Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SCHIESSLE v. STEPHENS

October 30, 1981

ELEANOR SCHIESSLE, INDIVIDUALLY AND AS TRUSTEE UNDER TRUST NUMBER 101, PLAINTIFF,
v.
DONALD E. STEPHENS; HUBERT LANGER; STEPHAN GILES; LESLIE SCOTT; CHESTER KOLASKI; LORRAINE CLEMENSON; STEVE MINALE; THE VILLAGE OF ROSEMONT, AN ILLINOIS MUNICIPAL CORPORATION; O'HARE EXECUTIVE TOWERS, LTD., AN ILLINOIS LIMITED PARTNERSHIP; GEORGE SOTERAS; LAWRENCE G. MALANFANT; MORANDO BERRETTINI; O'HARE EXECUTIVE TOWERS, INC., AN ILLINOIS CORPORATION; ARTHUR SWANSON, PAUL SWANSON, AND CARL SWANSON, INDIVIDUALLY AND D/B/A ARTHUR SWANSON & ASSOCIATES, AND EDWARD R. KENEFICK, DEFENDANTS.



The opinion of the court was delivered by: Flaum, District Judge:

MEMORANDUM OPINION

This matter comes before the court on the defendants' renewed motion to abstain and dismiss*fn1 or, alternatively, to stay this proceeding upon the basis of abstention and immunity. For the reasons set forth below, the motion to abstain and dismiss is granted in part and denied in part.

The plaintiff Eleanor Schiessle ("Schiessle") filed suit in this court on August 1, 1979*fn2 against the defendants Donald Stephens ("Stephens"), president of the board of trustees of the Village of Rosemont, Illinois; the Village of Rosemont Illinois ("the village"); the individual members of the village's board of trustees; O'Hare Executive Towers, Ltd. ("O'Hare Ltd."); O'Hare Executive Towers, Inc. ("O'Hare Inc."); George Soteras, Lawrence Malanfant, and Morando Berrettini ("the developers"); Arthur Swanson, Paul Swanson, and Carl Swanson, individually and doing business as Arthur Swanson and Associates ("the Swansons"); and Edward Kenefick ("Kenefick"), a real estate developer (hereinafter sometimes collectively referred to as "the defendants").

The well-pleaded facts alleged in the complaint must be taken as true for the purpose of a motion to dismiss. Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1332 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). Accordingly, the facts alleged in the complaint are as follows. Schiessle owns approximately seventeen acres of land ("the property") in the village. Schiessle is in the business of owning, marketing, and developing real estate in Cook County, Illinois. The village and the village board are in charge of implementing the Rosemont Redevelopment Plan ("the redevelopment plan"). The defendants O'Hare Ltd., O'Hare Inc., and the developers are involved in the development of real estate in the vicinity of and abutting Schiessle's property. Schiessle's property is currently zoned for commercial use under the village's zoning ordinance and is used for several businesses. Schiessle's property is within the boundaries of the redevelopment plan as adopted by the village board on July 5, 1979. On July 18, 1979, the village board passed an ordinance authorizing the institution of proceedings for the condemnation of Schiessle's property. No suit for condemnation of Schiessle's property, however, had been filed at the time that the complaint in this case was filed. Schiessle contends that an agreement exists among the defendants to acquire Schiessle's property by condemnation or threat of condemnation and then convey the property to O'Hare Ltd., O'Hare Inc., the developers, the Swansons, and Kenefick for private development. Schiessle further contends that she granted an option to Lakewoods Realty and Mortgage Corporation to purchase her property and that Schiessle has been prevented from consummating this transaction by the defendants' actions.

In counts I and II of the complaint, Schiessle alleges that the defendants' actions are in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1, 2 (1978), and section 16 of the Clayton Act, 15 U.S.C. § 26 (1978). Schiessle requests money damages, attorneys' fees, and an injunction enjoining the defendants from continuing the allegedly unlawful conduct. In counts III through VIII of the amended complaint, Schiessle alleges that Stephens, the village, and the individual members of the village board of trustees have deprived Schiessle of her constitutional rights in violation of 42 U.S.C. § 1983 (1978). Schiessle asks for money damages, attorneys' fees, and an injunction enjoining the village and the village board from implementing the plan or condemning Schiessle's property. In count IX of the amended complaint, Schiessle challenges the constitutionality of the Illinois Real Property Tax Increment Allocation Redevelopment Act, Ill.Rev.Stat. ch. 24, § 11-74.4-1 et seq. (1977) ("the Illinois act"). The village's redevelopment plan was promulgated pursuant to the Illinois act. Schiessle asks for a declaratory judgment pursuant to 28 U.S.C. § 2201 (1978) that the Illinois act is unconstitutional and an injunction enjoining the defendants from enforcing the Illinois act. In count X of the amended complaint, Schiessle alleges a cause of action based upon common law conspiracy against the defendants. Schiessle asks for money damages and an injunction enjoining the defendants from further allegedly unlawful conduct. In count XI of the amended complaint, Schiessle alleges a cause of action against the defendants based upon tortious interference with business relations. Schiessle asks for money damages and an injunction enjoining the defendants from further allegedly unlawful conduct.

On October 22, 1979, the village filed suit against Schiessle in the Circuit Court of Cook County, Illinois to acquire her property pursuant to eminent domain. On March 16, 1981, Schiessle filed a motion to dismiss and traverse the suit in state court. In her motion to dismiss the complaint in state court, Schiessle contends that the village's redevelopment plan is illegal, that the Illinois act is unconstitutional, and that the village's actions have prevented Schiessle from developing her property.

The defendants filed a renewed motion to dismiss and abstain in this case on March 30, 1981. In support of their motion, the defendants contend that this court should abstain from further proceedings with regard to counts III through XI of the amended complaint based upon the abstention doctrine as enunciated in Younger v. Harris, 401 U.S. 37, 54, 91 S.Ct. 746, 755, 27 L.Ed.2d 669 (1971). The defendants further contend that counts I and II of the amended complaint must be dismissed in that municipalities are immune from any liability under the federal antitrust laws. The defendants also contend that the individual board members are entitled to legislative immunity from liability under the federal civil rights laws. Alternatively, assuming that the defendants are not immune under the antitrust laws, the defendants contend that this court should abstain as to counts I and II of the amended complaint based upon the abstention doctrine set forth by the United States Supreme Court in Railroad Commission v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941). In response to the defendants' renewed motion to dismiss and abstain, Schiessle contends that the defendants' renewed motion is procedurally improper pursuant to Federal Rule of Civil Procedure 12(g). Schiessle further contends that abstention would be inappropriate in this case. The court will address these various contentions seriatim.

The first inquiry is whether the defendants' renewed motion to dismiss and abstain is properly before the court. Federal Rule of Civil Procedure 12(g) provides, in pertinent part:

  If a party makes a motion under this rule but omits
  therefrom any defense or objection then available to
  him which this rule permits to be raised by motion,
  he shall not thereafter make a motion based on the
  defense or objection so omitted, except a motion as
  provided in subdivision (h)(2) hereof on any of the
  grounds there stated.

Fed.R.Civ.P. 12(g). Therefore, a party who makes a motion under rule 12 is precluded from raising a similar objection omitted in the first motion unless the motion is based upon a ground set forth in Federal Rule of Civil Procedure 12(h)(2). Rule 12(h)(2) includes a motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(h)(2). Accordingly, the court concludes that the defendants' renewed motion to dismiss and abstain is properly before the court.

Regarding the defendants' motion to abstain,*fn3 when a plaintiff properly invokes one of the statutory grants of federal jurisdiction, a federal district court generally must assume and exercise jurisdiction over the plaintiff's claims. FSLIC v. Krueger, 435 F.2d 633, 637 (7th Cir. 1970). The "judge-made" doctrine of abstention, however, allows a federal court, in certain limited circumstances, to decline this properly-invoked federal court jurisdiction because the rights asserted before the court may be more appropriately adjudicated in some other forum. See C. Wright & A. Miller 17 Federal Practice and Procedure: Civil § 4241 (1978). The question of when the doctrine of abstention should be invoked by the court is a matter of discretion which must be approached on a case-by-case basis. Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50 (1965); Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964).

Three abstention doctrines have been developed by the United States Supreme Court. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-16, 96 S.Ct. 1236, 1244-46, 47 L.Ed.2d 483 (1976); City Investing Co. v. Simcox, 633 F.2d 56, 59-60 (7th Cir. 1980). The oldest and best-settled abstention approach is that set forth by the United States Supreme Court in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Under the Pullman abstention doctrine, a federal court should refrain from deciding a case in which state action is challenged in federal court as contrary to the federal constitution if there are unsettled questions of state law which may be dispositive of the case and which will avoid the need for deciding the constitutional question. Id. at 501, 61 S.Ct. at 645. See generally C. Wright & A. Miller, 17 Federal Practice and Procedure: Civil § 4242 (1978 & Supp. 1981). The second doctrine articulated by the United States Supreme Court is the Burford abstention doctrine set forth in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The Burford doctrine requires the district court to abstain and to relegate a federal question to the state courts because of the state courts' superior competence to adjudicate such matters or because the federal issues touch matters of traditional state concern, the resolution of which is of singular importance to the administration of state affairs. Id. at 332, 63 S.Ct. at 1106. See Bickham v. Lashof, 620 F.2d 1238, 1242 n. 6 (7th Cir. 1980); Wynn v. Carey, 582 F.2d 1375, 1382-83 (7th Cir. 1978). The third abstention doctrine is that set forth by the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Younger doctrine requires federal courts to abstain from restraining state criminal proceedings — absent bad faith, harassment, or a patently invalid state statute — out of respect for state functions. Id. at 54, 91 S.Ct. at 755. See City Investing Co. v. Simcox, 633 F.2d 56, 59 n. 9 (7th Cir. 1980). The Younger abstention doctrine has been expanded to include pending state civil proceedings where abstention is appropriate based upon the principles of equity, comity, and federalism. Huffman v. Pursue, Ltd., 420 U.S. 592, 607, 95 S.Ct. 1200, 1209, 43 L.Ed.2d 482 (1975). See Cousins v. Wigoda, 463 F.2d 603, 608 (7th Cir. 1972).

In Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir. 1975), the United States Court of Appeals for the Seventh Circuit was faced with an abstention question similar to that posed by the case presently before this court. In Ahrensfeld, the plaintiffs, property owners in the Village of Rosemont, Illinois, filed suit in federal district court against the defendants the Village of Rosemont and the individual members of the board of trustees of the Village of Rosemont. Id. at 195. The suit in federal district court sought injunctive, declaratory, and monetary relief from the defendants pursuant to 42 U.S.C. § 1983 (1978) for an allegedly unconstitutional Village of Rosemont resolution which authorized the village to acquire certain property by eminent domain for the construction of an athletic and convocation center. Id. The plaintiffs in Ahrensfeld also challenged the constitutionality of the Illinois Eminent Domain Act. Id. As in the case before this court, the village resolution in Ahrensfeld authorized the Village of Rosemont to file condemnation actions in state court to acquire the property by eminent domain. Pursuant to the resolution, the Village of Rosemont instituted condemnation proceedings in state court against the various property owners, including the plaintiffs. Id. While these state court proceedings were pending, the plaintiffs filed suit in federal district court seeking to stop the taking of their property. Id. The district court dismissed the action based upon the doctrine of abstention. See id. at 196.*fn4

The United States Court of Appeals for the Seventh Circuit in Ahrensfeld affirmed the dismissal by the district court by applying both the Younger and Pullman abstention doctrines. In so doing, the Seventh Circuit determined that Younger abstention is appropriate in a case involving a state's power of eminent domain. The court in Ahrensfeld noted that the United States Supreme Court previously had acknowledged the "sensitive nature" of a federal court's intervention in a state's eminent domain system. See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28-29, 79 S.Ct. 1070, 1072-73, 3 L.Ed.2d 1058 (1959). Thus, the Seventh Circuit concluded that state condemnation and eminent domain proceedings involve issues which should be determined by the state courts: "Not only is municipal eminent domain ordinarily a local matter, but it is difficult to imagine a situation where more confusion would arise than would be the case if the parties here were allowed to simultaneously pursue both this action and the state condemnation proceeding." 528 F.2d at 198, quoting Creel v. City of Atlanta, 399 F.2d 777, 779 (5th Cir. 1968). Moreover, the Seventh Circuit further concluded that the presence of a federal constitutional claim did not preclude the application of Younger abstention because the federal court must assume that a state court will determine the merits of any federal issue properly presented to the state court. 528 F.2d at 198. In addition, the Seventh Circuit noted that the Illinois eminent ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.