Chicago, County of Cook, State of Illinois.


5

GENERAL ALLEGATIONS

16. On occasions too numerous to list, Plaintiffs' person and property including

Plaintiffs' neighborhood, residences, and yards, were physically invaded by fallout

particulate odors and air contaminants.

17. The fallout particulate odors and air contaminants which invaded Plaintiffs'

person and property originated from Defendant, Midwest Generation, LLC, is located in the

City of Chicago, at 3501 S. Pulaski Road, in the County of Cook, State of Illinois

(hereinafter the "facility"). Defendant operates a coal fired electrical generation plant.

18. The Defendant, as part of its normal business operations, generates, utilizes,

and discharges into the open atmosphere, including but not limited to, the following

chemicals: arsenic compounds, barium compounds, chromium compounds, copper

compounds, dioxin and dioxin-like compounds, hydrochloric acid, hydrogen fluoride, lead

compounds, manganese compounds, mercury compounds, nickel compounds, polycyclic

aromatic compounds, sulfuric acid, vanadium compounds, and zinc compounds.

19. The Defendant knew or should have known that some of the chemicals they

generate, utilize and discharge in its normal business operations, including but not limited

to, arsenic compounds, chromium compounds, dioxin and dioxin-like compounds, and

mercury compounds are extra hazardous pollutants and are known human carcinogens.

20. The Defendant, as part of its normal business operations, has admitted that it

has discharged into the atmosphere chemicals including, but not limited to, arsenic

compounds, barium compounds, chromium compounds, copper compounds, dioxin and

dioxin-like compounds, hydrochloric acid, hydrogen fluoride, lead compounds, manganese


6

compounds, mercury compounds, nickel compounds, polycyclic aromatic compounds,

sulfuric acid, vanadium compounds and zinc compounds.

21. The Defendant is within one (1) mile of Plaintiffs and Plaintiffs’ properties and

Defendant chemical and particulate discharges have invaded and caused substantial

damage to, substantial loss of use of, and substantial interference with Plaintiffs, and

Plaintiffs’ properties.

22. The chemicals utilized by Defendant and discharged by Defendant are

harmful and noxious and have caused substantial damage to, substantial loss of use of,

and substantial interference with, Plaintiffs and Plaintiffs properties.

23. The fallout types emitted by the Defendant’s facility have been described by

residents of the surrounding neighborhood as a very heavy black particulate or black

powder, or white powder/ash/dust that requires constant cleaning and that makes Plaintiffs

prisoners in their homes and has precluded them from full use and enjoyment of their

properties.

24. It is Plaintiffs' information and belief that Defendant knew of the improper

construction, and operation of the facility, which allows discharge of chemicals, odors, air

pollutants, and particulates, or allowed the improper construction, and operation of the

facility, of the coal fired power plant, which allows discharge of chemicals, odors, air

pollutants, and particulates, and exercises exclusive control and/or ownership over the

facility.

25. The Defendant knew when Defendant purchased the facility that the plant

had been constructed in the year 1925 and had never been the subject of installation of air


7

pollution control equipment to restrict, cease, or otherwise capture pollutants, chemicals,

odors, and particulate emitted fallout by the plant into the ambient atmosphere within one

(1) mile of the facility.

26. Defendant continues to operate at 3501 S. Pulaski Road, in the County of

Cook, State of Illinois, the coal fired electrical generation plant without proper or best

available technology, or any air pollution control equipment, and thereby knowingly allows

Plaintiffs properties within one (1) mile of the facility to be invaded by chemicals, air

pollutants, odors, and particulates emitted by the facility thereby causing damage to

Plaintiffs properties.

27. As a direct and proximate result of Defendant’s negligence in constructing

and/or engineering and/or designing and/or operation and/or maintenance of the facility,

Plaintiffs' person and/or property have been invaded by particulates and contaminants.


contaminants has caused Plaintiffs to suffer property damages.


contaminants has or will cause diminution in the market value of Plaintiffs' property and has

interfered with Plaintiffs' use and enjoyment of their property.


contaminants has caused Plaintiffs' to suffer injuries including, but not limited to, exposure

to horrific particulates and air contaminants. Defendant is vicariously liable for all damages

suffered by Plaintiffs, caused by Defendant’s employees, representatives and agents, who,

during the course and scope of their employment, allowed or failed to correct the problem


8

which caused particulates, odors, and air contaminants to physically invade Plaintiffs'

person and property.

31. All emissions from Defendant’s coal fired facility, whether gaseous, chemical,

or particulate, will immediately combine with atmospheric dust to form industrial particulate

which immediately will fall onto Plaintiffs’ properties thereby causing damage to Plaintiffs’

properties.

NUISANCE

32. In the operation of their facility, Defendant utilizes chemicals and chemical

compounds to operate a coal fired electrical generation plant.

33. In the operation of their facility, Defendant discharges fallout, odors, and

chemicals and chemical substances which are invasive, some of which are extra

hazardous.

34. Defendant by and through current technological processes and current

engineering standards could and should preclude the discharge of anyparticulates, odors,

and extra hazardous substances onto Plaintiffs’ properties.

35. A condition or activity which unreasonably interferes with the use of property

is a nuisance.

36. Plaintiffs did not consent for particulates, odors, and air contaminants to

physically invade their person and property.

37. By causing particulates and air contaminants accumulated and controlled by

Defendant to physically invade Plaintiffs' person and property, Defendant substantially and

unreasonably interfered with Plaintiffs' use and enjoyment of their property.


9

38. Defendant’s substantial and unreasonable interference with Plaintiffs' use

and enjoyment of their property constitutes a nuisance for which the Defendant is liable to

Plaintiffs for all damages arising from such nuisance, including compensatory and

exemplary, relief.

NEGLIGENCE AND/OR GROSS NEGLIGENCE

39. In constructing, maintaining, operating, controlling, engineering and/or

designing the facility, Defendant have a duty to exercise ordinary care and diligence so that

particulates and air contaminants do not invade Plaintiffs' person or property.

40. Defendant knowingly breached its duty to exercise ordinary care and

diligence when they improperly constructed, maintained, operated, engineered and/or

designed the facility and knew, or should have known, that such actions would cause

Plaintiffs' person and property to be invaded by particulates and air contaminants.

41. As a direct and proximate result of the failure of Defendant to exercise

ordinary care, Plaintiffs' person and property are physically invaded by particulates and air

contaminants.

42. As a direct and proximate result of Defendant’s negligence in operating

and/or constructing and/or engineering and/or maintaining its facility, Plaintiffs' person and

property are exposed to and invaded by particulates and air contaminants.

43. As a direct and proximate result of the invasion of Plaintiffs' person and

property by particulates and air contaminants, Plaintiffs have suffered injuries.

44. As a direct and proximate result of Defendant’s release of particulates and air

contaminants, the Plaintiffs' have suffered mental anguish, suffering, anxiety,


10

embarrassment, humiliation, distress, agony and other related nervous conditions and

emotional sequelae.

45. The conduct of Defendant in knowingly allowing conditions to exist, which

caused particulates and air contaminants to physically invade Plaintiffs' person and

property, constitutes gross negligence as it demonstrates a substantial lack of concern for

whether an injury resulted to Plaintiffs.

46. Defendant is vicariously liable for the negligence and/or gross negligence of

their employees, representatives, and agents, who, during the course and scope of their

employment, allowed or failed to correct the problem which caused particulates and air

contaminants to physically invade Plaintiffs' person and property.

47. Defendant’s gross negligence entitles Plaintiffs to an award of punitive

damages.

TRESPASS




airborne pollutants on dates too numerous too mention.

49. As a direct and proximate result of the foregoing conduct of Defendant,

particulates, air contaminants, and airborne pollutants accumulated upon, entered upon,

settled upon and physically invaded Plaintiffs' person and property.

50. It was reasonably foreseeable that Defendant’s failure to properly construct,


11

maintain and/or operate the facility could result in an invasion of Plaintiffs' possessory

interests.

51. As a further direct and proximate result of the foregoing conduct of

Defendant, Plaintiffs suffered substantial damages to their persons and property as alleged

herein.

52. The particulates, air contaminants, and airborne pollutants which entered,

settled and physically invaded Plaintiffs' land and property interfered with Plaintiffs'

interests in the exclusive possession of Plaintiffs' land and property and constituted a

continuous trespass upon Plaintiffs' property.

53. Plaintiffs did not consent for particulates, air contaminants, and other airborne

pollutants to physically invade their land and property.

54. The Defendant’s actions, which resulted in the trespass upon Plaintiffs' land

and property were, and continue to be, intentional, willful, and malicious and made with a

conscious disregard for the rights and safety of Plaintiffs, entitling Plaintiffs to

compensatory, exemplary, injunctive and punitive relief.

STRICT LIABILITY




airborne pollutants on dates too numerous to mention.

56. Defendant’s failure to adequately construct, maintain and/or operate the

facility has contaminated Plaintiffs’ property, chattels and persons by substances widely


12

accepted and regulated as hazardous substances that create a high degree of risk of some

harm.

57. The hazardous substances under Defendant’s ownership and/or control have

contaminated Plaintiffs’ property, chattels and persons creating a harm that is great.

58. There is no safe way to release the hazardous chemicals owned and/or

controlled by Defendant that simply results in dumping or allowing the chemicals or

contaminants to settle onto Plaintiffs’ property.


Defendant onto Plaintiffs’ property is not a matter of common usage and/or occurrence.


Defendant in the manner in which Defendant releases them is inappropriate in any

location, but especially inappropriate in close proximity to a residential neighborhood.

61. Defendant’s method of releasing hazardous chemicals into Plaintiffs’

residential neighborhood is not, and was not, essential to the continuing function of

Defendant’s activities. As such, the value of this type of release to the community is

nonexistent.

62. Defendant’s release of hazardous chemicals into the Plaintiffs’ residential

neighborhood renders Defendant strictly liable to Plaintiffs for all damages arising from

such conduct, including compensatory and exemplary relief.

WHEREFORE, named Plaintiffs on behalf of themselves and putative class

members respectfully demand:

1. A class be certified;

2. Judgment against the Defendant and in favor of the named Plaintiffs and


13

putative class members for:

(a) Compensatory damages subject to proof;

(b) Punitive damages in accordance with Illinois law and as otherwise

supported by the evidence of the misconduct of the Defendant, and being

that amount necessary to “punish and discourage” Defendant “and others

from similar conduct in the future”;

(c) Reasonable attorneys’ fees in accordance with Illinois law

(d) Interest until the date of judgment;

(e) Post-judgment interest at the rate of 12% per annum until paid;

(f) The “costs” of maintaining the action in accordance with the Illinois

Supreme Court Rules and the Federal Rules of Civil Procedure;

(g) For any and all further relief, including equitable relief, to which named

Plaintiffs and putative class members may be entitled;

(h) Opportunity with leave of Court to amend this Complaint to conform to the

evidence; and

(i) Trial by jury on all issues so triable.

Dated: May 25, 2011 Respectfully submitted,

JAUREGUI & ASSOCIATIES, P.C.

/s/____Arturo Jauregui___Arturo JaureguiAttorney for Plaintiffs

120 West Madison St., Suite 400

Chicago, IL 60602(312) 781-9103


14

Of Counsel admitted pending Pro Hac Vice


Peter W. Macuga, IIAttorney for Plaintiffs

975 E. Jefferson AvenueDetroit, MI 48207-3101

(313) 392-0015


AO 450(Rev. 5/85)Judgment in a Civil Case

United States District CourtNorthern District of Illinois

Eastern Division

Gregory Hodul JUDGMENT IN A CIVIL CASE

v. Case Number: 11 C 3524

Midwest Generation LLC

G Jury Verdict. This action came before the Court for a trial by jury. The issues have beentried and the jury rendered its verdict.

O Decision by Court. This action came to trial or hearing before the Court. The issueshave been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that Defendant Midwest Generation’s motionto dismiss for lack of subject matter jurisdiction granted.. Case is dismissed withoutprejudice.

Michael W. Dobbins, Clerk of Court

Date: 10/26/2011 ________________________________/s/ Theresa B. Kinney, Deputy Clerk


AO 450(Rev. 5/85)Judgment in a Civil Case

United States District CourtNorthern District of Illinois

Eastern Division

Gemma Rosas JUDGMENT IN A CIVIL CASE

v. Case Number: 11 C 3520

Midwest Generation LLC

G Jury Verdict. This action came before the Court for a trial by jury. The issues have beentried and the jury rendered its verdict.

O Decision by Court. This action came to trial or hearing before the Court. The issueshave been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that Defendant Midwest Generation’s motionto dismiss for lack of subject matter jurisdiction granted.. Case is dismissed withoutprejudice.

Michael W. Dobbins, Clerk of Court

Date: 10/26/2011 ________________________________/s/ Theresa B. Kinney, Deputy Clerk




EASTERN DIVISION

In re: ) Chapter 11

)


)


PROPOSED ORDER – RELIEF FROM AUTOMATIC STAY TO ALLOW

CONTINUANCE OF PROCEEDINGS IN ILLINOIS STATE COURT

This matter, coming before the Court on Motion of Greg Paraday, et al. and Eulalio

Bastida, et al., by and through their attorneys, Peter Macuga of Macuga, Liddle & Dubin,

P.C., for entry of an Order lifting the automatic stay to allow Greg Paraday, et al. and Eulalio

Bastida, et al. to proceed with their separate prior litigations in the Circuit Court of Cook

County against the debtor, Midwest Generation, for the injuries to their property sustained

through Midwest’s operation of the Fisk and Crawford electrical generation facilities;

IT IS HEREBY ORDERED:

The Motion is granted. The stay is lifted so that Greg Paraday, et al. and Eulalio

Bastida, et al. may proceed against the debtor, Midwest Generation, LLC., in the Circuit

Court of Cook County in the State of Illinois under the condition that no judgment obtained

by Plaintiffs will be enforced against Debtor until the conclusion of Debtor’s Chapter 11

Bankruptcy proceeding.

Order Prepared By:

Peter W. Macuga (P 28114)

Macuga, Liddle, and Dubin, P.C.

Attorneys for Plaintiffs Entered:__________________________

975 East Jefferson Street Judge

Detroit, MI 48207

(313) 392-0015 Date:_____________________________

Case 12-49219 Doc 505-8 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Proposed Order Page 1 of 1



EASTERN DIVISION

In re: ) Chapter 11

)


)


NOTICE OF MOTION

PLEASE TAKE NOTICE that on April 2, 2013 at 9:30 A.M. or as soon thereafter as I

may be heard, I shall appear before the Honorable Jacqueline P. Cox or any judge sitting in

her stead in Courtroom 680 of the U.S. Bankruptcy Court for the Northern District of Illinois,

Eastern Division, 219 South Dearborn St., Chicago, Illinois and shall present the attached

Motion to Life Automatic Stay to Allow Continuance of Proceedings in Illinois State Court.

CERTIFICATE OF SERVICE

I, Peter M. Macuga, hereby certify that on February 15, 2013, I electronically filed the

foregoing Notice of Motion, Certificate of Service, Motion, Required Statement and

Proposed Order with the Clerk of the Court using the CM/ECF system. Notification and a

copy of such filing is sent through the CM/ECF system to counsel of record.


/s/ Peter W. Macuga, II PETER W. MACUGA II, ESQ. (P 28114)


Attorneys for Plaintiffs

975 East Jefferson Avenue

Detroit, MI 48207

313-392-0015

[email protected]

Case 12-49219 Doc 505-9 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Notice of Hearing Page 1 of 1

mailto:[email protected]

Documents

UNITED STATES BANKRUPTCY COURT NORTHERN · PDF fileParaday and Bastida were re-filed in the Cook County Circuit Court (Chancery ... Midwest Generation debtor by the Edison Mission