In the United States Court of Appeals For the Seventh Circuit No 05 1144 KEMPER PRIME INDUSTRIAL PARTNERS Plaintiff Appellant v MONTGOMERY WATSON AMERICAS INC Defendant Appellee v THE PRIME GROUP INC Third Party Defendant Appeal from the United States District Court for the Northern District of Illinois Eastern Division No 97 C 4278 Ronald A Guzman Judge ARGUED NOVEMBER 27 2006 DECIDED JUNE 12 2007 PUBLISHED JUNE 19 2007 Before BAUER WOOD and EVANS Circuit Judges WOOD Circuit Judge This case concerns who is responsible for certain environmental clean up costs Kemper Prime Industrial Partners Kemper Prime the plaintiff claims that an environmental assessment of a parcel of land performed by Warzyn Inc the predecessor of defendant Montgomery Watson Americas Inc Montgomery was deficient insofar as it failed to reveal to Kemper Prime 2 No 05 1144 the full extent of contamination and clean up costs The property in question was called the Chicago Enterprise Center the Property which Kemper Prime purchased after receiving Warzyn s report in 1990 Later when it decided to refinance the Property in 1996 Kemper Prime conducted another environmental assessment of the land The new assessor discovered contamination that was present in 1990 but that Warzyn had not detected Kemper Prime sued Montgomery Warzyn s successor claiming negligent misrepresentation on Warzyn s part but the district court ruled that its evidence of damages was insufficient and dismissed the case with prejudice We affirm I In February 1990 an entity called the Prime Group not to be confused with plaintiff Kemper Prime hired Warzyn to conduct an environmental assessment of the Property a 120 acre stretch of industrial land in south Chicago to determine whether the Property had unknown environmental hazards or problems Warzyn understood that the Property would soon be bought by a new partnership to be known as Kemper Prime which was created to make that purchase by partners in the Prime Group As planned Kemper Prime purchased the Property after Warzyn issued its final reports in June of 1990 As part of its assessment Warzyn conducted a fourmonth evaluation of the Property including a site visit an historical records search a review of previous reports about the Property an investigation of information from state and federal sources relevant to the Property soil testing soil boring installation of monitoring wells analyses of decontamination procedures water level measurements ground water sampling PCB wipe sampling procedures and other field testing Warzyn concluded No 05 1144 3 that there were still unreviewed areas in the Property but based on the scope of the work that the Prime Group had commissioned it did not investigate these additional areas Warzyn published two reports for the Prime Group in June of 1990 The reports identified some contamination focusing in particular on two sections of land identified as SB17 and SB8 within the Property that were part of a major area of concern south of Building S The Prime Group had expected Warzyn to retrieve Sanborn Fire Maps for the Property but Warzyn reported that such maps were unavailable At some point after Warzyn s assessment the parties learned that this was incorrect and that Sanborn Maps were available for the years 1897 1913 1947 1950 1976 and 1987 The Sanborn Maps for 1947 and 1950 showed 26 underground storage tanks on the Property The later two Sanborn Maps showed none of these tanks After issuing its reports Warzyn sent a short letter to the Prime Group noting that Warzyn had developed a proposal to quantify the extent of contamination identified Neither the reports nor the letter stated that Warzyn had taken the next step and quantified the full environmental remediation costs for the Property Instead the reports and the letter identify some costs for cleaning up some of the identified contamination In context it appears that the costs may relate to the major area of concern near Building S because the cost discussion follows immediately after the discussion of the Building S area That area is not a part of the Property at issue in this litigation Between 1993 and 1996 two other environmental assessments were done on the Property one by Dunn Corporation in 1993 and one by Carlson Environmental Inc in 1996 Also during this time Kemper Prime subdi 4 No 05 1144 vided and sold significant sections of the Property Taken together these sales yielded millions of dollars in profits for Kemper Prime Kemper Prime was nevertheless displeased to learn that the Property had more environmental contamination than it had been led to believe before its initial purchase In 1997 Kemper Prime sued Montgomery Then in 1999 several of the entities that had purchased sections of the Property joined the suit as plaintiffs Also in 1999 Montgomery filed a third party claim against the Prime Group pursuant to an indemnification provision in the 1990 agreement between the Prime Group and Warzyn In 2003 the district court dismissed the claims brought by the 1999 plaintiffs No claims have been filed between Kemper Prime and the Prime Group This is important because a defendant s impleader under FED R CIV P 14 of a party that is not diverse from the plaintiff does not destroy jurisdiction See 28 U S C 1367 b Although Kemper Prime filed its complaint against Montgomery in 1997 the litigation dragged on for several years In 2003 Montgomery made two motions in limine about the standard of damages the district court should employ questioning whether Kemper Prime would be able to satisfy its burden of proof under the appropriate standard The district court expressed serious doubts about the ability of Kemper Prime to provide evidence of damages Kemper Prime then filed a Memorandum Of Evidence On Damages That It Will Present At Trial After Montgomery filed a responsive brief the district court concluded that Plaintiff cannot offer proof of all necessary parameters of the damages calculation and therefore Plaintiff is barred from presenting evidence of damages at trial and dismissed the case with prejudice in substance granting summary judgment in Montgomery s favor Kemper Prime appeals its dismissal to this court We note that Montgomery s claim for indemnification No 05 1144 5 against the Prime Group is still pending in the district court which would ordinarily mean that the judgment is not yet final in this case for purposes of 28 U S C 1291 Here however the court issued an order under FED R CIV
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