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MBR&M
LLP ~
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RECEIVED
CLERK’S OFFICE
BEFORE
THE
JAN 27
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILlINOIS
Pollution Control Boari
GINA PAYFERMANN,
)
)
Complainant,
)
PCB 99-187
)
v.
S
)
(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 27, 2005, I filed with the illinois Pollution Control
Board an original and nine copies of this Notice of Filing and the attached BOUGHTON’S
RESPONSE AND OBJECTION TO COMPLAiNANT’S MOTION FOR EXPEDiTED
REVIEW, copies of which are attached hereto and hereby served upon you.
Dated: January 27, 2005
BOUGHTON TRUCKING AND MATERIALS, INC.
By:_______
O~~1ffsAttorneys
Patricia F. Sharkey
Mark R. Ter Molen
Kcvin Deshamais
Michelle Gale
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603-3441
(312) 782-0600
THIS DOCUMENF
HAS
BEEN PRINTED ON RECYCLED
PAPER
1—27—05;11:SBAM
0H1 MBR&M LLP;~
o
0
RECEIVED
CLERK’S OFFICE
BEFORE THE
JAN 272005
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Control Board
GINA PATI’ERMANN,
)
S
S
)
Complainant,
)
PCB 99-187
)
v.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
)
Respondent.
)
BOUGHTON’S RESPONSE
AND
OBJECTION TO
COMPLAINANT’S MOTION FOR EXPEDITED REVIEW
NOW COMES Respondent, Boughton Trucking and Materials, Inc. (“Boughton”), by its
attorneys, Mayer, Brown, Rowe & Maw LLP pursuant to 35 Iii. Admin. Code 101.500(d), and
responds to Complainant’s January 25, 2005 Motion for Expedited Review.
INTRODUCTION
S
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. As more fully set
forth in Respondent’s Response to Complainant’s Motion for Voluntary Dismissal, that motion
was not supported by an affidavit or other evidence of compliance with the prerequisites for a
Section 5/2-1009 dismissal. At the time of filing of its Motion for Voluntary Dismissal,
Complainant did not file a motion for expedited Board ruling or file a motion to cancel the
hearing. Now, five days later, and only six days (and only 4 business days) before the scheduled
hearing, Complainant seeks expedited review of its motion. Any hardship imposed on
Complainant as a result of this delay is once again of Complainant’s own making, and is not
proper grounds for granting expedited review. Further, Complainant has not cured any of the
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defects in the underlying motion for voluntary dismissal. The motion for voluntary dismissal
still contains facts not of record unsupported by an affidavit, and Complainant still has not paid,
or evidenced any willingness to pay, Respondent’s costs, which costs Respondent has submitted
to Complainant. Further, Complainant now, in this same motion, seeks leave to file a reply,
which was not attached to the motion, as one would expect from a party seeking expedited Board
review, and which as of the filing of this response, the Board and Respondent have not yet even
received.
Allowing this substantively defective and procedurally incomplete motion to interfere
with the scheduled hearing would materiallyprejudice Respondent, who has expended great
resources in twice preparing for hearing. Given the lack of prejudice to Complainant from
denying the motion, the matcrial prejudice to Respondent which would result from granting the
motion, and the substantive defects in and incomplete-procedural posture of the underlying
motion for voluntary dismissal, the motion for expedited review should be denied.
ARGUMENT
COMPLAINANT HAS FAILED TO ALLEGE FACTS THAT SUPPORT A
FINDING OF MATERIAL PREJuDICE
S
35 IlI.Adm. Code 101.5 12 provides that, in ruling on a motion for expedited
consideration, “the Board will, at a minimum consider all statutory requirements and whether
material prejudice will result from the motion being granted or denied.” 35 Ill.Adm. Code
101.5 12(b). In its motion, Complainant asserts that it will be materially prejudiced by being
forced to hearing while awaiting aruling by the Board. Complainant’s Motion at ~3.
Complainant further asserts that it will be prejudiced by its decision to cease preparing for
hearing while its motion is pending. j~.at ¶4.
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Any prejudice to Complainant is entirely of Complainant’s own making. It is
Complainant who elected to file its motion at this late stage, days before hearing, after
5
1/2
years of litigation. It is Complainant who elected not to file a motion to cancel the hearing or
seek expedited review at the time it filed its motion for voluntary dismissal. It is also
Complainant who elected to cease preparing for hearing, based solely on the filing of a motion,
without having received aruling on that motion.1 To the extent the Board cannot rule on the
motion to dismiss prior to the scheduled hearing, that too is a situation of Complainant’s own
creation. Complainant has presumed to ask the board to expedite its review and requested leave
to file a reply, without itself expediting that review by providing its reply with its motion. By
this Motion for Expedited Review, Complainant is obviously seeking to tie the Board’s hands
and unilaterally cause the hearing to be cancelled As set forth in the attached Response to
Motion to Cancel Hearing, to which Respondent respectfully refers the Board and which is
hereby incorporated by reference and attached hereto as Exhibit A, a self-imposed hardship does
not constitute material prejudice.
S
-
COMPLAINANTS
MOTION FOR VOLUNTARY
DISMISSAL REMAINS
SUBSTANTIVELY DEFECTIVE AND PROCEDURALLY UNRIPE
As indicated in Respondent’s response to the motion for voluntary dismissal, the motion
for voluntary dismissal contains facts not of record and unsupported byan affidavit, in violation
of the Board rules. Despite Complainant’s many additional filings, this defect has not been
remedied. This is more than just a mere technicality. Under Rule 1009, as further modified by
Supreme Court Rule 2 19(e), Complainant is obligated to pay Respondcnt’s costs prior to
dismissal of the case without prejudice. Complainant nowhere has affirmed under oath its intent
To
the
extent Complainant is seriously claiming prejudice from not having exchanged exhibit-lists,Respondent has
provided its exhibit list to Complainant without having received one from Complainant, despite the fact that the pre-
trial order contemplated a simultaneous exchange.
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to pay those costs. In fact, Complainant’s attorney’s email of January 23, 2005 indicates that
Complainant will
not
pay the costs Respondent is entitled to under Rule 219. (See Attachment 2
to Respondent’s Response to the Motion for Voluntary Dismissal.) Because this failing has been
unaddressed, Complainant’s motion remains substantively and procedurally defective on this
point.
S
Further, Complainant has now moved for leave to file a reply on its motion. To the
-
extent the Board would do anything other than deny the motion as a matter of law due to the
unaddressed defects, the record on the motion remains incomplete and unripe for decision.
THE
BOARD SHOULD
ALLOW THE SCHEDULED
HEARING
TO GO
FORWARD
As a result of Complainant’s egregiously late filings, time is running very short in this
matter.
The hearing is scheduled to begin Monday morning, less than two business days from
the
time of
filing of this response. To the extent the Board sees in Complainant’s request for
expedited ruling an implicit plea for cancellation of the currently scheduled hearing, that request
should be denied. As set forth more fully in Respondent’s response to Complainant’s Motion to
Cancel Hearing, hereby incorporated by reference and attached hereto as Exhibit A, Plaintiff has
failed to demonstrate the prejudice necessary to warrant cancellation of the hearing, and
cancellation of the hearing at this late hour after
5 ½
years of litigation would be highly.
prejudicial to Respondent. Respondent respectfully refers the Board to its Response to the
Motion to Cancel Hearing on this issue.
4
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WhEREFORE, Respondent respectfully requests that the Board deny Complainants
Motion for Expedited Review.
S
BOUGHTON TRUCKING AND MATERIALS, INC.
J anua~27, 2005
S
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
5
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RECEIVED
CLERK’S
EXHIBIT
OFFICE
A
ILLINOIS
-
-
POLLUTIONBEFORETHECONTROL BOARD
- POJIUflOfl
STATE
JAN26
-
OFControl
S
ILLINOIS
2
Board
GINA PATFERMANN,
)
)
Complainant,
)
PCB
99-187
S
)
S
v.
)
(Citizen Enforcement
—
)
Noise, Air)
BOUGHTON TRUCKING AND
)
MATERIALS, INC.,
)
-
)
Respondent.
)
-
S
-
-
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
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.
.
B
Patricia
F. Sharkey
Mark R. Ter Molen
Kevin
D~sharnais
Michelle Gale
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago,
Illinois 60603-3441
(312) 782-0600
Ti~isDOCUMENT Hxs B~ PRINTED ON RECYCLED
PAPER
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RECEIVED
S
BEFORE
THE
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
-
S
JAN262005
-
GINA PATTERMANN,
-
)
PollutionSTATE
OFControlILLINOISBoard
)
Complainant,
)
PCB 99-187
)
S
v.
)
(Citizen Enforcement
—
)
Noise,
Air)
BOUGHTON TRUCKING AN)
)
MATERIALS, iNC.,
)
)
Respondent.
)
BOUGHTON’S RESPONSE
AND
OBJECTION TO
- -
COMPLAINANT’S MOTION TO CANCEL
HEARING
NOW COMES Respondent, Boughton Trucking and Materials, Inc. (“Boughto~i”),by
its
S
attorneys, Mayer, Brown, Rowe & Maw LLP pursuant to 35 Ill. Adinin. Code
101.500(d)
and an
oral agreement with the Hearing Officer made on January
25,
2005
to file an expedited
response,
arid
responds to
Complainant’s Motion To Cancel Hearing.
S
COMPLAINANT
FAILED TO
FILE
A
TiMELY MOTION
-
TO CANCEL’
THE SCHEDULED HEARiNG
After five arid a half years of litigation and a multitude ofdiscovery
abuses,
Complainant’s filing of a Section 5/2-1009 motion to dismiss withoutprejudice eleven
days
before the rescheduled hearing date is an abuse of the 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 ofa 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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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 of the 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
voluntarymotion 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 1112d 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
211(e) “reasonable expenses” specifically to deter this type of abuse.
See
Committee Coiiiment
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 lll.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 of the State of
Illinois v. Community Landfill
Company,
Inc., PCB 97-193 (March 18, -2004), 2004 WL
604933,
‘p3.
Moreover, the Board is not bound to assist the Complainant in an abusive use of
Section 5/2-1009 by bending its rules orexercising its discretion to cancel a scheduled heaiin-g.
The hour is very late and the alleged hardship is entirely self-imposed.
2
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COMPLAINANT HAS
FAILED TO ALLEGE FACTS
THAT SUPPORT A
FINDING
OF
MATERIAL PREJUDICE
Complainant’sbasis for claiming that material prejudice will occur if 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 Patterinann and no exhibits were exchanged by
either of the parties, as otherwise provided by the Joint Pre-Trial Memorandum
fi’ed in this matter.
-
Certification ofMichael 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 rules 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
adverse judgment forfailure 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’tbe ready forthe long
scheduled and re-scheduled heanng because she apparently made an initial
decision not to
preparefor the hearing
until the week before and then made another
decision to stoppreparing
for
the
hearing
before the hearing had been cancelled or her motion had been ruled upon. These
two decisions may create a ‘hardship” forComplainant
—
i.e., she and her counsel may have to
work over the weekend and, she may have a few days less to prepare for hearing than she had
3
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earlier anticipated
—
but they are hardships of her 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
acted 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 ofpreparing for hearing. 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 of her 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 unilaterai 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 for dismissal. -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.”
4
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The Board has long held that “absent a showing ofunavoidable 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. IEPA, PCB 88-203, 102
PCB 215 (Aug. 31, 1989). All the way back to EPA v. Incinerator, Inc., PCB 71-69 (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’rnotion, 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 ofher 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 of diligence. As stated above, Complainant’s counsel has athnitted 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 bearing 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 ofproof.
There also can be no question
—
afterfive and a half years of attorneys fees, expert
witness fees, employee witness salaries, deposition
and discovery costs, and preparation for trial
5
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DOCUMENT
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twice
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that Respondent will be highly prejudiced by the cancellation of this hearing. After this
•
protracted litigation, Respondent has a right to a final judgment by the Board.
WI-IEREFORE, Complainant’s motion to cancel the scheduled hearing at this late date
should be denied based on 35 111. Adm. Code 101.510, and Complainant’s failure to demonstrate
material prejudice.
Respectfully submitted,
BOUGHTON
CKING AND
MATERIALS, INC.
January
26, 2005
____________________________________
By One Of Its Attorneys
Mark
R.
Ter
Molen
PatricIa F. Sharkey
•
Kevni Desl~arñais
Michelle A. Gale
JaimyLllarnburg
MAYER, BROWN, ROWE
&
MAW LLP
l9OSouthLaSalIe Street
-
Chicago. illinois 60603
(312) 782-0600
6
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HAS BEEN PRIrn’En ON
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CERTIFICATE
OF SERVICE
Kevin Desharnais, an attorney, hereby certifies that a copy ofthe 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
• January26,2005.
Bradley Haloran
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
E.
Cohen
The
Jeff Diver Group, LLC
1749 S. Naperville
Road,
Suite #102
Wheaton,IL 60187
(Via Electronic Mail)
yin
k2~
Desharnais
Patricia F. Sharkey
Mark R. Ter
Molen
Kevin
Desharnais
Michelle Gale
Mayer, Brown, Rowe & Maw LLP
190
South L.aSalle
Street
Chicago, Illinois 60603-3441
(312)
782-0600
THIS DOCUMENT HAS BEEN PRINThD
ON RECYCLED PAPER
1—27—05; 11:58AM
•~
•
CHI— MBR&M LLP;5 is
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 COMPLAJNANT’SMOTION
FOR EXPEDITED REVIEW
was served on the persons listed below by the means indicated, on
January 27, 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 E. Cohen
The Jeff Diver Group, LLC
1749 S. Naperville Road, Suite #102
Wheaton,IL 60187
-
-
(Via Facsimile & Electronic Mail)
7/
Kevin Desharnais
PatriciaF.Sharkey
Mark R. Ter Molen
-
-
Kevin Desharnais
Michelle Gale
Mayer, Brown, Rowe & Maw LLP
-
190 South LaSalle Street
Chicago, Illinois 60603-344 1
(312)782-0600
-
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CH I
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RECEIVED
CLERK’S OFFICP
Mayer, Brown, Rowe & Maw -LLP
TM AYE
R
190 South La Salle Street
JAN 272005
B R
Chicago, Illinois 60603-3441
0
STATE OFILLlNcjI~ 0 W E
Main phone: (312) 782-0600
Pollution Control Bcj,a~ciM A W
Main fax: (312) 701-7711
FACSIMILE COVER SHEET
FROM:
Patricia F. Sharkey
Dfrect Tel:
(312) 701-7952
DiIDct
Fax:
(312)706-9113
•
~
Date/time:
-
Pages:
Thursday,
16
Januar
-
y 27, 2005 10:59:34 AM
ALLPAGES MUST BE
NUMBERED
TO THE FOLLOWING:
Name
Company
Fax#
Telephone #
Bradley L Halloran
IPCB
814-3669
•
814-8917
MESSAGE:
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE ~DIVIDUALOR ENTITY TO WHICH IT ISADDRESSED AND MAY CONTAIN INFORMATION THAT IS
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