Mercury Vapor v. Village of Riverdale, No. 07 C 6066.

• Decision Date: 04 March 2008
• Docket Number: No. 07 C 6066.
• Citation: 545 F.Supp.2d 783
• Parties: MERCURY VAPOR PROCESSING TECHNOLOGIES, INC. d/b/a River Shannon Recycling Technologies, Plaintiff, v. The VILLAGE OF RIVERDALE, an Illinois municipal corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

545 F.Supp.2d 783

MERCURY VAPOR PROCESSING TECHNOLOGIES, INC. d/b/a River Shannon Recycling Technologies, Plaintiff, v. The VILLAGE OF RIVERDALE, an Illinois municipal corporation, et al., Defendants.

No. 07 C 6066.

United States District Court, N.D. Illinois, Eastern Division.

March 4, 2008.

Glenn Charles Sechen, James Roland Griffin, Timothy Joseph McGonegle, Schain, Firsel & Burney, Ltd., Jerome Wiener, Schain, Burney, Ross & Citron, Ltd., Chicago, IL, for Plaintiff.

Michael S. Blazer, Lance Erik Franke, Thomas S. Yu, Jeep & Blazer, L.L.C., Hillside, IL, Gary Scott Perlman, Joseph L. Cainkar, Michael G. Cainkar, Louis F. Cainkar, Ltd., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Mercury Vapor Processing Technologies, Inc., d/b/a River Shannon Recycling Technologies ("River Shannon") brought this action under 42 U.S.C. § 1983 against the Village of Riverdale, Illinois, ("Riverdale") and various Riverdale officials and employees ("Riverdale Defendants"), alleging that they unlawfully conspired to deprive River Shannon of its property and drive the company out of business. (R. 43, Am.Compl.¶¶ 1-28.) Riverdale has filed a Counterclaim against River Shannon for allegedly operating an illegal solid waste storage and disposal facility. (R. 48, Am. Counterclaim ¶ 1.) Presently before the Court is River Shannon's motion to disqualify one of Riverdale's attorneys, Michael Blazer ("Blazer"), because he may be a witness at trial. (R. 37, Mot. to Disqualify.) For the following reasons, the motion is denied without prejudice.

RELEVANT FACTS

River Shannon is an Illinois corporation which "recycles non-regulated e-waste and universal waste, including such materials as florescent light tubes and mercury vapor bulbs by use of mobile processing equipment." (R. 43, Am.Compl.¶ 4.) Since 2005, River Shannon has leased a property located at 13605 South Halsted Street in Riverdale, Illinois, where it "stores its materials, equipment, and vehicles." (Id. ¶ 10.) The property is located in a heavily industrial area near a rail yard, and most of the surrounding property is abandoned or unoccupied. (Id. ¶ 11.) Riverdale has slated this area for redevelopment as part of its Pacesetter Neighborhood Project and has obtained title to surrounding properties, including property immediately adjacent to River Shannon's facility. (Id. ¶ 14.) River Shannon alleges that the Riverdale Defendants "harbor an animosity" toward River Shannon and its management, in part due to River Shannon's presence in the South Halsted location, which is "impinging on the ability of Riverdale to redevelop the area." (Id. ¶ 15.)

Since moving to the property in 2005, River Shannon has been attempting to obtain a business license to operate a recycling plant, but has been unable to do so. (Id. ¶¶ 17-36.) The complaint is lengthy and detailed, but in essence River Shannon alleges that the Riverdale Defendants engaged in a "campaign of harassment" against River Shannon which included: "formulating and acting on Riverdale's official policy to selectively fail to issue River Shannon a business license; treating River Shannon differently than similarly situated businesses seeking a business license; conducting or participating in unlawful warrantless searches and seizures and the Business Premises; blockading and forbidding entrance to the Business Premises; interfering with River Shannon's right to have its employees present on its Business Premises resulting in substantial vandalism, burglaries and break-ins at its Business Premises; and refusing to provide police and fire responses to River Shannon's calls regarding vandalism, auto theft, and other illegal acts complained of herein." (Id. ¶ 9.)

The Amended Complaint provides significant detail regarding each of these allegations, but the Court repeats here only those allegations that pertain to Blazer. River Shannon alleges that sometime in June 2007, its Chief Operating Officer, Laurence C. Kelly ("Kelly"), attempted to speak with Riverdale's Village Clerk, Joyce Forbes ("Forbes"), about its pending business license application. (R. 43, Am.Compl.¶ 36.) Forbes allegedly refused to speak with Kelly, and instead "advised Kelly to contact Michael Blazer, the Village's special environmental counsel." (Id.) Kelly met with Blazer on or about July 11, 2007. (Id. ¶ 37.) At that meeting, Blazer allegedly "promised to assist River Shannon in obtaining its 2007 business license." (Id. ¶ 38.) In a subsequent phone conversation, Blazer requested certain documentation from Kelly, including a list of River Shannon's current customers, purportedly to help River Shannon obtain its business license. (Id. ¶¶ 40-41.) Kelly supplied this information. (Id. ¶ 41.)

On September 6, 2007, Kelly met with Blazer again. (Id. ¶ 47.) According to the Complaint, this time Blazer was not so congenial. (See id. ¶¶ 48-50.) Blazer allegedly told Kelly (falsely, according to the complaint) that River Shannon was under investigation by state and federal agencies for environmental regulatory violations. (Id. ¶ 48.) At the meeting, Blazer also allegedly handed Kelly a cease-and-desist order, signed by Blazer, which ordered River Shannon to cease its operations at the Riverdale facility. (Id. ¶ 49, Ex. D.) The same day as the meeting with Blazer, a cease-and-desist order was also posted to the front gate at River Shannon's property. (Id. ¶ 51.)

Shortly after this meeting, on September 11, 2007, the Riverdale Defendants allegedly conducted their first of five "raids" on River Shannon's property, in which they allegedly searched the property and took photographs without a valid search warrant. (Id. ¶ 64.) On October 4, 2007, a secopd "raid" allegedly occurred, during which one of the Riverdale Defendants gave a River Shannon employee the same cease-and-desist order that Blazer previously gave to Kelly. (Id. ¶ 67.) On October 10, 2007, River Shannon received a letter from Blazer denying River Shannon's 2007 business license application and returning its application fee. (Id. ¶ 71 & Ex. E.) On October 18, 2007, River Shannon was preparing to move its equipment and materials from the South Halsted location, when Roy McKinney ("McKinney"), Riverdale's Director of Building and Zoning, and other Riverdale Defendants showed up. (Id. ¶ 72.) McKinney allegedly told Kelly that River Shannon would not be permitted to leave the property unless Kelly agreed to call Blazer before 3:30 p.m. that day to advise him where River Shannon was moving "and to address additional issues Blazer had." (Id. ¶ 73.) Kelly did not call Blazer. (Id. ¶ 75.) The following day, October 19, 2007, the Riverdale Defendants allegedly conducted another unauthorized "raid" on River Shannon's property, in which they "seized samples and equipment, searched and photographed the Business Premises, as well as file drawers, desk drawers and equipment storage areas without judicial process or lawful authority." (Id. ¶ 74.)

Within days thereafter, Riverdale issued three separate Notices of Intent to Sue ("Notices") River Shannon for alleged violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972 et seq. (R. 48-7, Am.Counterclaim, Ex. F, Notices.) The Notices were signed by Lance E. Franke, an attorney from Blazer's law firm, Jeep & Blazer. (Id.) Copies of the Notices were sent to each of River Shannon's customers; according to River Shannon, Blazer had obtained the information about River Shannon's customers under the false pretense of helping River Shannon obtain its business license. (See R. 43, Am. Compl. ¶ 40-41, 87-91.)

PROCEDURAL HISTORY

On October 26, 2007, River Shannon filed this suit alleging violation of its civil rights. (R. 1, Compl.) River Shannon has since filed an Amended Complaint adding claims stemming from alleged wrongful acts committed by the Riverdale Defendants following the filing of the original complaint. (R. 43, Am.Compl.¶¶ 110-121.) Riverdale denies the allegations in the Amended Complaint, and has also filed an Amended Counterclaim¹ accusing River Shannon, along with numerous entities alleged to be conducting business with River Shannon, of operating an unauthorized solid waste treatment, storage, and disposal facility at the South Halsted location. (R. 52, Answer to Am. Compl.; R. 48, Am. Counterclaim ¶¶ 1-16.)

It is apparent from the Amended Counterclaim that Blazer and others were present at River Shannon's property on October 19, 2007, although Riverdale's account is that it was conducting an environmental "inspection" of the property, and not a "raid" as River Shannon suggests. (See R. 43, Am. Compl. ¶ 74; R. 48-6, Am. Counterclaim, Ex. E, Inspection Report.) According to Riverdale, River Shannon has been improperly receiving and storing large quantities of solid waste containing mercury, acid, and other hazardous substances which pose a threat to the health and safety of Riverdale residents. (R. 48, Am. Counterclaim ¶¶ 19-28.) The Amended Counterclaim raises claims under RCRA, various Riverdale ordinances, and the Illinois common law public nuisance doctrine. (Id., Counts I-XIII.)

Riverdale's Amended Counterclaim was prepared and filed by Blazer's law firm, Jeep & Blazer, although it was signed by another attorney in the firm. (Id. at 26.) Blazer has designated himself as lead counsel with respect to the Amended Counterclaim, as well as the attorney who will act as trial counsel if the claims raised in the Amended Counterclaim proceed to trial. (R. 14, Blazer Appearance.) Two other attorneys from Jeep & Blazer have also filed appearances in the case. (R. 15, Franke Appearance; R. 16, Yu Appearance.)

Presently before the Court is River Shannon's motion to disqualify Blazer from serving as counsel in the case. (R. 37, Mot. to Disqualify.) River Shannon argues that Blazer should be disqualified as counsel pursuant to the "advocate-witness" rule because he was not only a fact witness...