Last Thursday, another motion hour was held regarding the case of the Lincoln Trail Grain Growers Association versus county defendants, Nucor/Greenland Acquisitions and Consolidated Grain and Barge.
Earlier last week, counsel representing the LTGGA filed motions for a hearing date to be set on the temporary injunction motion that would stop CGB from closing and for expedited discovery.
Anthony Raluy, counsel for CGB, argued that, due to contractual obligations with Nucor, if an order had not been issued by Jan. 31, they would be contractually obligated to proceed with dismantling. He asserted that the plaintiff’s actions were too delayed.
“Our position, bluntly, is that everyone waited too long to do this,” Raluy told Division 1 Circuit Judge Bruce Butler. “...If the hearing took place between now and Jan. 31, or if you entered an order between now and Jan. 31, we would definitely comply. That’s not an issue. The problem is the plaintiffs literally waited until the very last minute, and now they’re complaining because obvious issues like standing, which were apparent to everybody in the outset, have slowed the train down just a hair, and now we’re all stuck in this situation.”
Michael Merrick, counsel for the LTGGA, asserted that Raluy’s argument on the timing issue was “really unfair.”
“This process was somewhat conducted in the dark late last year, and the plaintiffs felt very sandbagged on what happened,” said Merrick. “They were shocked to learn that the grain elevator may be closing. They did a lot of running around trying to figure out what’s happening. … The plaintiffs spent late last year trying to figure out how to resolve this mess, they hired a lawyer in December, and then we had a lawsuit filed Jan. 2. All things considered, they acted pretty darn quickly.”
Merrick also asserted that he wasn’t sure CGB would begin dismantling even if the restraining order wasn’t entered or was delayed.
“I don’t know that CGB is really going to remove the grain facility, we don’t know that,” said Merrick. “I mean, there would be a huge amount of risk in them doing that, frankly, considering that the ultimate relief we seek in this lawsuit is a ruling that the whole deal is void. So, I wouldn’t be surprised if they don’t remove the grain elevator in the next few weeks.”
Raluy then addressed what he called the “800-pound gorilla in the room.”
“The relief they’re seeking is an order to make a private business enterprise continue in operation,” said Raluy. “It is unheard of. You can enjoin someone from taking an act; you can restrain someone from taking an act. But, you can’t get an injunction forcing someone to stay open for business, and that’s what they want to do.”
Merrick said that their objective wasn’t to force CGB to stay in business, but was to instead preserve the status quo.
“We’re not asking CGB to keep entering futures contracts in the next few weeks," Merrick said. "We’re just asking please don’t destroy the grain elevator and the road, that’s all.”
Keith Bond, counsel representing the Meade County Defendants, continued to reiterate the issue of standing, asserting that that threshold issue had to be decided before anything could be done.
“I think the standing issue is very significant to the direction of this case, and until it’s decided, I don’t think we can do anything,” said Bond.
Douglas Ballantine, counsel representing Nucor and Greenland Acquisitions, called the motions “premature,” saying that any order for discovery, expedited or otherwise, should wait until there’s a decision on standing. He also revealed that Nucor intended to file a motion to dismiss.
“To be clear and frank with the court, in terms of standing, it is Nucor’s intention, either tomorrow or early next week, to file a motion to dismiss the entire action based on the question of law.”
Judge Butler ultimately said that he would not set a hearing date until the standing issue is resolved. He also denied the motion for expedited discovery in an effort to “keep the cart and the horse lined up.”