argues Can Am, the damage suffered cannot be real, because there
is no way a construction company can be hired and begin work
within one day. Moreover, Firestone is alleged to have
contributed to the late start-up because on August 30, 1985,
Firestone notified its "consultants" to hold off notifying the
construction company of its winning the bid, "until its site
access problems had been resolved." Can Am is suggesting that
Firestone foresaw access problems to the site and aggravated the
problem by holding off accepting the construction contract until
September. This, says Can Am, is not mitigation.
Firestone points out this delay makes prudent business sense,
since Firestone learned on August 22, 1985, that Can Am was going
to deny Firestone access to its site unless it paid the $25,000
access fee to use the easement. (Firestone's memo in support of a
preliminary injunction.) Thus, Firestone was not going to commit
itself until it could attain access to the site on a certain date
for construction purposes, yet it had to commit before too late
in the construction season. Thus, Firestone's explanation for
committing itself to its construction company is reasonable.
After all, Firestone did not know that Can Am would seek an
injunction at that time.
Can Am then argues that the preconstruction meeting that was
thwarted by Can Am's refusal to allow passage across the easement
by planners, on September 10, 1985, is another case of
exacerbating damages, in that Firestone should have known that
they would be denied access to the site, yet they persisted in
attempting to hold the meeting.
Firestone counters that the meeting had been scheduled for
awhile (after all, their personnel did have access before, due to
the general easement) but they unofficially learned of the state
court's TRO the night before (by use of their own diligence — Can
Am's attorneys allegedly could not be found by Firestone on the
day the TRO was entered). Thus, it was too late to call off the
meeting of people who were coming from various locations and were
already in transit. Moreover, Can Am's complete denial of access
to the site, for a preconstruction meeting, not only violated the
general easement, but also violated their state TRO because the
state court TRO did not expressly preclude normal use of the
easement, only construction and hazardous waste traffic were
banned. Thus, Can Am knowingly violated its duties under the
easement, and also its own TRO acquired by them for their
Furthermore, Firestone's attempt at going ahead with a
preconstruction meeting on the site during the pendency of the
state TRO is seen as an attempted mitigating factor in that even
though they could do no work at the time, plans could be made and
the site surveyed, etc., prior to actual construction. Can Am's
TRO did not prohibit normal access and all Can Am really wanted
was $25,000; so Firestone knew that they would be doing the
construction, because either the TRO would be dissolved or they
would pay the $25,000 entrance fee.
Therefore, Firestone did nothing to aggravate its damages
during the pendency of the state TRO, rather it tried to mitigate
its damages but were thwarted by Can Am's obstructionist tactics.
(b) Construction Work Damages During Our TRO
Can Am complains that some $5,164.53 in consulting fees for the
time period around October 11, 1985, are not sufficiently
specific to warrant damages. Firestone makes no specific reply.
Its "Woodward-Clyde consultants" letter and tables state that
these costs are "associated strictly with delays beyond our
control," and are listed as staff engineering and secretarial
Can Am is correct. There is a lack of explanation as to how
these costs are due to the delay and not just normal consultant
Thus, this portion of the damages is denied.
There are, however, bills and work sheets from the construction
that itemize reasons for increased costs, which for the most part
deal with problems relating to cold weather, the "false
mobilizations," and the expense of having to come to this court
on September 18, 1985, for the hearing and explain what it is
that they were going to be doing.
Ergo, it is hereby ORDERED, for the foregoing reasons, that
Firestone's motion for sanctions under Ill.Rev.Stat., ch. 110, ¶
2-611, Fed.R.Civ.P. 11, 65, 65.1, and 28 U.S.C. § 1927, is
ALLOWED in part.
It is ORDERED that Firestone be awarded all of its claimed
damages, fees, and expenses as follows:
1. Contractor's fees for
delays and false
starts .............. $13,052.53
Less $5,164.53 for
which there is
explanation ......... 5,164.53
2. Witness fees
3. Attorney's expenses
fees — 272.10 hours
at $100 27,210.00
Total Compensatory $45,289.51
Furthermore, punitive damages are awarded in the amount of
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