ILLINOIS POLLUTION CONTROL BOARD
January 26, 2007
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
SHERIDAN SAND & GRAVEL CO.,
Respondent.
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PCB 06-177
(Enforcement - Public Water Supply)
ORDER OF THE BOARD (by G.T. Girard):
In this order the Board grants the motion for leave to amend the answer and affirmative
defenses filed by Sheridan Sand & Gravel Company (respondent). The granting of the motion
renders the motion to strike affirmative defenses filed by People of the State of Illinois
(complainant) moot. The Board will allow complainant to renew the motion to strike based on
the amended answer and affirmative defenses.
BACKGROUND
On May 22, 2006, complainant filed a complaint against respondent. On June 1, 2006,
the Board accepted the complaint for hearing. On July 7, 2006, respondent filed a motion to
dismiss challenging the legal sufficiency of the complaint. On July 28, 2006, the complainant
filed a response in opposition to the motion. The Board denied the motion to dismiss on
September 7, 2006.
On October 13, 2006, respondent filed an answer and affirmative defenses (Answer) to
the five-count complaint. Respondent set forth five affirmative defenses in the answer.
See
generally
Answer at 17-33. On November 13, 2006, complainant filed a motion to strike
affirmative defenses (Mot. Strike). On November 27, 2006, respondent filed a motion for leave
to amend the answer and affirmative defenses (Mot. Amend). The complainant filed a response
objecting to the motion to amend on December 11, 2006 (Resp.). On December 28, 2006,
respondent replied to the complainant’s response (Reply).
DISCUSSION
Because the complainant’s motion to strike argues that the original affirmative defenses
should be struck; if the Board grants the motion to amend the answer and affirmative defenses,
the Board need not rule on the motion to strike. The motion to strike will be moot. Therefore,
the following discussion will first address the arguments presented by the parties on the motion
to amend the answer and affirmative defenses. Then the Board will address the motion to strike.
Respondent’s Motion to Amend
2
The Board will first summarize the argument made in the motion and then summarize
complainant’s response. The Board will then summarize the arguments in the reply. Lastly the
Board will set forth a ruling on the motion and the Board’s reasoning for the ruling.
Motion
Respondent cites Section 2-616(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-
616(a) (2004)) in support of the motion to amend the answer and affirmative defenses. Section
2-616(a) of the Code allows amendments of pleadings on just and reasonable terms before final
judgment. 735 ILCS 5/2-616(a) (2004); Mot. Amend at 1. Respondent asserts that because final
judgment has not been entered, the amendment must be allowed. Mot. Amend at 1.
Response
Complainant argues in response that respondent has “speciously granted itself
permission” to amend the answer and affirmative defenses and offers no argument as to why the
respondent should be permitted to amend the answer and affirmative defenses. Resp. at 2.
Complainant maintains that the motion merely cites to a provision that gives the Board the
discretion to allow a motion to amend, not granting respondent a right to file an amendment.
Id
.
Complainant asserts that the respondent has offered no new information or position that would
support the motion to amend the answer and affirmative defenses. Resp. at 3. Therefore,
complainant opines the motion should be denied.
Complainant argues that the motion to amend the answer and affirmative defenses is
premature while the motion to strike is pending. Resp. at 3. Complainant asserts that the motion
to amend asks the Board to take action that the Board cannot take without first ruling on
complainant’s motion.
Id
. Complainant maintains the respondent seeks to preempt an
unfavorable ruling by amending the answer and affirmative defenses which respondent might not
be able to amend if the complainant’s motion is granted.
Id
. Complainant opines that the
respondent’s filing of the motion is procedurally inappropriate and improper.
Id
.
Reply
Respondent asserts that complainant’s arguments are made without citation to any legal
authority. Rely at 2. Respondent however has cited Section 2-616(a) of the Code (735 ILCS
5/2-616(a) (2004)) and case law interpreting that section. Reply at 2-3. Respondent assert that
Section 2-616(a) of the Code (735 ILCS 5/2-616(a) (2004)) and case law interpreting that section
supports the granting of the motion to amend the answer and affirmative defenses. The cases
cited by respondent date back to 1918 and in those cases the courts have indicated that the
amendment of pleadings should be exercised liberally in favor of the amendments. Reply at 3,
citing Delfosse v. Kendall, 283 Ill. 301, 305 (1918); Goldstein v. Chicago Railway Company,
286 Ill. 297, 301 (1918); Davidson v. Olivia, 18 Ill. App. 2d 149, 152 (2nd Dist. 1958); Martin v.
Kozjak, 5 Ill. App. 2d 390, 393 (4th Dist. 1955). Respondent argues that the principal was
reiterated in 2000 in
Savage v. Pho, 312 Ill. App. 3d 553, 556-57 (5th Dist. 2000). The
respondent points out that in
Savage, the court stated:
3
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 to the allowance of the
amendment. Reply at 3, citing Savage 312 Ill. App. 3d 556-57.
Thus, respondent argues under the liberal standards enunciated by the courts, the Board “should,
without question” grant the motion to amend the answer and affirmative defenses. Reply at 3.
Respondent takes issue with complainant’s argument that the complainant is entitled to a
favorable ruling on the motion to dismiss and that the motion to amend is an illegal and
prejudicial end-run around this entitlement. Reply at 4. Respondent asserts that the logical
conclusion of the complainant’s argument is that amendment of a pleading may never be allowed
in the face of a motion to dismiss.
Respondent points out that twice before the Board ruled on a motion to amend while a
motion to dismiss was pending. Reply at 4, citing Veach Oil Company & Lake of Egypt Water
District v. IEPA, PCB 92-202 (Jan. 7, 1993) and IEPA v. Will County Produce Company, PCB
77-133 (June 28, 1977). In Veach Oil, respondent indicates that the Board denied as moot the
Illinois Environmental Protection Agency’s (Agency) motion to dismiss a petition for variance
where petitioner subsequently filed an amended petition. Reply at 4. Likewise, in Will County,
the Board denied respondent’s motion to dismiss as moot after the filing of an amended
complaint. Reply at 4. Respondent asserts that the Board has thus granted the motion to amend
while denying the motion to dismiss when presented with similar cases in the past.
Id
.
Respondent argues that there need not be a stated reason for the motion for leave to
amend pursuant to Savage. Reply at 5. Further, respondent maintains that the granting of the
motion does not prejudice the complainant.
Id
.
Board Discussion
The Board procedural rules do not address the amendment of an answer or affirmative
defenses. Therefore, pursuant to Section 101.100(b), the Board can look to the Code for
guidance (s
ee
35 Ill. Adm. Code 101.100(b)) and the Board will look for guidance in the Code.
A review of Section 2-616(a) of the Code (735 ILCS 5/2-616(a) (2004)) and the case law
interpreting that section indicates that while the provisions of Section 2-616(a) of the Code are
discretionary, amendments of pleading should be liberally allowed. Savage, 312 Ill. App. 3d
556-57. Further, the courts have stated that Section 2-316(a) is to be “liberally construed so that
cases are resolved on their merits.”
Id
. Therefore Section 2-616(a) of the Code (735 ILCS 5/2-
616(a) (2004)) supports respondent’s argument.
In addition, the Board’s own practice is to allow amendments to complaints and petitions
filed with the Board.
See generally
People v. The Highlands, L.L.C. and Murphy’s Farm, Inc.,
PCB 00-104 (May 6, 2004) and
People v. 4832 Vincennes, LP and Batteast Construction Co.,
PCB 04-7 (Nov. 6, 2003). After the filing of an amended complaint or petition, the Board then
allows for responses to be amended as well. The Board has also denied motions for leave to file
4
an amended complaint (
see
People v. Community Landfill Company, PCB 97-193 (Mar. 18,
2004). However, the Board specifically found in Community Landfill that the amended
complaint would prejudice the parties, that the amended complaint was not timely filed, and that
the complainant had the opportunity to amend the complaint.
Community Landfill, PCB 97-193
slip. op.
at 4. The Board finds that none of these factors are present in this matter, at this time.
The Board also finds nothing in the complainant’s arguments that convinces the Board
that the motion to amend the answer and affirmative defenses should be denied. The Board
notes the absence of cited authority in the people’s response, especially in contrast to the citation
to Section 2-616(a) of the Code (735 ILCS 5/2-616(a) (2004)). Further, the Board finds that
allowing the amendment of the answer and affirmative defenses, while granting complainant an
opportunity to again file a motion to strike will not prejudice the complainant. The Board is also
unconvinced by complainant’s assertions that the filing of the motion to amend is procedurally
improper or inappropriate. Therefore, the Board grants the motion to amend. The Board will
allow complainant to respond to the amended answer and affirmative defenses, and directs the
hearing officer to establish a timeframe for that response.
Complainant’s Motion to Strike
Complainant argues that by filing the amended answer and affirmative defenses,
respondent has conceded the point raised in complainant’s motion to strike. Resp. at 1-2.
Complainant maintains that the Board should treat the motion to strike has being unopposed and
dismiss the five affirmative defenses. Resp. at 2. Complainant further asserts that respondent
has waived any objection to the Board’s granting the motion to strike and cites Section 101.500
of the Board’s rules for support (35 Ill. Adm. Code 101.500). Resp. at 2.
Because the Board has granted the motion to amend, the Board denies the motion to
strike as moot. However, the complainant may revisit any arguments in the motion to strike
currently before the Board in subsequent pleadings where appropriate.
CONCLUSION
The Board grants the respondent’s motion for leave to file an amended answer and
affirmative defenses. Because the Board has granted that motion, the complainant’s motion to
strike affirmative defenses as plead in the first answer is moot. The Board will allow
complainant to file a new motion to strike in response to the amended answer and affirmative
defenses.
IT IS SO ORDERED.
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I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on January 26, 2007, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
