Opinion
Bankruptcy Case No. 03-30329, Adversary Case No. 09-3190.
December 1, 2009
OPINION
This matter having come before the Court on Defendant The Dow Chemical Company's Motion to Dismiss Count III and Plaintiff's Memorandum in Opposition to Defendant The Dow Chemical Company's Motion to Dismiss Count III; the Court, having reviewed written memoranda of the parties and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
In its Motion to Dismiss, Defendant The Dow Chemical Company asserts that the Plaintiff's claim for unjust enrichment, found in Count III of the Complaint, is foreclosed as a result of the Plaintiff's legal duty to clean up waste on a contaminated site owned by Spectrulite Consortium, Inc. In support of this proposition, Defendant cites In re Energy Coop, Inc., 1995 U.S. Dist. LEXIS 7545, and also Ford Motor Co. v. Edgewood Props., Inc., 2008 U.S. Dist. LEXIS 84776. Defendant The Dow Chemical Company also cites § 106 of the Restatement of Restitution as explained in Griffith Wrecking Co. v. Greminger, 382 N.E.2d 1387 (4th Dist. Ill. App. Ct. 1978).
The Court has reviewed the authority cited by the Defendant and finds it persuasive. In applying the authority cited to the instant case, the Court finds that the Plaintiff's own allegations in its Complaint preclude any claim for unjust enrichment. However, the Plaintiff is free to pursue the relief sought in Counts I and II of its Complaint.
Notice Recipients
Recipients of Notice of Electronic Filing: Recipients submitted to the BNC (Bankruptcy Noticing Center):
District/Off: 0754-3 User: dl Date Created: 12/1/2009 Case: 09-03190 Form ID: pdf900 Total: 5 aty Matthew Corey Sostrin msostrin@mayerbrown.com aty Robert E Eggmann reggmann@lathropgage.com TOTAL: 2 pla Charles W. Riske 231 S. Bemiston, Suite 1220 St. Louis, MO 63105 dft The Dow Chemical Company 208 S LaSalle St Suite 814 Chicago, IL 60604 ust United States Trustee Becker Bldg, Room 1100 401 Main St Peoria, IL 61602 TOTAL: 3