Mirbeau discovery on hold
Judge orders stay until motion heard
August 18, 2010 | 07:51 AM
The discovery process of the $29 million lawsuit involving Mirbeau of Geneva Lake and the city of Lake Geneva is on hold.
U.S. Eastern District Federal Court Judge J.P. Stadtmueller ordered last week that until the motions to dismiss as requested by the most recent defendants added to the suit are heard, the gathering of evidence and witness interviews will have to wait.
Two weeks ago, Lake Geneva Mayor Jim Connors, Linn Township resident Richard Malmin, and Lower Density Development and its manager Tom Muenster asked the court to dismiss Mirbeau's complaints against them. The same defendants, after receiving notices to appear for depositions for the case, requested to stay discovery.
According to Stadtmueller's order, "any discovery conducted prior to the issuance of the order resolving the motions to dismiss the case with respect to the new defendants could potentially constitute needless expense and a waste of attorney time and energy."
The order also states that "a deposition must not be used against a party, who having received less than 14 days notice of the deposition."
In Mirbeau's opposition to the stay of discovery, the document states, "the 'new' defendants argue that they 'cannot participate meaningfully' in this litigation at this time. They argue that plaintiff 'chose to wait over two years after it commenced this action to add these new defendants,' and that any inconvenience suffered by plaintiff 'is plainly its own fault.' These statements are not accurate."
The opposition document states that the "plaintiff has been trying to take the depositions of Malmin and Connors for some time. Malmin was scheduled to appear at deposition" on Feb. 19, 2010. According to the document, "He never showed up."
The opposition also states that imposing a stay of discovery "would be unfair to the plaintiff." The document states that Mirbeau's attempt to obtain discovery "has become a well documented saga." The document states that after months of trying to obtain e-mails and other electronically stored information, the plaintiffs were told the defendants produced everything they could find. However, a public records request to town of Linn officials revealed "dozens of e-mails either sent or received by individual city defendants, by Connors, by Malmin, and by Muenster, that had never before been produced."
"Ordering a stay of discovery now will only reward the 'new' defendants and the city defendants for their dilatory discovery tactics, while further delaying plaintiff's 'day in court.'"
Stadtmueller's order stated that "the court well appreciates the plaintiff's concerns that granting a stay will further delay plaintiff's day in court, however the costs of undertaking potentially unnecessary discovery simply outweighs the plaintiff's concerns.
"Once the court receives the appropriate briefs from both sides with regard to the motions to dismiss, the court will issue an appropriate order and the case will move toward a swift resolution."
Two weeks ago, Connors, Malmin, LDD and Muenster in three separate motions filed in U.S. District Court, the defendants stated the Mirbeau complaints against them should be dismissed. They cited the statute of limitations has expired, that there is no basis or fact that infers conspiracy or interference, and there are improper procedures and law citations included within the complaint.
In Mirbeau's amended complaint filed in early July, the focus turned to current Alderwoman Mary Jo Fesenmaier, former alderwoman and Friends of Geneva Lake leader Penny Roehrer, Connors, Malmin, Lower Density Development, and Muenster, brother-in-law of lakefront owner and billionaire J.B. Pritzker. That claim is for "tortious interference with a contract."
Mirbeau is suing the city after the failure of their combined development with Geneva Ridge Joint Venture on the 718 acres on the city's south side. The plan included an inn, winery and homes.
Mirbeau, which had a contract in 2008 with Geneva Ridge to purchase 54.5 acres of the property for its development, states that Fesenmaier, Roehrer, Connors, Malmin, Muenster and LDD "intentionally interfered with the Mirbeau purchase contract." The complaint states this effort included trying to drive down the value of the property so LDD could "acquire title at less than market price."
Connors' response motion for dismissal states that Mirbeau's recent decision to join him as a defendant "is nothing more than a strategic move to put pressure on Connors and the city." It also states that Mirbeau "does not allege a single conversation, meeting, correspondence or other form of contact between Connors and the city defendants that could support an inference of conspiracy."
According to Mirbeau's amended complaint, following LDD's offer to purchase the 718 acres for $10 million, a "flurry of behind-the-scenes activity, spearheaded by Roehrer, Muenster, LDD, Fesenmaier, Malmin and Connors.
"These defendants developed, organized, planned and led a multi-front attack on Mirbeau, all designed to delay, disrupt, and interfere with Mirbeau's purchase contract," the amended complaint states.
Geneva Ridge and Mirbeau teamed together in an effort to develop 718 acres of land near Big Foot Beach State Park. After the effort with Mirbeau failed, Geneva Ridge, better known as Hummel, went on their own in an effort to develop the property. That also failed.
In general, both Mirbeau and Hummel are alleging among other things, "unlawful conduct by certain city officials who control the local government." It involves a "systematic and ongoing pattern of intentional unequal treatment ... without any rational basis. These city officials individually and collectively have abandoned and ignored legal obligations of their elected offices, as well as the rules, regulations and procedures of their own municipal zoning ordinances."