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Plunk v. Village of Elwood

May 20, 2009


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

Memorandum Opinion and Order

This is a civil rights action brought by two members of the Plunk family, Ronald Sr. and Ronald Jr., and their companies, Allied Nursery, Inc. and Allied Landscaping against the following defendants: (1) Village of Elwood ; (2) members of its Village government; and (3) their police department. The case is set for trial in August of this year. Anticipating this, both sides have filed a slew of pretrial motions on which the Court is now prepared to rule. Defendants' motions are as follows: (1) defendants' motion for leave to file affirmative defenses (dkt. #111); (2) defendants' motion to bar testimony (dkt. #107); (3) defendants' motion to re-depose plaintiffs' expert (dkt. #108); and (4) defendants' motion to re-open discovery (dkt. # 109). Plaintiffs' Motions are as follows: (1) plaintiffs' motion to compel production of certain Village meeting reports (dkt. 115); (2) plaintiffs' motion for fees (dkt. #116); (3) plaintiffs' motion to re-open discovery (dkt. #117); and (4) plaintiffs' motion for sanctions (dkt. #114). Prior to ruling, however, it makes sense to set out both the allegations involved and the unusual procedural history of this case.

I. Factual Allegations

The facts that plaintiffs will attempt to prove at trial are as follows: plaintiffs Ronald Plunk, Jr. ("Ron Jr."), Ronald Plunk, Sr. ("Ron Sr."), Allied Nursery, Inc. ("Nursery"),(a corporation owned by Ron Sr.) and Allied Landscaping ("Landscaping"), (a corporation owned by non-party Margaret Plunk, which employs Ron Jr.), have sued defendants alleging a variety of federal and state causes of action. Landscaping entered into various contracts with the Illinois Department of Transportation ("IDOT") for work to be done within Elwood. Nursery also performed work for Elwood, including a contract to mow Elwood's public areas. Sometime toward the end of 2005, these relationships began to sour. One reason for this was because Elwood contracted with one of Landscaping's competitors without allowing Landscaping to first offer a bid. Elwood's Village Manager Scott Haywood then made derogatory statements about the quality of Nursery's work to Ron Sr. and Ron Jr. during a conversation at City Hall on March 22, 2006. (The Complaint goes on to allege that he did this at the behest of Mayor Blum, a defendant in the case.) The City Clerk, Patricia Buchenau, informed defendant police chief David Albert, also a defendant, about the conversation between Haywood and the Plunks.

After Chief Albert learned about this conversation, he, along with two additional police officers, including defendant police officer Donchez went to arrest Plunk Sr.. The police officers detained both Plunks while another police officer was dispatched to bring Mr. Haywood to the scene. Although Chief Albert urged him to file a complaint alleging that he had been threatened by Ron Sr., Haywood allegedly declined to press charges. After he refused to do so, both Plunks were allowed to leave the scene. However, at the Mayor's request, Chief Blum signed a complaint against Ron Sr. for aggravated assault based on the conversation between Haywood and Ron Sr. at the Village Hall earlier that day. A warrant was issued for Ron Sr.'s arrest.

When Ron Sr. learned of the warrant for his arrest, he surrendered and posted bail. The Complaint alleges that Chief Albert nevertheless ordered defendant Donchez to arrest Ron Sr. Officer Nicholas Adams, who is not a defendant, accompanied Officer Donchez for the arrest. When Ron Sr.'s wife, Margaret Plunk, complained about this incident to Chief Albert, he told her that she should take her complaint to the Illinois State Police. A few months later, the judge presiding directed a verdict for Ron Sr. on the aggravated assault charge.

This did not end the acrimony between Elwood and the Plunks. Plaintiffs allege that beginning in 2007, Elwood, its Mayor, and the Village Administrator, Aimee Ingalls, conspired to negatively affect Nursery and Landscaping's ongoing business relationships. The first of these alleged acts involved a subcontract that Landscaping had with D Construction, Inc., ("D Construction") another construction contractor. According to the Complaint, Administrator Ingalls told D Construction that Elwood did not want it to subcontract with Landscaping on any Elwood contract. D Construction had entered into a subcontract with Landscaping for $120,100.50 on a prime contract it had with IDOT for a joint venture with Elwood called the Mississippi Avenue Project. Although D Construction told Elwood that Landscaping had done good work for it in the past, Mayor Blum told it that this fact "doesn't have anything to do with this, and I want to make sure that Allied Landscaping doesn't make another nickel in Elwood." On April 19, 2006, the Elwood Board of Trustees then voted to remove Landscaping from the subcontract and to delegate any further policymaking on this matter to Mayor Blum and Administrator Ingalls. This matter did not appear on the agenda for the meeting and, according to plaintiffs, the meeting was closed in violation of the Illinois Open Meetings Act, 5 ILCS 120/1.02. According to plaintiffs,the purpose for closing the meeting was to prevent them from objecting to this action by the Village. This meeting was recorded, but the Complaint alleges that the recording was deliberately erased to cover up the tortious purpose of the action. D Construction terminated Landscaping from the project.

D Construction also entered into a subcontract with Nursery. Plaintiffs allege that Administrator Ingalls and Mayor Blum ordered D Construction to fire Nursery from this subcontract as well. In addition, Landscaping entered into a subcontract with another firm, S.A. Issert, Inc. ("Issert"), which was also involved in the Mississippi Avenue Project. Despite the fact that Issert told Elwood that it did not want to fire Landscaping, Administrator Ingalls and Mayor Blum told it to do so. Issert ultimately refused to fire Landscaping.

These allegations have given rise to several different causes of action which will be tried to a jury, including false arrests of both Ron Jr. and Ron Sr., malicious prosecution of Ron Sr. for aggravated assault, Section 1983 claims brought on behalf of both based on these claims and, interference with contract and prospective economic advantage of the Plunk family companies. The plaintiffs also have alleged spoilation of evidence and equal protection claims.

II. Procedural History

Up until the close of fact discovery on March 15, 2008, this case proceeded down the litigation path in the usual way. On March 12, 2008, however, the Court was asked by plaintiffs to re-open discovery for the limited purpose of re-deposing two Elwood Village police officers, one of whom, Officer Adams, was involved in the arrest of Ron Sr. The reason for the request was that plaintiffs' counsel had received an anonymous letter stating that these two police officers had testified falsely due to intimidation by Chief Albert and others. Because the note was unusually specific about these allegations, the Court re-opened the depositions to allow plaintiffs to inquire about this. Both witnesses admitted that they had not been truthful during their depositions about key facts due to intimidation by Albert, Ingalls and defense counsel, Michael Cainkar.*fn1 In fact, Officer Adams testified that he had been the author of the note sent to plaintiffs. During their depositions, both Officer Adams and Officer Lightfoot confirmed that they felt intimidated and Adams further testified that he had heard Chief Albert tell police officers on several occasions that the police needed to keep Plunk Sr. "out of town" and that he "needed to go to jail."

Officer Lightfoot testified that a Village employee named Brandon Doden had heard Chief Alberts give instructions to Donchez to destroy evidence on a police computer shortly after the lawsuit had been filed. Lightfoot contemporaneously recorded the conversation he and Doden had conducted about this event in a calendar entry. Doden also gave a sworn statement that Chief Alberts told Donchez to erase the memory of the hard drive on the Police Squad Room computer.

The fact that plaintiffs, by April of 2008, had developed a record of potential witness tampering and destruction of evidence caused both sides to seek additional expert discovery. At that time, plaintiffs had only disclosed their expert Bruce Koenig. Koenig had opined that the audio tape of the April 19th meeting of the Board of Trustees, during which the Village Board voted to terminate the Plunk Landscaping company from serving as a subcontractor on a Village project, had been erased professionally or replaced with a new tape. This Court gave leave for defendants to depose Koenig and to designate their own expert on this issue on or before July 7, 2007 and plaintiffs would be given a month to depose that expert(s). Instead of naming an expert to rebut Koenig, whose testimony regarding the audiotape has not been rebutted by defendants, defendants identified Nancy Forster as an expert. Forster, in her report, opined that the hard-drives of Alberts and Donchez neither had been tampered with in any way nor wiped clean.

Plaintiffs sought and obtained leave to name an expert to rebut Forster's findings regarding the integrity of the Elwood Police hard drives. That expert, Jerry Saperstein, Ph.D., issued an expert opinion on August 25, 2008 in which he stated, among other things, that wiping programs had been installed on Alberts' and Donchez' computers and that the computers may have beenn wiped just prior to the imaging of those hard drives. Plaintiffs first had served defendants with requests for electronically stored information ("ESI") in March 2007. The parties had agreed that defendants would image all of the hard drives of the all of the Villages' nineteen computers and perform word searches to determine whether relevant documents existed. Despite this explicit agreement, during a hearing before this Court on October 2, 2008, counsel admitted that not all of the hard drives had been imaged--and further, that he had known this since at least the previous November. No steps were taken to preserve these materials between November 2007 and October 2008. These six additional hard drives were imaged after October, but did not yield additional relevant ESI.

Plaintiffs' expert, Dr. Saperstein, supplemented his August 25, 2008 report on December 30, 2008. He stated that his examination of the six hard drives showed that there had been no effort made to preserve evidence which might have existed on them at the time plaintiffs originally requested (and defendants agreed) that all relevant hard drives would be imaged. Defendants, however, have now withdrawn Forster, their identified expert. They chose to do this after it became clear during her deposition that she could not opine that the hard drives of Alberts and Donchez had not been wiped. Defendants now demand that the Court either strike Dr. Saperstein's Supplemental Report or allow them to "redepose" him about those conclusions and further to re-open discovery to allow them to designate yet another expert on this subject, David Knutson.

III. Rulings on Defendants' Motions

A. Defendants' Motion for Leave to File Affirmative Defenses (dkt.111)-Denied

One of the defenses defendants now seek to raise is that the criminal charges which are the subject of Count X were concluded more than one year before the claim for malicious prosecution was added by the Second Amended Complaint and, accordingly, is time-barred under the Tort Immunity Act, 745 ILCS 10/8-101. The Second Amended Complaint was filed nine months ago. At that time, the defendants moved to dismiss several counts, including other contentions that portions of the Complaint were time-barred. The defendants offer no reason why they failed to raise this same argument with respect to the malicious prosecution claim at this time (although they were undoubtedly aware of it), or at any time since then. Discovery, as discussed above, has been closed for some time.

Further, as plaintiffs point out in their opposition to the motion, the statute of limitations does not bar this claim because Federal Rule of Civil Procedure 15(c)(1)(B) provides that the claim asserted relates back to the date of the original filing if it "asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading." The factual basis of this claim, which alleges that defendants brought false charges against Plunk Sr., has been part of the factual basis for the Complaint since it was filed. (See Complaint, ¶¶ 33-34, 41-43, 55-56.) Accordingly, the amendment to add this affirmative defense would be futile.

Defendants also seek to amend their affirmative defenses to add an "advice of counsel" defense to the allegation that the prosecution of Ronald Plunk, Sr. was not malicious. In their motion, the defendants implicitly concede that allowing them to interpose this defense now, after the close of discovery, would require plaintiffs to "interview" the States Attorney who they now claim vetted the prosecution. Of course, it is more likely that this new witness, heretofore undisclosed by the defendants in any discovery response, would have to be deposed by plaintiffs. The defendants offer no reason why they have waited until after discovery has closed to raise this defense. The fact that it only just occurred to defense counsel to find the State's Attorney in question and interview him does not justify such an amendment. As the defendants know, the right to amend pleadings, while liberally allowed under Rule ...

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