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

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1 Case Doc 505 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Main Document Page 1 of 5 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION In re: ) Chapter 11 ) EDISON MISSION ENERGY, et al,. ) Case No (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 CH-1575 (hereinafter Paraday ) and Eulalio Bastida, et al. v. Midwest Generation, LLC, Case No 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 CH-1575 and Eulalio Bastida, et al. v. Midwest Generation, LLC, Case No CH (See Exhibit 1-2). 1

2 Case Doc 505 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Main Document Page 2 of 5 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, (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 2

3 Case Doc 505 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Main Document Page 3 of 5 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, (Bankr. N.D. Ill. 2002). 8. In determining whether to lift an automatic stay for cause, the 7 th 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 3

4 Case Doc 505 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Main Document Page 4 of 5 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. 4

5 Case Doc 505 Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Main Document Page 5 of 5 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 CH-1575 and Case No 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 PMacuga@mldclassaction.com 5

6 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Statement Accompanying Relief From Stay Page 1 of 1 REQUIRED STATEMENT TO ACCOMPANY MOTIONS FOR RELIEF FROM STAY All Cases: Debtor(s) Midwest Generation, LLC Case No. 12-BK Chapter 11 All Cases: Moving Creditor Greg Paraday, et al. and Eulalio Bastida, et al. Date Case Filed 12/17/12 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. Collateral a. Home b. 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. Default a. Pre-Petition Default Number of months Amount $ b. Post-Petition Default i. On direct payments to the moving creditor Number of months Amount $ ii. On payments to the Standing Chapter 13 Trustee Number of months Amount $ 6. Other Allegations a. Lack of Adequate Protection 362(d)(1) i. No insurance ii. Taxes unpaid Amount $ iii. Rapidly depreciating asset iv. 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 Filings iii. Other (describe) To Proceed with Illinois State Court Class Action Claims d. Debtor s Statement of Intention regarding the Collateral i. Reaffirm ii Redeem iii. Surrender iv. No Statement of Intention Filed Date: 2/13/13 S/Peter W. Macuga Counsel for Movant (Rev. 12 /21/09)

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35 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 1 of 14 PageID #:1 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 1 of 14 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS ) 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 ( ) ANSELMO DURAN ( ) Attorneys for Plaintiffs 120 West Madison St., Suite 400 Chicago, IL (312) MACUGA, LIDDLE, & DUBIN, P.C. PETER W. MACUGA II (P28114) STEVEN D. LIDDLE (P45110) KEVIN J. MCGINESS (P73281) Attorneys for Plaintiffs 975 East Jefferson Avenue Detroit, MI (313) / 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,

36 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 2 of 14 PageID #:2 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 2 of 14 (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 fallout particulate 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 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, 2

37 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 3 of 14 PageID #:3 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 3 of 14 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, 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 3

38 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 4 of 14 PageID #:4 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 4 of 14 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. 25 th 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. 21 st Place, City of Chicago, County of Cook, State of Illinois. 4

39 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 5 of 14 PageID #:5 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 5 of 14 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 5

40 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 6 of 14 PageID #:6 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 6 of 14 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 6

41 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 7 of 14 PageID #:7 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 7 of 14 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. 30. The invasion of Plaintiffs' property by particulates, odors, and air 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 7

42 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 8 of 14 PageID #:8 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 8 of 14 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. 8

43 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 9 of 14 PageID #:9 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 9 of 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, 9

44 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 10 of 14 PageID #:10 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 10 of 14 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, 10

45 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 11 of 14 PageID #:11 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 11 of 14 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 55. 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 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 11

46 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 12 of 14 PageID #:12 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 12 of 14 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. 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. 60. The release of hazardous chemicals of the type owned and/or controlled by 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 12

47 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 13 of 14 PageID #:13 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 13 of 14 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 (312)

48 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 14 of 14 PageID #:14 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 3 Page 14 of 14 Of Counsel admitted pending Pro Hac Vice MACUGA, LIDDLE, & DUBIN, P.C. Peter W. Macuga, II Attorney for Plaintiff 975 E. Jefferson Avenue Detroit, MI (313)

49 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 1 of 14 PageID #:1 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 1 of 14 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS ) 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 ( ) ANSELMO DURAN ( ) Attorneys for Plaintiffs 120 West Madison St., Suite 400 Chicago, IL (312) MACUGA, LIDDLE, & DUBIN, P.C. PETER W. MACUGA II (P28114) STEVEN D. LIDDLE (P45110) KEVIN J. MCGINESS (P73281) Attorneys for Plaintiffs 975 East Jefferson Avenue Detroit, MI (313) / 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 &

50 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 2 of 14 PageID #:2 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 2 of 14 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 fallout particulate 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 Issues and questions of law and fact common to the members of the Class 2

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

52 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 4 of 14 PageID #:4 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 4 of 14 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. 31 st 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. 4

53 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 5 of 14 PageID #:5 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 5 of 14 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 5

54 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 6 of 14 PageID #:6 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 6 of 14 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 6

55 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 7 of 14 PageID #:7 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 7 of 14 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. 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. 30. The invasion of Plaintiffs' person and property by particulates, odors, and air 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 7

56 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 8 of 14 PageID #:8 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 8 of 14 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, 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. 8

57 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 9 of 14 PageID #:9 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 9 of 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, 9

58 Case: 1:11-cv Document #: 1 Filed: 05/25/11 Page 10 of 14 PageID #:10 Case Doc Filed 02/15/13 Entered 02/15/13 09:54:05 Desc Exhibit 4 Page 10 of 14 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, 10