RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC
2 8 2006
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V .
SHERIDAN SAND & GRAVEL CO.,
Respondent .
Pollution
STATE OF
Control
ILLINOISBoard
PCB No . 06-177
REPLY IN SUPPORT OF
MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER
AND AFFIRMATIVE DEFENSES
Respondent, SHERIDAN SAND & GRAVEL CO . ("SHERIDAN"), by its attorney,
Kenneth Anspach, pursuant to 735 ILCS 5/2-616(a) and 35 Ill .Adm.Code
101 .100(b) hereby
files its Reply in Support of Motion for Leave to File to First Amended Answer and Affirmative
Defenses ("Reply")
. This Reply is being filed pursuant to Hearing Officer Order dated
December 14, 2006 .
SHERIDAN filed its Answer and Affirmative Defenses on October 13, 2006
. Thereafter,
on November 13, 2006, the STATE filed a so-called Motion to Dismiss Affirmative Defenses
.
I
On November 27, 2006, within the time allowed under 35 I11 .Adm.Code
101 .100(b) for filing a
response to the Motion to Dismiss Affirmative Defenses, SHERIDAN filed its Motion for Leave
to File to First Amended Answer and Affirmative Defenses ("Motion for Leave to File")
.
Attached to the Motion for Leave to File was the First Amended Answer and Affirmative
Defenses,
Both the Notice of Filing and the Certificate of Service refer to this filing as a Motion to
Strike Affirmative
Defenses, rather than a Motion to Dismiss Affirmative Defenses
. The title "Motion to Strike" is the appropriate
designation, since, assuming arguendo the presence of a defective pleading, leave to amend pursuant to 735 ILCS
5/2-615(d) would generally be granted following striking it
. Sinclair v . State Bank ofJerseyville, 226 111 . App . 3d
909, 910 (0 Dist. 1992)
.
On December 11, 2006, the STATE filed a Response in Opposition to Respondent's
Motion for Leave to File First Amended Answer and Affirmative Defenses ("Response to
Motion for Leave to File")
. In the Response to Motion for Leave to File, the STATE objects to
the Motion for Leave to File on five purported bases
. The STATE makes these five arguments
without a single citation of case authority supporting its positions
. First, the STATE argues that
by seeking leave to file an amended answer and affirmative defenses, SHERIDAN has
"conced[ed]" the STATE's Motion to Dismiss Affirmative Defenses, which should be granted as
purportedly being unopposed
. The STATE's second argument is the same as the first,
i.e.,
that
SHERIDAN's filing of its Motion for Leave to File "should be deemed a consent" to the
STATE's Motion to Dismiss Affirmative Defenses
. The third argument is that purportedly
SHERIDAN has "granted itself permission to amend its Answer and affirmative defenses
." The
fourth argument is that SHERIDAN gave no reason for granting the Motion for Leave to File
.
The fifth and final argument is that the filing of the Motion for Leave to File is "procedurally
premature" because it "preempt[s]" any ruling on the STATE's Motion to Dismiss Affirmative
Defenses, upon which the STATE is "entitled" to a ruling, and subject to prejudice if none is
forthcoming.2
These arguments, as stated above, are made without the benefit of legal authority
. What,
then, is the legal standard applicable to the amendment of pleadings? First of all, the applicable
statute, 735 ILCS 5/2-616(a), provides, in pertinent part, as follows
:
At any time before final judgment amendments may be allowed on
just and reasonable terms . . .
changing the cause of action or defense
or adding new causes of action or defenses, and in any matter,
either of form or substance, in any process, pleading, bill of
2
The STATE asserts that SHERIDAN should not "be permitted
. . .
to substitute a First Amended Answer for its
earlier admission to the allegations in the Complaint
." This assertion is not only inapposite, but also incorrect
.
SHERIDAN has never admitted any material allegations in the complaint and the First Amended Answer and
Affirmative Defenses does not change to a denial any admission to any non-material allegation
.
2
particulars or proceedings, which may enable . . . the defendant to
make a defense or assert a cross claim .
Historically, the Illinois courts have given a liberal interpretation to this provision and its
predecessors . For example, in Delfosse v. Kendall, 283 111301, 305 (1918), the Illinois Supreme
Court stated :
Section 1 of the statute on amendments . . .provides that the courts
"shall have power to permit amendments in any process, pleading
or proceeding in such action, either in form or substance, for the
furtherance of justice, on such terms as shall be just, at any time
before judgment rendered therein." While a discretion is vested in
the courts, under this section, to allow such amendments, it is a
judicial discretion, which is subject to review, and one which
should be exercised liberally in favor of the allowance of such
amendments whenever essential to the proper presentation of a
party's cause of action or defense . * * * To hold otherwise would
be practically to defeat the object of this statute . (Emphasis added ;
citations omitted .)
Thus, as early as 1918, the Illinois Supreme Court recognized that the discretion regarding the
amendment of pleadings would "practically . . .defeat the object of this statute" were it not
exercised "liberally in favor of the allowance of such amendments
." Accord, Goldstein v.
Chicago City Railway Company, 286 Ill. 297, 301 (1918); Davidson v. Olivia, 18111 . App
. 2d
149, 152 (2
na
Dist. 1958); Martin v. Kozjak, 5 Ill . App. 2d 390, 393 (4` h Dist. 1955) . This
principle was echoed as recently as 2000 in Savage v
. Pho, 312 Ill . App . 3d 553, 556-557 (5`h
Dist
. 2000), where the court construed 735 ILCS 5/2-616(a) in the context of the filing of an
amended complaint . The court stated
: "The most important consideration is whether the
allowance of the amendment furthers the ends of justice .
Any doubts as to whether leave to file
an amended complaint should be granted should be decided in favor of the allowance ofthe
amendment."
Under these liberal standards, SHERIDAN should, without question, be allowed to
amend its Answer and Affirmative Defenses .
3
The five purported bases the STATE argues in opposition to SHERIDAN's Motion for
Leave to File form a single thesis . Essentially, the STATE argues that it is entitled to a ruling on
its Motion to Dismiss Affirmative Defenses and that SHERIDAN's Motion for Leave to File
somehow presents a purportedly illegal and prejudicial end-run around this entitlement, made
without any stated reason
. Moreover, according to the STATE's thesis not only is the STATE
entitled to a ruling on its motion, but a favorable ruling, because the very act of SHERIDAN's
moving to amend amounts to a concession of the STATE's motion . The logical conclusion to be
drawn from the STATE's thesis is that one may never amend a pleading in the face of a motion
to dismiss. Yet, that conclusion flies directly in the face of
Delfosse v
. Kendall, supra, 283 Ill at
305, and the legion of other Illinois court decisions favoring the liberal allowance of the exercise
of the right to amend . No wonder, then, that the STATE has elected not to share the legal basis
for its thesis .
Moreover, the STATE's argument also contradicts the only two known decisions of the
Illinois Pollution Control Board on this subject
. In Veach Oil Company & Lake of Egypt Water
District v. Illinois EPA, PCB No. 92-202
(January 7, 1993), 1993 Ill . ENV LEXIS 27, the Board
denied as moot Illinois EPA's motion to dismiss a petition for variance where the petitioner
subsequently filed an amended petition
. There, as here, no response to the motion to dismiss was
filed
. In EPA v. Will County Produce Company, PCB No.
77-133 (June 28, 1977), 1977 Ill.
ENV LEXIS 427, respondent's motion to dismiss was also denied as moot where EPA had
moved for leave to file an amended complaint
. Thus, when previously confronted with cases
where leave has been sought to amend a pleading in the face of a dismissal motion, the Board
has, without known exception, always allowed the amendment of the pleading and denied the
4
motion to dismiss as moot
. Moreover, it made no difference that the party amending the
pleading did not respond directly to the dismissal motion
.
Moreover, SHERIDAN need provide no reason for the amendment
. In
Savage v . Pho,
supra,
312 Ill. App
. 3d at 555, defendant's argument that the plaintiff "did not state the reason
for the amendment" did not prevent the appellate court from finding that an
ex parte order
granting leave to amend was valid
.
Furthermore, the STATE suffers no prejudice from the proposed amendment
. In
Kupianen v
. Village of Palos Park, 107 Ill . App
. 3d 373, 377 (Is` Dist
. 1982), the court ruled that
"[n]o
prejudice or surprise could have resulted" from the proposed amendment "since the case
was still at the pleading stage
." The case at bar is also in the pleading stage, and no prejudice
will result to the STATE, notwithstanding its unsupported argument to the contrary
.
In conclusion, the STATE argues vociferously that it is entitled to a ruling on its Motion
to Dismiss Affirmative Defenses
. Accordingly, in accordance with its prior practice, the Board
should deny the Motion to Dismiss Affirmative Defenses as moot
. SHERIDAN's Motion for
Leave to File should be granted .
WHEREFORE, upon the above and foregoing, SHERIDAN's Motion for Leave to File
First Amended Answer and Affirmative Defenses should be granted
.
Respectfully submitted,
Responden, S
RTDAN
enneth Anspac
, Esq.
ANSPACH & ASSOCIATES
8 South Michigan Avenue
Suite 3400
Chicago, IL 60603
(312) 407-7888
5
Vanessa Vail
Assistant Attorney General
Environmental Bureau
188 West Randolph Street
20th Floor
Chicago-I
60601
NNETH ANSPA ESQ .
ANSPACH & ASSOCIATES
8 South Michigan Avenue
Suite 3400
Chicago, IL 60603
(312) 407-7888
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have served the attached Reply in Support of Motion for
Leave to File First Amended Answer and Affirmative Defenses by X_ personal delivery,
placement in the U . S . Mail, with first class postage prepaid,
sending it via facsimile and
directed to all parties of record at the address(es) set forth below on or before 5
:00 p .m. on the
28`h day of December, 2006 .
