i—25—05;

2:16PM

;

The

Jeff

Diver

Group;#

25/Ja~i/2H@5ii:i~ PT

FIffIN:

The

Jeff Bluer group

T0

Halloran,

Bradley

PAf~E:~2

RECEIVED

CLERK’S OFFICE

JAN

25

2005

BEFORE THE ILLINOIS POLLUTION

CONTROL

BOARD

STATE OF ILLINOIS

Pollution Control Board

GINA PATTERMANN

)

)

Complainant,

FOB

99-187

v.

(Citizen Enforcement,

BOUGHTON

TRUCKING AND

MATERIALS,

)

INC.

)

)

Respondent.

NOTICE

OF

FILING

To:

See Attached

Certificate

of Service

PLEASE

TAKE

NOTICE that

on

the

25th

day

of January,

2005,

the

undersigned

caused to

be

filed

with

the

Illinois

Pollution

Control

Board

COMPLAINANT’S MOTION

FOR

EXPEDITED

REVIEW

AND

FOR

LEAVE

TO

FILE

REPLY

MEMORANDUM,

a

copy of which is herewith served

upon you.

THE JEFF

DIVER

GROUP,

L.L.C.

By:

__________

Michael

S.

Blazer

THE

JEFF DIVER GROUP,

L.L.C.

1749 S.

Naperville

Road,

Suite #102

Wheaton,

IL 60187

(630) 681-2530

THIS

FILING

SUBMITTED

ON RECYCLED PAPER

---

1—25—05;

2:16PM

;

The

Jeff

Diver

‘3roup;~

3

Z5/Jan/ZE~E~511:19 PT

FEOII

The

Jeff Diver Gro~ip TB: Halloran,

Bradley

P1-1GE

~3

RECEIVED

CLERK’S OFFICE

JAN

25

2005

BEFORE THE

ILLINOIS

POLLUTION CONTROL

BOARD

PoDu~on

ContrbI

Board

GINA

PATTERMANN

Complainant,

PCB

99-187

V.

(Citizen Enforcement,

BOUGHTON TRUCKING AND

MATERIALS,

Noise

& Air)

INC

Respondent.

COMPLAINANT’S

MOTION FOR EXPEDITED REVIEW

AND FOR LEAVE TO FILE REPLY MEMORANDUM

Now comes Complainant,

Gina Pattermann (“Pattermann”), by her attorneys, and for her

Motion

pursuant

to

35

IAC

101 .512

for

Expedited

Review

of

her

previously

filed

Motion

for

Voluntary

Dismissal and pursuant to 35

lAO

101 .500 for Leave

to

File

a

Reply Memorandum,

states:

1.

This matter is currently scheduled

to proceed to

hearing

on January 31, 2005. On

January

20,

2005,

Pattermann

filed

her

Motion

for

Voluntary

Dismissal

pursuant

to

35

IAC

101 .500(a)

and

735

ILCS 5/2-1009.

Unfortunately,

this

Board

is

not scheduled to

meet to

rule

on the Dismissal

Motion before the

hearing is scheduled to commence.1

2.

Absent

limited

circumstances

not

present

in

this

case,

§2-1009

provides

a

plaintiff

or complainant

with

an

unfettered

right to

dismissal without

prejudice.

See

Morrison v.

C.G.

Wagner,

191

Ill.2d

162,

165 (2000).

3.

Under the circumstances, Pattermann would be materially prejudiced by being

forced to proceed to hearing while her Motion

is awaiting ruling by this Board, including being

faced with the choice of either accepting a default or the wholly unnecessary expenditure of

resources that

proceeding to hearing would entail.

4.

In

addition,

as

a

result of

the

filing

of the

pending

Motion,

Pattermann

ceased

Pattermann

has concurrently

herewith,

and for the same

reasons set forth

herein,

filed

a

Motion

to

Cancel

the pending hearing dates with Hearing Officer Halloran.

THIS

FILING SUBMITTED

ON

RECYCLED

PAPER

---

1—25—05;

2:16PM

;

The

Jeff

Diver

Group;f

4

25/Jan/2~D511:19 PT

FEB11:

The Jeff Diver group

TB: Halloran,

Bradley

FfIUE

~

preparation for hearing and, among other things, both parties failed to exchange trial exhibits as

required

by

the

Joint

Pre-Trial

Memorandum

previously

filed

in

this

matter. Pattermann’s

counsel has thus not had an adequate opportunity to prepare for either segment of the

hearing.

5.

These

draconian

consequences would

be

obviated if this

Board

could

consider

the

pending Motion before January 31.

6.

In

addition, Pattermann

was served

with

Respondent’s

Response and

Objection

to the pending Motion on January 24, 2005. Said Response

is

rife

with

misstatements

of

law

and fact regarding both the prior history of this case and the principles applicable to a Motion for

Voluntary

Dismissal.

This

includes

misrepresentations

regarding

the

“costs”

that

may

be

awarded

in the context of a

Motion for Voluntary Dismissal

and when that determination must be

made.

This was the

subject of

an

e-mail transmitted to

Respondent’s Counsel

by Pattermann’s

counsel on January 23, 2005. A copy of this e-mail is attached to the Certification of Counsel

which follows this Motion.

7.

Under

the

circumstances,

Pattermann

requests

leave

to

file

a

short

Reply

Memorandum. Said Memorandum could

be filed within one day of leave

being granted

Based

on

the

foregoing, Pattermann

requests

that

this

Board

grant

her leave

to

file

a

Reply Memorandum and that it rule

on the Motion for Voluntary Dismissal prior

to January 31.

Respecffully submitted,

Gina

By:

____________

Michael S. Blazer

The Jeff Diver Group,

L.L.C.

1749 S. Naperville Road, Suite

102

Wheaton,

IL 60187

630-681-2530

2

THIS FILING SUBMITTED ON RECYCLED PAPER

One of her attorneys

---

1—25—os;

2:

16Pl~,1

;

The

Jeff

Diver

Group;~

Z5/Jaui/2BE~511~19PT

FEB11:

The

Jeff Diver GrOup

TI:

Halloran,

Bradley

F~IGE

@Ei5

RECEIVED

LEAKS

OFFICF

JAN 25

20G5

BEFORE THE ILLINOIS

POLLUTION CONTROL

BOARD

STATE OF ILLli~os

P~II~tj~~

Contro’

~Oi~’--~

GINA PATTERMANN

)

Complainant,

FOB

99-187

V~

(Citizen

Enforcement,

BOUGHTON

TRUCKING AND

MATERIALS,

~

Noise

& Air)

INC.

)

Respondent.

)

CERTIFICATION

Under

penalties

as

provided

by

§1-109

of the

Illinois

Code

of

Civil

Procedure,

Michael

S.

Blazer

herebycertifies as follows:

1.

I

am

lead

counsel

for

Gina

Pattermann

(‘Pattermann”),

the

Complainant

herein,

and

am the attorney

responsible for conducting the public hearing

in this matter.

2.

On

the

morning of January

20,

2005,

in

advance

of the telephonic status

conference scheduled for that day,

I

called counsel

for Respondent to

advise them that

Pattermann

had

that

morning

elected

to

exercise

her

right

under §2-1009

of the Illinois

Code of Civil

Procedure and

that

I

had

been

directed to

move

for Voluntary Dismissal

of

this

matter.

I

confirmed

this during

the

status conference

later that

day and

also

served

and filed the subject Motion that day.

3.

As

a

result

of the

decision

to

seek Voluntary

Dismissal,

no

further hearing

preparation

was conducted

by Pattermann

and

no

exhibits were

exchanged

by either of

the

parties,

as

otherwise

provided

by

the

Joint

Pre-Trial

Memorandum

filed

in

this

matter.

4.

At this juncture,

I

have

no ability to

proceed forward with the

hearing in this

3

THIS FILING

SUBMITTED ON RECYCLED PAPER

---

1—25—05;

2:16PM

;

The

Jeff

Diver

Grour,;5

6

25/Jan/2B~5

ii:z@

PT FEB11:

The Jeff Diver Group

TO:

Halloran,

Bradley

P~1GE ~B6

matter,

nor have

I

had

the

opportunity to

properly prepare witnesses

or hearing exhibits,

or identify and

review Respondent’s proposed

exhibits.

5.

Pattermann would

be

materially prejudiced

if she

were

required to

proceed

to

hearing under these circumstances and

in light of the pending

Motion

to

Dismiss.

6.

In

addition,

Pattermann

was

served

with

Respondent’s

Response

and

Objection

to

the

pending

Motion

for Voluntary

Dismissal

on

January

24,

2005.

Among

other things,

said

Response contains misrepresentations regarding the

“cpsts” that

may

be

awarded

in

the

context

of

a

Motion

for

Voluntary

Dismissal

and

when

that

determination

must

be

made.

This

was

the

subject

of

an

e-mail

transmitted

to

Respondent’s Counsel

by

me

on

January

23,

2005.

A

copy

of this e-mail

is attached

as

Exhibit A.

Further affiant sayeth

not.

Michael

S.

Blazer

4

THIS FILING SUBMITTED

ON RECYCLED

PAPER

---

;—25—os;

2:16PM

;

The

Jeff

Diver

Group;T

7

25/Jaii/2~511:213 PT FEB11:

The Jeff Diver Group T0

Halloran, Bradley

PAGE

130?

Message

Page

1 of2

Michael S.

Blazer

From:

Michael S. Blazer mblazer@enviroatty.com

Sent:

Sunday, January 23,

2005

1:48

PM

To:

Sharkey,

Patricia

F.

Subject: RE: Pattermann

v.

Boughton; Respondent’s Costs

Pat:

I have had a chance to review your

list

of “costs”.

In the context of a

Voluntary Dismissal,

I am unable to find any

support for the award of the items you seek

in either

Section 2-1009

or Supreme Court Rules 208 and 219.

First,

the case

law

is

clear that attorneys’ fees and expenses,

including travel expenses

and the like, are not

recoverable.

See

Gilbert-Hodgman, Inc.

v.

Chicago Thoroughbred

Enterprises, Inc.,

17

Ill.App.3d 460 (1st Dist.

1974).

Likewise,

in this context, expert witness and

deposition fees

and expenses

are

not recovemble. See

Vicencio v. Lincoln-Way Builders, Inc.,

204 IlI.2d 295 (2003);

Ga/owich

v. Beech Aircraft Corporation,

92

lll.2d

157

(1982).

Any reliance you may be placing

on

Supreme Court Rule 219(e) in this regard

is

misplaced,

as that

provision

applies only

to circumstances evidencing sanctionable conduct.

See

Morrison v.

Wagner,

191 lll.2d 162

(2000);

Scattered Corp.

v. Midwest Clearing

Corp.,

299

Ill.App.3d 653 (1st Dist.

1998).

.1

note that the costs that~

allowed in this context,

filing fees and the

like,

are absent from your correspondence.

In any event,

as

set forth

in our Motion, we remain ready to pay appropriate costs

upon

presentation of the same.

I do not,

however, wish

to foreclose you

from substantiating your position,

and

I would welcome citations to any

authorities

that are contrary to or have overruled that set forth

above.

Mike

.2Wic~ae1S~1~izer

Principal

The

Jeff Diver Group,

L.L.C’.

1749 5. Naperville Road

Suite 102

Wheaton,

IL 60187

(630) 681-2530

Fax:

(630) 690-2812

Mobil:

(708) 404-9091

mhlazer

pattycorn

This e-mail

is

covered by the Electronic Communications Privacy Act,

18

U.S.C.

§~

2510-2521

and is legally

privileged,

including any

attachments,

contains

information that is confidential, may be

protected

by the

attorney/client or other applicable privileges,

and may constitute non-public

information.

This message

is

intended to

be

conveyed only

to the designated recipient(s).

If you are not the intended recipient of this

message,

please immediately notify the sender that you

have received this

message in error

and delete this

message.

Unauthorized use,

disclosure, dissemination,

distribution or reproduction of this message orthe

information contained in this message or the taking of any action in reliance on

it

is

strictly prohibited and may be

unlawful. Thank you

for your cooperation.

Original

Message

From:

Sharkey,

Patricia

F.

ma

Ito: PSharkey@mayerbrownrowe.com

Sent:

Friday, January

21,

2005 5:30 PM

To:

Michael

S.

Blazer

Cc:

Desharnais, Kevin;

Gale,

Michelle

A.; Ter

Molen,

Mark

R.

Subject:

Pattermann v.

Boughton;

Respondent’s Costs

1/25/2005

---

1—26—05;

2:

1 6PM

.

The

Jeff

Di

ver

Group;~

S

25/Jan/ZOOS

1121

PT

FEB11:

The

Jeff

Diver

Group

TO:

Halloran,

Bradley

P1~GE: U0U

Message

Page

2 of 2

l~’like

-

As discussed

on

the

poone this afternoon.

am attsch:ng

a letter wch

a

preliminery statement cf

Boughtons

costs’’ within the meaning of Section 5/2-10P9 and invoices. We

have limited this to costs which are

expressly authorized

under the Code and Supreme Court Rule 208

and 219.

I don’t have the

Kip Smith

invoice

in

ha rid rght now,

but can obtan

it

Monday.

Have a good weekend. -Pat

Boughton.

PDF

Letter.

PDF

Patricia

F.

Sharkey

Mayer,

Brown,

Rowe & Maw LLP

190

South

LaSolIe

Street

Chicago, Illinois 60603

312-701-7952

psharkey~mayerbrownrowe.com

This

email and any files transmitted

with it are confidential and intended

solely for the use of the

individual

or entityto

whom they are

addressed. If you have received this email in

error please notify

the system manager. This message contains confidential information and is intended only for the

individual named. If you

are not the named addressee you should not disseminate,

distribute or copy this

e-mail.

This email and any files transmitted with it

are confidential and intended solely for the

use of the

individual or entity to whom they

are addressed. If you have received this email

in error please notify

the system manager. This message contains confidential information and is intended only for the

individual named.

If you

are not the named addressee you should not disseminate, distribute or copy this

e-mail.

.1/25/2005

---

RECEIVED

CLERK’S OFFICE

JAN 25

2005

CERTIFICATE

OF SERVICE

Pollution Control

Board

Bradley

P.

Halloran

Illinois Pollution Control

Board

James R.

Thompson Center

100 West

Randolph

Street

Suite 11-500

Chicago,

IL

60601

Fax

No.

(312) 814-3669

on this

25th

day

of January,

2005.

Patricia

F. Sharkey

Kevin

G.

Deshamais

Mayer,

Brown,

Rowe

&

Maw

190

S.

La Salle Street

Chicago,

IL

60603

Fax

No.

(3.12) 706-9113

Michael

S.

Blazer

—25—05;

2:

l6PIvI

25/Jaii/Z@@5 •1121 PT FEOM

The Jeff

Di~.ierGroup

T0

Halloran, Bradley

The

Jeff

Di ‘icr

Gro’iID;

6

PAGE:

1309.

The undersigned hereby certifies that he

caused the

above and

foregoing Notice

of Filing and

COMPLAINANT’S

MOTION

FOR

EXPEDITED

REVIEW AND

FOR

LEAVE

TO

FILE

REPLY

MEMORANDUM,

to

be

served

via

facsimile ‘transmission

upon

the

following:

THIS FILING SUBMITTED ON RECYCLED

PAPER

---

-

1—25—OS;

2:16PM

The

l~+f

Diver

Oroup;#

25/Jan/ZOOS 11:18

PT

FROM:

The

Jeff

Diver Group TO: Hallorari, Bradley

R~C~IVED

CLERK’S OFFICE

JAN

25

2005

The JeffDiver Group,

L.L.C’.

Jeffrey R

Divert

.Jeffery D. Jeep*

I~lichaelS. 81azer*~

Thomas

S. Yu

Tracey A. Dillon

t

Of

Coor.~eI

Also

admitted inMassachusetts

‘~

Also

admitted

in

New York

1749

S.

Naperville

Rd., Suite 102

Wheaton,

IL 60187

(630)

681

2530

(630) 690-2812

Fax

Michael S. Blazer

STATE OF ILLINOIS

Pollution Control Board

Lake

County

Ollice:

450 N. Green Bay

Road

Waukegan.

IL

6~O85

MTeb

Site: www.envjroatty.com

TELECOPY COVER SHEET

DATE:

1/25/2005

TIME:

1:24:14PM

FAX

NO.

+1(312) 814-3669

SUBJECT:

.

Motion for

ExpecBted

Review

PLEASE DELIVER

THE

FOLLOWING MESSAGE TO:

NAME:

Bradley

Halloran

OUR FILE#:

00484.1

COMPANY:.

Illinois

Pollution

Control Board

MESSAGE:

FROM:

Michael S.

Blazer

THIS

MESSAGE IS INTENDED ONLY FOR

THE USE OF THE INDIVIDUAL OR

ENTITY TO WHICH

IT

IS ADDRESSED AND

MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT

FROM DISCLOSURE

UNDER

APPLICABLE LAW.

If the reader of this

message is not

the intended recipient, you are hereby notified that-any dissemination or

distribution of this

communication to other than the intended recipient

is strictly prohibited.

If you have received this communicafion in

error,

please notify us immediately.

Call us collect at 630-681-2530 and return the original message to us at the

ahoveaddress via

U.S.

postal service.

Thank you.

NUMBER OF PAGES:

9

(including

cover sheet)

PLEASE

CALL

US IF THE

MESSAGE YOU

RECEIVE WAS

INCOMPLETE OR

NOT LEGIBLE.

OUR TELEPHONE

NUMBER

IS

630-681-2530.

ORIGINAL OF TRANSMITTED

DOCUMENT WILL BE SENT

BY:

FIRST CLASS MAIL

OVERNIGHT MAIL

HAND

DELIVERY

~:

THIS WILL BE

THE ONLY FORM OF DELIVERY OF THE TRANSMITTED DOCUMENT.