r~z

E C

r

v rED

CLERK’S

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

j~

252005

GINA

PATTERMANN

)

STATE OF ILUNOIS

)

PoUut~onContro’ Eoard

Complainant,

PCB

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 SUBMTT~ED

ON RECYCLED PAPER

---

U~tEc!~VED

LERt

S

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

JAN

25 ~

GINA PATTERMANN

)

SlATE OF

ILLINOIS

Complainant,

PCB

99-187

POII~t~~n

Control

Board

(Citizen Enforcement,

BOUGHTON TRUCKING AND MATERIALS,

oise

ir)

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

IAC

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

Momson

v.

C.G.

Wagner,

191

lll.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

1

Patterrnann 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

---

preparation for hearing and, among other things, ~

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.

Respectfully submitted,

Gina

By:

_______________________

One of her attorneys

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

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

GINA PATTERMANN

)

)

Complainant,

PCB

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 hereby certifies 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 Dismi~saI

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

---

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 ifshe were

required to proceed

to hearing under these circumstances and

in

light ofthe 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

“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 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

---

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 clearthat attorneys’ fees and expenses, including travel expenses

and the like, are not

recoverable. See

Gllbert-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 recoverable. See

Vicencio v. Lincoln-Way Builders,

Inc.,

204

lll.2d 295 (2003);

Galowich

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).

I

note that the costs that are 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

.5WIcñaeIS

.B/àzer

Principal

The JeffDiver Group,

L.L. C.

1749

S. Naperville Road

Suite

102

Wheaton,

IL

60187

(630) 681-2530

Fax: (630) 690-2812

Mobil: (708) 404-9091

mblazer~enviroatty.com

This e-mail is covered by the Electronic Communications Privacy Act,

18

U.S.C.

§~

251

0-2521

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 or the

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.

mailto:PSharkey@)mayerbrownrowe.com

Sent:

Friday,

3anuary 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

---

Message

Page 2 of 2

Mike

-

As discussed on the phone this afternoon,

I

am attaching a letter with a preliminary statement of

Boughton’s “costs” within the meaning of Section 5/2-1009 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

hand right now, but

can

obtain it Monday.

Have a good weekend.

-Pat

Boughton.PDF

Letter.PDF

Patricia F. Sharkey

Mayer, Brown, Rowe & Maw

LLP

190

South LaSalIe Street

Chicago, Illinois 60603

312-701-7952

psharkey@mayerb rownro we.

corn

This email and

any

files transmitted with it are

confidential and intended solely for the use ofthe

individual or entity to whom they are addressed. Ifyou have received this

email in error please notify

the system manager. This message contains confidential

information and is intended only for the

individual named. Ifyou 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 ofthe

individual or entity to whom they are addressed. If you havereceived this

email in error please notify

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

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

e-mail.

1/2

5/2005

---

CERTIFICATE OF SERVICE

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:

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.

LaSalle Street

Chicago,

IL 60603

Fax No.

(312) 706-9113

Michael S. Blazer

THIS FILING SUBMITTED ON RECYCLED PAPER