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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION SAVE-A-LIFE FOUNDATION, INC., No. 08 C 6022 Plaintiff,

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Defendants.

v.
PETER HEIMLICH, et al.,

Chicago, Illinois July 9, 2009 9:30 a.m.

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APPEARANCES: TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE MATTHEW F. KENNELLY

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For the Plaintiff:

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For the Defendants:

ANCEL, GLINK, DIAMOND, BUSH, DI CIANNI & KRAFTHEFER, P.C. by MR. THOMAS GEORGE DI CIANNI 140 South Dearborn Street - 6th Floor Chicago, Illinois 60603 STITT, KLEIN DADAY & ARETOS, by MR. WAYNE P. GIAMPIETRO 2550 W Gold Road - Suite 250 Rolling Meadows Illinois 60008

Valarie M . Ramsey, CSR, RMR P.O. Box 16 Hazel Crest, Illinois 60604 (708) 860-8482

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that. Honor.

THE CLERK: 08 C 6022, Save-A-Life versus Heimlich. THE COURT: Good morning. MR. GIAMPIETRO: Good morning, Your Honor. Wayne Giampietro on behalf of the defendants. MR. DI CIANNI: Good morning, Your Honor. Thomas DiCianni on behalf of the plaintiff. THE COURT: Okay. Mr. DiCianni, in your motion, I mean, I know you cited a rule, but I just wanted to clarify one aspect of it. Are you asking to voluntarily dismiss it without prejudice or with prejudice? MR. DI CIANNI: We are asking without prejudice, Your

THE COURT: How can I do that this far into the case when an answer has already been filed? MR. DI CIANNI: Well, you have the discretion to do

THE COURT: Why should I , though? You haven't really given me any reason. MR. DI CIANNI: This is the only reason why you should do it. In fact, Save-A-Life -- is has closed its doors. It's not continuing to operate, chiefly because of the actions of the defendants. The only reason we would want it without prejudice is they have been threatening a lawsuit against Save-A-Life for some nonsensical claim of defamation. If that were to happen and Save-A-Life were to have to

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litigate anyway, and I understand there is a window under Illinois law in which a -THE COURT: What is it, a year? MR. DI CIANNI: I think one year, in which a dissolved corporation can still be sued. THE COURT: And so the corporation has been dissolved. MR. DI CIANNI: Well, it will be. THE COURT: It's about to be. MR. DI CIANNI: It's about to be. The only reason we would want it without prejudice is if Save-A-Life is going to have to litigate anyway, then it may decide that it will go forward with the claims that it made in this case. Aside from that, it has no intentions, and actually the majority -- the main reason for the lawsuit has been mooted with the dissolution of the foundation. THE COURT: Mr. Giampietro. MR. GIAMPIETRO: First of all, Your Honor, if we want to talk about frivolous litigation, it's this lawsuit. THE COURT: Okay. I'm going to cut you off right there, and I'm going to say this to both of you, Mr. DiCianni and Mr. Giampietro. It's time for you to stop channelling your clients. And I know one of the clients is here. I was describing this case to one of my summer interns this morning, and I was describing the settlement

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conference that we had, and the settlement conference basically amounted to each side claiming that they were the representative of truth and justice and the other side was the representative of darkness and evil. That's okay for the clients to do that, as ill-advised as it was, as I told both of them sitting here, but it's -- that's not your job. So both of you cut it out. It's just not your job. It's unseemly. It's unbecoming of professional attorneys. And I don't want to hear it. So give me good reasons, Mr. Giampietro. What Mr. DiCianni was saying to me about frivolous this and balderdash that or whatever it was went in this one and out that one, okay, so we're done with that now. Give me the real reasons. MR. GIAMPIETRO: Well, the reason that I think, first of all, this case should be dismissed with prejudice, Your Honor, is that the plaintiff has virtually ignored every order that's ever been entered in this case. They have not answered one whit of discovery. When this case was in the state court, the state court judge ordered them to answer interrogatories and a request to produce by last October. We still don't have any response. They served a disclosure statement of alleged people who had knowledge of the facts in this case that supposedly will support their claim. I contacted every one of them, and 90 percent of them said they had no idea what the

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plaintiff in this case was talking about. My second point was going to be I think there ought to be some costs paid to the defendants associated with the dismissal of this case. They have spent a large amount of money defending a case that, as far as I can tell, has no basi s.
THE COURT: What's a large amount? MR. GIAMPIETRO: $] Mr. DiCianni.

THE COURT: A l l r i g h t .

MR. DI CIANNI: Yeah, w e l l , i n response, I don't know what the discovery issue has t o do with what we're t a l k i n g about here today. He hasn't moved f o r involuntary dismissal But we've been

or a dismissal f o r want of prosecution. through t h i s . They removed the case -Right.

THE COURT:

MR. DI CIANNI:

-- i n the middle of the discovery

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schedule. THE COURT: Oh, I recall that. This has been discussed before. MR. DI CIANNI: Yes. And when we talked about discovery here, the first thing we told you after the settlement conference was we were going to consider our options. THE COURT: Right. And I after -- when we had our phone conference on the 1st of May, I'm looking at my notes

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here, I directed that written discovery be answered by the 30th of June and prior to that date, and on the 30th of June we had another telephone conference, and Mr. DiCianni's colleague, M s . Emery, told me that this motion was going to get filed within a matter of days. MR. DI CIANNI: Right. And the other point to be made, Your Honor, is that at the settlement conference you recall we had asked for very -- a very moderate, a very reasonable -THE COURT: I'm going to tell you, I'm going to read to you the two-sentence note I wrote after the settlement conference. It's going to echo something I said before. "Settlement conference held. No settlement. Each side seems to believe that the other side is part of the forces of darkness trying to silence him or her. I can't imagine them settling anytime soon." Basically each side wanted the other side to knuckle under, I thought, and each side thought it was a moral outrage that they were being asked to do that. MR. DI CIANNI: Well, but Mr. Giampietro -- their response to our settlement request, our settlement demand, was we should dismiss the lawsuit. THE COURT: No, I understand that. MR. DI CIANNI: We're dismissing the lawsuit, so where's the objection?

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THE COURT: Let me ask you this, and I will -- the reason I bring this up is not just because Mr. DiCianni said it, but because the gentleman who -- it was Mr. Baratz who was here, I think made it pretty clear to me that he was smelling blood in the water or was going to try to put some blood in the water and was going to file, you know, malicious prosecution, abuse of process, you know, this, that and the next thing. Is that going to happen? MR. GIAMPIETRO: Not as far as I know, Judge, and I certainly would not be a party to it. THE COURT: Well, what if I were to say that -- and I don't know that I have the authority to do this, but, I mean, the point that Mr. DiCianni makes about why he wants it to be without prejudice, I don't necessarily agree with it, but it's a straight faced argument, hey, wait a second, Judge, if what happens here is that because of this lawsuit they sue u s , we need to -- you know, we're not dropping this lawsuit because we don't think it has merit, we're dropping the lawsuit because we just don't have the coin, let's say, to pursue it. And I don't know whether that's true or not. That's what he's telling me. Do I have the authority to say that it's one of two things, that it's dismissed with prejudice on the condition -- it's dismissed with prejudice, but there's a condition that the defendants can't sue, you know, for malicious prosecution or abuse of process or whatever the

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causes of action would be on the one hand or, on the other hand, that I dismiss it without prejudice but I say that it's going to convert to with prejudice after some period of time passes so that we know whether something happens? You don't have to answer that on the fly. If you want to think about it or talk to your clients, I'd be happy to set this over for a week or two. MR. GIAMPIETRO: I think procedurally, Your Honor, the latter option is probably more, quote, appropriate, unquote. I'm not sure that you do have the authority to do your first option. THE COURT: As I was saying the first one, it struck me that I probably don't actually. MR. GIAMPIETRO: And I certainly would have no objection to your entering an order that says that, you know, today it's without prejudice, after X number of days or whatever it would be with prejudice. That would be fine with me. THE COURT: What do you think about that? MR. DI CIANNI: I think that's fine. I think you -THE COURT: Is it a year? Is that the right period? Is that what I should say? MR. DI CIANNI: It would be a year. I actually do think you have the authority. THE COURT: Yeah, but I don't want to raise an issue

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about that. Okay. The motion for voluntary dismissal is granted on the following conditions: The case is voluntarily dismissed without prejudice. The dismissal will automatically convert to a dismissal with prejudice as of July the 10th of 2010. MR. DI CIANNI: Very good. Thank you. THE COURT: Okay. Take care. MR. GIAMPIETRO: Thank you, Your Honor. THE COURT: So we can close the case. MR. GIAMPIETRO: Thank you.

C E R T I F I C A T E

I hereby certify that the foregoing is a true and correct transcript of the above-entitled matter.

/ s / Valarie M.Ramsey ___ Court Reporter

07-16-2009 __ Date