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January 17, 1995

JOHN GEILS, individually and as President of the Village of Bensenville, RICHARD WEBER, PEGGY WALBERG, RICHARD REIMER, JOSEPH KRASS, ROBERT STRANDT, and BARBARA WANZUNG, individually and as Trustees of the Village of Bensenville, Defendants.

The opinion of the court was delivered by: ELAINE E. BUCKLO

 Defendants, John Geils, Richard Weber, Peggy Walberg, Richard Reimer, Joseph Krass, Robert Strandt and Barbara Wanzung, have filed a motion to dismiss the complaint of plaintiffs, James Garry and Thomas Thompson, pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, to stay proceedings. For the reasons stated below, the defendants' motion to dismiss is granted.


 On July 14, 1994, James Garry ("Mr. Garry") and Thomas Thompson ("Mr. Thompson") filed a complaint under 42 U.S.C. § 1983. Jurisdiction is based on Section 1343(3). 28 U.S.C. § 1343(3). The complaint alleges the following facts, which are assumed to be true for purposes of this motion. Mr. Garry is a resident of the Village of Bensenville (the "Village") and is a beneficial owner of a land trust which holds title to property located in the Village and is described in Exhibit A to the complaint (the "Property"). Mr. Thompson is a shareholder and officer of Thompson Rental Station, Inc. ("Thompson Rental"). Thompson Rental leases a portion of the Property for storing and delivering rental goods, including machinery used in the construction trades.

 Defendant John Geils ("Mr. Geils") is president of the Village Board of Trustees. Defendants Richard Weber ("Mr. Weber"), Peggy Walberg ("Ms. Walberg"), Richard Reimer ("Mr. Reimer"), Joseph Krass ("Mr. Krass"), Robert Strandt ("Mr. Strandt") and Barbara Wanzung ("Ms. Wanzung") are trustees of the Village. All defendants are members of a political party called the Unity Party.

 The complaint further alleges that a Village Board of Trustees election took place on April 20, 1991. At that time, Mr. Krass was an incumbent trustee seeking reelection, and Ms. Walberg and Mr. Reimer were seeking election to the Board of Trustees. *fn1" Rather than supporting these defendants, who were Unity Party candidates, Mr. Garry and Mr. Thompson supported candidates of another political party known as the Bensenville Home Town Party. They wrote letters on behalf of their candidates, placed supporting placards on their properties in the Village and donated money to the Bensenville Home Town Party. In spite of Mr. Garry's and Mr. Thompson's efforts, the candidates whom they supported lost the election, and Mr. Krass, Ms. Walberg and Mr. Reimer won.

 In 1991, the Village and the Illinois Department of Transportation ("IDOT") were in the process of planning a flood control project known as the Bensenville Ditch. IDOT engineers presented the Village with a plan calling for an open drainage ditch to cross the southeast corner of the Property. As designed by IDOT, the ditch would have had little or no effect on the business of Thompson Rental or the value and utility of the Property. However, plaintiffs say the defendants changed the IDOT design by moving the portion of the ditch traversing the Property. The easements required for the relocated ditch cover nearly one-third of the frontage of the Property along the northern right-of-way of Irving Park Road. These easements will prevent Thompson Rental from utilizing 8958 square feet of its property and will interfere with Thompson Rental's ability to service its customers.

 The complaint claims that the defendants altered the IDOT design of the ditch to retaliate against Mr. Garry and Mr. Thompson for their support of Bensenville Home Town Party candidates in the April 20, 1991 election. The defendants' conduct allegedly violated Mr. Garry's and Mr. Thompson's rights under the First and Fourteenth Amendments to the United States Constitution.

 On November 17, 1992, the Village filed a complaint for condemnation in the Circuit Court of the Eighteenth Judicial Circuit (DuPage County) entitled Village of Bensenville v. James Garry, et al., No. 92 ED 68. In that lawsuit, the Village seeks to condemn the portion of the Property necessary for the ditch as relocated by defendants. Mr. Garry and Thompson Rental filed a cross-petition requesting damages. On May 9, 1994, the court granted the Village's motion for an order vesting title to the property it seeks to condemn.


 To survive a motion to dismiss, a complaint must allege sufficient facts to outline a cause of action. Davis v. Frapolly, 747 F. Supp. 451, 452 (N.D. Ill. 1989). The court must accept as true all facts alleged in the complaint and reasonable inferences based on those facts, Bane v. Ferguson, 890 F.2d 11 (7th Cir. 1989), but the court need not accept as true conclusory legal allegations. Coronet v. Seyfarth, 665 F. Supp. 661, 665 (N.D. Ill. 1987). A defendant's motion to dismiss may be granted only if it is indisputably clear that a plaintiff is not entitled to relief based on the allegations in the plaintiff's complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 The essence of Mr. Garry's and Mr. Thompson's federal claim is that the defendants are abusing the power to condemn. However, in the condemnation proceedings, the state court has already entered a final and appealable order finding that the defendants are properly exercising the eminent domain power. Consequently, for the reasons stated in the following analysis, Mr. Garry's and Mr. Thompson's complaint is barred by the doctrine of res judicata.2

 Res Judicata

 Whether a federal claim is barred by a previous state court judgment due to the doctrine of res judicata depends on whether the state court which entered the prior judgment "would give that judgment preclusive effect against the claims asserted in the federal action." Pirela v. Village of North Aurora, 935 F.2d 909, 911 (7th Cir. 1991) (citations omitted). Under Illinois law, for a prior order to constitute res judicata, there must be (1) an identity of parties or their privies in the two suits, (2) a final judgment on the merits in the prior suit and (3) an identity of causes of action in the two suits. Id. If an Illinois court would hold that its judgment precludes the federal claim, a federal ...

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