RECEIVED
CLEl~(’~OFFICE
FEB 14 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Pollution
STATE OF
Control
ILLINOIS
8oard
GINA PATTERMANN
)
)
Complainant,
PCB 99-187
v.
(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS,
)
INC.
)
Respondent.
)
NOTICE OF FILING
To: See Attached Certificate of Service
PLEASE TAKE NOTICE that on the I .~thday of February, 2005, the undersigned
caused to be filed with the Office of the Clerk of the Pollution Control Board the
COMPLAINANT’S RESPONSE TO RESPONDENT’S MOTION FOR LEAVE TO FILE
INSTANTER, a copy of which is herewith served upon you.
THE JEFF DIVER GROUP, L.L.C.
By:•_________
Michael S. Blazer
THE JEFF DIVER GROUP, L.L.C.
1749 S. Naperville Road, Suite #1 02
Wheaton, IL 60187
(630)
681-2530
THIS FILiNG SUBMITTED
ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB 142005
GINA PATTERMANN
)
STATE OF ILLINOIS
)
Pollution Control Board
Complainant,
PCB 99-187
V.
(Citizen Enforcement,
BOUGHTON TRUCKING AND MATERIALS, )
Noise & Air)
INC.
)
)
Respondent.
)
COMPLAINANT’S RESPONSE TO
RESPONDENT’S MOTION FOR LEAVE TO FILE
SUPPLEMENTAL RESPONSE TO MOTION FOR VOLUNTARY DISMISSAL
Now comes Complainant, Gina Pattermann (“Pattermann”), by her attorneys, and
for her Response to the Motion of Respondent, Boughton Trucking and Materials, Inc.
(“Boughton”) for Leave to File a Supplemental Response Instanter, states:
1.
Had Boughton truly wished to merely add one invoice to its prior
Response, the simple expedient of tendering an additional exhibit would have sufficed.
Boughton’s current filing goes much farther and reflects a transparent attempt to further
assert its improper effort to recover “costs” to which Boughton is not entitled.
2.
As things now stand, there is pending before this Board Pattermann’s
Motion for Leave to file a Reply Memorandum, in large part to fully address Boughton’s
improper claims for “costs”.1 As indicated in that pending Motion, Pattermann’s counsel
provided Boughton’s counsel with the case citations that identify the costs to which
Boughton would be entitled in the context of Pattermann’s Motion for Voluntary
Dismissa’. A copy of counsel’s e-mail of January 23, 2005 is attached hereto as Exhibit
1
As originally filed, the subject Motion also sought an expedited ruling by this Board regarding the
pending Motion for Voluntary DIsmissal, because of the pendency of the scheduled hearing in this matter.
The Hearing Officer has since cancelled that hearing, leaving the request to file a Reply Memorandum as
the primary object of the Motion.
THIS FILING SUBMIUED ON RECYCLED PAPER
A. More important, the subject e-mail pointed out cases confirming the costs to which
Boughton is ~ entitled.
3.
Despite the foregoing, Boughton persists in its pursuit of its excessive
costs. Its effort is wholly inappropriate and finds no support in the Board’s rules. Under
the circumstances, Boughton’s Motion for Leave to File Instanter should be denied.
Respectfully submitted,
Gina Pattermann
By: ___________________________
One of her attorneys
Michael S. Blazer
The Jeff Diver Group, L.L.C.
1749 5. Naperville Road
Suite 102
Wheaton, IL 60187
630-681-2530
2
THIS FILING SUBMITTED ON RECYCLED PAPER
Message
Page 1 of 2
EXHIBIT A
Michael S. Blazer
From:
Michael S. Blazer fmbIazer~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 forthe 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 (1st Dist.
1974). Likewise, in this context, expert witness and deposition fees and expenses are not recoverable. See
Vicencio v. Lincoln-Way Builders, inc.,
204 lll.2d 295 (2003);
Galowich v. Beech Aircraft Corporation,
92 llt.2d 157
(1982). Any reliance you may be placing on Supreme Court Rule 219(e) in this regard is misplaced, as that
provision applies only to circumstances evidencing sanctionable conduct. See
Morrison v. Wagner,
191 lll.2d 162
(2000);
Scattered Corp. v. Midwest Clearing Corp.,
299 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 set forth in our Motion, we remain ready to pay appropriate costs upon presentation of the same.
I do not, however, wish to foreclose you from substantiating your position, and I would welcome citations to any
authorities that are contrary to or have overruled that set forth above.
Mike
J4licñaeIS 2?thzer
Principal
The Jeff
Diver
Group, L.L.C.
1749 S. Naperville Road
Suite 102
Wheaton, IL 60187
(630) 681 -2530
Fax: (630) 690-2812
Mobil: (708) 404-9091
mbIazer~enviroatty.com
This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. §~
251 0-2521 and is legally
privileged, including any attachments, contains information that is confidential, may be protected by the
attorney/client or other applicable privileges, and may constitute non-public information. This message is
intended to be conveyed only to the designated recipient(s). If you are not the intended recipient of this
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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. Boughton; Respondent’s Costs
1/25/2005
Message - -
Page 2 of2
Mike - As discussed on the phone this afternoon, I am attaching a letter with a preliminary statement of
Boughton’s “costs” within the meaning of Section 5/2-1009 and invoices. We have limited this to costs which are
expressly authorized under the Code and Supreme Court Rule 208 and 219. I don’t have the Kip Smith invoice in
hand right now, but can obtain it Monday. Have a good weekend. -Pat
Boughton.PDF~
Letter.PDF
Patricia F. Sharkey
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago,IIIinoi~60603
312-701-7952
psharkey@mayerbrownrowe.com
This email
and
any files transmitted with it are confidential and intended solely for the use ofthe
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e-mail.
1/25/2005
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he caused the above and foregoing Notice
of Filing and
MEMORANDUM IN
RESPONSE
TO
RESPONDENTS MOTION FOR
LEAVE TO FILE
INSTANTER, all on behalf of the Complainant, to be served via
facsimile transmission upon the following:
Bradley P. Halroran
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Fax
No. (312) 814-3669
on this 11th day of February, 2005.
Patii~iaF. Sharkey
Kevin G. Deshamais
Mayer, Brown, Rowe &
Maw
190 S. LaSalle Street
Chicago, IL 60603
Fax No~(312) 706-9113
THE JEFF DIVER GROUP, L.L.C.
By:
Miôhàei S. Blazer
THIS FiLiNG SUBMITTED ON RECYCLED PAPER
