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Patterman’s noise consultant from testifying at hearing regarding Boughton’s noncompliance

with the Board’s noise regulations and possible modifications to Boughton’s facility.

MOTION TO VOLUNTARILY DISMISS

The Board denies Ms. Patterman’s motion for leave to file a reply finding the parties

have adequately addressed the issue of voluntary dismissal. The Board’s procedural rules allow

the Board to look to the Code of Civil Procedure and the Supreme Court Rules for guidance

where the Board’s procedural rules are silent. 35 Ill. Adm. Code 101.100(b). Parts 101 and 103

of the Board’s procedural rules governing general provisions and enforcement actions,

respectively, contain no provision governing voluntary dismissals in enforcement actions.

Therefore, because the Environmental Protection Act (Act) and Board’s procedural rules are

silent, the Board will consider Section 2-1009 of the Code of Civil Procedure and Supreme Court

Rule 219.

Section 2-1009 of the Code of Civil Procedure regarding voluntary dismissals provides:

The plaintiff may, at any time before trial or hearing begins, upon notice to each

party who has appeared or each such party’s attorney, and upon payment of costs,

dismiss his or her action or any part thereof as to any defendant, without

prejudice, by order filed in the cause. 735 ILCS 5/2-1009 (2002).

Supreme Court Rule 219 is entitled “Consequences of Refusal to Comply with Rules or

Order Relating to Discovery or Pretrial Conferences.” Section (e) of this rule states:

A party shall not be permitted to avoid compliance with discovery deadlines,

orders or applicable rules by voluntarily dismissing a lawsuit. In establishing

discovery deadlines and ruling on permissible discovery and testimony, the court

shall consider discovery undertaken (or the absence of same), any misconduct,

and orders entered in prior litigation involving a party. The court may, in addition

to the assessment of costs, require the party voluntarily dismissing a claim to pay

an opposing party or parties reasonable expenses incurred in defending the action

including but not limited to discovery expenses, opinion witness fees,

reproduction costs, travel expenses, postage, and phone charges. S. Ct. Rule

219(e).

Ms. Patterman’s Arguments

In her one page motion for voluntary dismissal, Ms. Patterman states that she may, at any

time before hearing, upon notice and payment of costs, dismiss this action without prejudice.

Mot. at 1; citing 35 Ill. Adm. Code 101.510 and 735 ILCS 5/2-1009. Ms. Patterman requested

that Boughton submit a statement of costs and that the Board dismiss this matter without

prejudice.

Boughton’s Response

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Boughton argues that Ms. Patterman’s motion to voluntarily dismiss this matter without

prejudice is defective because it lacks payment of costs, or in the alternative, proof that Ms.

Patterman will pay costs in the future. Mot. at 4. Boughton contends that Section 2-1009 of the

Code of Civil Procedure requires “payment of costs” before a plaintiff is entitled to dismissal

without prejudice. Mot. at 4; citing

Lewis v. Collinsville Unit #10 School District, 311 Ill. App.

3d 1021, 1027-28, 725 N.E.2d 801, 806 (5th Dist. 2000). Further, Boughton asserts that even

though Ms. Patterman’s motion states “Patterman shall pay such costs as are within the meaning

of Section 2-1009 upon submission of a statement of the same from Respondent,” the motion is

not supported by an oath, affidavit, or certification. Mot. at 5; citing 35 Ill. Adm. Code 101.504.

For these reasons, Boughton contends the motion is defective and should be denied.

Boughton argues that it is at minimum entitled to expenses should the Board grant Ms.

Patterman’s motion to dismiss without prejudice. Mot. at 5. Boughton states that Supreme

Court Rule 219(e) is a companion rule to Section 2-1009 of the Code of Civil Procedure

designed to prevent the use of voluntary dismissals to circumvent the consequences of discovery.

Id

.; citing

Morrison v. C.G. Wagner, 191 Ill. 2d 162, 729 N.E.2d 486 (2000).

Boughton urges the Board to apply Rule 219(e) to order Ms. Patterman to pay reasonable

expenses incurred in defending this action, which other Illinois courts have interpreted as

including “discovery expenses, opinion witness fees, reproduction costs, travel expenses,

postage, and phone charges.” Mot. at 7; citing

Morrison, 729 N.E.2d at 488-89; Scattered Corp.

v. Midwest Clearing Corp., 299 Ill. App. 3d 653, 702 N.E.2d 167 (1st Dist. 1998). Boughton

argues the assessment of reasonable expenses under Rule 219(e) is proper in situations where, as

Boughton opines could occur here, the plaintiff seeks to avoid the consequences of discovery

sanctions by dismissing the action without prejudice and refiling at a later date.

Valdovinos v.

Luna-Manalac Medical Center, Ltd., 328 Ill. App. 3d 255, 764 N.E.2d 1264 (1st Dist. 2002).

According to Boughton, unless and until Ms. Patterman pays Boughton’s reasonable

expenses, dismissal without prejudice would be highly prejudicial to Boughton. Boughton notes

it has incurred extensive attorney fees in addition to “costs” to defend itself in this nuisance

action. Mot. at 10-11. Although the Board cannot award attorney fees in this forum, Boughton

urges the Board to consider the prejudice it incurred in defending this action despite delays and

the abuse of discovery requirements.

In summary, Boughton states that unless Ms. Patterman pays Boughton’s reasonable

expenses attributable to defending this action, the Board should not grant Ms. Patterman’s

motion for voluntary dismissal without prejudice. Boughton states its reasonable expenses

include: discovery expenses, expert witness fees, reproduction costs, travel expenses, postage,

phone charges, court reporter and transcription charges, and related costs, for a total of

$34,726.95. Mot. at 13; Mot. Att. 1.

Board’s Analysis

Boughton argues the Board should not dismiss this case without prejudice. Yet

Boughton offers no precedent or authority in support of the proposition of dismissing a case with

prejudice prior to hearing. Boughton asserts only that dismissal without prejudice is not

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warranted under the Board’s discretionary powers and that payment of costs is a prerequisite.

Resp. at 10. Ms. Patterman moved the Board for voluntary dismissal before hearing. In

accordance with Section 2-1009 and Illinois caselaw, the Board grants Ms. Patterman’s motion

for voluntary dismissal without prejudice.

The Board’s procedural rules are silent on the issue of what merits dismissal with

prejudice. Accordingly, the Board may look to the Code of Civil Procedure and the supreme

court rules for guidance. Section 2-1009 of the Code of Civil procedure allows a plaintiff to

voluntarily dismiss his or her action anytime before hearing, upon payment of costs.

Section 31(d) of the Act contains no provision for assessing litigation costs to or against

parties to a citizen’s enforcement action. Therefore, because the Illinois General Assembly did

not give the Board the statutory authority, the Board cannot require the payment of costs to

Boughton when granting Ms. Patterman’s motion for voluntary dismissal without prejudice.

The Illinois Supreme Court has noted that at common law, the plaintiff could voluntarily

dismiss without prejudice at any time before the judgment was returned.

Kahle v. John Deere

Co., 104 Ill. 2d 302, 472 N.E.2d 787 (1984). In Kahle, the circuit court allowed the plaintiff to

voluntarily dismiss without prejudice on the first day of trial under Section 2-1009. In affirming

the circuit court’s decision, the supreme court stated: “[w]hile it is unfortunate that the

defendants have been inconvenienced, that sometimes happens in our adversary system. As long

as the dismissal order is subject to review, the defendants have suffered no legal prejudice.” The

Court concluded that it was the legislature that gave the courts discretion to dismiss with

prejudice, but only after trial or hearing began, and that any further limits on the plaintiff’s

common law rights should be enacted by the legislature, not the courts. Kahle, 472 N.E.2d at

789. Accordingly, looking to the Code of Civil Procedure and Illinois caselaw for guidance, the

Board grants Ms. Patterman’s motion to voluntarily dismiss without prejudice.

Nonetheless, Ms. Patterman may not simply refile this action without consequence. Rule

219(e) prevents parties from avoiding compliance with discovery requirements in subsequent

litigation by voluntarily dismissing an action. The committee comments to Rule 219(e) state:

“this paragraph does clearly dictate that when a case is refiled, the court shall consider the prior

litigation in determining what discovery will be permitted, and what witnesses and evidence may

be barred.” S. Ct. Rule 219, Committee Comments, Paragraph (e).

In her complaint, Ms. Patterman alleges ongoing nuisance noise and air pollution

violations against Boughton. On August 7, 2003, the Board sanctioned Ms. Patterman by

barring a noise consultant from testifying on her behalf regarding Boughton’s noncompliance

with the Board’s noise regulations and possible modifications to Boughton’s facility. Therefore,

the Board notes that should Ms. Patterman refile an enforcement action against Boughton

alleging that nuisance noise and air pollution violations occurred any time between the filing

date of this action, June 17, 1999, and the date of today’s order, February 17, 2005, the Board

will consider this proceeding in determining what discovery, witnesses, and evidence will be

permitted in any such subsequent proceeding. The Board maintains that parties cannot avoid the

consequences of noncompliance with discovery requirements by simply voluntarily dismissing

an action without prejudice and refiling at a later date.

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CONCLUSION

The Board denies Ms. Patterman’s motion for leave to file a reply and grants Ms.

Patterman’s motion for voluntary dismissal without prejudice. The Board denies Boughton’s

request for litigation expenses and Ms. Patterman’s motion for expedited review as moot.

IT IS SO ORDERED.

Section 41 (a) of the Environmental Protection Act provides that final Board orders may

be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the

order. 415 ILCS 5/41(a) (2002);

see also

35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.

Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois

Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The

Board's procedural rules provide that motions for the Board to reconsider or modify its final

orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code

101.520;

see also

35 Ill. Adm. Code 101.902, 102.700, 102.702.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on February 17, 2005, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board