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SED, Inc. v. Dayton, City of

Citation: 12 ELR 20021
No. No. C-3-81-193, 515 F. Supp. 737/16 ERC 1217/(S.D. Ohio, 06/11/1981)

The court refuses to enjoin defendant's suit in state court seeking to enforce City of Dayton ordinances prohibiting the storage of polychlorinated biphenyls (PCBs) within the city limits. The court denies defendant's motion to dismiss, ruling that (1) it has diversity jurisdiction, (2) the minimum amount in controversy requirement has been met, (3) plaintiffs' complaint alleges a federal question sufficient to invoke jurisdiction, and (4) plaintiffs allege a threat of actual harm sufficient to satisfy the "case and controversy" limitation of the Constitution. However, the court agrees that plaintiffs' pleading fails to properly allege due process claims and allows plaintiffs to amend the pleadings. The court denies plaintiffs' motion for a preliminary injunction seeking to enjoin defendant from enforcing the ordinances in state court. Under the federal Anti-Injunction Act the court may not interfere with the state court action. Finally, the court sets a date for a hearing to determine whether the city ordinances are preempted by the Toxic Substances Control Act and thus unconstitutional.

Counsel for Plaintiffs
William R. McCarty
Martin, McCarty, Richman & Wright
26 N. Wright Ave., Fairborn OH 45324
(513) 878-8649

Counsel for Defendant
Thomas Petkewicz, City Law Director
101 E. 3d St., Dayton OH 45402
(513) 225-5155