Contract analysis

I. EXECUTIVE SUMMARY On August 10, 2023, the Honorable Helena R. Vasquez-Torres, sitting in the Circuit Court of Cook County, Illinois, County Department, Law Division, entered an order of dismissal for want of prosecution ("DWP"), without prejudice, pursuant to Cook County Circuit Court General Order 2.1, in the matter of Darren K. Maciejewski v. Nexford Industrial Holdings Inc., Case No. 2022-L-002847. The DWP foll

II. PROCEDURAL HISTORY LEADING TO DISMISSAL A. Case Background On March 15, 2022, Plaintiff Darren K. Maciejewski filed a three-count complaint in the Circuit Court of Cook County, Illinois, County Department, Law Division, against Nexford Industrial Holdings Inc. The complaint was prepared and filed by Gerald P. Hess of Hess & Loughlin, P.C., located at 3412 Harlem Avenue, Suite 205, Berwyn, Illinois 60402. Mr. Maci

III. LEGAL EFFECT OF THE DWP ORDER A. Without-Prejudice Dismissal Under General Order 2.1 The DWP entered by Judge Vasquez-Torres on August 10, 2023, was entered without prejudice. This is a critical distinction with significant practical consequences. A dismissal without prejudice does not constitute an adjudication on the merits and does not bar the Plaintiff from seeking relief in the future, whether by motion to

1. A meritorious claim. The movant must demonstrate that the underlying claims have sufficient merit to warrant the court's exercise of its discretion to restore the case to the active docket. This does not require a showing that the plaintiff will ultimately prevail, but rather that the claims are not frivolous and present genuine issues for adjudication. See Airborne Express, Inc. v. Dep't of Revenue, 249 Ill. App.

2. Due diligence or a reasonable excuse for the failure to prosecute. The movant must offer a satisfactory explanation for the inaction that led to the DWP. This is often the most heavily contested prong. Courts examine whether the failure was attributable to excusable neglect, circumstances beyond the movant's control, or counsel error, and weigh the degree and duration of the default. See People v. Davis, 2017 IL A

3. Absence of undue prejudice to the defendant. The movant must show that reinstating the case would not result in unfair prejudice to the opposing party beyond the prejudice inherent in any litigation. Factors considered include the length of the delay, whether witnesses have become unavailable, whether documents have been lost or destroyed, and whether the defendant has changed its position in reliance on the dismi

IV. STATUTE OF LIMITATIONS ANALYSIS FOR POTENTIAL RE-FILING If the DWP is not vacated and the one-year window under General Order 2.1 expires on August 10, 2024, Plaintiff's sole remaining avenue for pursuing his claims would be to file a new action. Because the DWP was entered without prejudice, a new filing would not be barred by the doctrines of res judicata or claim preclusion; the dismissal does not constitute a

Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), provides that no person shall discharge or discriminate against any employee because the employee has filed a complaint or exercised any right afforded by the Act. The statute prescribes a specific and extremely narrow enforcement mechanism: an employee who believes he has been subjected to retaliation must file a complaint with the Secretar

V. EXPOSURE AND INSURANCE ANALYSIS A. Current Exposure Assessment At the outset of this litigation, Calderwood & Harkness prepared an internal worst-case exposure analysis, dated April 2022, estimating total potential exposure at approximately $285,000. That estimate was comprised of the following components: • Back pay: approximately $78,400 (one year of Maciejewski's final annual salary, representing the period fro

VI. RECOMMENDED STRATEGY A. Monitoring Posture Through August 10, 2024 We recommend that Calderwood & Harkness adopt a monitoring posture through August 10, 2024 — the date on which the one-year window to vacate the DWP expires and the latest date on which the Illinois savings statute could support a re-filing of Count III. Specifically, we recommend:

1. Monthly docket checks. Calderwood & Harkness will conduct docket checks in Case No. 2022-L-002847 at least once per month through August 10, 2024, using the Cook County Clerk of the Circuit Court's online docket system, to confirm that no motion to vacate, motion to substitute counsel, or other filing has been made. Any filing will be immediately communicated to Bernard Crawford, Renata Vasquez, and the client's d

2. Monitoring for new filings. In addition to monitoring the existing docket, Calderwood & Harkness will conduct periodic searches of new case filings in Cook County (and, as a precaution, in the Northern District of Illinois) to identify any new action filed by or on behalf of Darren K. Maciejewski against Nexford Industrial Holdings Inc.

3. Quarterly status updates. Calderwood & Harkness will provide quarterly status updates to Nexford (through Tara Svendsen) and to Verdant Mutual Insurance Company (through Brianna Choi) confirming the continued dormant status of the matter. In the event that a motion to vacate is filed, Calderwood & Harkness should promptly oppose it on the following grounds: (i) Inexcusable failure to prosecute. Plaintiff's counsel

VII. CONCLUSION The dismissal for want of prosecution entered on August 10, 2023, without prejudice, substantially reduces the risk profile of the Maciejewski matter but does not eliminate it entirely. Two residual exposure periods remain:

1. The one-year vacatur window, extending through August 10, 2024, during which Plaintiff may move to vacate the DWP or, under the savings statute, re-file Count III (Illinois Whistleblower Act). We assess the likelihood of either action as low but not negligible.

2. The five-year statute of limitations on the retaliatory discharge claim (Count I), extending through approximately September 24, 2026, during which Plaintiff could file a new action asserting this common law tort. This represents the longest-duration residual risk. The OSHA retaliation claim (Count II) was likely deficient from its inception due to the failure to file a timely administrative complaint and the abse