0:
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CHI— i~iBH~?.0.iLLP:
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ORIGINAL
January
24,
2005
VIA EMAIL
AND FIRST
CLASS U.S. MAIL
Michael Blazer
THE JEFF DIVER GROUP, LL.C.
1749 South Naperville Road
Suite 102
Wheatob, Illinois 60187
R
~ ~
~
~FD
CLERK’S OF~E
JAW 252005
STATE OF U
Pollution Control
Mayer, Brown, Rowe &
Maw
UP
190 South
La
Salle
Sheet
ChKego, Miriois 60603.3441
Main
Tel
(312) 782-0600
Main Fax (312) 701-7711
~ewe.com
Patricia
F. Sharkey
Direct
Tel (312) 701-7952
D~mctFax (312) 706-9113
payQm~yefbcOwnro~m
Re:
Patterinann v. Boughton, PCB
99-187;
courtesy Copy of Boughton’s Response and
Updates to Respondent’s Cost Statement
Dear Mike:
I am enclosing herewith a courtesy copy of Boughton’s Response
and
Objection to
Complainant’s Motion for Voluntary Dismissal Without Prejudice which we will be filing with
the Board tomorrow morning.
I am also attaching the invoices for
Kip
Smith’s litigation suppOrt services as shown in
Respondent’s Statement of
Costs and
mentioned in my email last Friday.
Also, as mentioned in my second email last Friday, I realized I
didn’t
include
$950.00 for
McCann’s
January
invoice in the totals in my letter, although the invoice itself
was
included in
the backup materials sent to you in
pdfform
on Friday with my
first
email. Please add
$950.00
to the McCann
costs.
That brings the total to $34,726.95.
Sin~rel~/
\~
~
Patrici~F.Sharkey
Enclosures
cc
(wlenc):
Bradley Halloran
Bwssels
Charlotte Cheago Cologne F~nk1urlHouston London Los Angeles Manches~rNew York Palo AlE Pans Washington,
D.C.
Independent Mexi~oCityCoirespondent: Jauregul, Navarete, Nader y Bo3as, S.C.
Mayer,
Brown,
Rowe ~Maw UP operaEs
a~mbinationwith
our
associatedEnglish limited liability partnersNp in the
offices listed atx~e.
—CE-—CE
IC’: 1
‘I
:
—
— I~IE~CI,ILLPH~
3
ORiGINAL
CLERK’S OFFICE
BEFORE THE
-.
ILLINOIS POLLUTION CONTROL BOARD
STATE
JAN
OF
2 ~
ILLINOIS
2005
Pollutton Control So r
GINA PATrERMANN,
)
a
)
Complainant,
)
PCB 99-187
)
v
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGH1TON TRUCKING AND
)
MATERIALS, INC.,
-
)
)
Respondent.
)
BOUGHTON’S RESPONSE
AND
OBJECTION TO
COMPLAINANT’S MOTION FOR VOLUNTARY DISMISSAL
WITHOUT PREJUDiCE
•
NOW
COMES
Respondent, Boughton Trucking and Materials, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe
& Maw LLP pursuant
to 35 ill. Admin. Code 10 1.500(d) and an
oral agreement with the Hearing Officer made on January 20, 2005 to file an expedited response,
and responds to Complainant’s Motion for Voluntary Dismissal
SUMMARY OF FACTS AND LAW
On January 20,
2005,
eleven days before the hearing scheduled in this matter,
Complainant filed a motion for voluntary dismissal under
735
ILCS 5/2-1009. That motion
is not
supported by an affidavit or other evidence of compliance with the prerequisites for a Section
5/2-1009 dismissal. Complainant did not file a motion for expedited Board ruling on this motion
and did not file a motion to cancel the hearing.
As set forth below, Plaintiff’s eleventh hour attempt to have this matter dismissed
without
prejudice as of right
under Section 5/2-1009 is an abuse of the Board’s procedures, is designed
to avoid the consequences of adverse rulings in this case, and is highly prejudicial to
Respondent. In addition, Complainant’s motion is procedurally and substantively defective.
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Complainant’s motion states key facts that are not in the record, i.e. that Pattermann will pay
Respondent’s costs. It is also not accompanied by an affidavit supporting Ms. Pattermann’s
purported agreement to pay Respondent’s costs, as required by
35
Ill. Admin. Code 101.504. In
fact,
Complainant’s attomey has rejected Respondcnt’s statement of costs, and there is no
•evidence in the record that the Complainant herself, who would be bound to pay, has actually
agreed to pay whatever costs the Board awards.
Complainant is not entitled to dismissal without prejudice
unless and until
the substantive
requirements of 735 ILCS 5/2-1009 have been met, ie.
upon
the actual payment of
Respondent’s costs. Complainant’s manipulative use of Section 5/2-1009 to avoid the
consequences of adverse discovery rulings entitle the Respondent to its “reasonable expenses” as
defined under Supreme Court Rule 219. in such Cases, Rule 219 authorizes the Board to award a
Respondent “reasonable expenses incurred in defending the action including but not limited to
discovery expenses, experF witness fees, reproduction costs, travel expenses, postage and phone
charges” as a preconditio~to the granting of a Section5l2-1009 motion. A statement of all such
costs incurred by Respon4ent in this case, including invoices, were tendered to Complainant on
January 21, 2005. (See Attachment 1 hereto) As of this date, Complainant has neither paid
those costs nor agreed to pay those costs. In fact, Complainant apparently disputes these costs
and the applicability of Søction 219 in this case. (See Attachment 2 hereto.) Thus, the
substantive precondition f~orgranting a Section 5/2-1009 motion has not been met.
As noted above, the “costs” are in dispute. Furthermore, Complainant has not filed a
motion for expedited Board consideration. Therefore, it is highly unlikely the Board will hear
and rule on Complainant’s motion before the hearing date which is nowjust one week away. If
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the Board does not hear Complainant’s motion before hearing, the Hearing Officer cannot rule
on
that motion because it is a dispositive motion.
-
Furthermore, the Hearing Officer cannot cancel the hearing because the Complainant
failed to file a written motion to cancel the hearing at least 10 days before the hearing date.
Section
101.510(b) of the Board’s rules (35 Ill. Admin. Code 101.510(b)) requires that a motion
to cancel a hearing demonstrate material prejudice and be attested to by an affidavit. That
Complainant made a “last minute decision” to move for voluntary dismissal is a situation of her
own making and she cannot use that decision as a “bootstrap” to now argue material prejudice
requiring the canceling of the hearing. Indeed, it is the Respondent that will suffer material
prejudice if the Hearing Officer or the Board ignores the rules and aids the Complainant in
manipulating the hearing process.
To the extent the Board has the discretion to grant voluntary dismissal without prejudice
apart from Section 5/2-1009, the equities demand that the Board
not
do so in this case. After five
and a half years of litigation and a multitude of discovery abuses, the filing of this motion to
dismiss without prejudice eleven days before the rescheduled hearing date is an abusive tactic in
itself. Granting of this motion at this late hour would be highly prejudicial to Respondent.
Rather than attempt to remedy Complainant’s abusive, late, and defective motion by ignoring its
own rules, the Board should follow its rules and the scheduled hearing should go forward.
Complainant can either appear at that hearing or take a default judgment.
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5.
ARGUMENT
Comp~ainarit’sMotion Does Not Demonstrate Compliance Wrth
the Prerequisite ofPayment of Costs As Required by Section 5/2-1009
1.
Sectiurt 5/2-1009(a) states:
“The plaintiff may, at any time before trial or hearing begins, upon
notice to each party who has appeared or each such party’s
•
attorney,
and upon payment of costs,
dismiss his or her action or
any part thereof as to any defendant, without prejudice, by order
filed in the cause.” (emphasis added)
Section 2-1009 has strict rules that govern the manner in which a plaintiff can
successfully dismiss his or her suit without prejudice. Lewis v. Collinsville Unit #10 School
District, 311 Ill.App.3d 1021, 1027 -28,
725
N.E.2d 801, 806
(5th
Dist. 2000). Where those rules
are not followed, the motion to dismiss must be denied. hi. The key prerequisite is that the
moving party is entitled to dismissal only “upon payment of costs.” Payment of costs is a
prerequisite to entitlement to a dismissal without prejudice, not a matter to be complied with
subsequent to the issuance of the dismissal order. In this case, Complainant’s motion does not
demonstrate that Complainant has made such payment and, indeed, Complainant has not made
such payment. Therefore, Complainant’s motion is substantively defective.
Complainant’s Motion Is Not Supported By An Affidavit
As Required By Rule 101.501
2.
Complainant’s states that “Patterrnann shall pay such costs as are within the
meaning of Section 2-1009 upon submission of a statement of the same from Respondent.” But
the mere statement that a party will pay “costs” is not the same as the actual payment of such
costs. Not only has Complainant not yet paid Respondent its costs, Pattermann’s agreement to
make this payment is an asserted fact which is not of record in this proceeding and which is not
supported by an oath, affidavit or certification. In fact, Complainant’s attorney’s email of
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Janua~23, 2005 indicates that Complainant will
not
pay the costs Respondent is entitled to
under Rule 219.( See Attachment 2.)
3.
The Board’s rules at 35 Ill.Adm. Code 101.504 plainly provide, “Facts asserted
that are not of record in the proceeding must be supported by oath, affidavit or certification in
accordance with Section 1-109 of the Code of Civil Procedure
735
1LCS 5/1-1091.” Absent an
affidavit from Ms. Pattermann supporting her agreement to pay Respondent’s costs and in the
face of her attorneys stated rejection of Respondent’s costs, there is no evidence that this motion
is made in good faith. Therefore this motion is defective on its face and should be rejected
without further consideration.
If Voluntary Dismissal
Without
Prejudice
Is
Granted, Respondent is Entitled
to
Its
Reas~onableExpenses as Specified in Supreme
Court Rule 219
•
4
The Illinois Appellate Court has held that, with regard to voluntary dismissals, the
rules guiding the courts of Illinois “provide the outer bounds of what an administrative agency
can do regarding motions for voluntary dismissal.” Citizens of Burbank and People of the State
of Illinois v. Clairmqnt Transfer Co., PCB 84-125 (December 18, 1986), 1986 WL 27205,
citing
Village of South Elg~nv. Waste Management, 64 Ill.App.3d 570, 881 N.E.2c1 782, 782-7 83 (2d
Dist. 1978). Supreme Court Rule 219(e) (“Voluntary Dismissals and Prior Litigation”) is a
companion Rule to Section 5/2-1009 designed to ensure voluntary dismissals are not used
abusively to circumvent the consequences of discovery.
Morrison v.
C .G.
Wagner,
191 UI. 2d
162, 729 N.E. 2d 486 (2000) (Rule 219 prohibits a party from avoiding compliance with
discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit.) As Rule
2 19(e) is a companidn to Section 5/2-1009, the Board cannot act on Complainant’s Section
5/2-
1009 motion without considering Rule 2 19(e) and whether the voluntary dismissal without
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prejudice will allow the Complainant to circumvent the effect of discovery orders and sanctions
entered in this case.
Illinois Supreme Court Rule 2 19(e)1 states:
(e)
Voluntary
Dismissals
and Prior Litigation
A party shall not be permitted to avoid compliance with discovery
deadlines, orders or applicable rules by voluntarily dismissing a
lawsuit. In establishing discovery deadlines and ruling on
permissible discovery and testimony, the court shall consider
discovery undertaken (or the absence of same), any misconduct,
and orders entered in prior litigation involving a party. The court
may, in addition to the assessment of costs, require the party
voluntarily dismissing a claim to pay an opposing party or parties
reasonable expenses incurred in defending the action including but
not limited to discovery expenses, expert witness fees,
reproduction costs, travel expenses, postage and phone charges.
The Committee Comments to this rule further clarify the purpose of this rule and its
applicability to the case at hand:
Paragraph (e)
Paragraph (e) addresses
the use of voluntary dismissals to avoid
compliance with discovery rules or deadlines, or to avoid the
consequences of discovery failures, or orders barring witnesses or
evidence.
This
paragraph
does not
change existing law regarding
the right of a party
to seek or obtain a
voluntary dismissal.
However, this paragraph does clearly dictate that when a case is
refiled, the court shall consider the prior litigation in determining
what discovery will be permitted, and what witnesses and evidence
may be barred. The consequences of noncompliance with
discovery deadlines, rules or orders cannot be eliminated by taking
a voluntary dismissal. Paragraph (e) further authorizes the court to
require the party taking the dismissal to pay the out-of-pocket
expenses actually incurred by the adverse party or parties. This
rule reverses the holdings in
In re Air Crash Disaster at Sioux City,
iowa, on July 19, 1989,
259 III. App. 3d 231, 631 N.E.2d 1302 (1st
Dist. 1994), and
Galowich v Beech Aircraft Corp.,
209 III. App.
3d 128,
568
N.E.2d 46 (1st Dist. 1991). Paragraph (e) does riot
provide for the payment of attorney fees when an action is
voluntarily dismissed.
‘In addition, Illinois Supreme Court Rule 20S provides that court reporter’s fees, transcription costs, witness fees
and associated copying and filing fees may be taxed as “costs.”
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5.
As stated by the Illinois Supreme Court in
Morrison v. C.G. Wagner,
191 I1l.2d
162, 166, 729 N.E.2d 486, 488 (2000):
“Rule 219 prevents voluntary dismissals from being used as an
artifice for evading discovery requirements through two entirely
different mechanisms. First, the rule enhances the monetary
burden associated with such dismissals. Under section 2-1009(a)
of the Code of Civil Procedure, plaintiffs must pay costs as a
condition of taking a voluntary dismissal without prejudice. Rule
2 19(e), however, provides that in addition to the assessment of
costs, the court may require the party seeking
dismissal to pay
the
opposing party or parties their reasonable expenses incurred in
defending the action including but not limited to discovery
expenses, opinion witness fees, reproduction costs, travel
expenses, postage, and phone charges.”
Morrison, Id.
At pp. 166-
167, 488 —489.
In
Scattered Corporation v. Midwest Clearing Corporation,
2299 Ii!. App. 3d
653, 702 N.E. 2d 167 (1st Dist. 1998), the Illinois Appellate Court provided more insight into the
scope and function of Rule 219(e):
“...Rule 219(e) does not act as a bar to a plaintiff’s statutory right
to a voluntary dismissal. 735 ILCS 5/2-1009(a).. .Rule 219(e) does,
however, curtail aplaintiff’s use of the voluntary dismissal as a
dilatory tactic. We believe that Rule 219(e) targets those strategic
and tactical litigation decisions which, having crossed the line of
vigorous advocacy, become decisions aimed no longer at besting
the opposing party but rather at undermining the integrity of the
judicial system.”
Id.
at 660.
The Appellate Court went on to say:
“...expenses authorized under Rule 2 19(e) serve not as a sanction
per se, hut rather as a deterrent to the dilatory and manipulative use
of plaintiffs vo’untary dismissal. This prophylactic intent is
consistent with the purpose behind rule 219(c) in encouraging
compliance with the entire discovery process.
. .“
Id. at 660.
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6.
Notably, the sanctions in Rule 2 19(c), are the same sanctions that are authorized
under Board Rule 101.800
(35
Ill. Admin. Code 101.800) under which Complainant in this case
was sanctioned with the barring of her expert witness. (See Attachment 3 hereto.) Thus, the
type of behavior that Complainant in this case engaged in which has increased Respondent’s
costs and resulted in Board sanctions is precisely the type of “strategic and litigation decision”
that Rule 219(e) ‘“targets.” The intent of Rule 2 19(e) is to deter plaintiffs from taking a voluntary
dismissal without prejudice to avoid the sanctions imposed under Rule 2 19(c) or, in this case,
Rule 101.800, and then simply refiling the case. This is the avenue that Complainant in this case
is clearly trying to preserve by fling this motion. Although the Board cannot prevent her from
taking a voluntary dismissal under Section 5/2-1009, Rule 2 19(e) authorizes the Board to lessen
the harm to the Respondent by ensuring that she bear the cost of Respondent’s “reasonable
expenses”
7.
before
Complainant’s
she avails herself
behavior
of thisin
thistactic.caseis2
precisely the type of manipulation of the
system that Rule 2 19(e) was designed to curtail. Complainant filed this matter on June
15,1999.
Since that time, Complainant has engaged in a strategy of delay and discovery abuse designed to
increase costs for the Respondent while minimizing costs for herself. Rather than diligently
prosecute her alleged “nuisance” claims, she has taken an “on againloff-again” approach, only
occasionally paying attention to orders and commitments made in this case, while keeping the
Respondent” on the hook.” Her approach to this case resulted in many discovery abuses and
ultimately Board sanction.
2
II should be noted that the “reasonable expenses” authorized under Rule 219(e) do not include attorneys
fees, which the Appellate Court has held the Board cannot impose.
ESG Watts, Inc. v, PCB,
286 111. App.3d 325,
337-338. Nor would the Board be imposing a penalty or damages by requiring that the requirements of Section 5/2-
1009 and Rule 219(e) be met before a voluntary dismissal can be granted.
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8.
Complainant’s current motion is a blatant effort to circumvent the consequence of
her own discovery errors and the Board’s discovery rulings and sanctions. Despite the fact that
Complainant is herself an attorney, Complainant abused discovery procedures by refusing to
provide certain subpoenaed documents and by filing a witness list that consisted of hundreds of
names. She also purported to have hired an expert witness which she had, in fact, not hired, and
then allowed Respondent to bear the cost of a deposition in which her purported expert witness
did not appear. Based on this discovery abuse, along with her failure to attend many scheduled
status conferences, the Board ultimately ordered that Complainant’s fact witnesses were limited
to the four identified witnesses, confirmed that discovery was closed and no further witnesses
would be allowed, and granted a motion for sanctions which barred her purported expert witness.
(See
Attachment 3.) The Board’s August 7, 2003 order stated:
“The Board finds Ms. Pattermann’s conduct has amounted to an
abuse of discovery and grants Boughton’s motion for discovery
sanctions in part. Under Section 101.616(f), failure to comply with
any order regarding discovery may subject the offending persons
to sanctions. 35 Ill. Adm. Code 101.616(f). Here, Mr. Zak did not
appear at this scheduled deposition because Ms. Pattermann had
not retained him. Ms. Pattermann does not dispute these facts. In
addition, the hearing offcer ordered that the parties complete all
depositions by May 2, 2003. By not making Mr. Zak available at
this scheduled deposition or any, other time before May 2, 2003,
Ms. Pattermann did not comply with the hearing officer’s order to
complete all depositions by a time certain. Iii addition, Ms.
Pattermann prevented Boughton from completing any discovery
deposition of her expert noise witness. Ms. Pattermanu has
violated several hearing officer orders in the past by not appearing
at status meetings and by not producing a document subpoenaed by
Boughton. The Board finds that Ms. Pattermann’s conduct
amounts to an abuse of the discovery process.”
9.
Apparently Complainant has now finally focused on the facts in this case and
realizes that as a result of the Board’s sanction order she doesn’t have an expert witness. Perhaps
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her fact witnesses have also disappeared or become disaffected with her case. While we are not
privy to her reasoning
---
because she hasn’t filed a proper, documented request to cancel the
hearing
--
it is clear that she would like to avoid the consequences of her past actions and the
Board’s sanction order by dismissing this case with the option of refiling and starting anew. This
effort at circumvention falls squarely within the type of abuse Supreme Court Rule 219(e) was
designed to prevent.
10.
In Vaiclovinos v. Luna-Manalac Medical Center, Ltd., 328 Ill.App.3d 255, 764
N.E.2d 1264 (Jet Dist. 2002), the Appellate Court affirmed an award of $79,173.14 in costs under
S. Ct. Rule 219(e), holding:
“There is no question that the assessment of expenses pursuant to
Rule 2 19(e) is proper in the instant case where the plaintiffs
exercised their right to voluntarily dismiss the action without
prejudice in order to avoid the effects of pre-trial evidentiary
rulings based on their own failure to comply with discovery
deadlines.”
As in Valdovinos, there should be no question in this case that Respondent is minimally
entitled to its expenses, as specified in Rule 219 and demonstrated in Attachment 1, if and when
the Board rules on Complainant’s Section 5/2-1009 motion.
The Board Should Not Exercise
Its
Discretionary Authority
to Dismiss This Case Without Prejudice.
11.
Until Respondent’s “reasonable expenses,” as shown in Attachment 1 hereto,
have been paid, Complainant is not entitled
to
a voluntary dismissal without prejudice under
Section 5/2-1009. Furthermore, a dismissal without prejudice is not warranted under the Board’s
discretionary powers. Dismissal without prejudice would be highly prejudicial to Respondent
who has not only incurred extensive ‘~costs”as defined under Supreme Court Rule 219, but has
also incurred extensive attorneys fees to defend itself in the face of Complainant’s nuisance
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allegations. Although attorneys fees cannot be recovered in this forum, the Board can and
should consider the fact that Complainant’s dilatory and abusive prosecution of this case has
resulted in extracosts and fees to Respondent. Respondent has been forced to have its attorneys
request withheld documents repeatedly, attend numerous scheduled status conferences over the
last 5 ½years where Complainant and her counsel failed to appear, move to strike a spurious
purported witness list of over 100 witnesses, attend and pay for a properly noticed deposition in
which neither Complainant, her counsel nor her purported expert witness appeared, finally move
to bar Complainant’s purported expert witness, and file motions to remind Complainant’s to file
late responsive briefs.
12.
All of Complainant’s abuses of discovery requirements and the Board’s orders
and rules have been expensive for the Respondent. It would be manifestly unjust for the Board
to dismiss without prejudice and thereby allow Complainant to potentially re-file her claims at a
later date, thus keeping Respondent in jeopardy. Respondent has not only been forced to bear
the extra costs and fees associated with Complainant’s procedural abuses, it has also at this point
borne extensive costs and attorneys fees, as well as the time and effort of its own employee
witnesses, to fully prepare for a hearing on nuisance claims which Complainant has apparently
now decided she doesn’t want to pursue at
this time.
After
5 ½
years of litigation, if
Complainant is not ready and able to support her allegations at this point, justice requires that her
allegations be dismissed with prejudice.
Filing an abusive, unsupported and incomplete motion
does not automatically stay or cancel a hearing.
13.
Complainant’s Motion was not filed until January 20th, and the next Board
meeting will not take place until after the January 31, 2005 scheduled hearing date. The Hearing
Officer cannot act on a dispositive motion (35 UI. Adrnin. Code 101.502(a)), and Complainant
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has not filed a motion for expedited Board review under 35 Ill. Admin. Code 101.512. Thus,
even though Respondent agreed to file this response on an expedited basis, it is highly unlikely
that Complainant’s Motion will be acted upon prior to the hearing date. This is a problem of
Complainant’s own making.
14.
The filing of a Motion for Voluntary Dismissal does not automatically cancel a
scheduled hearing. The Board’s rules make it very clear that the filing of a motion, in and of
itself, does not stay a proceeding or extend the time for the performance of any act. 35 Ill.
Admin. Code 101.502. Motions to stay a proceeding must be directed to the Board and must be
accompanied by sufficient information detailing why a stay is needed.
35
111. Admin. Code
101.5 14.
15.
Furthermore, the Hearing Officer has no authority to cancel the hearing in this
case because Complainant did not file a motion to cancel the hearing more than ten days before
the scheduled hearing date, nor has she provided an affidavit demonstrating that she will suffer
material prejudice if the hearing is not canceled and that any request to cancel the hearing is not
the result of her own lack of diligence, all as required under 35 Ill. Admin. Code 101.510.
16.
That Complainant made a last minute tactical decision to move for voluntary
dismissal is a situation of her own making and she cannot use that decision as a “bootstrap” to
now argue material prejudice requiring the canceling of the hearing which was rescheduled at her
request less than 45 days ago. Indeed, it is the Respondent that will suffer material prejudice if
the Hearing Officer or the Board ignore the rules and aid the Complainant in manipulating the
judicial process. Respondent has now been required to prepare for hearingtwice to accommodate
Complainant. Furthermore, there is no guarantee that the Board will grant Complainant’s motion
or that Complainant won’t withdraw this motion when faced with actually paying Respondent’s
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expenses as required by Rule 219. if this hearing is cancelled, Respondent may very well have
to prepare for trial a third time as a result of Complainant’s maneuvers.
17.
All of these procedural problems are a result of Complainant’s own very late
decision to file this motion. The lateness of this filing does not excuse compliance with the
Board’s regulations or allow the abandoning of those rules to the prejudice of the Respondent.
Respondent very much wants this hearing to go forward, to have its day in court and to finally
get a Board ruling that its operations do not constitute a nuisance. The Complainant’s motion is
simply too late to be heard before hearing and the hearing must go forward.
CONCLUSiON
If the
Board chooses to rule on Complainant’s motion under Rule
512-1009,
it cannot
apply only part of that rule or apply it in a fashion that is inconsistent with Supreme Court Rule
219 and the Supreme Court’s stated intent. Thus, unless and until Complainant has paid
Respondent’s discovery expenses, expert witness fees, reproduction costs, travel expenses,
postage, phone charges, court reporter and transcription charges and related costs as required
under Rule 219 and Rule 208, all of which are listed in Attachment I hereto, Complainant’s
motion cannot be granted.
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Furthermore, there is no automatic stay of the hearing and no proper motion and basis has
been filed which would allow the Hearing Officer or the Board to cancel the hearing at this late
date. Complainant has created this probllem,just as she created the other problems in this case
she now seeks to avoid. She should live with the consequences. She has a choice
—
she can go
to hearing on the scheduled date or take a default judgment.
BOUGHTON TRUCKING AND MATERIALS, INC.
January 25, 2005
_____________________________
y One Of Its Attorne s
Mark R.Ter Molen
Patricia F. Sharkey
Kevin Desharnais
Michelle A. Gale
Jaimy L. Hamburg
MAYER, BROWN, ROWE & MAW LLP
190 South LaS alle Street
Chicago, Illinois 60603
(312) 782-0600
14
THIS DOCUMENT HAS BEEN PRINTED ON REcYc~DPAPER
1 —2.E—0E ; 10: 1
CHI—
I•~IBR&i.~’; LLP:
iT
ATTACHMENT 1
January 21, 2005
VIA
EMAIL AND FIRST
CLASS U.S. MAIL
Michael Blazer
THE JEFF DIVER GROUP,
L.L.C.
1749 South Naperville Road
Suite 102
Wheaton, Illinois 60187
Re:
Pattermann v. Bough~bPCB99-187;
Respondent’s Costs Within the Meaning of
Illinois Code of Civil Procedure Section 5/2-1009
Dear Mr. Blazer:
Mayer, Brown, Rowe &
Maw LLP
190
South
La Safle
Street
Chicago, Iliinois 60603-3441
Main Tel
(312)
7B2~0600
Main Fax
(312) 701.7711
Patrida F. Sharkey
Direct Tel
(312) 701.7952
Direct Fax (312)
706-911 3
psha~eythriayerox~~.c~ra
We received Complainant’s Motion for Voluntary Dismissal by facsimile yesterday,
January 20, 2005.
We are
preparing a response to that motion which we will email to you and
file with Mr. Halloran and the Board on Monday in advance of our scheduled Status Conference
with Mr. Halloran.
In response to Paragraph 3 of Complainant’s Motion, we are hereby tendering a
preliminary statement of Respondent’s costs, within the meaning of Section 2 -1009, as we have
been able to gather in this short time interval.
RESPONDENT’S
COSTS
Expert witnesses
Michael S. McCann, William A Mcarin
& Associates, Inc.
Kip Smith, MacTee, Inc. (previously Harding-Lawson)
Court Reporter and Transcripts
George E. Rydman & Assoc., Ltd.
Trial Exhibits
Document Technologies, Inc.
Reproduction Costs
Travel Expenses
Postage (md. mail, document delivery, preparation and fax)
Phone (Long Distance
$23,293.35
$
3,423.49
$1,361.40
$
591.63
$ 3,714.15
$
142.07
$ 1,242.17
$
8.69
Total $
33,776.95
Brussels
Charlolte Chicago Cologne Frankfurt Houslon London Los Angeles Manchester Mew York Palo Alto Paiis Washington. D.C.
Independent Mexico City Correspondent: Jauregui
Navarrele,
Nader
y Rojas, S.C.
Mayer, Brown, Rowe & Maw LLP operates in rombination with our associated English lim;ted liability partnership in the offices listed above.
1—2 5—C5:1C):i~AM
CHI—
iB.P21 I
12
Mayer, Brown, Rowe & Maw LLP
Michael Blazer
Januaiy2l.2005
Page 2
Notwithstanding our tender of this information, we reserve our objections to the Motion
and we will be prepared to discuss those objections in our conference on Monday.
Sin~fe
Patric~F. Sharkey
Enclosures
cc (w/enc):
Bradley HaJloran
1257S65 99556862
11L1/~L)UO
~,,p..
..~.
9:49
AM
DETAIL REPORT
BY
MATTER
Req’d
by MLOO5 139
From Oate;O1 .)ai
1999 To 0a1e21
Jan 2005
Cc~tSummary
Anxunt
±
CoetOeao
CostT~~pe
B~e
Tob9I
5W
..,~
7
w
13
Document D~IV&y
94
122.40
122.40
122,40
1—
Document Oelivery.Chtca~oMessençer
60
11.50
11.50
11.50
7
Pe~e81
~~
1/21/2005
May&,Brom,Rowe&MOwLL1-’
9:49
AM
DETAIL
REPORT BY
MATTER
Reqd by ML005139
From
Date:01
Jan
1999 To
D~e:21Jan
2005
TIme WIP Status Included: Billed
Coet ‘NW Statue Included: Billed
Cost Summary
P,mount
Cost
Deac
Cost Type
Base
Document Delivery. Orfice
.
93
346.72
346.72,
346.72
Document PreparatIon
29
727.50
727.50
727.50
Document Reproduction
42
3,364.65
3354.00
3,352.35
Document Reproduction~Outside
41
361.80
361.80
381.80
Facsimile Transmission . Local
02
378.57
378.57
378.57
Facsimile Transmission. Long Distance
83
264.00
28400 .
264,00
Local Transportation
09
.
142.07
142.07
142.07
Long Distance Telephone
72
8.69
8.69
8.69
MaillngCherges.OffIcs
92
101.58
101.58
101.58
Ma1lingChar~es-Outsido
91
18.76
17.40
17,40
Transcripts
06
1,361.40
1,361.40
1,361.40
¶7,195.98
¶7,195.98
Page 62
1 —2H—05 I I CI
1
OH I —
IER&N/I LL~ I~ 21
..3~fl. 31,
2(i()5
3: i~PM
William A.~
McCann &
Associates, inc.
Since
1962
Boughton Trucking & M~terials,Inc.
do prank
Maly
Secretary
11740 S. naperville-Plainlield
Road
Plainfield IL 60544
II
CA~
hO.
Il/u
Re~rlEstale Appraisers &
ConsuI~ants
Michael S. McCann
Rrlar
P. McCarel
Kevin A. Byrnes
Michael F. Welsh
James P. ~o1ey
III
LaurS M. Foran
Martin L. Nc~an
William A. McCam Ill
John 1. Serina
Ill
Aprli
07, 2003
WiiItzrnA
Mcdenn.MAI
Lihgohon Consijlton~
PLEASE RETURN ONE
COPY WITH
PAYMENT
RE: 111th Street - Boughtori Quarry
Napervifte, II.
McCann Flie No. 030304
For services rendered to assist client
iii preparing defense for PCB hearing,
including
exhibIts, all
supporting
data
and
basis
for
opinions,
time detailed as
follows;
_HOURS .Qi5!NI
chael
S.
McCartn
Telephone conference with Pat Sharky re; relocation cost
issu~S,etc.
Executive summary writing; refinement of analysis and
conclusions; supervise production; edit tables, etc.
Analysie of
resale
data, Naperville trends/ River Ruri/
White
Eagle data overall, specific near4ar data; scope with John T.
Setina, ill and Laura Foran re: exhibits, maps, aerials; report
writing re: findings, concIusio~s,support for opinions; lunch
meating with John T. Setina, III refIne analysis, ~t~bleand
exhibit requirements; aerialpresentation scope wtth Melissa
M..; etc.
Executive summary -
writing;
refinement of analysis and
conclusions; supervise production
Meeting/ analysis with John T. Setina, Ill; review selections
for data analysis
Teleconference with Pat Sharkey. Esq~r~photos, preliminary
data results, berm photo
Ariulysis
with John T.
Seitna, Ill re: target and iontro areas~
compare average prices and sf of house, marketing
times,
type of doe, locations of house,scope of exhibits
Conference with John 1. Setina, lii re: job and research
F~eviewNIPC photos with John T. Setina, III and report
exhibits
Review sequenced aerials with John 1. S~tina,Ill
re:
history
of development trends; possible exhibits
Field inspect subject with John T. Setina, Ill , Frank M. at
quarry; tour
site. River
Hun
subdivision, ~ubdlvi~ion to north,
White Eagle at west Pte. 59 to select control ares;
review
MLS preliminary data;
to/from
Naperville
04/04/2003
04/03/2003
04/02/2003
03/31/2003
03/20/2003
03/26/2003
03/24/2003
03/21/2003
03/20/2003
414
North Orleans Streel,
Suite 601 Chicoyo, Illinois 60610
P1-lONE: (312)
644-0~21FAX:
(312) 644-~244
‘~w~w.mccannappraisal.com
0.45
7.50
7.75
1.50
2.50
0.25
3.75
0.20
0.90
0.50
7.00
FiLE COpy
Invoice No. 13794
~_25—O5;iO.:i6.2i:II
1
c:HI—
1E22.M LbP;#
22
.H~ 21. 2i)i)5
319PM
.
No.
~7~9 9
3
Boughton Trucking
&
Materials. Inc.
Page
2
Invoice No. 13794
HOURS
AMOUNT
031 19/2003 Conference
with
John
T. Setina, Ill re; job and research status
0.25
03/1 6/2003 Analysis of location, info available with John T. Setina, Ill ;
1.26
review subdivision histories &
Naperville plan districts;
teleconf w/ Frank M. re~general volume histories at subject
anti other area quarries; refine
scope of target/control
research;
etc.
Follow up review- township assessors lists, excel analysis,
0.35
etc.
03/1 7/2003
Conference with John
T. Setina, Ill
re: job and research
0.35
parameters
03/1 3/2003 Meeting with John T. Setina, Ill re; aerials needed,
target
0.75
area sale data, control parameters, etc.
03/11/2003 Teleconference with Pat Sharky at Mayer Brown
0.35
Review scope of research for
property
value
impact study
1 .00
with John T, Setina, Ill
03/10/2003 Teleconference with Pat Sharky and
Kevin Desharnais
0.25
SUBTOTAL;
3&.~5 6,817.25)
LpULa Foran
04/02/2003 Analysis and research
-
map out subdivsicn re-sales for eøch
2.25
lot in River Run and White Eagle subdivisions
SUBTOTAL:
2.26
225.00
John 1. Setina,jll
04/04/2003 Process balance of reports and messenger to clients office
0.75
04/03/2003 Edit tables chart for report; process reports; messenger (1)
8.30
copy to clients office; conference with Michael S. McCann
me; data tab!es, exhibits and report writing; print out
photos
to label
f~rreport
exhibits
04/02/2003 Conference
with
Michael S. McCann re: data tables, exhIbits
10.25
and report writing: Make River Run and White Eegle ropot
exhibits of subdivion
plat
map with sales! resales mapped
out; Review River Run
and White Eagl.e sales and rasales
data; NIPC photo to be copied; data tables for residential
subdivisions, exhibits for reports and photos; report writing.
04101/2003 CMA for Clew Creek farm, Whispering Lakes, Saddle Creek,
7.85
High Meadows, Crestvlew Knolls, Wheatland South,
Breckanridge Estates residential; Research Naperville det-sfr
sales 2001, 2002, 2003, Napervllle overall and
Naperville
Will County only: MLS
research CMA on subdivisions:
Ashbury, Rosehill, brook Crossing Estates, arid
Knoch Knoiss
03/31/2003 Make map exhibits
for report re;
River Pun and White Eagle
7.55
residential subdivision; MLS research CMA on subdivisions:
Ashbury, Rosehill, Brook Crossing Estates, and Knoch Knolls;
FIeld Inspection photo
- email to Pat Sharkey
for review; 360
day comparative market
analysis of River Run and White
Eagle residential subdivision for active, expired, cancelled
l—25—05;iO:lEAI1
OH~— MSP&M LLP;3
2.2
No, 17~N
P. 4
jan. /:~ 2H)5
~PM
Boughton Trucking & Materials, Inc.
Page
3
Invoice No. 13794
.J-IOURS
AMOUNT
listings;
Conference call with
Michael S. McCann and Pat
Sharkey,
Esq re: job status and preliminary data results;
Analysis with Michael S. McCann re~preliminary research
data results, exhibits, new research arid data array and
prepared
in tables
03/31/2003
Report writing
0.50
03/30/2003 Review and analyze White Eagle residential sale data, put in
2.00
excel spread
sheet form
02/29/2003 Research all
sales iri the Shite Eag’e residential uubdivision for
10.80
sale arid resale - 430 properties; River
run and White eagle
residential subdivisIon sales spread sheet, input data, sort
data tables and calculate averages, Input in spreadsheet form;
03/28/2003 AnalysIs with Michael S. McCann re;
target and central
3.75
areas, compare average prices and sf
of house, marketing
times, type of doc, locations of house,scope of
exhibits
Review and analyze White
Eagle residential sole data, input
4.25
excel
03127/2003 Siclwell maps of entire White Eagle residential subdivision for
7~95
research; revIew and analyze White Eagle residential sola
data, excel input; conference with Michael S. McCann re: job
and research
03/26/2003 Calculate marketing times for all sales each year 2003-01 tor
7.70
River
Run and White Eagle; River Run and White Eagle
residential
sale data input
03/25/2003
Review NIPC photos with Michael S. McCann
arid discuss
0.30
exhibits
03/24/2003
River
Run and White Eagle residential sale data input;
8.15
research White Eagle residential subdivision;
review NIPC
photos with Michael S. McCann
and report exhibits; review
and organize field
inspection note and file;
Mew and organize
(download) digItal photos from field inspection
03/21/2003 Review arid analyze River Run residential data, input excel
7.15
spread sheet form, all properties (430) In subdivision;
research maps for control ares for sales study research, area
maps, sidweti niaps; aerIals with Michael S. McCann: review
end compare sil sales in the River Run residential subdivision
for sale arid resale extraction
03/Z0/2003 Field inspection wIth Michael S. McCann, Frank M. at quarry;
7.00
tour site, River Run subdivision
03/1 9/2003 Research all sale in the River Run resklenti& subdiviSIon for
7.20
sale
end
resale anaIys1s~conference with Michael S. McCann
re: job and research status; research River Run residential
subdivisIon, MLS 2003. 2002, 2001 sales in each year for
average
sale price and marketing times
03/18/2003 MLS
-
property report research
sale and resale data in the
6.80
River Run subdivision; review single family developments;
conference with Michael S. McCann
re:
~eId irispoonion,
research, target and control area
i—22.—CJ.5;lO:16AM
CHI— ME.P&M LLP;#
24
Jan.
21.
2~)5 32~PM
No. 708
P. 5
Bough~onTrucking & Materials, lr~c.
Page
4
Invoice No. 13794
HOURS. _~Q~
03)17/2003 Conference with Michael S. McCann re: job and research
6.25
parameters; maps of subject &ite and area
to
be researched~
research all sales in the River Run residential subdivision for
sale
and
resale; order NIPC aerials and airpix photos;
research
aerial photos for subject area, research (map quest) arid
sidwel) maps
03/14/2003 Research River Auri PIN number and sales data on towrishlp
3.00
web site; maps of the subject
site
and subject area to be
researched
03113/2003 Conference with Michael S. McCann re: subject location and
0.75
research
of SFR in the area and research of target and control
area; I\JIPC arid
airpix photos to order
Call Kevin Deahernais re: any data relating to the subject
0.05
property -
not
ri offica - left a voice mail message 3:14pm
03/11/2003 Conference with Michael S. McCann re: job and research
1 MO
SUBTOTAL:
119,10 14,887.50
~iiLMcCann,Ill
-
04/03/2003 Prepare photo exhibit (Figure ~5)
1 ~25
SUBTOTAL:
(
1.25
156231
FEE I\MOUNT:
15~.45 $22,088.00
ADDITIONAL CHAkGES:
~es
04/03/2003 Moasrier Company - exhibit and map charges
58.65
04/01/2003 Mossner Company - exhibit and map charges
30.90’
0312012003
Aerial photographs
‘1 0&50
SUBTOTAL:
~
19o,osi
TOTAL COSTS
$198.05
TOTAL AMOUNT OF THIS BILL
$22284.05
03/14/2003 RetaIner Payment - thank you
.
($5,000.00)
Check No. 50475
Tota( payments and adjustments
($5,000.00)
BALANCE DUE:
$17,284.05
(2H I — IvIBP2M LLP 2 25
Jan. 2~
2005
3:20PM
No.
1708
F. S
Boughton Trucking & Materials, Inc.
Pege
5
invoice N~.13794
This invoice is for services rendered for the dates listed above and
is
due and payable within 20
days. if you have any questions, please cafl our accounting department and you will be
assisted
in
processing this Invoice for a timely payment. Amounts unpaid after 30 DAYS are subject to a
charge of 1 .50 per month on
the
unpaid balance.
We appreciate the cpportunity
to be of service to you in this assignment.
OH I — MBP.2M LLP
22
Jo’~.21. 2005
3:20PM
William A.
McCann &
Associates, Inc.
S/nce 1962
November 6, 2003
Boughton Trucking & Materials, Inc.
C/o Frank M~1y,Secretary
1174?
S. Napervilie-Plainfield Road
Plainfield, Illinois 60544
RE:
~
1th
Street — Boughton Quarry
Napervilie, Illinois
McCann FiI~No. 030304
Dear
Frank:
No.
1708
P~
7
Real Estate
Appraisers &
ConsuUonts
MicP~8I
Brian
S.
P.
McC~~McCann
‘Kevin ~kaymes
Mic?rael 1. ~
J~me~P. Fo~eylit
V
Martin L
)~1ouIiftan
I
F
1 0 ~?
Wit~am
A.
McC9nn
ill
- ,
.Thhn T.
S~tin~Ill
WHhism
A.
McCann, MA!
Ut!gat~z~
Cc,nsultanf
Our current invoice includes exhibit ah~rgesthat were not included in prior invoices.
Please call if you have any questions.
Respectfully,
WILLIAM
A. MCCANN &
ASSOCIATES, INC.
414
Norm Orleans Sfteet. Suite 601 Chicago, IIIinoi~60~10
PHONE: (312) 644-0621 FAX: (312) 644-~244
~Nw.rnccannapprQisaI.com
Micha& S. McCann
President
End.
OH I— N.IBP
Ni
I—~25—’—~ 1~J: 16
L
WHliam A.
McCann &
Associates, Inc.
Si,4ce
962
Ocughtori Trucking & Materials, Inc.
cI~FrenicMaly
Secretary
11746 S. N~perviiI~-Plainfiel~Road
Plainfield IL
60544
:. ~-
C~p
y
No.
1700
P. 0
Real Estate Appraisers ~ ConsuItan~
November 06, 200~.
Invoice No. 13957
Mi~hafflS.
McCann
Brian P. McCann
l~vjr~A ~ymO3
MItha& F. Walsh
J4m&~
P.
l~cleylii
Marlin L
Williani
A.
McCann III
Jo?~n1.5etin.~Ill
Williem
A. McC~nn~
MAI
Litig~t~in
Gtjfl$Ailt&?l
111th
Stre9t
- Boughton Qu&ry
Naperville, II,
McCann File No. 030304
PLEASE
RErtJRN ONE COPY WiTH PAYMENT
FOR PROFESSIONAL SERVICES RENDERED:
HOURS. AMOUNT
Michael S.
McCann
11/612003 Final review of affidavit; forward to attorney Matt
S.
1112(2003 Review and edit draft
~ffid~vit
prepared by c~ent’sattorney re:
summary of McCann property value study: forward to attorney
(email)
10/28/2003 Teleconference w/Pat Sharkey re: rno~ion,affidavit to be prepared
SUBTOTAL~
FEE AMOUNT:
ADL~!1TIOt’~ALCHARGES:
413/2003
Mossner Company - exhibit and map charges
4/2/2003 Moasnar Company - exhibit and map charges
SUBTOTAL:
TOTAL COSTS
TOTAL AMOUNT OF THIS BILL
414
North
Orleans
Street, Suife 601 Chicago~Illinois 60610
PHONE: (312) 644-0621 FAX: (312) 644-9244
wwwmccarinapprciisakcom
0.25
2.00
0.25
2.50
462.60)
2.50
$462.50
515.00
30.go
546.80)
$54~8O
$1,009.30
RE:
I — P6.6CM LOP
1—26.—CE:
•i:C :1
William A.
McCann
&
Associafes, Inc.
Since
1962
Celebrating 42
Years of
Service
Boughton Trucking & Materials Inc.
do
Frank
Maly
Secretary
11748 S. Naperville-Plainfleld Road
Plainfield IL 60544
11-
1J1’\Q
.~L, llulJ
Real Estate Appraisers & Consultants
January 21, 2005
invoice No.
14198
PLEASE RETURN
ONE COPY WITH PAYMENT
Appraiser Summary
Hours
-
Amount
1.00
200.00
3.75
750M0
4.75
950,00)
4.75
$950.00
Hours
Rate
Amount
4.75
200.00
$950.00
This invoice is for
services
rendered for th~dates listed above and Is due and payabI~.within 20
days. If you have any questions, please call ouraccounting department and you will be assisted
in processing this invoice for a timely payment. Amounts unpaid after 30 DAYS are subject to a
charge of 1.5 per month on the unpaid balance.
We appreciate the opportunity to be of service to you in this assigrimerit
414 N4orth Orlear\s Sfteet. Suite 601 Chicago, llIirioi~60610
PHONE: (3121 644-0621 FAX: (312) 64.4-9244
RE: 111th Street- Boughton Quarry
Naperville, IL.
McCann File No. 030304
F~rProfessional Services Rendered:
Michael S. McCann
1/11/2005 Re’~1ewof Boughton files for meeting with Kevin De~harnais
1/12/2005 Hearing prep with Kevin Deshanais.
Subtotal:
Total Appraiser Fees:
!4ame
Michael S. McCann
I’::::IE.—I,/I
I — ME.P 01 LLE :
CE
Court Reporters and Video
15 W.
Jefferson St.
Joliet, Il’inois 60432
Fax 815-727-7186
15891
Plet~eref~encethisnumber
wh~iremitting
4/18/2003
‘~
..
..
....~~
.~.. ~
~0,.....:
~
:~1.
.:
..:o.
.1....:....~.C
RE: GINA PATTERMANN VS. BOUGHTON TRUCKING AND
MATERIAL, INC. PCB 99-187 / BEE /
10518
DEPOSITION OF GINA PATTERMANN
115
pages
ORIGINAL TRANSCRIPT
REPORTER ATTENDANCE FEE
$362.25
$87.00
DEPOSITION OF WILLIAM B. JENE, JR.
AND CARLENE C. JENKINS 87 pages
ORIGINAL
TRANSCRIPT
REPORTER ATTENDANCE
FEE
$274.05
$87.00
OVERNITE DELIVERY
$18.00
Tot it H ii ince Due
$828.30
L ~
George E.
Rydman & Assoc. Ltd.
815-727-4363
800-608-5523
PATRICIA F. SHARKEY
MAYER, BROWN, ROWE & MAW
190 SOUTH LASALLE STREET
CHICAGO, IL 60603
Fed ID.
36-3303806
LJ1LV~i0~D.ät~
4/18/2003
Page
1
of
I
I — 1.,.IBPC.I,l LLP:~
L ~
George E. Rydman & Assoc. L~J~JJ
815-727-4363
800-608-5523
Court Reporters and Video
15 W. Jefferson St.
Joliet, Illinois 60432
Fax 815-727-7186
PATRICIA F. SHARKEY
MAYER, BROWN, ROWE & MAW
190 SOUTH
LASALLE
STREET
CHICAGO, IL 60603
Fed ID. 36-3303806
5/8/2003
Invoice Nwaiber
10/2/2003
Page
16102
I of 1
Please reference this number
when rerriitting
::~:~
.
~
jj ~.22:: C~2 ~
RE: GINA PATTERMANN VS. BOUGHTON TRUCKING AND
MATERIAL, INC. PCB 99-187 / KRN /10632
120 days past due
DISCOVERY DEPOSITION OF
GREG
ZAK
(Did not appear)
LISA COLLINS, 46 Pgs.
DONALD A. BOUDREAU, 65 Pgs.
4/23/2003
REPORTER ATTENDANCE FEE
$174.00
ORIGINAL TRANSCRIPT
$344.10
ASCII DISKETTE(S)
$15.00
0
(01
Tot~i1~3it
mc. DilL
$533.10
‘I —CE—CuE
iC:: 1
OH
I —
IBPCis,~I LCP;C
3.-I
COPY
Dodu~inI~ntTechnologies, Inc.
105 W.
Adams
St., Ste.
1100
Chicago~~L ~O603
Phone:312-739-9999
Fax: 3I2-73~-0899
Fed. ID No.: 58-2413793
Hilt To:
Mayer, Brown, Rc~e& Maw LLP
190 S. LaSalle Street
Suite 1900
Chicago, IL 60603-3441
Tom
Kuslik
Customer ID
Terms
SalesPerson
P.O.
Number
12861
Net
15 Days
CHI CDA
Quantity
DescrIption
6
35” x 36” BAN Oversize & Mount
1
24” x 36’ Color Oversize & Mount
1
2 Sets - Color Photos & CDs w/Color Photos
Remit
To:
Document Technologies,
Inc.
105 W. Adams St., Sie.
1100
Chicago, IL &0603
~NVQ~CE
Invoice Number
164310
Invoice Date: 01/20/05
Ship To:
Mayer,
Brown, Rowe &
Maw LLP
190 S. LaSalIe
Street
Suite 1900
Chicago, IL 60603-3441
Client /
Matter
No, 99556862
Job No.
CB36292
Nat’l Acct Name
Nati Acct Ref. No.
Unit Price
Total
Price
65.00
390.00
84.50
84.50
117.13
117.t3
Subtotal:
591.63
Tot:aI Sales Tax.
O.0~
Total:
591.63
Thank you for choosing
Document Technologies,
Inc.
Accepted
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OUR TEL NOS. 815-436-4555 and
630-759-4096
OUR FAX NO. 630-904-1436
FACSTh’IILE TRANSMiTTAL
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MACTRC
Leering
F,~
Corssulr.in~, Inc.
Federal
ID
55-0145861
7’177 C~11ection Center trive
Chicago,
IL
00693HJ0)6
To: BOUGTQN
TRUC~CNG AND MRTTRIALS
11745
S. NAP
VILLS ROAD
PLAINFIELD,
IL 6O54~1
AtZc:
Mr. WAYNE SZEPLP.SZ
Proj ece
Name
SOUOHTON LITICATIOPJ
Project
Number:
32050-30040
InvoIce Date
, 15-APR-03
IrsvuiOO Nu.iiCO8r:
5017046
FcC Proeeeaional
Set-vices through
04-APR-03
A.SSIST BOUGHT TRUCK1NG MITH IFCB LITIGATION
TaSk Numbee 01 - LITIGATIOR S1JI’PORT
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Tit1~
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04/04/03
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017.25
Project Sumolary
Previously ailled
0.00
Cu.rrSDt Invoice
817.25
Total
Billed To Oate
8~.7.25
Authorized aud9et
2,813,00
Total Billed
To
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817.35
Remainin3 Authorized Oudget
1.995,75
MAC1~C ~in~rit~
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inc.
5440 N. Cuyriber~andAve., Suite
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5/1 6/2003
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04/I
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801
7046
817.25
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817.25
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05 OS:4S~ BOUGHTON TRUCKING
15305041438
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MACTEC
INVOICE
Remit
to:
MACTEC
Engineering & Consulting, Inc.
-
Federal ID 60-0156561
7477 ColJ.s:tiou center Drive
Chicago,
IL.
60593-0076
-
-
To:
TlCUCSrr
TRUCKING ?.ND MATERIAT.~
11746
S.
NAPERVILLE ROAD
PLAINFTEJ.D,
IL
60544
Att.s:
Mr.
W~NE SZSPLAK
Proj
Oct Name ROUCHYON
LITICP.TIGN
Project
N~.ur.ber, 3205030049
Invoice Date :
15-MAY-03
Invoice
Number:
8022742
For Professional Seirvice~ through; 02-MAY-03
ASSIST
aOtJCHT
TRIJCRING
WITH 1205 LITIGATION
-
Task
Number
01
-
LITIGATION SUPPORT
LITIGATION SUPPORT
-
Tit:..e
Narn~
Date
QEy
CON
Rate
Amount
Clerical
:
Hill. Stephanie
LynrLe
04/10/03
1.00 51o.ire
43.1.5
43L~5
Aaeociate Engineer/Scientist Smith, Kip
.5.’
04/25/03
1.50 Hours
130.53
195.65
Profeeeional
562-vices Subtotal
239.13
Reimbursable Expenses
Qty
VOlt
Rate
Cost
Markup
Amount
3~ Cornmumication Fee
-
7.17
FEDERAL
EXPRESS
30101
10.11
lS.0000’~
11.83
-
Reinbursable Expenses Subtotal
18.00
Task
02.
SubtotaL
-
257.93
-
Invoice Total
257.93
Project Summary
-
Previously Billed
Current Luvoice
257.83
Total Billed To Date
tllC
18....
Page 1
MACTEC Enginsoring and Consulting, Inc.
5440
N.
Cumbe~ancjAve.,
SuIte
250 ChIcago, IL 60556
773-893-6030’
Fax: 772~-693-603~
OF-Il— 1-IERCI::I LLP:~
37
Jan
24
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BOUGHTON TRUCKING
18303041438
p_C
.,.~jeCtName : BOUGNTOt’7 LITIGATIO.N
Project
Nusth~r: 3205030049
Invoice Date
r
14-MAY-03
Invoice Number: 8022T42
Authorized
Sudget
2.513,00
Total Billed To Date
1,07515
Remaloing
Authorized
Budget
1,737.82
-
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TRUCKING
16309041438
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BOUGHTOW TRUCKING &
MATERIALS,
INC.
-
.
50937
MACTEC
.
6/4/2003
Date
Type
Reference
Original Amt.
Balance Due-,
Discount
Payment
05/14/200 Bill
8022742
257.93
. - 257.93
.
257.93
- .
. -
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257.93
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257.93
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BOUGHTON TRUCKING
16309041436
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HardIng
Lawson
Assoc~stes
=
_________
Remit to~ Harding Law~~nAssoriates
Federal ID
68—0146961
Bo~ 44329
San Trancimno,
CA 94144
Project Name: T.3ES~—Eoughton
Trucking
Project No. : 47668
Invoice Qate: 21—JUL—99
InvOice No.
193696
To: Tracy, Johnson..
Bertani
& Wilson
116 North Chicago Street
-
Suite
500r
Two Rialto
Sc1unre
Joliet,
IL
Attn: -Mr. Roger Rlckxnon
For Professional Services through: 09—JUL—99
Profeasional
Services
Amount
Princ-.tpal Engineer
H~ad~-4Nr. H. John
9.30 hrs ~ 1S000/hour
S
1,200.00
Senior Engineer
Smith, Mr. Rip J.
‘
9.00 bra
@ 110.00/hour
880.00
Accounting
Nieleen,
Technician
Ma.. Jacqueline
I
.50 bra 8 52.00/hour
26.00
Professional Services Total
2,106.00
Reimbursable Expenses
Qt1 Rate
UOM
Cost
Markup
Amount
Communication Charge
63.18
Total Reimbursable Expenses
63.18
Total InvoIce
2,169.18
En~inearin0
and
Envjrorsnental Semices
1420 Karisir~IeaRood, Suile 213,
OaR Orool’.. IL 80023 830/571-2102 Fm,;
630/671-0439
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7-./lBR&l‘I LLP:#
41
Message
ATTACHMENT 2
Page 1 of 2
Sharkey,
Patricia F.
-
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 llI.App.3d 460 (1
St
Dist.
1974). Likewise, in this context, expert witness and deposition fees and expenses are not recoverable. See
Vicencio v. Lincoln-Way Builders, Inc.,
204 Ill.2d 295 (2003);
Galowich v. Beech Aircraft Corporation,
92 Ill.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
con-duct. See
Morrison v. Wagner,
191 Ill.2d 162
(2000);
Scattered Corp. v. Midwest Clearing Corp.,
299 lll.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 sot
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.
M ke
Michael S. Blazer
Principal
The Jeff Diver Group, L.LC.
1749 S. Naporville Road
Suite 102
Wheaton, IL 60187
(630)
681-2530
Fax: (630) 690-2812
Mobil: (708) 404-9091 -
rnt~l~er..ç.,gr!yiroatty.cgm
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 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, January 21, 2005
5:30
PM
To:
Michael S. Blazer
Cc: Desharnais, Kevin; Gale, Michelle A.; Ter Molen, Mark R.
Subject: Pattermann v. 5oughton; Respondent’s Costs
1/24/2005
C.—OE-;-lO:iC.~1vI:
-OHI—
ICC .1-I LLP:4
42
-
ATTACHMENT 3
ILLINOIS POLLUTION CONTROL BOARD
August 7, 2003
GINA PA’ITERMANN,
)
)
Complainant,
)
)
v.
)
)
PCB99-187
BOUGHTON TRUCKING AND
)
(Citizens Enforcement -
Noise, Air)
MATERIALS, INC.,
)
)
-
Respondent.
)
ORDER OF TIE BOARD (by N.
J.
Melas):
On May 23, 2003, respondent
Bou-ghton
Trucking and Materials, Inc., (Boughton) filed a
motion for discovery sanctions against the complainant in this proceeding.
Ms.
Gina Patterman
(Mot.). Ms. Patterman filed this citizens’ enforcement complaint against Boughton on June 17,
1999, alleging noise and air pollution violations. On June 10, 2003, Ms. Patterman filed a
response to the motion for discovery sanctions (Resp.). Boughton replied
toMs.
Patter-man’s
response on June 20, 2003 (Reply). The Boughton facility is a stone quarly that produces
crushed stone, located at 11746 South Naperville Plainfielçl
Road in
Plainfield, Will
County.
For the following reasons, the Board grants Boughton’s rñotion for discovery sanctions in
part and denies the motion in part.
The
Board bars Mr. Zak from testifying
at hearing
regarding
Boughton’s noncompliance with illinois Environmental Protection
Agency (Agency)
regulations
and possible modifications to Boughton’s facility. However, the Board does not bar any other
witnesses, pleadings, or documentspertaining to the subject matter ofMr. Zak’s proposed
testimony, nor does the Board award Boughton attorney fees.
BACKGROUND
Boughton alleges that Ms. Patterman represented she had retained Mr. GregZak as an
expert withess to testify at hearing.
Mot. at 2. Boughton
issued Mr. Zak a subpoena and sent
him a notice
of
deposition
for
April 23, 2003.
Id.
Inresponse, Mr. Zak sent Boughton a
-
contract stating the fee
for
his services,
Boughton
informed
Ms.
Patterman and Board hearing
officer Brad Halloran
ofthe alleged
erroneous billing.
Mot.
at 2.
Boughton
alleges that in a
telephonic status conference with all three parties
on March 27,
2003,
Ms.
Patterman stated she
understood her responsibility to retain her expert witness.
Id.
Boughton
deposed
Ms. Patterrnan on
April 8, 2003. Mot.
at 2. At the
deposition,
Boughton claims
that its attorney asked
Ms.
Patterman to confirm that Mr.
Zak
would
attend his
deposition and
Ms.
Patterman
stated she
thought
Mr. Zak
would be there.
Id.
I I
-
CHI— ~
I
LLE-I#
4.~
0
2
On April 23, 2003, Mr. Zak did not appear at his scheduled deposition with Boughton.
Mot. at 3. Boughton contacted Mr. Zak by telephone who responded that he had not been
retained by Ms. Pattemian. Boughton and Mr. Zak left a voice mail message to this effect for
hearing officerHailoran.
Id.
Ms. Patterman claims
that she has
retained Mr. Zak as a noise expert witness and that she
is prepared
to
compensate him for his services. Resp. at 2. However, Ms. Patterman did not
support these facts with a signed affidavit.
APPLICABLE REGULATiONS
Under Section 101.800(b),
the
Board will order sanctions when a party fails to comply
with procedural rules, board orders or hearing officer orders.
35
111. Adrn. Code 101.800(b).
Sanctions can include barring the offender from filing pleadings or documents related to any
issue to which the refusal or failure relates.
35
111. Adm. Code 101.800(bX2). The Board may
also bar a witness from testifying concerning that issue. 35 Ill. Adm. Code 101 .800(bX6).
In deciding what
sanction
to impose,
the Board must
consider four
fl~ctors:
The relative severity of the refusal or failure to comply, the past history of the
proceeding; the degree to which the proceeding has been delayed
or
predjudiced;
and the existence or absence ofbad faith oti the part of
the
offending party or
-
person. 35 Ill. Mm. Code 101.800(c).
BOUGHTON’S
ARGUMENTS
Boughton requests
the
Board to bar Mr. Zak as a witness and bar any additional
witnesses, pleadings,
or
documents pertaining
to the
subject matter
of
his testimony.
Mot. at
5,
9. Boughton also asks the Board
to
award Boughton attorney fees attributable to
Ms.
Patter-man’s abuse
of
discovery process in the amount
of
$19,520.25. Mot. Exh. 4.
Boughton argues that
Ms.
Patterman’s assertion
that
she has retained Mr. Zak was
unsupported
by an
affidavit as required
by
Section 101304
of theBoard rules,
and therefore,
insufficient as a matter
oflaw.
Reply at 1; citing 35111. Adm. Code 101.504.
Boughton further argues that Ms. Patternran’s alleged retention
is late. Reply at
2.Board
hearing officer Brad Malloran ordered
the
parties
to complete all depositions by May 2,
2003.
Mr. Zak’s deposition was scheduled
for
April
23, 2003. Ms.
Patterman did
not
seek
to
remedy
her failure
to
provide Mr. Zak for deposition until she filed the response on June
10,
2003. Reply
at5.
-
Boughton argues that in this instance sanctions are warranted due
to Ms.
Patterman’s
negligence and
abuse of
Board procedural-rules. Boughton contends that Ms. Patterman’s history
ofabuse
ofthe
discovery process in this proceeding warrants sanctions Mot. at
5-6.
Boughton
argues that Ms. Patterman refused to produce a document identified in her interrogatoiy
responses pertaining to property values in
the
subdivision allegedly impactedby Boughton’s
operations.
Mot. at 6.
Boughton filed a motion to compel production ofthe document and Ms.
C:.H —
I LLR:
44
p
3
Patterman claimed her husband from whom she had recently separated possessed the document.
Boughton subpoenaed Mr. Patterman for the document and he failed
to appear at the
deposition
and failed to provide the subpoenaed document. Boughton argues that Ms. Patterman has failed
-
to appear at least
six
status conferences set by bearing officer order. Boughton further argues that
Ms. Pattennan failed to provide addresses
or phone
numbers for two of her fourwitnesses that
has caused Boughton significant delay in proceeding with discovery.
Boughton argues that Ms. Pattennan also exhibited bad faith.
Mot at 10. Boughton
opines that Ms. Patterman knew she had not retained Mr. Zak
at the
time
she
identified him as
her witness. If
not
intentional., Boughton argues that causing Boughton to incur the expenses
associated with preparing for and traveling to a deposition where
the
deponent did not appear
was clearly negligent.
Mot. at 11.
Boughton contends
that Ms.
Patterman knew she did
not
retain Mr. Zak and neglected
to
inform Boughton.
Boughton argues
that for
all ofthese reasons, sanctions against
Ms.
Patterrnan are
warranted.
PATTERMAN’S RESPONSE
Ms. Pattemian’s responds that Boughton has
not
established prejudice resu1tin~from
the
delay in discovery, has
not
shown any bad faith
on the
part
ofMs.
Pattennan. Resp. at 3-4. Ms.
Pattemian admits
that
there was a lack
of
clarity surroundingMr. Zak’s attendance at the
deposition scheduled for April 23, 2003. Ms. Patterman states she merely
thought
that Mr. Zak
would attend the deposition and
that Boughton should have
confirmed Mr. Zak’s attendance
before preparing for a deposition that was
not certain to occur.
Id.
Ms.
Patterman also contends that she has officially retained Mr. Zak. Resp. at
3. Ms.
Patterrnan argues that Boughton’s contentions ofbad faith are merely “unsubstantiated
speculation.” Resp. at 4.
Ms.
Patteiman argues
the
solution
is to
take Mr. Zak’s deposition,
not
bar
his testimony.
Id.
Ms.
Patterman also contends
that the
attorney
fees
Boughton seeks
for the
cancelled
deposition are unreasonable. Resp.
at 4. Ms.
Patterman argues
the
Board procedural rules
do not
allow
the Board to
monetarily sanction
the
offending party. R.esp. at
5;
citing Revision
ofthe
Board’s Procedural
Rules:
~5
111. Adm
Code 101-130,
R00-20,
slip op. at 7 (Dcc. 21,
2~)00).Ms.
Pattennan further asserts that Boughton provided
no
breakdown
of
costs
or
other method
for
determining
the
reasonableness
ofthe
amounts sought. Ms. Patterman doesconcede, however,
that Boughton may be arguably entitled
to
costs
for
travel
to
and attendance at the cancelled
deposition.
DISCUSSION
-
In
assessing
whether
sanctions are warranted,
the Board must
determine
if Ms.
Patterman
violated a hearing officer order, board order, or procedural rule, including any subpoena issued
by the Board.
35
fli. Adm. Code
I
01.800(a).
e Board-must also consider
the relative severity
ofthe refusal or failure to comply, the
past
history of the pEoceeding, the degreeto which the
C::H I —
IE-~:.~I LLP:~
4E-
4
proceeding has been delayed or prejudiced, and the existence or absence of bad faith on the part
of the offending party. The goal of imposing discovery sanctions is to promote discovery, not
necessarily to punish. IBPA v. Celotex C~p., 168 111. App. 3d 592, 522 N.E.2d 888 (3rd Dist.
1988).
The Board finds Ms. Patterman’s conduct has amounted to an abuse ofdiscovery and
grants Boughton’s motion for discovery sanctions in part. Under Section 101.616(f), failure to
comply with any order regarding discovery may subject the offending persons
to
sanctions.
35
111. Adm. Code 101.616(f).- Here, Mr. Zak did not appear
at
his scheduled deposition because
Ms. Patterman had not retained him. Ms. Patterrnan does
not
dispute these facts. In addition,
the
hearing officer ordered
that the
parties complete all depositions by May 2, 2003. By not making
Mr. Zak available at his scheduled deposition
or
any other time before May 2, 2003, Ms.
Patterman did not comply with the hearing officer’s order
to
complete all depositions by a time
certain. In
addition, Ms.
Patterman prevented Boughton from completing any discovery
deposition
of
her
expert noise witness. Ms.
Pattemian has ‘violated several hearing officer orders
in the past by not appearing
at status meetings
and by not producing a document subpoenaed by
Boughton. The Board finds that Ms. Patterman’s conduct amounts to an abuse ofthe discovery
process.
-
The Board will not grant Boughton’s motion to bar the testimony
of
any other witnesses,
pleadings,
or
documents pertaining
to the subject
matter ofMr. Zak’s proposed testimony.
However, the Board notes that the current discovery schedule set by the parties together with
the
hearing officer ordered all depositions completed by
May
2, 2003, and all
dispositive motions
filed on or before
May 30, 2003..
Regarding attorney
fees, the appellate court has
held
that the Board
has
no
authority to
award attorney
fees as a
sanction.
ESG
Watts, Inc.
v.
PCB.
286 fll.
App.
3d
325,
337-338, 676
N.E.2d 299, 307-08 (3d Dist. 1997);
see
Revision ofthe
Board’s Procedural Rules:
35
111. Adm.
Code 101-130.
R00-20,
slip op. at 7 (Dec. 21, 2000). Accordingly, the
Board denies Boughton’s
motion for
attorney fees.
CONCLUSION
-
The Board grants Boughton’s motion for discovery sanctions in part and denies the
motion in part. The Board bars Mr. Greg Zak’s testimony at hearing, but denies B.oughton’s
motion to bar any other witnesses, pleadings, or documents pertaining to the subject matter of
Mr. Zak’s proposed testimony. The Board also denies Boughton’s motion for attorney fees. The
Board finds
the
sanction it imposes today is appropriate to remedy the abuse
of
the discovery
process the Board finds today and
to
promotetimely di~coveiyin the future.
IT IS
SO
ORDERED.
C;HI— I~.•iBP&I-~ILLP-:# 4~
5
I, Dorothy M. Gunn, Clerk
of the
Illinois Pollution Control Board, certify that the Board
adopted the above order on August 7, 2003, by a vote of 7-0.
-
Dorothy M. Gunn, Clerk
lThnois Pollution Control Board
1—25—0.151 -11:1: I
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