Plaintiffs in three class action lawsuits against former Madison County Treasurer Fred Bathon and co-conspirators over tax sale price fixing from 2005 to 2009 have moved to again include Madison County as defendant.
The County had already been dismissed in October by a judge from a neighboring county appointed to preside over the case. The County argued that Bathon was not an employee of the county, rather he was elected and therefore, his actions did not benefit the county.
Clinton County Circuit Judge Dennis Middendorf presides.
Bathon was sentenced to 30 months in prison on Dec. 6 following conviction on rigging property tax sales in a way that eliminated competitive bidding and increased interest rates for the tax buyers in exchange for campaign contributors.
Three class action lawsuits were filed on behalf of distressed homeowners in response to Bathon’s guilty plea last February.
In October, Middendorff also granted Madison County Circuit Clerk Mark Von Nida’s and Alan Dunstan’s motions for dismissal.
In response to the dismissals, the plaintiffs filed a motion to amend their complaint on Nov. 20 through attorney Aaron G. Weishaar of Reinert Weishaar & Associates in St. Louis.
Madison County filed an opposition to the plaintiffs’ “Motion to vacate, set aside and for reconsideration and/or in the alternative for leave to file an amended complaint as to Madison County” on Dec. 10.
“While having a long title, plaintiff’s motion essentially asks this court to reconsider its earlier order dismissing Count XI against Madison County for respondeat superior liability and either allow that count to stand or grant plaintiff leave to amend. Plaintiff’s motion, however, is devoid of any facts or law providing a basis for the court to overturn its prior ruling,” the opposition states.
Madison County argues that a litigant may not bring a new argument or theory for the first time in a motion to reconsider.
“The movants must bring to the court’s attention newly discovered evidence that was not available at the time of a hearing, changes in the law, or errors in the court’s previous application of existing law," the opposition states.
“Plaintiff is not allowed ‘to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.’”
Madison County claims the plaintiffs failed to ask for leave prior to the Oct. 22 hearing when Middendorff dismissed Madison County, Von Nida and Dunstan.
The plaintiffs filed a notice of discovery through Weishaar on Nov. 21, requesting discovery on Dec. 3.
When their request wasn’t met, Weishaar filed a motion to compel Bathon’s deposition. They allege they requested dates to take a deposition prior to Bathon’s sentencing hearing on Dec. 6.
They claim they requested confirmation of the deposition from The Kuehn Law Firm - which represents Bathon - on Dec. 1. They spoke with attorney Jarrod Beasley, who confirmed that they never did receive the Motion to Quash Deposition accompanied by an email dated Nov. 26, the motion states.
The email stated that Bathon’s attorneys would not produce the defendant for deposition until the court set a motion hearing on the matter.
“If your concerns are getting his deposition prior to him going to prison, based on his cooperation with the Federal Government, we should be able to accommodate you as Fred will likely self-report 4-8 weeks after his sentencing," the email states.
“By then, we should be at issue on the pleadings in these three cases and, if possible, cross notice the deposition so we can produce him once.”
According to the motion to quash, The Kuehn Law Firm argues that the deposition is premature.
“At this point, no meaningful discovery has taken place and the class has not been certified,” the motion states. “While discovery is certainly allowed in class actions pre-certification, it is generally limited to class certification related issues. Nothing Mr. Bathon would testify to would have any impact on the various roadblocks to certification faced by plaintiffs.”
Regardless, the plaintiffs argue that Bathon was required by law to attend his deposition because he failed to bring his motion to quash for hearing before the court.
Bathon, also represented by Clyde Kuehn and Matthew P. Young of The Kuehn Law Firm in Belleville, responded to the plaintiffs’ motion to compel on Dec. 4, arguing that the defense did offer to make Bathon available at a “mutually agreeable time.”
Bathon argues that the plaintiffs wanted to take the deposition in St. Louis, which he says is inappropriate. He claims the depositions must take place in the county in which the deponent resides, is employed or transacts business.
According to the response, the plainitiffs’ served the notice of deposition on Nov. 21, demanding a deposition date for Dec. 3, which only allowed five business days between the two dates.
“It is hard to fathom how such notice would be considered ‘reasonable’ under the statute based on both the unilateral nature of the date and the compressed time period involved,” the response stated.
Bathon further states that a deposition at this time would be inappropriate, as it is still unclear who the ultimate parties will be or what specific allegations will be made against him in the final version of the complaint.
John Barberis, Jr. of St. Jacob and Steve Giacoletto of Collinsville represent class action plaintiff Scott Bueker.
Nelson L. Mitten, Charles S. Kramer and Paul A. Grote of Riezman Berger in St. Louis represent class action plaintiff Geralyn Lindow
Madison County is represented by Michael D. Schag, Patrick D. Cloud and Ann C. Barron of Heyl, Royster, Voelker & Allen in Edwardsville.
Madison County Circuit Court case number 13-L-276, 13-L-376 and 13-L-390