RECEIVED
CLERK’S OFFICE
BEFORE THE
JAN
26
2005
ILLINOIS POLLUTION CONTROL BOARD
STATE OF lLLlj~j~
s
i-
i
U
ion Control Board
GINA PATFERMANN,
)
)
Complainant,
)
PCB 99-187
)
v.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice
that
on
January
26,
2005, I filed with
the
Illinois
Pollution
Control
Board
an
original
and four copies
of this
Notice of Filing
and
the
attached BOUGHTON’S
RESPONSE
AND OBJECTION
TO COMPLAINANT’S MOTION TO
CANCEL HEARING,
copies of which are attached hereto and hereby served upon you.
Dated:
January 26, 2005
BOUGHTON TRUCKING AND MATERIALS, INC.
By:____
One of its Attorneys
Patricia F. Sharkey
Mark R. Ter Molen
Kevin Desharnais
Michelle Gale
Mayer, Brown, Rowe & Maw LLP
190
South LaSalle Street
Chicago, Illinois
60603-3441
(312) 782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
•
RECEIVED
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
JAN
262005
•
STATEOFILLINOIS
Pollution Control Board
GINA PATTERMANN,
)
Complainant,
)
PCB 99-187
)
V.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
BOUGHTON’S
RESPONSE AND OBJECTION
TO
COMPLAINANT’S
MOTION TO CANCEL
HEARING
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 25, 2005 to file an expedited response,
and responds to Complainant’s Motion To Cancel Hearing.
COMPLAINANT
FAILED TO FILE
A TIMELY
MOTION
TO CANCEL THE SCHEDULED HEARING
After five and a half years of litigation
and a multitude of discovery abuses,
Complainant’s filing of a Section 5/2-1009 motion to
dismiss without prejudice eleven days
before the rescheduled hearing date is an
abuse ofthe Board’s procedures and highly prejudicial
to Respondent.
As Complainant failed to file its Motion to Cancel Hearing until
seven days
before the scheduled hearing date, the motion
is not timely. Board rules do not allow untimely
cancellation of a hearing as ofright. Board Rule
101.510 allows the Board or the Hearing Officer
to exercise discretion
to grant a motion after the prescribed time; however, that authority is
limited to instances in
which the movant “demonstrates that the movant will suffer material
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DOCUMENT HAS BEEN
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prejudice if the hearing is not cancelled.”
The Complainant has not demonstrated material
prejudice in this instance.
Neither the Hearing Office nor the Board should exercise discretion to
remedy a situation which is ofthe Complainant’s own making and which Complainant has
crafted to avoid the consequences ofher lack of diligence and bad decisions,
all to the material
prejudice of the Respondent.
Complainant’s filing of a Section 5/2-1009 voluntary motion for dismissal at the eleventh
hour after five and a half years of litigation in
this proceeding is precisely the type ofabuse that
the Supreme Court has recognized as one of “a myriad of abusive uses ofthe voluntary dismissal
statute.”
Gibellina v. Handley,
127 lll.2d
122,
136,
535 N.E. 2d
858,
865 (1989) (motion for
voluntary dismissal on the eve of trial characterized as an
abuse of Section
5/2-1009.).
Since
Gibellina, the Illinois
Supreme Court has authorized the imposition of Supreme Court Rule
2 19(e) “reasonable expenses” specifically to deterthis type of abuse.
See
Committee Comment
accompanying Rule 219.
While the Board may, in its
discretion, decide to hear Complainant’s Section 5/2-1009
motion, it is not bound to do
so.
35 Ill.Adm.
Code 101.100(b) (“The provisions of the Code of
Civil Procedure and Supreme Court Rules do not expressly apply to proceedings before the
Board.
However, the Board may look to the Code of Civil Procedure and Supreme Court Rules
for guidance where
the Board’s procedural rules are silent.”);
see,
e.g.,
People ofthe State of
Illinois v. Community Landfill Company, Inc., PCB 97-193 (March 18, 2004), 2004 WL
604933, *3~Moreover, the Board is
not bound to
assist the Complainant in an abusive use of
Section
5/2-1009 by bending its rules or exercising its discretion to cancel a scheduled hearing.
The hour is
very late and
the alleged hardship is entirely self-imposed.
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COMPLAINANT HAS FAILED TO ALLEGE FACTS THAT SUPPORT
A
FINDING OF MATERIAL PREJUDICE
Complainant’s basis for claiming
that material prejudice will occurif the hearing is not
cancelled is the following:
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.
Certification of Michael S. Blazer, January
25,
2005.
The Board should not attempt to remedy a timing dilemma created unilaterally by
Complainant and designed to unilaterally benefit Complainant, at the expense of Respondent
who has now diligently prepared for hearing twice in this case.
Rather, the Board should follow
its rOles and precedent, and deny Complainant’s motion to cancel the hearing.
The hearing
should be allowed to go forward and Complainant can either appear at that hearing or take an
adversejudgment for failure to establish its
case.
This is the just consequence of Complainant’s
own actions, and does not constitute “material prejudice.”
A SELF-IMPOSED HARDSHIP IS NOT MATERIAL PREJUDICE
The
only hardship Complainant has alleged is that she can’t be ready for the long
scheduled and re-scheduled hearing because she apparently made an initial
decision not to
preparefor the hearing
until the week before and then made another
decision to stop preparing
for the hearing
before the hearing had been cancelled or her motion had been ruled upon.
These
two decisions may create a ‘hardship” for Complainant
—
i.e.,
she and her counsel may have to
work over the weekend and she may have a few days less to prepare forhearing than she had
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DOCUMENT HAS BEEN
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earlier anticipated
—
but they are hardships ofher own making and they clearly do not constitute
“material prejudice” requiring the cancellation ofthe hearing.
In fact, Complainant’s statements serve only as an
admission that Complainant has not
actec~
in good faith over the last several weeks and months in
representing her intent to go to
hearing.
Complainant has already decided she doesn’t want to go to hearing
—
that is why she
filed her motion.
She actually has no intention of preparing forhearing.
Mr. Blazer stated in the
status conference with the Hearing Officer on January 25, 2005 that if the hearing isn’t cancelled
he would simply walk
in and state on the record that he isn’t ready to proceed.
Rather than go
forward with
the scheduled hearing date for which she admits not being ready and for which she
is
not willing to get ready,
Complainant has made the decision to try to preserve all
ofher rights
to refile at any time in the next year
—
perhaps when she has time to
get ready for hearing
—
while
leaving Respondent with five
and a half years ofattorneys fees
and without a final judgment.
Again,
while Complainant may have the right to file a Section 5/2-1009 motion at the last
moment,
the granting of that motion
is subject to the Board’s discretion and procedures, and the
requirements of Supreme Court Rule 219.
The filing of that motion does not trump all
other
Board rules
and orders.
Complainant does not have a unilateral right to cancel the scheduled
hearing.
Complainant stopped working on her case prior to a decision on her motion
at her own
risk.
As noted, Complainant was so confident in her ability to circumvent the Hearing Officer’s
orders and the Board’s rules that she didn’t even file a motion to cancel the hearing or request
expedited Board consideration until five days after filing her motion fordismissal.
The Board
should not now exercise its discretion
to elevate what is plainly a nonchalant, risky set of
assumptions
made by Complainant into something akin to “material prejudice.”
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The Board
has long held that
“absent a showing of unavoidable circumstances, the failure
to request relief in
a timely matter is
a self-imposed hardship.”
Community Landfill Corporation
v. IEPA, PCB 95-137 (Sept. 21,
1995); American
National Can Co.
v. EPA, PCB 88-203,
102
PCB 215
(Aug. 31,
1989).
All the way back to EPA v. Incinerator, Inc., PCB 7 1-69 (Sept. 30,
1971), the Board has held that “self-imposed hardship brought about by a
party’s
own
dilatoriness” is
not
a basis for avoiding the consequences of a Board order.
The fact that Complainant might have to spend some money to prepare for and attend the
scheduled hearing, as she complains in her motion,
is not a grounds for finding material
prejudice.
Johnson v. ADM, PCB 98-31 (July
8,
1998) (Board denied motion for leave to file
because it was untimely and because party being required to bear the costs of defending itself at
hearing did not amount to material prejudice).
THE BOARD SHOULD NOT,
AT RESPONDENT’S
EXPENSE,
EXERCISE ITS
DISCRETION TO EXTRICATE COMPLAINANT FROM THE RESULTS OF
HER
OWN REPEATED LACK OF DILIGENCE
Complainant’s delay in the filing of her Section 5/2-1009 motion,
in her preparation for
hearing both before and after, and in filing this motion to cancel the hearing, all
demonstrate a
lack ofdiligence.
As stated above, Complainant’s counsel has admitted that his client made a
decision to
file for voluntary dismissal eleven days before hearing, after five and
a half years of
litigation and after rescheduling the hearing at the last minute in December.
Complainant’s
counsel has also admitted that Complainant
was unprepared for hearing and made a decision to
stop preparing for hearing upon filing her motion
to dismiss.
These admissions demonstrate a
lack ofdiligence on the part of a party who filed a lawsuit and bears a burden of proof.
There also can be no
question
—
after five and a half years of attorneys fees, expert
witness fees, employee witness
salaries, deposition and discovery costs,
and preparation for trial
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tv~’ice
—
that Respondent will be highly prejudiced by the cancellation ofthis hearing.
After this
protracted litigation, Respondent has a right to a final judgment by the Board.
WHEREFORE, Complainant’s motion to
cancel the scheduled hearing at this late date
should be denied based on 35 Ill.
Adm. Code
101.5 10, and Complainant’s failure to demonstrate
material prejudice.
Respectfully submitted,
BOUGHTON T
UCKING AND MATERIALS, INC.
January 26, 2005
______________________________________
By One Of Its Attorneys
Mark R. Ter Molen
Patricia F. Sharkey
Kevin Desharnais
Michelle A. Gale
Jaimy L. Hamburg
MAYER,
BROWN, ROWE
&
MAW
LLP
190 South LaSalle Street
Chicago, illinois 60603
(312) 782-0600
6
THIS DOCUMENT HAS BEEN PRINTED
ON RECYCLED PAPER
CERTIFICATE OF SERVICE
Kevin Desharnais, an
attorney, hereby certifies that a copy of the attached Notice of
Filing and BOUGHTON’S RESPONSE AND OBJECTION TO COMPLAINANT’S MOTION
TO CANCEL HEARING was served on
the persons listed below by the means indicated, on
January 26, 2005.
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL
60601
(Via Facsimile)
Michael S. Blazer
Matthew B.
Cohen
The Jeff Diver Group, LLC
1749 S. Naperville Road, Suite #102
Wheaton,IL
60187
(Via Electronic Mail)
/7
~Ve~Deshamais
Patricia F. Sharkey
Mark R. Ter Molen
Kevin Desharnais
Michelle Gale
Mayer, Brown, Rowe & Maw LLP
190
South LaSalle Street
Chicago, Illinois
60603-3441
(312) 782-0600
THIS DOCUMENT HAS BEEN PRINTED
ON RECYCLED PAPER
