Maag suggests opponent read up on difference between motions to dismiss and summary judgment

By Christina Stueve Hodges | Nov 14, 2012

Plaintiff attorney Thomas Maag says the defense attorney in a Madison County class action case he is pursuing needs to read up on what a motion to dismiss  is versus what a summary judgment motion is.

Maag reacted Nov. 7 to  to a motion for leave to file supplemental public records instanter that attorney Thomas Frenkel of Carbondale filed Nov. 5 in a class action case he is defending against Black Lane Auto Parts of Caseyville.

Maag is representing Tiffany Craycraft, who claims Black Lane towed her 2000 Ford Taurus without her consent. She seeks damages for alleged violations of the Illinois Vehicle Code under its anti-theft law and abandoned vehicles chapter, as well as under the Illinois Consumer Fraud Act, because when she retrieved her vehicle, she claims she did not receive a detailed, signed receipt, showing the legal name of the towing service.

Court documents show Craycraft was arrested by Caseyville Police at 2:30 a.m. on April 11, after she was observed disobeying a traffic light. Subsequently, Black Lane towed the vehicle from a turning lane on Highway 157 on police orders.

Maag wrote that Frenkel's attempt to file supplemental public records is a "bad faith attempt to prejudice the plaintiff.”

“Plaintiff respectfully contends that counsel for Defense needs to read Barber-Colman Company v. A&K Midwest Insulation, which is the lead case in the Fifth District (our appellate district) on what a motion to dismiss is, and what a summary judgment motion is,” Maag wrote.

According to Maag, the defense record is "deficient" and that is why it seeks to file more documents on its motion to dismiss, even after oral arguments.

“Furthermore, the stated basis for the additional documents is that defendant wishes to show that one of the plaintiff’s allegations is not true,” Maag wrote.

“As was pointed out, this is a motion to dismiss, not a summary judgment motion."

Maag has asked  Associate Judge Stephen Stobbs to deny the defense motion to dismiss.

On Oct. 31, the court took under advisement oral arguments involving Black Lane’s motion to dismiss.

According to Frenkel, Missouri and Illinois motor vehicle registration records were requested Sept. 4. Frenkel wrote that Illinois records have been received but not records from Missouri.

Frenkel states the purpose of obtaining the records is to inform the court of the status of Craycraft's vehicle registration on the date of its tow.

He argues that unregistered vehicles are properly towed.

Madison County case number 12-L-641.

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