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Consolidated Paving, Inc., An Illinois Corporation v. the County of Peoria

June 14, 2012


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge


Thursday, 14 June, 2012 04:08:49 PM Clerk, U.S. District Court, ILCD


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.


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).

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 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 12-19 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).

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).


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).

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 ...

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