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Waterville Ind. v. FAME, attorneys and footnotes.

Attorney for plaintiff: Jotham D. Pierce Jr., Esq., (orally) Pierce Atwood One Monument Square Portland, ME 04101-1110 Attorneys for defendant: Martha C. Gaythwaite, Esq., (orally) Friedman Babcock & Gaythwaite P O Box 4726 Portland, ME 04112-4726 Elizabeth L. Bordowitz, Esq. Finance Authority of Maine P O Box 949 Augusta, ME 04332-0949
FOOTNOTES******************************** {1} . Though Marden, J. ultimately entered judgment in the case, Bradford, J. presided at the trial. {2} . FAME is a "body corporate and politic and a public instrumentality of the State." See 10 M.R.S.A. § 964 (1997). One of its many roles is to stimulate private investment in industrial enterprises that will "provide enlarged opportunities for gainful employment to the people of the State." See 10 M.R.S.A. § 962 (1997). When FAME acts pursuant to its statutory powers, it performs "essential government functions." See 10 M.R.S.A. § 964 (1997). {3} . MGA claims that, pursuant to its guarantee agreement, it paid several million dollars to satisfy First Hartford's loan obligation. {4} . Apparently, MGA removed the drums prior to conveying the property. {5} . All three letters referred to violations of Chapter 550 of the DEP's regulations that "define[s] the term wastewater treatment lagoon and outline[s] the procedures by which this type of lagoon may be discontinued either temporarily or permanently." See Me. Dep't of Env. Protection Reg. 550 (Feb. 8, 1978). {6} . Waterville Industries, Inc. is a Rhode Island corporation. {7} . The EPA did not ground any portion of its action on violations of Me. Dep't of Env. Protection Reg. 550 (Feb. 8, 1978), which had been the subject of the letters from the Attorney General. {8} . Waterville was only permitted to bring its CERCLA claims against FAME in federal court because Congress had expressly authorized such suits. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989). Under current law, however, even Waterville's CERCLA claims would be barred from federal court. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996) (overruling Pennsylvania v. Union Gas Co. on the ground that the commerce clause does not give Congress the power to authorize CERCLA suits against unconsenting states). {9} . While the State may consent to suits against FAME in federal court, neither party suggests that the State has given that consent. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) ("'[I]n order for a state statute . . . to constitute a waiver of Eleventh Amendment immunity, it must specify the State's intention to subject itself to suit in federal court.'") (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). {10} . FAME's argument that Waterville impermissibly split its cause of action fails for the same reason. Though principles of "[r]es judicata prevent[] a litigant from splitting the litigant's claim" where "the litigant had a reasonable opportunity to argue [the claim] in the prior action," see Camps Newfound/Owatonna v. Town of Harrison, 1998 ME 20, ¶ 12, 705 A.2d at 1113-14, Waterville did not have a "reasonable opportunity" to pursue recovery for breach of contract in federal court, see Restatement (Second) of Judgments § 26(1)(c) (1980) (plaintiff may split cause of action where court in first action had limited subject matter jurisdiction). {11} . When section 1005(4) was repealed, it was replaced by 10 M.R.S.A. § 969, which contained almost identical language. See P.L. 1983, ch. 519, § 6 (effective Sep. 23, 1983). {12} . The court also envisioned that Waterville would, at some point after final judgment, apply for supplemental relief, relief that is explicitly authorized by the Declaratory Judgments Act. See 14 M.R.S.A. § 5960 (1980) ("Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper."). {13} . Waterville need not relitigate the issue of whether MKY assigned its rights under the contract to Gano Associates, as that issue was decided by the jury at trial and has not been challenged.

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