THIS FILING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB No. 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Carol Webb, Esq.
Clerk of the Board
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
1021 North Grand Avenue East
Suite 11-500
Post Office Box 19274
Chicago, Illinois 60601
Springfield, Illinois 62794-9274
(VIA ELECTRONIC MAIL)
(VIA ELECTRONIC MAIL)
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of
the Illinois Pollution Control Board Respondent, Flex-N-Gate Corporation’s
RESPONSE TO COMPLAINANT’S ORAL MOTION FOR ADDITIONAL TIME
TO FILE MOTION FOR LEAVE TO AMEND COMPLAINT,
a copy of which is
herewith served upon you.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
Dated: June 22, 2006
By:/s/ Thomas G. Safley
One of Its Attorneys
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
CERTIFICATE OF SERVICE
I, Thomas G. Safley, the undersigned, certify that I have served the attached
RESPONSE TO COMPLAINANT’S ORAL MOTION FOR ADDITIONAL TIME TO
FILE MOTION FOR LEAVE TO AMEND COMPLAINT upon:
Ms. Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Carol Webb, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Post Office Box 19274
Springfield, Illinois 62794-9274
via electronic mail on June 22, 2006; and upon:
Mr. Morton F. Dorothy
104 West University, SW Suite
Urbana, Illinois 61801
by depositing said documents in the United States Mail in Springfield, Illinois, postage
prepaid, on June 22, 2006.
_/s/ Thomas G. Safley
Thomas G. Safley
GWST:003/Fil/NOF and COS – Response to Motion
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MORTON F. DOROTHY,
)
)
Complainant,
)
)
v.
)
PCB 05-49
)
FLEX-N-GATE CORPORATION,
)
an Illinois corporation,
)
)
Respondent.
)
RESPONSE TO COMPLAINANT’S
ORAL MOTION FOR ADDITIONAL TIME
TO FILE MOTION FOR LEAVE TO AMEND COMPLAINT
NOW COMES Respondent, FLEX-N-GATE CORPORATION (“Flex-N-Gate”),
by and through its attorneys, HODGE DWYER ZEMAN, and for its Response to
Complainant’s Oral Motion for Additional Time to File Motion for Leave to Amend
Complaint, states as follows:
I.
BACKGROUND
1.
On March 20, 2006, during a telephonic status conference, Complainant
asked the Hearing Officer for time to file a Motion for Leave to Amend his Complaint.
The Hearing Officer granted Complainant sixty days, or until May 19, 2006, to file such a
Motion. See
March 20, 2006, Hearing Officer Order.
2.
Complainant did not file any Motion for Leave to Amend by the deadline
set by the Hearing Officer.
3.
As of one month after that deadline, June 19, 2006, Complainant still had
failed to file any such Motion.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
2
4.
On June 19, 2006, the parties attended a telephonic status conference with
the Hearing Officer, during which Complainant requested an additional fourteen days in
which to file a Motion for Leave to Amend Complaint.
5.
Granting this request would in actuality result in a 45-day extension of
time, given that 31 days had passed between the Hearing Officer’s May 19th deadline
and the telephonic status conference on June 19th.
6.
During the June 19, 2006 status conference, counsel for Flex-N-Gate
orally objected to Complainant’s request for additional time on the grounds that (1) the
proceedings have been substantially delayed at this point and (2) Complainant has not
proposed to amend his Complaint to cure any deficiency in his current claim, but rather
has proposed to amend his Complaint to allege completely new counts for alleged “air
violations” in addition to the Resource Conservation and Recovery Act count currently
pled in Count I of the Complaint.
7.
Per the Hearing Officer’s direction, Flex-N-Gate files this written
Response to further set forth its opposition to Complainant’s Oral Motion.
II.
ARGUMENT
A.
The Hearing Officer has the Authority to Set and to Enforce
Deadlines to Manage Litigation before the Board.
8.
A Board Hearing Officer “has the duty
to manage proceedings assigned, to
set hearings, to conduct a fair hearing, to take all necessary action to avoid delay, to
maintain order, and to ensure development of a clear, complete, and concise record for
timely transmission to the Board.” 35 Ill. Admin. Code § 101.610. (Emphasis added.)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
3
9.
It is axiomatic that, in order to fulfill this duty, the Hearing Officer has the
authority to, among other things, set and enforce pre-hearing deadlines. This is made
clear by the enumeration of the powers of the Hearing Officer in Section 101.610 of the
Board’s rules, which states that “[t]he hearing officer has all powers necessary to these
ends.” 35 Ill. Admin. Code § 101.610.
10.
Setting deadlines is the method by which the Hearing Officer “avoid[s]
delay,” “maintain[s] order,” and moves the case toward a resolution.
B.
It Cannot Be the Case that the Hearing Officer Has No Authority to
Deny a Motion for the Extension of a Deadline to File a Motion Leave
to Amend a Complaint to Add New Counts.
11.
Further, it cannot be the case that the Hearing Officer has no authority to
deny a motion for the extension of a deadline to file a motion for leave to amend a
complaint to add new counts.
12.
First, as noted above, the Hearing Officer has “all powers necessary” to
manage Board litigation.
13.
Second, if the Hearing Officer does not have this authority, then there
would have been no reason to set a deadline for such a filing in this case. The deadlines
that the Hearing Officer sets are not meaningless.
14.
Third, if the Hearing Officer does not have this authority, a complainant or
a respondent could delay a hearing in a case forever. A complainant could ask for time to
file a Motion for Leave to Amend its Complaint with the Board; not file any Motion; ask
for more time; not file any Motion; etc., in perpetuity. A respondent could do the same
thing with regard to a Motion for Leave to File a Third-Party Complaint. It cannot be the
case that the Hearing Officer is powerless to stop such actions.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
4
15.
Fourth, likewise, if the Hearing Officer does not have this authority, either
party could, the day before hearing is set, ask the Hearing Officer for time to file a
Motion for Leave to Amend, thus canceling the hearing and causing the other party to
have incurred unnecessary time and expense in preparing for the hearing.
C.
As the Hearing Officer Has Authority to Deny Complainant’s Motion,
the Only Question is Whether the Hearing Officer Should Do So; the
Answer is Yes
.
16.
As the Hearing Officer has the authority to deny Complainant’s Motion,
the only question before the Hearing Officer now is whether the Hearing Officer should
deny Complainant’s Motion. The answer is yes.
17.
First, Complainant has presented no reason why he did not file his Motion
by the deadline that the Hearing Officer previously set. That deadline, 60 days, was more
than enough time to file such a Motion. Section 101.522 of the Board’s rules, 35 Ill.
Admin. Code § 101.522, may not be directly on point, as it speaks to deadlines imposed
by the Board’s rules, but it is instructive. It states:
The Board or hearing officer, for good cause shown
on a motion after
notice to the opposite party, may extend the time for filing any document
or doing any act which is required by these rules to be done within a
limited period, either before or after the expiration of time.
35 Ill. Admin. Code § 101.522. (Emphasis added.)
Complainant has shown no “good cause” why he did not file his Motion by the
deadline that the Hearing Officer previously set.
18.
Second, Complainant did not move for an extension of the deadline or
otherwise notify Flex-N-Gate and the Hearing Officer that he needed additional time. As
set forth in Respondent’s Motion for Sanctions or, in the Alternative for Summary
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
5
Judgment (“Motion for Sanctions”), this shows that Complainant has not acted in good
faith. The Hearing Officer should not reward Complainant’s failure to act in good faith
by granting him an extension of the deadline.
19.
Third, any analogy to a situation in which a complainant moves for leave
to amend his complaint to cure a deficiency in a current count is inapposite. Flex-N-Gate
recognizes that such motions in order to cure defects are liberally granted. Here,
however, Complainant wants to amend his Complaint to assert totally new counts, thus
delaying resolution of Complainant’s current claim which has been pending for almost
two years. There is no issue here of fairness to Complainant.
20.
Fourth, Complainant has not argued that he will be prejudiced if he is not
granted time to move for leave to amend, and Flex-N-Gate cannot identify any prejudice
to Complainant.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
6
III.
CONCLUSION
WHEREFORE, Respondent FLEX-N-GATE CORPORATION respectfully prays
that the Hearing Officer deny Complainant’s oral motion for additional time to seek leave
to amend his Complaint and grant FLEX-N-GATE CORPORATION such other relief as
the Hearing Officer deems just.
Respectfully submitted,
FLEX-N-GATE CORPORATION,
Respondent,
By:/s/ Thomas G. Safley
One of Its Attorneys
Dated: June 22, 2006
Thomas G. Safley
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
GWST:003/Fil/Response to Complainant’s Motion for Extension of Time to Seek Leave to Amend
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
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