BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
Complainant,
)
v.
)
THE HIGHLANDS, LLC, an Illinois limited
)
liability corporation, and MURPHY
)
FARMS, INC.,
(a division of MURPHY
)
BROWN, LLC, a North Carolina limited
)
liability corporation, and SMITHFIELD
)
FOODS, INC
., a Virginia corporation).
)
Respondents.
)
PCB No. 00-104
(Enforcement)
RESPONDENT MURPHY FARMS, INC
.'S RESPONSE TO COMPLAINANT'S MOTION TO
STRIKE RESPONDENT MURPHY'S AMENDED AFFIRMATIVE DEFENSE
Respondent Murphy Farms, Inc
. ("Murphy"), through its attorneys, Foley & Lardner
LLP, states as follows in response to Complainant's Motion to Strike Respondent Murphy's
Amended Affirmative Defense ("Motion") :
I.
BACKGROUND
Complainant filed this enforcement action against Murphy and The Highlands, LLC
("Highlands") alleging that they violated the air and water pollution provisions of the Illinois
Environmental Protection Act (the "Act") and its implementing regulations
. These allegations
arose out of Highlands' operation of a hog farm in rural Knox County
. On October 20, 2005, the
Board allowed Murphy to withdraw its affirmative defense based on statute of limitations,
granted Complainant's Motion to Strike Murphy's affirmative defense based on unconstitutional
vagueness, and granted Murphy's leave to file an amended affirmative defense based on laches .
Murphy filed its amended affirmative defense based on laches on October 31, 2005
. Nearly six
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERKS OFFICE
MAY - 9 2006
STATE OF ILLINOIS
Pollution Control Board
months later, on April 21, 2006, Complainant filed a Motion to Strike that amended affirmative
defense
. Complainant's motion is untimely, it impermissibly asks the Board to consider
materials outside the pleadings, and even if the merits of the defense could be considered at this
stage, Complainant's arguments are self-defeating
.
II
. THE COMPLAINANT'S MOTION, BROUGHT SIX MONTHS AFTER THE
AMENDED AFFIRMATIVE DEFENSE WAS FILED, IS NOT TIMELY
In bringing its Motion six months after Murphy filed its amended affirmative defense,
Complainant blatantly ignores the Board's rules of procedure
. See 35 111
. Admin. Code §101 .506
("All motions to strike, dismiss, or challenge the sufficiency of any pleading filed with the Board
must be filed within 30 days after the service of the challenged document, unless the Board
determines that material prejudice will result
."). See also People v
. Skokie Valley Asphalt Co.,
PCB 96-98, 2003 WL 21405849 at *6 (June 5, 2003)
. Complainant has offered no reason why
the Board should allow the Motion, no excuse for bringing it at this late stage, and no indication
that material prejudice would result if the Board did not consider it
.
In Skokie Valley,
the Board denied Respondent's motion to dismiss two named
individuals because it was filed approximately six months after the complaint and thus was in
violation of § 101
.506. Id.
at *6 (complaint was filed on October 17, 2002, and motion to
dismiss was filed on April 23, 2003)
. In the very same opinion, the Board reasoned that because
Complainant had filed a motion to strike affirmative defenses within 30 days of the affirmative
defenses being filed, it was timely under Section 101
.506 and would be considered
. Id. at *2 .
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CHIC 1336278.2
Complainant indicated during a telephonic status conference on February 16, 2005, that
it would file a response to Murphy's amended affirmative defense
-
yet it waited more than an
additional two months to do so
. As such, the Board should deny Complainant's Motion based on
Complainant's complete disregard for the deadlines imposed by the Board's procedural rules
.
III. COMPLAINANT'S MOTION ERRONEOUSLY
ASKS THE BOARD TO
CONSIDER MATERIALS THAT WERE SUBMITTED OUTSIDE THE
PLEADINGS AND WHICH ADDRESS THE MERITS OF THIS CASE
Complainant's Motion lists various reasons why the Illinois Environmental Protection
Agency could not have acted earlier to prevent or mitigate prejudice to Murphy caused by the
underlying action
. In addition to substantively denying portions of Murphy's Amended
Affirmative Defense (e.g.
Complainant's Motion Paragraph 12, stating that "Respondent's claim
that the Illinois EPA did not conduct an inspection of the facility until April 23, 1998, is false"),
which is more properly done by way of a reply,' Complainant attached an affidavit and 19 pages
of exhibits in order to attempt to prove its various points
. The Board should not consider these
extraneous materials because a motion to strike should only address the sufficiency of the
allegations that appear on the face of the pleadings .
Laches is an equitable doctrine that bars relief where a defendant has been misled or
prejudiced because of a delay in asserting a right . Skokie Valley Asphalt,
2003 WL 21405849 at
CHIC 1336278.2
1
Murphy acknowledges that although S . Ct
. Rule 182(a) requires that a party must
negatively reply to factual allegations in affirmative defenses within 21 days in order to prevent
them from being deemed admitted, the Board has held that such assertions may be addressed at
hearing if no response is filed. People v. Chiquita Processed Foods, LLC,
PCB 02-56, 2002 WL
2012425 at *2 (Aug. 22, 2005) .
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*3
. The two principal elements are 1) lack of due diligence by the party asserting the claim, and
2) prejudice to the opposing party . Id. What facts will combine to constitute laches is to be
determined in light of the circumstances of each case . Smith v. Intergovernmental Solid Waste
Disposal Assoc., 239 Ill. App. 3d 123, 135 (4`h Dist
. 1992) .
A motion to strike an affirmative defense admits well-pled facts constituting the defense,
only attacking the legal sufficiency of the facts . Skokie Valley, 2003 WL 21405849 at *3 (citing
Int'l Ins. Co. v
. Sargent & Lundy, 242 111. App. 3d 614, 630-31 (1 5` Dist. 1993) . All well-pleaded
facts are taken as true
. Am. Mutual Reins. Co. v. Calvert Fire Ins. Co., 52 Ill. App. 3d 922, 925
(1
st
Dist. 1977) .
The disposition of a motion to strike must be made upon a consideration of the
allegations contained in the respondent's pleadings
. Id. at 925 (holding that affidavits submitted
in support of a motion to strike or dismiss "cannot properly be considered in determining the
sufficiency of the pleadings .")
. Although Complainant has not identified it as such, if it had
brought this Motion in an Illinois civil court, it generally would have done so pursuant to 735
ILCS 5/2-615 (motions with respect to pleadings), and "a section 2-615 motion may not be
supported by any evidentiary material ." Anderson v. Anchor Org
. for Health Maint., 274 Ill.
App
. 3d 1001, 1010 (1 s` Dist. 1995) (holding that if the defendant wanted to contest allegations
in the plaintiff's complaint, he should have filed a summary judgment motion, not a motion
containing arguments going to the truth of the allegations, and that "although not always fatal,
the type of motion practice that occurred in this action should not be countenanced
.").
Complainant's affidavit and exhibits should not be considered in support of its Motion
because such a motion may not be supported by evidentiary material, and must rest only on the
allegations in the pleadings
. Moreover, none of the three grounds on which Complainant seeks
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CHIC 7336278 .2
to have Murphy's Amended Affirmative Defense stricken addresses the legal sufficiency of
Murphy's defense -
they all point to whether the defense of laches has merit . In paragraph 6 of
its motion, Complainant asserts that 1) Murphy had notice and knowledge that the Illinois EPA
believed that proposed swine production facilities should be carefully monitored for odor
emissions, 2) the Complainant could not have done anything before a violation occurred, and
3) Respondent proceeded at its own peril . Complainant's allegations do not address the legal
sufficiency of Murphy's affirmative defense . Instead, they address facts and make arguments
based on those facts .
Murphy's amended affirmative defense properly and adequately pleads both the delay
and the prejudice that has resulted from Complainant's action, and such well-pled facts must be
taken as true for the purposes of this Motion . Complainant does not argue that Murphy has
failed to plead the elements necessary to constitute laches, but merely contests their validity and
does so by improperly attaching an affidavit and exhibits to its Motion . Whether Murphy's
defense has merit should be determined at the hearing, not during the pleading stage . Because
Murphy's amended affirmative defense is legally sufficient, and because Complainant may not
bolster a motion with extrinsic material, the Board should deny Complainant's Motion.
IV.
COMPLAINANT'S MOTION TO STRIKE SHOULD BE DENIED BECAUSE IT
MERELY LENDS CREDENCE TO MURPHY'S AFFIRMATIVE DEFENSE OF
LACHES
Even if the Board determines that Complainant did not err in filing its Motion six months
after the Amended Affirmative Defense was filed, and even if the Board determines that
extrinsic materials going to the merits of the defense may be evaluated at this stage of litigation,
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CHIC 1336278.2
Complainant's Motion nevertheless should be denied because it underscores the prejudice that
Murphy suffered as a result of Complainant's delay in bringing this action
.
James Kammueller's affidavit and its supporting exhibits indicate that the Illinois EPA
learned about the Highlands' facility during the summer of 1996 . In August 1997, Eric
Ackerman submitted an inspection report . On October 16, 1997, and April 23, 1998, Todd
Huson submitted inspection reports . The April 23, 1998, report, written when a "majority of the
new buildings" had been constructed, discusses odors emanating from the farm, but it does not
indicate that any warning was given on that date, or prior to that date, to owner/operator Douglas
Baird that he might be violating the Illinois Environmental Protection Act .
These reports, in effect, show that the Illinois EPA sat back and watched as the alleged
violations were occurring, waited until the operation was fully functional, and finally brought
this action in early 2000 when the time suited them . These reports also necessarily contradict
Complainant's allegation in paragraph 14 of its motion that Murphy "proceeded at its own peril"
and pressed ahead, knowingly violating a right or a restriction, such that laches would not be
available as an affirmative defense
. In fact, the reports illustrate that Complainant could have
taken steps to enforce the Act earlier, but instead delayed this action, resulting in prejudice to
Murphy
. Consequently, even if the Board does not reject Complainant's Motion because it was
filed long after the applicable deadline and/or because it impermissibly relies on material outside
the pleadings, the Board should deny Complainant's Motion on the merits
.
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V. CONCLUSION
For the foregoing reasons, Murphy respectfully requests that the Board deny the
Complainant's Motion to Strike Murphy's amended affirmative defense .
Dated: May 9, 2006
Respectfully submitted,
MURPHY FARMS, INC .
Charles M . Gering
Foley & Lardner LLP
321 North Clark
Suite 2800
Chicago, Illinois 60610
Phone: 312-832-4500
Fax: 312-832-4700
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B :~One
of its attorneys
CERTIFICATE OF SERVICE
I, the undersigned attorney, hereby certify that on May 9, 2006, I served the foregoing
Respondent Murphy Farms, Inc
.'s Response to Complainant's Motion to Strike Respondent Murphy's
Amended Affirmative Defense by U
.S
. Mail with proper postage prepaid upon :
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Phone : 312 .814 .8917
Fax: 312 .814.3669
Jane E . McBride
Assistant Attorney General
Environmental Law Bureau
Office of the Illinois Attorney General
500 South Second Street
Springfield, Illinois 62706
Phone: 217
.782 .9033
Fax : 217 .524.7740
Jeffrey W. Tock
Harrington & Tock
Suite 601
Huntington Towers
201 West Springfield Avenue
P.O. Box 1550
Champaign, Illinois 61824-1550
Phone: 217 .352.4167
Fax : 217 .352.8707
CHIC 1336278 .2
Charles M . Gering
