Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 1 of 9 PageID #:1139

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JASON GONZALES, )
)
Plaintiff, )
)
vs. ) No. 16 cv 7915
)
MICHAEL J. MADIGAN, et al., )
)
Defendants. )

RESPONDENT LARRY DOMINICK’S

MOTION TO STRIKE DKT. NO. 139, QUASH SUBPOENA FOR DEPOSITION,
AND FOR ENTRY OF A PROTECTIVE ORDER

NOW COMES the Respondent, TOWN PRESIDENT LARRY DOMINICK, a non-

party subpoenaed for his deposition, and in support of his motion to strike, quash, and

for entry of a protective order argues:

The motion that was filed on June 14th, 2018 by Gonzales’ attorneys, the Law

Offices of Anthony J. Peraica, was not a motion for this Court. It was not a motion for

Cicero’s Town President Larry Dominick. It was a motion that was for the media. It is

also a baseless motion and a motion that does not comply with both the Local Rules and

the Court’s standing orders with respect to discovery.

I. Relevant Background

The Town of Cicero is the 11th largest municipality in Illinois. As of the 2010

Census, it has nearly 100,000 residents. With respect to any sitting mayor, particularly

of a larger municipality, there would be legitimate safety concerns in an unknown

individual trolling around, looking for the mayor and trying to find his personal

1
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 2 of 9 PageID #:1139

residence to “deliver a package.” Further, as was reported by the media, in recent

years an individual was arrested for plotting to put out a hit on the current Town

President. See https://www.nbcchicago.com/news/local/joann-walker-cicero-murder-

plot-larry-dominick-277417651.html. Mr. Peraica and his law firm are well aware who

the attorneys for the Town are and what law firm represents the Town. Shortly after

Mr. Peraica was arrested and convicted for riding around in a van wearing dark

clothing and damaging the campaign signs of Jeffrey Tobolski, a candidate that would

ultimately defeat him in the election for Cook County Commissioner in 2010, Mr.

Peraica’s law firm began suing the Town in a series of lawsuits on behalf of an

individual that was politically opposed to the Town President. 1 See People v. Peraica,

2014 IL App. (1st) 133080-U, Case No. 1-13-3080 (affirming conviction for criminal

damage to property); See, e.g., Jenkins, et al. v. Town of Cicero, Case No. 12 CH 17758

(Cook County); State of Illinois ex rel. Jenkins v. Town of Cicero, Case No. 12 L 11321

(also Cook County). One of those lawsuits ended at the motion to dismiss stage with a

dismissal with prejudice. The other one ended at the summary judgment stage and

with the Chief Judge of the Cook County Chancery Division, Moshe Jacobius, ordering

$2,000 in Rule 137 sanctions against Peraica.

Yet, despite all of this background, Peraica’s law firm decided not to try to call

the Town attorneys prior to attempting service on the Town President or even after

1
President Dominick endorsed now Commissioner Tobolski over Peraica in the election
for Commissioner and also criticized Peraica’s lack of response to flooding during the
election.
2
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 3 of 9 PageID #:1139

having difficulty serving the Town President. No, instead, they had a process server

working for their law firm lurking around the Town and, as essentially shockingly

admitted in the process server’s affidavit attached to Gonzales’ motion, stealing

packages off porches of residents in the Town. See Dkt. No. 139-1, Aff. of Rivera, ¶ 26-

27. Mr. Rivera was arrested by the Town police, is the subject of a pending criminal

investigation, and currently has criminal complaints pending against him for theft of

the package (which Rivera admits returning to the Town from his house in his affidavit)

and for false personation of a police officer. See Criminal Complaints attached as

Exhibits A and B. Then, after all this happens, Peraica decides to file a motion to have

U.S. Marshals serve a sitting mayor of a large municipality – without complying with the

Court’s standing orders on discovery motions or the local rules and attempting to

resolve differences prior to doing so.

II. Respondent’s attorneys’ attempts to resolve differences in compliance with Rule

37, LR 37.2 and the Court’s standing orders on discovery motions. 2

After reading the article in the Sun Times, the Town attorneys sent

correspondence to Gonzales’ attorney on June 18th requesting that Gonzales’ motion be

immediately withdrawn and asking what possible relevant information the Town

President could have in relation to this lawsuit. See Correspondence dtd. 06.18.18

attached as Exhibit C. Gonzales’ attorneys immediately responded back via email and

refused to withdraw the motion and essentially said it was none of the attorneys’

2
By this section, it is hereby certified that a reasonable attempt to resolve difference
with opposing counsel was made prior to Respondent’s filing of this motion pursuant
to Rule 26, 37, LR 37.2 and the Court’s standing orders.
3
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 4 of 9 PageID #:1139

business as to what they wanted to take the deposition of the Town President’s

deposition for because it was in relation to Larry Dominick “personally” – not in his

capacity as Town President. See Email dtd. 06.18.18 attached as Exhibit D. This makes

it further unclear as to what possible relevant information the Town President could

have in relation to this case. In response to Gonzales’ attorney’s email, on June 20th, an

attorney for the Town asked Gonzales’ attorney to participate in a phone conference to

attempt to resolve differences. On the afternoon of June 20th, Sean Sullivan, an attorney

for the Town, participated in a phone conference with Stephen Boulton and Jennifer

Hill of the Law Offices of Anthony Peraica. During the course of the conversation,

Gonzales’ attorney proceeded to largely focus on demanding that Mr. Rivera have his

PERC card returned and a witness fee returned. 3 When asked what the possible

relevance of the Town President’s deposition was, Gonzales’ attorneys were not really

able to come up with anything substantive and kept repeating that “Larry is King” and

“Everyone knows he runs that Town.” This does not shed much light on what

information they hope to obtain from him and seems to directly conflict with their

previous emailed statement to the Town Attorneys that it had nothing to do with

President Dominick being the Town President and had to do with him “personally.”

3
The PERC card is in a sealed evidence bag with the Town’s police along with other
inventoried evidence items related to Mr. Rivera’s pending charge for false personation
of a police officer. The Town’s attorneys did check with the Police Department in
relation to the check – none of the officers recall there being a check in Mr. Rivera’s
possession and the lock-up inventory sheet does not reflect that being in his possession.
4
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 5 of 9 PageID #:1139

III. Gonzales’ Motion (Dkt. No. 139) Should be Stricken and any Subpoena against
the Town President Quashed. Further, a Protective Order Should be Entered
Barring the Deposition.

With respect to Gonzales’ motion to have the U.S. Marshals serve the Town

President, that should be stricken. First, Peraica and his law firm did not engage in an

attempt to reasonably resolve differences prior to filing the motion – in violation of Rule

27, LR 37.2 and the Court’s standing orders on discovery motions. Second, the Federal

Rules of Civil Procedure do not specifically provide for the service of subpoenas on a

non-party for a private plaintiff by the U.S. Marshals. See Fed. R. Civ. P. 4.1(a), 45(b)(1).

Further, the subpoena for the deposition of the Town President should be

quashed pursuant to Rule 45 and a protective order to prohibit the deposition as

harassing should be granted pursuant to Rule 26. Non-party status “is a significant

factor to be considered in determining whether the burden imposed by a subpoena is

undue.” Parker v. Four Seasons Hotel, Ltd., 291 F.R.D. 181, 188 (N.D. Ill. 2013).

Although Rule 45 allows any party to subpoena a non-party to produce documents or

attend a deposition, that subpoena power remains subject to the general relevancy

requirements of Rule 26(b). See Fed. R. Civ. P. 26(b)(1); Wright, Miller & Cooper,

Federal Practice and Procedure § 2459. Because of the different expectations for non-

parties in accepting the burdens of litigation, “courts must give special weight to the

unwanted burdens thrust upon non-parties when balancing competing needs.” Id. In

doing so, courts consider various factors, including “the person’s status as a non-party,

the relevance of the discovery sought, the subpoenaing party’s need for the documents,

the breadth of the request, and the burden imposed on the subpoenaed party.” Id.

5
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 6 of 9 PageID #:1139

Even if the information would assist in the exploration of a material issue in the case, a

non-party is entitled to greater protection in the discovery process than parties in the

litigation. Ameritox Ltd. v. Millenium Labs, Inc., 2012 WL 6568226, at *3 (citing Thayer

v. Chiczewski, 257 F.R.D. 466, 469 (N.D. Ill. 2009)); see also Robinson v. Morgan Stanley,

2010 WL 1005736, *3 (internal citations omitted)(“It is one thing to subject parties to the

trials and tribulations of discovery – rightly regarded as ‘the bane of modern litigation’

but a non-party doesn’t have a horse in [the] race.”)

Additionally, Rule 45 (d)(1) allows for the imposition of sanctions, including

reasonable attorney fees, on the party issuing the subpoena when that party who failed

to take reasonable steps to ensure the subpoena would not result in an undue burden.

Fed. R. Civ. P. 45(d)(1); American Soc. Of Media Photographers, Inc. v. Google, Inc.,

2013 WL 1883204, *6 (N.D. Ill. 2013); Jallali v. Nova Southeastern University, 2012 WL

2368322, *2 (N.D. Ill. 2012); Mick Haig Productions, e.K. v. Does, 2011 WL 5104095, *4

(N.D. Tex. 2011). Even good faith in issuing a subpoena is not sufficient to avoid

sanctions under Rule 45(d)(1) if a party has issued the subpoena in violation of the duty

imposed by that Rule. Google, Inc., 2013 WL 1883204, *6; Builders Ass’n of Greater

Chicago v. City of Chicago, 2002 WL 1008455 (N.D. Ill. 2002); Liberty Mutual Ins. Co. v.

Diamante, 194 F.R.D. 20, 23 (D. Mass 2000).

Rule 26(c)(1) provides for the entry of a protective order in favor of a party or

person to prohibit the discovery so as to prevent “annoyance, embarrassment,

oppression, or undue burden or expense.” Rule 26(c)(3) further provides for the

awarding of expenses, including attorneys’ fees.

6
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 7 of 9 PageID #:1139

Speaker Madigan’s district does not encompass any part of the Town of Cicero.

See Illinois Representative District No. 22 Map attached as Exhibit E. There is no

reference to the Town of Cicero or the Town President in the 39-count complaint

originally filed or the amended complaints subsequently filed. Gonzales does not list

the Town President as a witness or individual with discoverable information in either

the Voluntary Disclosures or any other written discovery answers. The only tangential

element Gonzales’ attorney could come up with during the telephone conference on the

afternoon of June 20th was that Ruth Ortega, a resident of the City of Berwyn according

to Gonzales’ own disclosures, works for the Town. The Town has in excess of 700 full

and part-time employees. And if this has to do with the Town President “personally”

then what is the possible relevance that Ruth Ortega is an employee of the Town? An

attorney for the Town again requested that Gonzales’ attorney withdraw this motion

and that Gonzales’ attorney first take the deposition of Ruth Ortega. It was further

suggested that, subsequent to Ms. Ortega’s deposition, Gonzales’ attorney determine if

the Town President’s deposition was relevant and contact the Town attorneys regarding

the deposition – if they believed there was a factual basis for it. This was also refused.

Regardless of in what “capacity” Peraica seeks the deposition of Town President

Dominick, it is unreasonable for Peraica to believe that a sitting mayor, who Peraica has

a personal political grudge against related to Peraica’s own political defeats, would sit

down to be questioned at a deposition unlimited in scope and without an attorney

present to represent the Town President in a case filed against the Speaker of the Illinois

House and heavily covered by the media.

7
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 8 of 9 PageID #:1139

The relevant information that the Town President could have in this case is not

readily apparent and is, at absolute best, tangential. Further, the Court must consider

the manner in which Gonzales’ attorneys approached obtaining the deposition of the

Town President, the sensationalized motion filed by Gonzales’ attorney related to the

deposition, the history of a political grudge of Gonzales’ attorney with the Town

President, the lack of a clear objective basis to take the Town President’s deposition, and

the refusal of Gonzales’ attorneys to withdraw their motion or otherwise define and

limit the scope of the Town President’s deposition. All these factors are indicia that the

deposition of the Town President is not relevant, that Gonzales’ attorney should not be

given further opportunity to establish a relevant basis, that the subpoena’s primary

purpose is harassment, and, ultimately, that the subpoena should be quashed and

barred as unduly burdensome, and to prevent “annoyance” and “oppression.” See Fed.

R. Civ. P. 26(c) and 45(d)(3).

8
 Case: 1:16-cv-07915 Document #: 147 Filed: 06/21/18 Page 9 of 9 PageID #:1139

WHEREFORE, the Respondent, Cicero Town President Larry Dominick,

respectfully requests that:

(a) Gonzales’ Motion at Dkt. 139 be stricken;

(b) President Dominick’s subpoena for his deposition be quashed pursuant to

Fed. R. Civ. P. 45(d)(3);

(c) That a protective order barring the deposition of President Dominick be

entered pursuant to Fed. R. Civ. 26(c);

(d) That attorneys’ fees be awarded against Gonzales’ attorney and in favor of

Respondent Dominick pursuant to Fed. R. Civ. P. 45(d)(1) and 26(c)(3) for the

costs of bringing this motion; and;

(e) For such other and further relief as is equitable and just.

Respectfully submitted,
Respondent LARRY DOMINICK

By: /s/ Sean M. Sullivan

Sean M. Sullivan

K. Austin Zimmer
Sean M. Sullivan
Cynthia S. Grandfield
DEL GALDO LAW GROUP, LLC
1441 S. Harlem Avenue
Berwyn, Illinois 60402
(708) 222-7000 (t)
(708) 222-7001 (f)

9
Case: 1:16-cv-07915 Document #: 147-1 Filed: 06/21/18 Page 1 of 1 PageID #:1148
Case: 1:16-cv-07915 Document #: 147-2 Filed: 06/21/18 Page 1 of 1 PageID #:1149
 Case: 1:16-cv-07915 Document #: 147-3 Filed: 06/21/18 Page 1 of 2 PageID #:1150

_____________________________________________________________
1441 S. Harlem Avenue
Berwyn, Illinois 60402
Telephone (708) 222-7000 – Facsimile (708) 222-7001
www.dlglawgroup.com
________________________________________________________________________

VIA E-MAIL AND CERTIFIED MAIL

Mr. Stephen Boulton
Anthony J. Peraica & Assoc., Ltd.
5130 S. Archer Avenue
Chicago, Illinois 60632

Re: Gonzales v. Madigan, 16 CV 07915 – Subpoena to the Town of Cicero President

Dear Mr. Boulton:

I read the article recently published in the Chicago Sun Times about the motion you filed
in federal court on June 14th, 2018 requesting an order directing service of a subpoena to be
conducted by the U.S. Marshals on the Town President. I located the motion you filed off the
federal docket after reading the article. For several reasons, it is entirely unclear why this
improper motion was filed.

First, the Federal Rules of Civil Procedure do not specifically provide for service of a
subpoena by the U.S. Marshals. U.S. Marshals serve summons and process other than a
subpoena – subpoenas are specifically exempted. See Fed. R. Civ. P. 4.1(a), 45(b)(1).

Second, your office never contacted us to discuss the relevancy of the Town President’s
deposition or if we would be able to accept service of the subpoena on his behalf. Your office is
well aware that our firm serves as the attorneys for the Town of Cicero – as you have previously
filed lawsuits against the Town of Cicero. See, e.g., Jenkins, et al. v. Town of Cicero, Case No.
12 CH 17758 (Cook County); State of Illinois ex rel. Jenkins v. Town of Cicero, Case No. 12 L
11321 (also Cook County).

Third, it is entirely unclear as to what possible relevance the Town President’s testimony
could have to this lawsuit. We note that on the same day this motion was filed the Court granted
several motions to quash other third-party subpoenas you issued in this case.
 Case: 1:16-cv-07915 Document #: 147-3 Filed: 06/21/18 Page 2 of 2 PageID #:1150

We request that you carefully consider what legitimate basis you have to subpoena the
Town President and proceed with the improper motion that you filed. Because the Federal Rules
of Civil Procedure do not permit your Motion, we request that you withdraw it by June 20, 2018.
Further, since you failed to contact us prior to filing this motion or attempting to serve the
subpoena, you appear to lack any good faith basis to subpoena the Town President. Should you
decide to proceed with your subpoena, we do intend to file a motion to quash and for a protective
order with the Court in relation to the subpoena. In that motion, we believe that there is a strong
basis to seek our fees and expenses as sanctions pursuant to Fed. R. Civ. P. 26(c)(3), 37(a)(5),
and 45(d)(1).

Very truly yours,

s/Sean M. Sullivan
 Case: 1:16-cv-07915 Document #: 147-4 Filed: 06/21/18 Page 1 of 2 PageID #:1152

ANTHONY J. PERAICA & ASSOCIATES, LTD.

LAW OFFICE
5130 SOUTH ARCHER AVENUE
CHICAGO, ILLINOIS 60632
(773) 735-1700
FAX: (773) 585-3035

May 31, 2018

Via email
Sean M. Sullivan, Esq.
Del Galdo Law Group LLC
1441 South Harlem Ave
Berwyn IL 60402

Re: Gonzales v. Madigan, et al.

Case No. 2016 cv 7915

Dear Mr. Sullivan:

I am in receipt of your correspondence of this day. I will make but a few points in response.

First, Rule 45 states that “any person not a party” can serve a subpoena and, contrary to your
letter, nothing in Rule 45 (b)(1) excludes service by the U.S. Marshal. Nothing in Rule 4
precludes service of a subpoena. I direct you to the website of the Marshal’s Service which
states:

A subpoena may be served by any person who is not a party and is a least 18
years of age. Service by a U.S. Marshal is rare, occurring only when ordered by
the court or the U.S. Attorney.

https://www.usmarshal.gov/process/civil-subpoena.htm. On the site you will also find a full

schedule of process serving fees.

Second, the Subpoena is not directed to Mr. Dominick in his official role as Town President. He
is instead named as a private citizen, and neither his official role not the “Town of Cicero” are
even mentioned on the face of the subpoena. Mr. Gonzales has no duty under law to “consult”
with anyone at all before issuing and serving a subpoena, but more particularly there was no
requirement to consult the municipal counsel of the Town of Cicero. However, if you are
accepting service of a subpoena as counsel for Mr. Dominick, please inform me. Also, since you
are acting as counsel for the Town, we would like back the Subpoena and witness fee checks that
were seized by the Cicero Police Department and not returned during the recent mistreatment of
our process server. That is federal process that they are holding without cause.
 Case: 1:16-cv-07915 Document #: 147-4 Filed: 06/21/18 Page 2 of 2 PageID #:1152

PERAICA & ASSOCIATES

Sean M. Sullivan, Esq.
June 18, 2018
Page 2

Third, while I grant that it may not be clear to you at this date what relevance may attach, I note
that you have quite properly not been attending depositions in the case. But, since you are not
currently claiming to represent Mr. Dominick personally, you lack standing to raise the matter
and further discussion is unnecessary. Please rest assured that evidence of connections to this
case exist that we believe allow us further investigation.

Finally, Mr. Dominick was not asked for documents in the subpoena, a witness fee payment was
attached to the Subpoena, and it only called for him to appear for a single deposition. We fail to
see the “burdensome” aspect that is any different from any other third party deposition subpoena.

In sum, your demands and threats must be respectfully rejected.

Yours very truly,

/s/ Stephen F. Boulton

Case: 1:16-cv-07915 Document #: 147-5 Filed: 06/21/18 Page 1 of 3 PageID #:1154
Case: 1:16-cv-07915 Document #: 147-5 Filed: 06/21/18 Page 2 of 3 PageID #:1154
Case: 1:16-cv-07915 Document #: 147-5 Filed: 06/21/18 Page 3 of 3 PageID #:1154