U.S. District Judge Staci Yandle denied a group of St. Clair County tax buyers’ request to file a reply in support of their motion for summary judgment while St. Clair County and the former treasurer filed their own separate reply in a suit alleging they participated in a bid rigging scheme.
Defendants Dennis Ballinger Sr., Dennis Ballinger Jr., Empire Tax Corp. and Vista Securities Inc. filed a motion for leave to file a reply in support of their motion for summary judgment on May 26 through attorneys Gordon Nash, Daniel Delaney and Patrick Kelleher of Drinker Biddle & Reath LLP in Chicago.
In their March 24 motion for summary judgment, the defendants attached the affidavit of Michael Ballinger, who they say is the president of Vista and C.E.O. and half-owner of Empire.
“The affidavit provides Michael Ballinger’s testimony regarding facts on numerous topics that are material and relevant to the resolution of the Motion for Summary Judgement and the outcome of this dispute,” the motion for leave to reply explains.
Attorney Nelson Mitton of Riezman Berger PC in St. Louis filed a memorandum in opposition to the motion for summary judgment on May 12.
In the opposition, Mitton urges the court to not consider the affidavit because Michael Ballinger was not previously disclosed as a witness in the defendants’ responses to the plaintiffs’ first interrogatories. He also argues that Michael Ballinger’s affidavit is without merit.
In their motion for leave to file a reply, the defendants argue that the exclusion should not be automatic.
“First, the Ballinger Defendants’ initial interrogatory responses stated that they had not yet identified fact witnesses other than themselves,’” the motion states.
The defendants claim they later disclosed Michael Ballinger as a witness on May 18 in their first supplemental answer to interrogatory number two from plaintiffs’ first set of interrogatories.
On May 30, Yandle denied the defendants’ motion to file a reply in support of its motion for summary judgment. She stated that she found “no exceptional circumstances to justify the filing of a reply.”
Defendants St. Clair County and County Treasurer Charles Suarez also filed a reply to Mitton’s response to their combined motion for summary judgment on May 26 through attorney Garret Hoerner of Becker Hoerner Thompson & Ysursa PC in Belleville.
In their reply, the defendants argue that Illinois law holds that “civil conspiracy is not considered an independent tort: therefore, if a plaintiff ‘fails to state an independent cause of action underlying his conspiracy allegations, the claim for conspiracy also fails.’”
“And the fact remains that Plaintiffs have neither plead, nor ever even identified, a viable independent cause of action under Illinois law upon which to base their common-law civil conspiracy claim,” the reply states.
The defendants also argue that the plaintiffs’ money-had-and-received theory is not a viable claim against a county under the circumstances alleged.
They further argue that the plaintiffs improperly rely upon the deposition testimony of Dr. Kenneth Brosh because they allegedly never disclosed or identified Brosh in their discovery responses as a witness.
“Substantively, Dr. Brosh’s testimony merely alleged, generally without any specificity, that some tax buyers allegedly received “favorable treatment” at all of the St. Clair County auctions – not that those in 2007 and 2008 were any different – and further stated his belief that at least some of his lower bids at auctions he could not even identify were not recognized by the auctioneer, which was disputed at the time,” the reply states.
“However, Dr. Brosh acknowledged that his objective was to ‘get the highest rate possible,’ and the records of his purchases at the 2007 and 2008 auctions confirmed as much, as he, too, purchased significantly more delinquent taxes then than in prior years and the most of his purchases in 2007 and 2008 were at the maximum 18% allowed by law,” it continues.
Plaintiff attorney Aaron Weishaar of Reinert Weishaar & Associates in St. Louis filed a motion to strike the reply on June 1.
He argues that Rule 7.1 holds that “reply briefs are not favored and should be filed only in exceptional circumstances.”
“Motions for summary judgment are not exempt from this rule, which emphasizes this Court’s objective to eschew reply briefs,” Weishaar wrote.
“In an effort to raise the specter of exceptionality, these Defendants wrongly assert that Plaintiffs misrepresented the law and improperly relied on deposition testimony in their Opposition to the Motion for Summary Judgment,” he added.
Weishaar argues that the plaintiffs never contended that civil conspiracy is an independent tort under Illinois law.
“Rather … Plaintiffs assert that a viable cause of action for civil conspiracy has not only been pled, but is supported by the record to the extent that a summary judgment should not be granted,” he wrote.
Weishaar also argues that Brosh was a witness deposed by the defendants in the case.
“The fact that these Defendants disagree with Plaintiffs’ submissions with respect to Mr. Brosh is certainly not an exceptional circumstance that requires further briefing from these Defendants by way of a Reply,” Weishaar wrote. “No new allegations or arguments are raised by this testimony; these Defendants simply disagree with its import.”
According to the complaint, two couples sued Suarez and several tax buyers in the U.S. District Court for the Southern District of Illinois on Oct. 17, 2014, alleging a conspiracy similar to one that sent former Madison County treasurer Fred Bathon to prison.
John Bloyer Jr., Adrianne Bloyer, Kevin Dvorak and Kathleen Dvorak, all of O’Fallon, claim the alleged conspirators artificially inflated interest rates at tax sales in 2007 and 2008. They claim Suarez illegally rigged bids at sales of delinquent taxes to enrich Democratic campaign contributors.
U.S. District Court for the Southern District of Illinois case number 3:14-cv-1119