BENTON – U.S. Magistrate Reona Daly recommends that Thomas Maag of Wood River and Utah lawyer Andrew McCullough pay Cahokia $6,707.83 as a sanction for discovery violations.
“The court finds the conduct of plaintiff’s counsel with regard to discovery in this case was at best negligent,” Daly wrote on March 19.
Maag and McCullough represent Doctor John’s, holder of a lease on a former Dairy Queen on Camp Jackson Road.
Doctor John’s sued Cahokia last year, challenging the constitutionality of its ordinance on adult bookstores.
District Judge Phil Gilbert dismissed the action on Jan. 31, finding adult books didn’t matter because Doctor John’s couldn’t satisfy zoning ordinances.
“There is fatal problem in this case: the court cannot remedy what ails Doctor John’s,” Gilbert wrote.
He had ruled two weeks earlier that Cahokia could submit expenses it incurred addressing discovery violations.
Village counsel Brian Funk of Northbrook submitted a $7,567.83 bill on Feb. 8.
Daly shaved $860 off the bill and recommended approval to Gilbert.
She wrote that Cahokia submitted a discovery dispute on Nov. 30.
She also wrote that at a hearing on Dec. 4, plaintiff’s counsel represented that he would provide responses by Dec. 14.
The docket shows Maag appeared alone for Doctor John’s.
On Dec. 19, Daly wrote, the village submitted the same dispute.
She wrote that on Dec. 27, the village moved to compel responses. And, on Jan. 15, the court granted the motion and set a Jan. 18 deadline.
The village submitted the dispute again on Jan. 24. After a hearing on Jan. 28, Daly ordered Doctor John’s to verify responses, investigate previous disclosures for accuracy, and answer certain interrogatories and requests for production.
“Ordering plaintiff’s counsel to pay defendant’s expenses incurred due to persistent delays in responding to discovery is a proportionate response,” Daly wrote.
Meanwhile, Maag and McCullough had tried to revive the action.
On Feb. 19, McCullough moved to amend judgment and allow Doctor John’s to proceed on its complaint.
McCullough wrote that the business would not violate zoning ordinances.
He attached an affidavit of Doctor John’s president Bonnie Bellamy, stating that other cities prevented her from opening stores based on rumor and innuendo.
She stated that neither the court nor the village explained in what way the guidelines weren’t met.
Gilbert disposed of the motion on March 6, writing that his court is not a state board of zoning appeals.
He wrote that he dismissed the suit without prejudice so that Doctor John’s would have an opportunity to seek a writ in state court.
Gilbert quoted village counsel Funk, who wrote, “Since the inception of this case, plaintiff has played fast and loose with the facts and attempted to avoid dismissal by being as vague and unclear as possible.”
Gilbert wrote, “That is putting it nicely.”