United States District Court, N.D. Illinois, Eastern Division
May 11, 2005.
LOMNICKI FAMILY LLC, an Illinois limited liability company, Plaintiff,
CITY OF ELMHURST, a municipal corporation; REAL PROPERTIES 275 N. YORK, LLC and JEFF BUDGELL, jointly and individually; THOMAS BORCHERT and BRUCE DUBIEL, in their individual capacities as employees of the City of Elmhurst, Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, the Lomnicki Family LLC, filed suit in Illinois
state court against Defendants, the City of Elmhurst; Real
Properties 275 N. York, LLC ("Real Properties"); Jeff Budgell;
Thomas Borchert; and Bruce Dubiel. Plaintiff sought and obtained
a preliminary injunction against the City of Elmhurst and Real
Properties which was subsequently vacated by the state appellate
court. Plaintiff then alleged a number of claims under
42 U.S.C. § 1983, and Defendants removed the action to this Court.
Presently before the Court are the City of Elmhurst's and Real
Properties' verified petitions for damages for the entry of the
preliminary injunction under 735 ILCS 5/11-110.
Plaintiff owns the property at issue in Elmhurst, Illinois. The
City of Elmhurst and Plaintiff entered into a Memorandum of
Understanding; thereafter, the City took possession of the property for use as a municipal parking lot. After the City
of Elmhurst possessed the property for a number of years,
Plaintiff sought to remove the City from the premises. The City
of Elmhurst refused to surrender possession and, instead, allowed
Real Properties to begin developing the property.
Thereafter, Plaintiff filed an action in chancery in state
court for possession which raised the issue of the effect of the
Memorandum of Understanding. On January 6, 2004, Plaintiff
obtained possession through a preliminary injunction, which
contained an expiration date of May 30, 2004, against the City of
Elmhurst and Real Properties. Real Properties and the City of
Elmhurst timely appealed. Also, on May 13, 2004 and May 20, 2004,
Real Properties and the City of Elmhurst, respectively, filed
motions seeking leave to file petitions for damages pursuant to
735 ILCS 5/11-110 in the event the preliminary injunction order
On June 29, 2004, the appellate court vacated the judgment of
the trial court, holding that the trial court did not have
subject matter jurisdiction to issue the preliminary injunction
because Plaintiff was required to file a claim under the Forcible
Entry and Detainer Act, 735 ILCS 5/9-101. The Appellate Court
returned possession to the City of Elmhurst.
On August 26, 2004, the City of Elmhurst and Real Properties
filed their petitions for damages pursuant to 735 ILCS 5/11-110.
On September 20, 2004, while the Forcible Entry and Detainer
action was still pending, Plaintiff filed an amended complaint in
the state chancery action adding claims under 42 U.S.C. § 1983,
alleging that the City of Elmhurst acted under the color of law
in: (1) seizing and allowing Real Properties to develop the
property and (2) taking the property without providing Plaintiff
just compensation. Plaintiff also asserted a § 1983 claim against
Real Properties for conspiring with the City of Elmhurst to
deprive Plaintiff of its rights. The amended complaint was then removed to federal court on
October 12, 2004, and jurisdiction obtained over the state claims
pursuant to the supplemental jurisdiction statute,
28 U.S.C. § 1367. The City of Elmhurst and Real Properties subsequently filed
the instant motions.
The City of Elmhurst and Real Properties both seek to recover
damages for the entry of the preliminary injunction under
735 ILCS 5/11-110. That provision provides that:
In all cases where a temporary restraining order or a
preliminary injunction is dissolved by the circuit
court or the reviewing court, the circuit court,
after the dissolution of the temporary restraining
order or preliminary injunction and before disposing
of the action shall, upon the party claiming damages
by reason of such temporary restraining order or
preliminary injunction, filing a petition under oath
setting forth the nature and amount of damages
suffered, determine and enter judgment in favor of
the party who was injured by such temporary
restraining order or preliminary injunction for the
damages which the party suffered as a result thereof,
which judgment may be enforced as other judgments for
the payment of money.
Plaintiff argues that damages should not be granted because:
(1) 735 ILCS 5/11-110 is a procedural statute that, pursuant to
the Erie doctrine, is inapplicable in federal courts, Official
Aviation Guide Co. v. Am. Aviation Assocs., Inc., 162 F.2d 541
543 (7th Cir. 1947) (Official Aviation Guide Co.); Progressive
Steel Workers Union v. Int'l Harvester Corp., 70 F.R.D. 691
(N.D. Ill. 1946); (2) the Appellate Court's finding that the
trial court lacked subject matter jurisdiction did not determine
whether the preliminary injunction was wrongfully issued; (3)
before the expiration of the preliminary injunction, the City of
Elmhurst and Real Properties failed to preserve their rights to
recover damages by failing to file a motion to dissolve the
protective order in the trial court; and (4) the preliminary
injunction was not dissolved rather, the judgment of the trial
court was only vacated. Under 28 U.S.C. § 1441(c),
[w]hen ever a separate and independent claim or cause
of action with the jurisdiction conferred by section
1331 of this title is joined with one or more
nonremovable claims or causes of action, the entire
case may be removed and the district court may
determine all issues therein, or, in its discretion,
may remand all matters in which State law
Similarly, under 28 U.S.C. § 1367(c),
[t]he district courts may decline to exercise
supplemental jurisdiction over a claim under
subsection (a) if
(1) the claim raises a novel or complex issue of
(2) the claim substantially predominates over the
claim or claims over which the district court has
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
These statutes permit district courts to remand state-law claims,
Key Outdoor, Inc. v. City of Galesburg, 327 F.3d 549
, 550 (7th
Cir. 2003); and courts may raise this issue sua sponte, Schwartz
v. Sys. Software Assocs., Inc., 813 F. Supp. 1364, 1368 (N.D.
The resolution of this matter presents a complex issue of state
law, particularly as to the exact nature and effect of the
Appellate Court's ruling.
Illinois law clearly predominates the issues presented in the
damages petition, as Illinois law is the only applicable source
of law for resolution of these issues. The Illinois courts, which
have dealt with all the issues relating to the preliminary
injunction, are the more appropriate forum to interpret the scope
and effect of the ruling at issue which presents a novel or
complex issue of Illinois law. Moreover, this matter involves an issue of Illinois procedure,
e.g., Official Aviation Guide Co., 162 F.2d at 543, which the
Illinois courts are in a better position to resolve.
Furthermore, the issues presented in the petitions for damages
have no relation to the claims in the Amended Complaint which
conferred federal jurisdiction. Lastly, it appears that an action
in Forcible Entry and Detainer is still pending between the
parties regarding the subject property in the Illinois court.
Based on a consideration of the factors of 28 U.S.C. § 1367(c)
and the facts of this case, it would not be proper to exercise
supplemental jurisdiction over this claim in federal court.
For the foregoing reasons, the City of Elmhurst's and Real
Properties' verified petitions for damages are both denied
without prejudice. Pursuant to 28 U.S.C. §§ 1367(c) and 1441(c),
this claim is remanded to the Illinois courts.
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