NORTH AMERICAN COLD STORAGE v. COUNTY OF COOK

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

MEMORANDUM OPINION

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 argument.

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.

II. Abstention

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 held that