IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT DU PAGE COUNTY, WHEATON, ILLINOIS CHANCERY DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs,

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1 IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT DU PAGE COUNTY, WHEATON, ILLINOIS CHANCERY DIVISION VILLAGE OF BENSENVILLE, ILLINOIS, an Illinois municipal corporation; ROBERTA BAIRD; WILLIAM BAIRD; ARLENE BENSON; BERNARDO FLORES; GAIL FLORES; NELSON MARRERO; and ROBERT RACKOW, v. Plaintiffs, CITY OF CHICAGO, ILLINOIS, an Illinois municipal corporation, Defendant. No. 07 CH 1620 (cons. with 07 CH 2995 Judge Kenneth L. Popejoy PLAINTIFFS REPLY BRIEF IN SUPPORT OF MOTION TO CONTINUE HEARING DATE Introduction On April 22, 2008 Plaintiffs filed a motion to continue the hearing date currently set for May 27, That motion addressed two issues: A. The technical reasons why Chicago s inadequate discovery response to date has delayed and prevented Plaintiffs experts from preparing their Rule 213 answers and from being able to adequately prepare for a May 27, 2008, hearing date. B. Why discovery as to the allegations in Counts I, II, III, and IV of the Second Amended Complaint should continue and is relevant to the Court s ultimate determination of this dispute. 1 As a matter of procedural note, Chicago s Response suggests that in July 2007, this Court only entered a TRO. In fact, the Court entered a preliminary injunction. Thus the law cited by Chicago in its response, e.g., Jurco v. Stuart, 110 Ill.App.3d 405, 407, 442 N.E.2d 633, 635 (1st Dist requiring a preliminary injunction hearing shortly after a TRO is issued is inapposite.

2 I. THE TECHNICAL REASONS FOR A CONTINUANCE. A. The Technical Difficulties With Chicago s Massive Page Dump. Chicago has responded to much of Plaintiffs discovery requests relating to the public health and nuisance issues with massive unorganized and un-indexed document dumps. Plaintiffs set forth several reasons why Chicago s delayed and disorganized production of tens of thousands of pages of documents on and after March 31 (29,000 on March 31; 65,000 pages on April 18 was making analysis by Plaintiffs experts extremely difficult. This disorganized paper dump (as scanned TIF images was compounded by the fact that Chicago has printed out thousand of these pages (e.g., scanned and printed as TIF images in virtually unreadable format (e.g., cut-off pages. Compounding the problem further was the fact that in the March 31 and April 18 massive TIF image dumps, many of the large masses of images were based on electronic data base files and electronic spreadsheets that had not been produced. These documents relate to the most critical information, such as soil sampling results. Further adding to the difficulty, the March 31 and April 18 massive TIF image dump had been scanned in black and white. Many documents (maps, spreadsheets, etc. have important color coding that had not been produced. Plaintiffs are still wading through the disorganized mass of dumped material and have been identifying missing data and document deficiencies to Chicago s counsel throughout the month of April, with the most recent transmission of items of missing data on April 29. It is important to note that Chicago has addressed these missing data and document deficiencies only after Plaintiffs still slogging through the materials identified the missing information. Chicago made no attempt to include this missing information in its March 31 and April 18 page dumps. Chicago now says Plaintiffs are asking Chicago to prepare an index of these documents for Plaintiffs. Chicago then claims that it has no such index and, if it did, it would be work product. Plaintiffs find it difficult to believe that in a large technical dispute such as this, neither Chicago nor its consultants maintain a file index to manage the thousands of electronic and paper files involved. Certainly, the March 31 and April 18 massive TIF image dumps were not produced in the manner required by Supreme Court Rule 214, i.e., as kept in the normal course of business. 2

3 To expedite discovery, Plaintiffs offered to share Plaintiffs organizational index (which is currently in preparation with Chicago if Chicago in turn would make its index available. Given Chicago s intransigence, Plaintiffs face the daunting burden of organizing, indexing and analyzing over 90,000 pages of material received within roughly the last month. Since Chicago is unwilling (or unable to provide any index to these masses of documents, Chicago should not complain about Plaintiffs need for time to properly organize, index and analyze this material. B. Chicago Asked For And Received Several Months to Prepare Its Case. Chicago properly received from the Court several months to prepare its case running from late July 2007 through March 31, Throughout that period, Chicago refused to produce many documents to Plaintiffs on the ground that Chicago needed to focus on its study and report; and that after Chicago prepared its report, these documents would be made available to Plaintiffs. Now having received many months of consideration by the Court (with the consent of the Plaintiffs, Chicago takes the position that Plaintiffs are not entitled to similar consideration to prepare their case. Then Chicago hits Plaintiffs with a double whammy massive dumps of disorganized documents followed by a demand for an immediate hearing before Plaintiffs can properly organize and analyze these materials. Plaintiffs simply ask for sufficient time to adequately prepare their case. Such consideration was fair for Chicago and it should also be fair for Plaintiffs. C. Chicago s Claimed Sense Of Urgency Is Without Factual Foundation. Chicago s says that the demolition of the properties in Bensenville is necessary to prevent substantial harm to the traveling public, to our nation s transportation system and consequently to the public interest quoting USDOT Secretary Mineta. Chicago then says that Given these expressions of urgency Plaintiffs requested delay should be denied. Chicago Response pp This is a perfect example of why discovery is necessary as to Counts I-V. Based on all available evidence, the only project Chicago is building at O Hare is the Phase 1 Airfield Project which as is true for almost all of the project is being built north of Bensenville. With the 3

4 exception of a very few properties in Bensenville, the Phase 1 Airfield Project will be (and is being constructed without any need to take or destroy properties in Bensenville. The urgency as to the need to destroy these properties for the Phase 1 Airfield Project is simply not true and the absence of this urgency will be borne out after the essential discovery is granted. Moreover, as to the remainder of the Master Plan including the facilities that Chicago says would require the demolition of properties in Bensenville Chicago has not even started detailed engineering on these projects. Such engineering will itself take several years before the start of any possible construction; and the need for destruction of any Bensenville properties for the remainder of the Master Plan is years away, and may never occur.. Here again, Chicago is asserting false or misleading claims of urgency to hasten the destruction of a community, and to deprive Plaintiffs of adequate time to prepare and try this very significant case. II. CHICAGO S SECTIONS MOTIONS TO DISMISS COUNTS I AND IV RELY ON EXTRA RECORD MATERIAL, AND THE RESOLUTION OF THESE COUNTS IS RELEVANT TO THE ULTIMATE DISPOSITION OF THE ENTIRE CASE, INCLUDING COUNT V. A. Count I. Chicago now says that its motion to dismiss Count I can be addressed as a matter of law requiring no discovery. However, Chicago never explains nor addresses the fact that included within Chicago s motion to dismiss Count I is the following statement based on materials outside the pleadings: As the Illinois Supreme Court recognized in Vacarro, it is permissible for a condemning authority to acquire property that it not only needs immediately but will also need in the future. The City anticipates that the OMP will be completed in See relevant portions of the Federal Aviation Administration's ("FAA" Environmental Impact Statement ("EIS" attached hereto as Exhibit No. 4. Therefore, it is acquiring all property necessary to complete the OMP in 2014, needs which are fairly anticipated in the future. The modernization of an airport cannot be completed overnight. Therefore, the City must acquire the Subject Properties now in order to meet its anticipated completion date. Accordingly, the OMA is not abrogating any constitutional requirements. April 11, 2008, Chicago Motion to Dismiss Count I of the Second Amended Complaint Pursuant to in No , p. 9 (emphasis added. 4

5 Here again, Chicago is making factual statements which are untrue but which are intended to sway the Court in making its section 2-619(a(3 decision. The reasons Chicago is making these factual assertions in a motion which Chicago now argues is purely a legal matter are clear. A section 2-619(a(3 motion is not purely a question of law, and is a matter of discretion by the trial court after weighing several factors, some of which have factual components. It is clear that dismissal of an action under the plain terms of 735 ILCS 5/2-619(a(3 because there is another action pending between the parties is not mandatory but discretionary. The non-mandatory, discretionary nature of 735 ILCS 5/2-619(a(3 is confirmed in numerous cases. See, e.g., Bank of Northern Illinois v. Nugent, 223 Ill.App.3d 1, 14, 584 N.E.2d 948, 957 (2d Dist ( It is important to note, however, that the remedies delineated in section 2-619(a(3 are within the discretion of the court and are not mandated by the pendency of another cause between the same parties arising out of the same operative facts ; Crain v. Lucent Technologies, Inc, 317 Ill.App.3d 486, 495, 739 N.E.2d 639, 647 (5th Dist ( Thus, even when the threshold requirements- same parties and same cause are met, section 2-619(a(3 relief is not mandatory. See also, Northbrook Property and Cas. Ins. Co. v. GEO Intern. Corp., 317 Ill.App.3d 78, 80, 739 N.E.2d 47, 49 (1st Dist ( [E]ven if the movant has established both the same parties and the same cause, the circuit court retains the discretion to grant or deny the section 2-619(a(3 motion. Northbrook further notes that Chicago must meet the heavy burden of a clear and convincing evidence standard for dismissal under 735 ILCS 5/2-619(a(3, which even after that evidentiary showing is still discretionary with the Court. Id., 317 Ill.App.3d 78, 80, 739 N.E.2d at 49. It is clear that the case before this Court in Count I involves properties, issues, and remedies which cannot be incorporated into an eminent domain action. This Court s discretionary decision as to grant or deny Chicago s section 2-619(a(3 motion should await factual development through discovery so that the Court has before it all relevant factors that might impact its decision. For example, if the facts demonstrate that Chicago s assertions as to the need to acquire and destroy the properties in Bensenville are false, this is the only court (a chancery court with the equitable 5

6 jurisdiction to provide the relief requested by Plaintiffs and the only court which can preserve the Bensenville community. The eminent domain court would not have that authority. B. Count IV. The Bensenville Ordinance. Chicago s Response never addresses the point made in Plaintiffs motion to continue ( 17 that there are factual disputes which will likely be determinative of whether the properties in Bensenville are lawfully and factually airport property. Chicago s companion complaint (07 CH 2955 challenging the Bensenville ordinance makes factual allegations (as to the necessity for demolition that are contested. Further, if (as Plaintiffs allege in Count IV the evidence establishes that Chicago does not need these Bensenville properties for the Phase 1 Airfield Project and that Chicago has falsely claimed a need for a conjectural, highly speculative "Phase 2 Master Plan" that may never be built, this Court may find that factually the properties in Bensenville do not fall within the definition of airport property under the OMA statute. It is clear that factual development through discovery is needed before the Court should decide Chicago s motion as to Count IV. III. DISCOVERY IS APPROPRIATE PRIOR TO RULING ON CHICAGO S SECTION MOTIONS TO DISMISS COUNTS II AND III. The fundamental factual issues in this entire dispute (in particular in Counts I, II, and III are very clear and center on two questions: A. If the evidence were to actually show that Chicago actually needs all the properties in Bensenville for the Phase 1 Airfield Project then there has been no fraud, unjust enrichment, or other improper conduct by Chicago in its asserting the need to acquire and destroy these properties for the Phase 1 Airfield Project. On the other hand, if the evidence developed in discovery shows that these properties are not necessary for the Phase 1 Airfield Project and that Chicago has been dishonest with the DuPage County Circuit Court and the homeowners in the community there has been massive fraud and unjust enrichment. B. Alternatively, if the evidence shows that Chicago has any reasonable or realistic likelihood of building the remainder of the Master Plan at a reasonable time in the future, and Chicago demonstrates the need to take all the properties in Bensenville 6

7 for the "Phase 2 Master Plan" then there has been no fraud, unjust enrichment, or other improper conduct by Chicago in asserting its need to acquire and destroy these properties for the "Phase 2 Master Plan. On the other hand, if the evidence developed in discovery shows that the "Phase 2 Master Plan" is highly speculative and that Chicago has no idea when or if the "Phase 2 Master Plan" will be constructed at any specific time in the future, if ever, then Chicago had no constitutional authority to take land in Bensenville for the "Phase 2 Master Plan. Under those facts, Chicago has been dishonest with the DuPage County Circuit Court and the homeowners in the community and there has been massive fraud and unjust enrichment. As noted in Plaintiffs motion to continue, Plaintiffs believe they have stated sufficient allegations to support the claims under Counts II and III. However, Chicago keeps arguing that Plaintiffs have insufficient factual detail to back up our charges. Yet Chicago concedes that the very additional factual information which Chicago says Plaintiffs must provide to survive a motion are wholly within the control and custody of Chicago. Chicago s Response cites Storm & Associates v. Cucilich, 298 Ill. App. 3d 1040, 1051; 700 N.E.2d 202, 209 (1st Dist for the general rule that under normal circumstances discovery should not proceed before a section motion is decided. We have no quarrel with the general rule. But Chicago ignores the explicit authority cited by Plaintiffs that allows discovery prior to decision on a motion where, as here, the key factual information relative to the claims of wrongdoing are exclusively in the possession of the defendant. "[A] trial court should not refuse a discovery request and grant a motion to dismiss where it reasonably appears discovery might assist the party resisting the motion. (Cite omitted. Especially where the facts are exclusively within the knowledge of the opponent, it may be error to deny discovery before ruling on a motion to dismiss." Yuretich v. Sole, 259 Ill. App. 3d 311, N.E. 2d 767, 772 (4th Dist See also Becker v. Zellner, 292 Ill. App. 3d 116, 131, 684 N.E.2d 1378, 1389 (2d Dist (trial court abused its discretion in denying discovery on a

8 motion where certain facts were exclusively within the defendant s possession. If Chicago wishes to proceed with its current section motion to dismiss Counts II and III, Plaintiffs should be granted discovery prior to any ruling on Defendant s motion. III. RELATIONSHIP BETWEEN COUNTS I-IV, COUNT V AND THIS COURT S ULTIMATE RESOLUTION OF THIS CONTROVERSY. Chicago says that the issues in Count V can be addressed, and an ultimate decision made by the Court on whether to allow the permanent destruction of hundreds of homes and businesses and parks, without hearing any evidence on the merits as to Counts I-IV. However Chicago completely ignored the closing points of Plaintiffs motion to continue: 23. It is obvious that if this Court rules in Plaintiffs favor on Counts I, II, III or IV, the issues raised by Count V will likely become moot. 24. Further, as discussed above, Chicago bases its request to demolish these properties on the grounds that It is essential for Chicago to begin the immediate demolition of the properties in the southwest area Chicago Verified Complaint in , 10. However, the demolition of these properties should not be allowed to go forward if that predicate need for construction of the properties in the Southwest area does not in fact exist i.e., if the properties have been improperly obtained because of, inter alia, a lack of constitutional necessity or fraud. To allow these properties to be demolished under those circumstances would void any possibility for the relief requested in the prayers for relief sought in Counts I-III, all of which seek an injunction against the demolition of the properties in the Acquisition Area. 25. It would be sad irony indeed for Chicago to be allowed to proceed with demolition under a judicial ruling in Count V only to have the Court later rule (after the properties are demolished that Plaintiffs were entitled to relief under Counts I-III. CONCLUSION WHEREFORE, Plaintiffs hereby move the Court for a continuation of the date for the hearing currently scheduled for May 27, 2008 and move the Court to adopt the following case management procedural framework: A. An accelerated fast track discovery schedule for Counts I-IV. B. Briefing, Hearing and Decision on Chicago s challenges to Counts I-IV following completion of the accelerated fast track discovery. 8

9 C. A continuance of the hearing on Count V for a period to parallel the discovery schedule for Counts I-IV. That continuance period would be used to insure a complete exchange of data and information in a usable, timely format. In addition, Plaintiffs ask that Chicago be required to transmit to Plaintiffs any and all electronic indices or databases as to data or documents relating to demolition in the Acquisition Area. May 1, 2008 Joseph V. Karaganis A. Bruce White Barbara A. Magel John W. Kalich KARAGANIS, WHITE & MAGEL LTD. 414 N. Orleans Street, Suite 810 Chicago, Illinois ( Attorney No Gerald M. Gorski Aaron H. Reinke GORSKI & GOOD 211 South Wheaton Ave., Suite 305 Wheaton, Illinois ( Attorney No Phillip A. Luetkehans SCHIROTT & LUETKEHANS, P.C. 105 E. Irving Park Rd. Itasca, Illinois ( Attorney No KSJ284 VILLAGE OF BENSENVILLE, ILLINOIS, an Illinois municipal corporation; ROBERTA BAIRD; WILLIAM BAIRD; ARLENE BENSON; BERNARDO FLORES; GAIL FLORES; NELSON MARRERO; and ROBERT RACKOW, By: One of their attorneys 9