ILLINOIS POLLUTION CONTROL BOARD
March 19, 1987
CONCERNED NEIGHBORS FOR A
)
BETTER ENVIRONMENT,
)
)
Complainant,
v.
)
PCB 85—131
WATTS TRUCKING SERVICE, INC.,
Respondent.
)
ORDER OF THE BOARD (by B.
Forcade):
This matter comes before
the Board on a May 7,
1985,
complaint filed by Concerned Neighbors for
a Better
Environment
(“CNBE”) against Watts Trucking Services,
Inc.
(“Watts”).
The
twelve count complaint charged Watts with various violations of
the Environmental Protection Act (“Act”), Board regulations and
prior Board Orders
Environmental
Protection Agency v. Watts
Trucking Service,
Inc., PCB 74—131 and People
v. Watts Trucking
Service,
Inc., PCB 77—162.
The complaint sought, as relief,
revocation of Watt’s permit for
a landfill, civil penalties and a
cease and desist order.
Hearing was held on November
5, 1986.
At the November
5,
1986, hearing, Respondent Watts was
present by counsel.
Counsel
for Complainant, James Yoho,
did not
attend the hearing.
Several members of Complainants’
organization moved for continuance
(R.
8), but that motion was
denied
(R.
20).
Respondent moved
for default judgment and
dismissal with prejudice
(R.
19).
The hearing officer referred
that motion
to the Board
(R.
20—21).
The hearing officer advised
the members
of complainants’ organization of the opportunity to
oppose the motion for default judgment by filing appropriate
documents with the Board
(R. 21).
The hearing officer admonished
the members of CNBE that they must immediately find counsel
willing and able
to represent them and they must contact the
Board regarding the default
(R.
9—10,
15—16, 20—21).
CNBE made
no efforts
to communicate with the Board or hearing officer
regarding the pending motion.
On January 22,
1987,
the Board ordered the Complainant CNBE
to show cause why this matter should not be dismissed.
CNBE was
given until February 6, 1987,
to file a verified response to
this
Order.
On March
2, 1987,
CNBE filed a Motion to Substitute
Counsel, Appearance, Motion
to Modify Order
of January 22,
1987,
Complainants’ Verified Response to January 22, 1987,
Order and
Motion
to Set Pre—Hearing and Hearing Schedule.
The Board,
on
March
5,
1987, granted CNBE’s motion to substitute counsel and
76.236
—2—
CNBE’s request
to file its response to the January 22, 1987,
Order out of time, thus modifying the schedule established in
that Order.
The Board deferred ruling on the balance of CNBE’s
motions until Watts was afforded an opportunity to respond.
Watts filed consolidated Objections to Modification of January
22,
1987, Order and to the Verified Response, with a supporting
memorandum.
35
Ill. Adm. Code 103.220
of the Board procedural rules
which govern enforcement cases provides as follows:
Failure
of
a party
to
appear
on the date
set
for hearing or failure to proceed by the Board
shall
constitute
a default.
The Board
shall
thereafter enter such order as appropriate, as
limited
by
the
pleadings
and
based
on
the
evidence introduced at the hearing.
By failing
to proceed with
its enforcement case on November
5, 1986, CNBE clearly subjected its case to a default judgment
and dismissal.
Such dismissal
is not automatic but,
under
Section 103.220,
is
to
be executed by Board order.
This scheme
implies some degree of Board discretion where there
is special
justification for the default.
It also provides a mechanism for
limiting the impact of
a default judgment to the facts
in the
record.
Consequently,
the Board allowed CNBE a final opportunity
to explain why its cause should not be dismissed.
CNBE
failed to
respond
in a timely manner.
However,
the Board did allow CNBE
to
file a response out of
time.
The issue before the Board
is whether CNBE has shown good
cause as to why this proceeding should not be dismissed for want
of prosecution.
CNBE,
in its response, gives
four reasons why it
deliberately decided not
to contact the Board regarding this
case.
First, CNBE claims that
it was their understanding that a
default had been entered on November 5,
1986, and that they could
not obtain
a continuance or oppose any default without the
assistance of legal counsel.
As Watts points out
in its
objection, this assertion
is totally refuted by the record of
November
5,
1986.
The CNBE president was told by the hearing
officer, on the record, that the Board would have to enter the
default order, not the hearing officer, and that CNBE ought to
contact the Board immediately.
CNBE was also told, on the
record,
to get
in touch with
a lawyer immediately and to have
that person get
in touch with the hearing officer.
CNBE did
nothing.
Instead, they had a telephone conversation with Mr.
Yoho,
their attorney, and relied on an assurance that he would
check
into the matter further.
This was not
a reasonable action
in light of Mr. yoho’s recent pattern of behavior as their
counsel.
Beyond this effort,
CNBE did nothing until February 23,
1987, when CNBE’s president generally inquired, by letter, as to
the status of the case.
76-237
—3—
CNBE’s second assertion
is that they relied on Mr. Yoho’s
assurance that he would check with the Board and take steps to
have the matter reinstated or achieve settlement.
As noted
above, this was not
a reasonable action
in light of Mr. Yoho’s
behavior prior
to and on November
5,
1987.
The third reason justifying CNBE’s conduct of this case is
that they believed that they could not pursue their
cause without
an attorney,
under
Illinois law.
The Board need not rule on the
applicability of the statute to Board proceedings as the real
issue is the reasonableness of CNBE’s conduct
in failing
to
prosecute its case.
Regardless of the statute, CNBE should have
at least made reasonable inquiries
to the Board or hearing
officer regarding the status of its case.
CNBE also should have
taken expeditious steps to obtain new counsel.
Instead, they
continued
to rely on Mr. Yoho and finally,
in February of 1987,
took steps
to obtain new counsel.
This was clearly not a
reasonable course
of action, especially in light of the hearing
officer’s clear admonitions at hearing on November
5,
1986.
Finally, CNBE states that they decided not to contact the
Board or further pursue the matter because
it was “too complex to
conduct without legal counsel.”
Once again,
if this was indeed
their view, CNBE should have taken affirmative steps to quickly
find new counsel.
CNBE has not shown good cause why
it failed to prosecute
its
case.
While the initial default on November
5,
1986, was caused
primarily by CNBE’s attorney, the burden to follow the progress
of litigation still
falls upon the litigant, who cannot rely
blindly on his counsel.
See In
re:
Marriage of Kopec,
106 Ill.
App.
3d 1060, 62 Ill. Dec. 658 (1982).
A litigant is not
relieved of the consequences of his own mistakes or negligence of
his trial counsel and
it
is the duty of every litigant to follow
the progress of the case, rather
than merely assume counsel
is
doing
all that is necessary.
De Met v.
De Met, 74 Ill. App.
3d
680,
31
Ill. Dec.
87
(1979).
Additionally, Watts has made claims
of prejudice
if the case
is allowed
to proceed.
It is
uncontroverted that Watts has suffered fees and expenses related
to the November
5, 1986, hearing and the subsequent failure
of
CNBE
to prosecute its claim.
CNBE has not shown cause why this case should not be
dismissed.
CNBE defaulted on November
5,
1986, by failing to
proceed with its cause.
CNBE subsequent inaction and continued
reliance on the services of Mr. Yoho were unreasonable
in these
circumstances.
Litigants are responsible for the conduct of the
litigation and must take reasonable steps to prosecute their
claims.
Watts would suffer prejudice if this matter were placed
on a pre—hearing and hearing schedule.
CNBE’s motion is
therefore denied.
Default judgment
is entered and this matter
is
dismissed.
76.238
—4—
IT IS SO ORDERED.
Board Member
R. Flemal dissented and Board Member
3.
Marlin
concurred.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify that the above Order was adopted on
the
/9~-
day of
~7)~c~/
,
1987, by a vote of
_5~/
4L~7
~A.
/L~~
Dorothy M
Gunn, Clerk
Illinois Pollution Control Board
76.239