Consolidated Paving Inc v. County of Peoria, Illinois
Filing
39
OPINION and ORDER Entered by Judge Joe Billy McDade on 6/14/12. 35 Motion for Judgment on the Pleadings is TAKEN UNDER ADVISEMENT. Plaintiff is ordered to file an Amended Response within 14 days of this order ( Responses due by 6/28/2012). (SW, ilcd)
E-FILED
Thursday, 14 June, 2012 04:08:49 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CONSOLIDATED PAVING, INC., an
Illinois Corporation,
)
)
)
Plaintiff,
)
)
v.
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)
THE COUNTY OF PEORIA, ILLINOIS, )
)
Defendant.
Case No. 10-cv-1045
OPINION&ORDER
Before the Court is Defendant‟s Motion for Judgment on the Pleadings (Doc.
35), to which Plaintiff has filed a Response (Doc. 38). For the following reasons,
Defendant‟s Motion is taken under advisement, and Plaintiff is ordered to file an
Amended Response.
BACKGROUND
In December 2009, the Peoria County Board of Supervisors (“County Board”)
adopted an Ordinance relating to the use of bituminous asphalt paving material at
all commercial and residential building parking areas and driveways. (Doc. 14 at 2).
A companion ordinance was adopted on February 11, 2010, which required a permit
to use such paving materials, and which made the Ordinance effective May 1, 2010.
Plaintiff, who is engaged in the production and manufacture of the bituminous
asphalt material described in the Ordinance, was directly affected and regulated by
the Ordinance. (Doc. 14 at 7). Plaintiff filed an action seeking “declaratory,
injunctive, and further relief” on February 22, 2010. (Doc. 1).
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The County Board amended the Ordinance on April 8, 2010. (Doc. 14 at 6).
The April 8, 2010 Ordinance required that asphalt paving material be produced at a
plant certified by IDOT and that asphalt paving material meet all IDOT
specifications. (Doc. 14 at 7). Other sections of the April 8, 2010 Ordinance imposed
various penalties for violations of the Ordinance, including fines and denial of the
right to obtain permits for any construction. (Doc. 14 at 7). Five days after the
County Board amended the Ordinance, Plaintiff filed an Amended Complaint (Doc.
14), a Motion for Temporary Restraining Order (Doc. 15), and a Motion for
Preliminary Injunction (Doc. 16). On April 20, 2010, Judge Michael Mihm, United
States District Judge for the Central District of Illinois, granted Plaintiff‟s Motion
for Preliminary Injunction and found Plaintiff‟s Motion for Temporary Restraining
Order moot. (4/20/2010 Dkt. Entry; see also Doc. 21). The Court found that Plaintiff
had standing to sue and that Plaintiff‟s claim was ripe. (Doc. 21 at 3).
The Court granted Plaintiff‟s Motion for Preliminary Injunction after finding
that Plaintiff had a substantial likelihood of success on the merits. (Doc. 21 at 2).
The April 8, 2010 Ordinance required all asphalt plants producing asphalt in the
unincorporated areas of Peoria County to be certified by IDOT; however, the Court
found that IDOT does not certify plants and thus compliance with that component
of the Ordinance was impossible. (Doc. 21 at 2). Further, the Court found that
Plaintiff was likely to succeed on the merits because the meaning of “meeting all
IDOT specifications for Asphalt Material” (as stated in the Asphalt Ordinance) was
unclear. (Doc. 21 at 2). The Court also found that Plaintiff had no adequate remedy
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at law: if the injunction was not granted, Plaintiff would have been forced to violate
the law and suffer sanctions and extreme loss of business or go out of business
entirely as a result of the enforcement of the Ordinance. (Doc. 21 at 2). The
Preliminary Injunction enjoined Defendant from enforcing Sections 12-15)ii) and 1219 of the Peoria County Code (“Asphalt Ordinance”), as adopted on April 8, 2010.
(Doc. 21).
On September 9, 2010, the Peoria County Board adopted amendments to the
Ordinance; the amendments were adopted to immediately replace the existing
language in Sections 12-15(ii), 12-17(tt), and 12-19(kk) of the Ordinance. On
November 23, 2010, Defendant filed a Motion to Dissolve Preliminary Injunction.
(Doc. 26). The Court granted the Motion on July 18, 2011, finding that the amended
definition of “contractor” in the September 9, 2010 Ordinance (“Amended
Ordinance”) does not cover Plaintiff, “meaning that Plaintiff is no longer subject to
any of the requirements of the Asphalt Ordinance and thus will not suffer
irreparable harm if the preliminary injunction is dissolved.” (Doc. 32 at 4-5).
Further, the Court found that although Plaintiff would not suffer harm under the
Amended Ordinance, Defendant would suffer harm from being unable to enforce its
ordinances. (Doc. 32 at 5). The Court determined that the September 9, 2010
amendments rendered the preliminary injunction of the April 8, 2010 Ordinance
moot, and that Plaintiff no longer had a likelihood of success on the merits, because
its Amended Complaint only addressed the April 8, 2010 Ordinance. (Doc. 32 at 5).
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The Court‟s July 19, 2011 Order also addressed Plaintiff‟s Petition for Fees
(Doc. 30). The Court denied Plaintiff‟s Petition, finding that (1) Plaintiff was not a
“prevailing party” as defined under Supreme Court and Seventh Circuit precedent,
and that (2) Plaintiff‟s Petition was untimely, as “a request for fees after only
obtaining a preliminary injunction is premature in view of the continuation of the
litigation to definitely resolve the controversy.” (Doc. 32 at 7).
DISCUSSION
On October 24, 2011, Defendant filed the present Motion for Judgment on the
Pleadings (Doc. 35), in which it argues that Plaintiff‟s Amended Complaint is moot,
and that judgment must be entered in favor of Defendant on Counts I and II of the
Amended Complaint. (Doc. 36 at 3-8). Plaintiff filed a timely Response on November
11, 2011. (Doc. 38).
In its Response, Plaintiff puts forth two arguments in support of its
opposition to Defendant‟s Motion. Plaintiff‟s main argument—the only one listed in
the introduction—is that it would be unfair for the Court “to allow the County to
avoid the damages it caused when it passed, adopted and attempted to enforce an
ordinance that was unconstitutional . . . .” (Doc. 38 at 2). Plaintiff also maintains
that the Court should address the constitutionality of the April 8, 2010 Ordinance
because “there would not be anything to prevent the County from re-adopting the
exact same ordinance and attempting to enforce it again if the Court never reached
a determination as to whether the April 8, 2010 [Ordinance] is unconstitutional.”
(Doc. 38 at 3-4).
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Local Rule 7.1(B)(2) states: “Any party opposing a motion filed pursuant to
(B)(1) must file a response to the motion, including a brief statement of the specific
points or propositions of law and supporting authorities upon which the responding
party relies.” Remarkably, Plaintiff cites no supporting authority whatsoever in its
Response. This is a clear violation of Local Rule 7.1(B)(2). See Williams v. Illinois
Dept. of Revenue, No. 09-3335, 2011 WL 1979862, at *3 n. 1 (C.D. Ill. May 20, 2011);
Bennett V. Wal-Mart Store, Inc., No. 11-3066, 2011 WL 1899362, at *4 (C.D. Ill. May
19, 2011). Additionally, Plaintiff‟s arguments are both unclear and conclusory—
faults which might have been at least partially remedied had Plaintiff chosen to cite
cases in support of its positions.
Despite Plaintiff‟s failure to coherently frame its objections to Defendant‟s
Motion, there may remain some important issues in this case that need to be
resolved—issues that could make a judgment on the pleadings in favor of Defendant
inappropriate. Because of this, the Court will order Plaintiff to submit an Amended
Response that corrects the shortcomings of the initial Response. These
shortcomings are identified below.
1. Damages
Plaintiff‟s argument as to damages is disjointed and confusing. Plaintiff
claims that the Amended Complaint is not moot, because if the Court were to
proceed to the merits and determine that the April 8, 2010 Ordinance is
unconstitutional, “then the County is responsible to the Plaintiff for damages that
were incurred by Plaintiff as a result of the County attempting to enforce an
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unconstitutional ordinance.” (Doc. 38 at 3). Plaintiff claims that the April 8, 2010
Ordinance “caused Plaintiff‟s [sic] substantial damages and those damages caused
by the County are the actual, justiciable controversy between the parties.” (Doc. 38
at 4).
There are some initial issues that should be noted. First, there is no mention
of damages whatsoever in the Amended Complaint. Second, there is no reference in
the Response to any section of the Amended Complaint that supports Plaintiff‟s
(new) claim for damages. Third, it is unclear to the Court how Plaintiff could have
suffered the damages it claims to have suffered. The allegedly unconstitutional
provisions of the April 8, 2010 Ordinance were to become effective May 1, 2010.
Because the Court granted Plaintiff‟s Motion for Preliminary Injunction on April 26,
2010, and the injunction was not dissolved until the September 9, 2010 Ordinance
was adopted, the allegedly unconstitutional provisions of the April 8, 2010
Ordinance never went into effect. It is therefore difficult to understand how the
April 8, 2010 Ordinance caused Plaintiff compensable damages.
These strange omissions and factual conundrums lead the Court to believe
that Plaintiff is basing its opposition to Defendant‟s Motion on something else
entirely. The Court suspects that by “damages” Plaintiff actually means attorney‟s
fees and costs. This conclusion is based on two pieces of evidence found in Plaintiff‟s
filings. First, although the Amended Complaint says nothing about damages, it does
request that the Court “[a]ward court costs incurred in prosecuting this action
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including reasonable attorney‟s fees.” (Doc. 14 at 11). Second, in its Response,
Plaintiff summarizes its argument against mootness as follows:
Simply put, the County cannot enact and adopt unconstitutional
legislation and attempt to enforce it, force a Plaintiff to file suit, incur
fees and costs to enjoin the County from enforcing the unconstitutional
legislation, then amend the legislation (after litigating a portion of the
matter and realizing that the County was most likely going to lose)
without repercussion. If the County . . . could avoid such repercussions,
there would be absolutely no incentive for any municipality to pass
constitutional legislation, it could pass and adopt any legislation it
wanted to (no matter how absurd) and simply amend the legislation
after forcing a lawsuit to be filed.
(Doc. 38 at 4) (emphases added). The italicized language suggests that the monetary
injuries for which Plaintiff seeks redress are those that have resulted from the costs
associated with the initiation and prosecution of this litigation.
But the Court cannot be entirely sure that this is what Plaintiff means. In
the Amended Complaint there is a request that the Court “[a]ward Plaintiff such
other and further relief pursuant to 28 U.S.C. [§] 2202 as this Court may deem
appropriate.” Pursuant to § 2202, “[f]urther necessary or proper relief based on a
declaratory judgment or decree may be granted . . . against any adverse party
whose rights have been determined by such judgment.” 28 U.S.C. § 2202. This
“further necessary and proper relief” may take the form of a monetary award for
damages. See Fred Ahlert Music Corp. v. Warner/Chappell Music, Inc., 155 F.3d 17
(2d Cir. 1998) (“A district court may grant further relief [under § 2202], including
monetary damages, whether or not it had been demanded, or even proved, in the
original action for declaratory relief.”); Intervisual Communications, Inc. v. Volkert,
975 F. Supp. 1092, 1106 (N.D. Ill. 1997). It may be, then, that Plaintiff seeks true
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damages, and not merely attorney‟s fees—though, as stated above, the Court cannot
fathom
how
Plaintiff
could
have
suffered
damages
when
the
allegedly
unconstitutional provisions of the Ordinance never went into effect.
The Court believes that this distinction is important. In the Amended
Response, Plaintiff should explain what type of relief it is seeking—true damages or
merely attorney‟s fees and costs.1 If Plaintiff now seeks damages, it should identify
a theory under which it is entitled to such relief, and it should identify the statutory
provision under which such damages are sought.
2. Voluntary Cessation
It is a well-established general principle that “a defendant‟s voluntary
cessation of challenged conduct will not render a case moot because the defendant
remains „free to return to his old ways.‟” Federation of Advertising Industry
Representatives, Inc. v. City of Chi., 326 F.3d 924, 929 (7th Cir. 2003) (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953)). This appears to be
what Plaintiff is referencing when it argues that “there would not be anything to
On July 19, 2011, the Court denied Plaintiff‟s Petition for Fees. (Doc. 32 at 7). The
Court found that (1) Plaintiff‟s success on its Motion for Preliminary Injunction did
not make it a “prevailing party” as defined under Supreme Court and Seventh
Circuit precedent, and that (2) Plaintiff‟s Petition was untimely, as “a request for
fees after only obtaining a preliminary injunction is premature in view of the
continuation of the litigation to definitely resolve the controversy.” (Doc. 32 at 7). A
timely subsequent petition for fees may not necessarily suffer the same fate—even
if the case is found to be moot before the merits of Counts I and II are addressed.
See, e.g., Kansas Judicial Watch v. Stout, 653 F.3d 1230 (10th Cir. 2011); Dearmore
v. City of Garland, 519 F.3d 517 (5th Cir. 2008); People Against Police Violence v.
City of Pittsburgh, 520 F.3d 226 (3d Cir. 2008); Dupuy v. Samuels, 423 F.3d 714 (7th
Cir. 2005). But see Singer Management Consultants, Inc. v. Milgram, 650 F.3d 223
(3d Cir. 2011).
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prevent the County from re-adopting the exact same ordinance and attempting to
enforce it again if the Court never reached a determination as to whether the April
8, 2010 [Ordinance] is unconstitutional.” (Doc. 38 at 3-4). There is voluminous
Seventh Circuit and Supreme Court precedent on the application of the voluntary
cessation doctrine. Plaintiff has failed to cite even one case discussing the doctrine,
and has made no reference to the analysis that courts utilize in determining
whether the doctrine applies.
The Court will not do Plaintiff‟s work for it. Plaintiff should revise its
“argument” as to the voluntary cessation doctrine when it submits its Amended
Response. Additionally, the Court recommends that Plaintiff address the general
rule in this circuit that the repeal of a challenged law—or an amendment to the law
that rectifies the law‟s alleged defects—“renders a case moot, unless there is
evidence creating a reasonable expectation that the [local government] will reenact
the ordinance or one substantially similar.” Federation of Advertising Industry
Representatives, Inc., 326 F.3d at 930. See also Rembert v. Sheahan, 62 F.3d 937,
940 (7th Cir. 1995) (noting that “an amendment that clearly rectifies the statute‟s
defect,” even absent complete repeal, “renders a request for an injunction against
application of that statute moot”); Thomas v. Fielder, 884 F.2d 990, 995 (7th Cir.
1989) (“[M]ootness even may be achieved by an amendment that responds to a lower
court decision, so long as the amendment seems an enduring good-faith act.”).
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CONCLUSION
For the foregoing reasons, Defendant‟s Motion for Judgment on the Pleadings
(Doc. 35) is TAKEN UNDER ADVISEMENT, and Plaintiff is ORDERED to file an
Amended Response within fourteen days of this Order.
IT IS SO ORDERED.
Entered this 14th day of June, 2012.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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