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Mabry v. City of East Chicago

United States District Court, N.D. Indiana, Hammond Division

September 27, 2017

KENDRA MABRY, et al., Plaintiffs,
v.
CITY OF EAST CHICAGO, et al., Defendants.

          OPINION AND ORDER

          Joseph S. Van Bokkelen United States District Judge

         This matter is before the Court on the joint motion of defendants BP Products North America Inc. and Atlantic Richfield Company (hereinafter collectively referred to as “Atlantic Richfield”) to dismiss Plaintiffs' complaint as to them (DE 39) and their request for judicial notice (DE 41). Also before the Court are the motions of defendant E.I. du Pont de Nemours and Company (“DuPont”) to dismiss Plaintiffs' claims against it (DE 42) and for judicial notice (DE 43).

         A. Plaintiffs' Complaint

         This action is brought by Hispanic and African-American residents of East Chicago, Indiana, who lived at the East Chicago Housing Authority (“ECHA”) affordable housing development know as the West Calumet Housing Complex (“Complex”). According to the complaint, the population of East Chicago is 42.9 percent African-American and 50 percent Hispanic. The residents of the Complex are also overwhelmingly African-American and Hispanic.

         The Plaintiffs allege that for more than thirty years the City and ECHA maintained the Complex on land they knew or should have known was contaminated with lead, arsenic, and other toxic substances. They further allege that in 2014, Atlantic Richfield and DuPont entered into an agreement with the EPA and Indiana Department of Environmental Management (“IDEM”) for a $26-million clean-up of lead and arsenic contaminants in East Chicago without giving Plaintiffs notice of the agreement or the underlying circumstances that detrimentally impacted their property, health, and lives. They claim that Atlantic Richfield, DuPont, and the other defendants in this case failed to protect them, concealed the fact that lead and arsenic were present at the Complex, and planned to destroy the Complex at an economically convenient time, in disregard of their rights.

         In Count II of the complaint, Plaintiffs assert that Atlantic Richfield and DuPont caused harmful conditions to exist at the Complex, entered into an agreement to mitigate them, took steps that increased the danger, and failed to notify the Plaintiffs. According to the Plaintiffs, as a result of these actions and omissions, they have experienced adverse conditions, different from those in predominantly white neighborhoods. They allege that this conduct was intentional, willful, and taken in disregard of their rights and constitutes discrimination in violation of the Fair Housing Act (“FHA”).

         In Count III, the Plaintiffs allege that the actions of Atlantic Richfield, DuPont, and the other defendants have had and continue to have a substantial adverse, disparate impact on Hispanic and African-American households, and households with children, in violation of the FHA.

         B. Discussion

         (1) Atlantic Richfield's Request for Judicial Notice

         In its request, Atlantic Richfield asks the Court to take judicial notice of more than 300 pages of documents consisting of a consent decree, and exhibits A through F to the consent decree in United States v. Atlantic Richfield Company, 2:14-CV-312 (N.D. Ind. 2014). The point of this exercise is apparently to establish that Atlantic Richfield's alleged predecessors (just who these predecessors might be and who has alleged they are predecessors Atlantic Richfield does not explain) vacated the property on which the Complex is located more than twenty years before it was built. Atlantic Richfield's only reference to these documents is found in a footnote in its brief in support of the motion to dismiss (DE 40 at 2, n. 3), in which it cites to a fragment of a sentence on page 8 of the Record of Decision that is Exhibit D to the consent decree. (DE 41-5 at 10.) The cited passage says only that Anaconda Lead Products and International Lead Refining Company once operated at the location currently occupied by an East Chicago public housing facility.

         A court may take judicial notice of a document filed in another court not for the truth of the matters asserted, but only to establish the fact of such litigation and related filings. Opoka v. I.N.S., 94 F.3d 392, 395 (7th Cir. 1996). Even if the snippet of information Atlantic Richfield asks the Court to accept as undisputed were a proper subject for judicial notice, which it is not, the Court fails to see how it establishes the proposition for which it was cited or any other fact that is of consequence in this litigation. The Court will take judicial notice of the fact that a consent decree involving the site of the Complex exists, but will not consider the voluminous information contained in the decree to be indisputable fact.[1]

         (2) DuPont's Request for Judicial Notice

         Between its request for judicial notice (DE 43) and its addendum to the request (DE 62) DuPont asks this Court to take judicial notice of more than 600 pages of documents filed in United States v. Atlantic Richfield Company, 2:14-CV-312 (N.D. Ind. 2014). Plaintiffs have not objected but Co-Defendants City of East Chicago and Anthony Copeland have filed a response in which they maintain that taking notice of the two affidavits that comprise the addendum would be improper if it means accepting as undisputed facts all the information contained in them. The Court agrees that judicial notice should extend only to the fact that these documents were filed and are a matter of public record. See Opoka at 94 F.3d 392, 395. Accordingly, with that limitation, the Court will take judicial notice of the filings in Case No. 2:14-CV-312 that DuPont has attached to its request for judicial notice and appendix.

         (3) DuPont's Arguments concerning Subject ...


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