The opinion of the court was delivered by: Grady, District Judge.
This is an action by taxpayers seeking compensatory and
punitive damages under 42 U.S.C. § 1983 for injuries
allegedly caused by various county and state taxing officials
and by the County of Cook in connection with the overassessment
of plaintiffs' real property. Before the court is the motion of
the County defendants to dismiss the amended complaint. The
motion is denied. Also before the court is plaintiffs' motion
to certify the action as a class action. That motion is denied
with respect to Counts I through III and granted with respect
to Count IV.
On September 1, 1978, plaintiffs filed a three-count
complaint in this case. Defendants submitted a motion to
dismiss all counts, and on April 10, 1979, that motion
was denied.*fn1 On December 10, 1980, plaintiffs amended the
complaint by adding a fourth count. The County defendants now
challenge by way of a Fed.R.Civ.P.Rule 12(b) motion not only
Count IV but also Counts I and II of the original complaint.
In their motion to dismiss, defendants argue that this court
lacks subject matter jurisdiction, that the complaint must be
dismissed pursuant to abstention principles recently announced
by the Supreme Court in Fair Assessment in Real Estate
Association, Inc. v. McNary, ___ U.S. ___, 102 S.Ct. 177,
70 L.Ed.2d 271 (1981), that the causes of action in Counts I,
II and IV are barred by collateral estoppel and that Count IV
fails to state a claim.
At the outset, plaintiffs respond that the County defendants,
having already filed one Rule 12(b) motion, may not attack
Counts I and II through another such motion. Fed.R.Civ.P. 12(g)
provides in relevant part that "[I]f 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. . . ."
Plaintiffs' argument is without merit. Fed.R.Civ.P. 12(h)(3)
permits a defendant to raise the issue that a court lacks
subject matter jurisdiction at any time during the proceedings.
City of Milwaukee v. Saxbe, 546 F.2d 693 (7th Cir.
1976). Thus, Rule 12(b) does not prevent consideration of this
Second, the Fair Assessment case, supra, had not
been decided at the time defendants made their first motion to
dismiss. This basis for the motion to dismiss was therefore not
"available" to defendants at that time.
Third, defendants argue that plaintiffs' claims are barred by
collateral estoppel. This is an affirmative defense that is not
waived if included in the answer. Fed.R.Civ.P. 12(b). Because
defendants have pleaded an affirmative defense based on a
former adjudication,*fn2 we will treat their motion on
collateral estoppel grounds as one for summary judgment.
Fed.R.Civ.P. 56(e). Rule 12(g) does not prohibit consideration
of affirmative defenses by summary adjudication.
I. Subject Matter Jurisdiction
Defendants argue that this court lacks subject matter
jurisdiction under 28 U.S.C. § 1343(3). We need not decide
whether we have jurisdiction under § 1343 since, as
plaintiffs point out, jurisdiction has been alleged under
28 U.S.C. § 1331. This statute confers jurisdiction upon the
court in the instant case. See Maine v. Thiboutot,
448 U.S. 1, 8 n. 6, 100 S.Ct. 2502, 2506 n. 6, 65 L.Ed.2d 555
(1980)(§ 1983 claim which cannot be brought under §
1343(3) may be brought under § 1331 if that statute's
$10,000.00 limit is satisfied). Since the $10,000.00
jurisdictional limit is no longer required under § 1331,
plaintiff's claims may be heard under this statute.
We now turn to defendants' contention that the Supreme
Court's decision in Fair Assessment in Real Estate
Associates, Inc. v. McNary, supra, requires this court to
abstain from the case. In Fair Assessment, the Court
[T]axpayers are barred by the principle of comity
from asserting § 1983 actions against the
validity of state tax systems in federal courts.
Such taxpayers must seek protection of their
federal rights by state remedies, provided of