BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIP AL
CORPORATION,
Complainant,
v.
HAMMAN FARMS"
Respondents.
)
)
)
)
)
)
)
)
)
)
PCB No. 08-96
(Enforcement-Land, Air, Water)
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE
TAKE NOTICE that on September 2, 2009, we electronically filed with the
Clerk
of the Illinois Pollution Control Board, Respondent's Motion to Strike Yorkville's Answer
to Hamman Farms' Affirmative Defenses to Count IV, a copy
of which is attached hereto and
hereby served upon you.
Dated:
September 2,
2009
Charles F. Helsten
Nicola Nelson
Hinshaw
&
Culbertson LLP
100 Park
Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Respectfully submitted,
On behalf of HAMMAN FARMS
Is/Charles F. Helsten
Charles F. Helsten
One of Its Attorneys
70612775vl 890522 66799
Electronic Filing - Received, Clerk's Office, September 2, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, a municipal
)
corporation,
)
)
Complainant,
)
)
v.
)
)
HAMMAN FARMS,
)
)
Respondent.
)
PCB No. 08-96
(Enforcement-Land, Air, Water)
RESPONDENT'S MOTION TO STRIKE YORKVILLE'S ANSWER TO
HAMMAN FARMS' AFFIRMATIVE DEFENSES TO COUNT IV
NOW COMES the Respondent, HAMMAN FARMS, by and through its attorneys,
Charles
F. Helsten and HINSHAW
&
CULBERTSON LLP, pursuant to 35 Ill.Adm.Code
101.500(a), and hereby moves to strike Yorkville's Answer to Affirmative Defenses to Count IV,
stating
as follows:
1.
On June 30, 2009, Hamman Farms filed its Answer and Affirmative Defenses to
Count
IV of Yorkville's Amended Complaint.
2.
On August 28, 2009, Yorkville filed its Answer to Hamman Farms' Affirmative
Defenses.
3.
Yorkville's Answer "moves to strike" both Affirmative Defenses raised by
Hamman Farms; however, this request to strike Hamman Farms' Affirmative Defenses was not
made
by motion, in violation of35 I11.Adm.Code 500(b).
4.
Although Yorkville's Answer "moves to strike" Hamman Farms' Affirmative
Defenses, it fails to indicate whether its request is directed to the Board or to the Hearing Officer,
in violation
of35 Ill.Adm.Code 500(b).
5.
Moreover, Yorkville fails to provide the legal basis upon which it "moves to
strike" the Affirmative Defenses, in violation of35 Ill.Adm.Code 504.
70612704vl 890522 66799
Electronic Filing - Received, Clerk's Office, September 2, 2009
6.
Although all requests to strike a pleading must be filed within 30 days after the
service
of the challenged document, pursuant to 35 I11.Adm.Code 101.506, Yorkville
nevertheless
"moved to strike" Hamman Farms' Affirmative Defenses 58 days after being served
with them, without seeking leave
to untimely file its request.
7.
Yorkville "moves to strike" both of Hamman Farms' Affirmative Defenses
because each
of them "calls for [a] legal conclusion." This contention is patently frivolous,
inasmuch
as it is well-established under Board precedent that Section 2-613(d) of the Code of
Civil Procedure applies to Board proceedings and requires that a respondent's answer set forth
affirmative matter that avoids or defeats the cause
of action set forth in the complaint, and
therefore legal assertions or conclusions are properly pled
as affirmative defenses.
See People
v.
Midwest Grain Prod's o/Illinois, Inc.,
(Aug. 21, 1997), PCB 97-179, slip op at 3.
8.
In
Midwest Grain,
the Board made clear that legal conclusions are properly pled
in a party's affirmative defenses, explaining that
"[c]learly the purpose of [Section 2-613(d)] is
to specify the disputed legal issues before trial. The parties are to be informed of the legal
theories which will be presented by their respective opponents. This is a prime function
of
pleading."
Id; see also People
v.
Geon Co., Inc.,
(Oct. 2, 1997), PCB 97-062, 1997 WL 621493,
slip
op. at 3 (emphasis added) (holding that pleading legal conclusions is appropriate because
"[a]s the Board has previously stated, allowance of liberal pleading of defenses serves to inform
parties
of the legal theories to be presented by their opponents, prevents confusion as to whether
a defense has been waived
as not timely raised, and avoids taking an opponent by surprise later
in the proceedings.")
9.
Yorkville's request for this improper relief is yet another example of its abject
disregard for the Board's procedural rules in this litigation, and in filing its frivolous request
2
70612704vi 890522 66799
Electronic Filing - Received, Clerk's Office, September 2, 2009
Yorkville has once again forced both Hamman Farms and the Board to unnecessarily expend
resources in responding to something that should never have been filed in the first place.
(See,
e.g.,
Board's Order of Oct. 16,2008, holding that "[t]he Board grants Hamman's motion to strike
from Yorkville's complaint the allegation that the Illinois Environmental Protection Agency
(Agency) has violated the Act.
... Further, the Board grants Hamman's motion to strike as
frivolous Yorkville's requests for attorney fees and
costs.")
10.
As set forth hereinabove, Yorkville's Answer to Affirmative Defenses violates the
Board's rules
by improperly requesting that a pleading be stricken without filing a written
motion,
by failing to indicate whether its request to strike is directed at the Board or at the
Hearing
Officer, by failing to provide the basis in the rules upon which Yorkville was "moving
to strike," and by requesting to strike a pleading more than 30 days after it was filed without
seeking leave to do so. Moreover, the request to strike on the basis that the Affirmative Defenses
include legal conclusions runs completely contrary to well-established Board precedent.
Yorkville's Answer should, accordingly, be stricken.
WHEREFORE: Respondent, Hamman Farms, respectfully requests that the Board strike
Yorkville's Answer to Hamman Farms' Affirmative Defenses, and grant such other and further
relief as the Board deems fitting and proper.
Dated:
September 2,
2009
Charles F. Helsten
Hinshaw
&
Culbertson
LLP
100 Park
Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
3
Respectfully submitted,
On behalf of HAMMAN FARMS
IslCharles
F. Helsten
One of Its Attorneys
7061 2704v1 890522 66799
Electronic Filing - Received, Clerk's Office, September 2, 2009
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code of Civil
Procedure, hereby under penalty
of petjury under the laws of the United States of America,
certifies that on September
2,2009, she caused to be served a copy of the foregoing upon:
Mr. John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
(via electronic filing)
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 w. Randolph Street
Chicago,IL 60601
(via email: hallorab(i4ipcb.state.il.us)
Via electronic filing andlor e-mail delivery.
PCB No. 08-96
Charles
F. Helsten
Nicola A. Nelson
HINSHAW
&
CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford,
IL 61105-1389
(815) 490-4900
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER
KOCH & WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago,
IL 60604
via email to:
tgardiner@gkw-Iaw.com
mlagrotta@~
vv-law.com
/s/ Joan Lane
2
7061 2775v1 890522 66799
Electronic Filing - Received, Clerk's Office, September 2, 2009