Illinois v. City of Milwaukee

No. 72C 1253 (N.D. Ill. November 16, 1972)

In a suit to enjoin the practice of depositing raw sewage in Lake Michigan, the court denies motions to quash service of process and to dismiss for lack of personal jurisdiction or for improper venue. The court holds that (1) the Illinois long-arm statute authorize service of process, since the defendants could reasonbly expect that their sewage discharges would reach Illinois waters, (2) the action is transitory and not inherently local, and (3) venue is proper since the suit is in the district where the claim arose.

Counsel for Plaintiff
Harvy M. Sheldon Assistant Attorney General
188 West Randolph Street, Suite 2315
Chicago, Illinois 60601

Counsel for Defendant City of Milwaukee
Kenneth J. Bukowski City Attorney
920 Michigan
South Milwaukee, Wisconsin 53172

[3 ELR 20331]

Bauer, J.

MEMORANDUM OPINION AND ORDER

This cause comes on the motions of defendants City of Milwaukee and Sewage Commission of the City of Milwaukee and of defendant Metropolitan Sewerage Commission of the County of Milwaukee to quash service of process and dismiss the action for lack of personal jurisdiction over these defendants and for improper venue.

Plaintiff, the State of Illinois ("Illinois"), charging that its residents are being injured by defendants' alleged practice of depositing raw sewage in Lake Michigan and of thereby causing pollution of Illinois' territorial waters of Lake Michigan, seeks an injunction against defendants prohibiting this practice. The action, founded upon both federal question and diversity jurisdiction, pursuant to 28 U.S.C. §§ 1331 (a) and 1332, alleges (1) federal common law unisance involving interstate waters, (2) violations of the Illinois Environmental Protection Act, 111 1/2 Ill. Rev. St. § 1001, and (3) state common law nuisance. The Supreme Court previously declined to exercise jurisdiction in this cause, stating that the action would lie in the appropriate federal district court, pursuant to 28 U.S.C. § 1331 (a), as a cause of action under the federal common law of nuisance since the dispute involved interstate waters.¹

The principal grounds of the instant motions are those of personal jurisdiction and venue.Defendants contend (1) that, as municipal corporations, they are not susceptible to service of process from an out-of-state court and (2) that, since this action is not founded solely in diversity, under the provisions of 28 U.S.C. § 1391 (b) it should be brought only in the judicial district wherein all defendants reside.

With respect to this Court's jurisdiction over these defendants, the Court notes that personal service of process was effected pursuant to the Illinois long-arm statute, 110 Ill. Rev. Stat. § 17. Not only is that statute applicable where diversity jurisdiction is alleged (here, in Counts II and III of the Complaint), but it has been held applicable also in cases involving federal question jurisdiction. See, e.g., Metropolitan Sanitary District of Greater Chicago v. General Electric Co., 35 F.R.D. 131 (N.D. Ill. 1964).

The constitutional arguments raised by defendants in contesting the use of long-arm service in the instant case are readily overcome. The constitutionality of the Illinois statute has been upheld on the basis that due process requirements are met if defendants, having minimum contacts with the State, "incur obligations to those entitled to the State's protection." Nelson v. Miller, 11 Ill.2d 378, 389 (1957). Furthermore, when defendant can reasonably contemplate that his product will eventually reach the forum state where the injury occurred, he has established sufficient contacts with that state. Gray v. American Radiator and Standard Sanitary Corp., 22 Ill.2d 432 (1961); Anderson v. Penncraft Tool Co., 200 F. Supp. 145 (N.D. Ill. 1961). Since these defendants could reasonably contemplate that the sewage which they discharge would eventually reach Illinois territorial waters of Lake Michigan, which is the situs of the alleged injury to plaintiff, this Court holds that the service of process pursuant to the Illinois long-arm statute was valid.

Defendants attempt to buttress their arguments against personal jurisdiction of this Court through assertions that actions against them are inherently local in nature. However, it is clear that where the relief sought is injunctive and pertaining specifically to the named defendants, as here, the action is transitory. Thus, these defendants must be subject to personal jurisdiction of this Court.

The appropriate portion of the venue statute, 28 U.S.C. § 1391 (b) provides that:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.

Contesting the venue of this Court, defendants cite numerous cases for the proposition that the appropriate venue for this action is the district in which all defendants reside, the Eastern District of Wisconsin. However, all but one of these cases was decided prior to the enactment of the 1966 amendment to § 1391 (b), which added the words "or in which the claim arose"; thus, such authority need not be considered. The remaining case, Cole v. Trustees of Columbia University, 300 F. Supp. 1026 (S.D.N.Y. 1969), was concerned primarily with overriding governmental policy in not subjecting Senate subcommittee members to suit in any federal district court in the country. Since this case cannot imply such far-reaching consequences, this Court is not bound by Cole in its determination of venue. Following the Supreme Court's observation in footnote 19 of its opinion in the instant case, supra, that this action may be brought only "'in the judicial district where all defendants reside, or in which the claim arose,' 28 U.S.C. § 1391 (b), thereby giving flexibility to the choice of venue," this Court concludes that venue in the United States District for the Northern District of Illinois is appropriate. The claim of plaintiff arose in the Northern District of Illinois, where the injury occurred. See Gray v. American Radiator and Standard Sanitary Corp., supra.

Accordingly, it is hereby ordered that defendants' motions to quash service of process and to dismiss are denied.

1. Illinois v. City of Milwaukee, U.S. , 92 S. Ct. 1385 (April 24, 1972).