United States District Court, N.D. Illinois, Western Division
Michael J. Strohl and Judy K. Strohl, Plaintiff,
Village of Fox River Grove, et al., Defendants.
PHILIP G. REINHARD, District Judge.
For the reasons stated below, the defendant Village of Fox River Grover's motion to dismiss  is granted. Count I is dismissed with prejudice. Count II is dismissed without prejudice. The case is closed. Plaintiffs are permitted to re-file their takings claim if they exhaust available state remedies.
On September 13, 2013, plaintiffs Michael J. Strohl and Judy K. Strohl ("plaintiffs") filed a two count complaint in the Circuit Court of McHenry County against the Village of Fox River Grove, Robert J. Nunamaker, Suzanne Blohm, Joanna Colletti, Steve Knar and Michael Schiestel. See [1-1]. In their complaint, plaintiffs alleged defendants violated their First Amendment rights and were liable under 42 U.S.C. § 1983. See [1-1]. Because the complaint alleged federal claims, defendants chose to remove the case to federal court. See .
Following removal, the defendants filed two separate motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). In their motions, defendants argued that plaintiffs' allegations fell short of the federal pleading standards and also argued that a number of defendants were entitled to immunity. See [7-1], . At a status hearing on December 18, 2013, Magistrate Judge P. Michael Mahoney set a briefing schedule and required plaintiffs to respond to the motions by January 15, 2014. See . However, January 15th came and went without a response from plaintiffs. On January 29, 2014, (nearly two weeks after their response was due), plaintiffs orally moved for an extension of time to file a response at a status hearing. See . Magistrate Judge Mahoney granted plaintiffs' oral motion and gave them until February 3, 2014 to file a response. See id. Despite the extension, plaintiffs once again failed to respond to the motions to dismiss. On February 26, 2014, (nearly three weeks after their response was due), the parties again appeared at a status hearing before Magistrate Judge Mahoney. At this time, plaintiffs asked the court to stay the motions to dismiss for one week and grant them leave to file an amended complaint. See . In light of the fact that counsel for plaintiffs represented that one of the plaintiffs was experiencing health issues, Magistrate Judge Mahoney granted the plaintiffs' request and gave them until March 5, 2014 to file an amended complaint. See id. Sadly, March 5th came and went without an amended complaint from plaintiffs. In fact, it was not until nearly three weeks later, on March 24, 2014, when plaintiffs moved to file a late amended complaint. See . The Magistrate Judge graciously allowed plaintiffs to proceed with their amended complaint and denied the previously filed motions to dismiss as moot. See . Magistrate Judge Mahoney then gave the Village of Fox River Grove (the only remaining defendant) until April 23, 2014 to answer or otherwise plea. See . Pursuant to this order, on April 23, 2014, the Village of Fox River Grove timely filed a motion to dismiss. See . At a motion hearing on April 30, 2014, Magistrate Judge Mahoney set a briefing schedule and granted plaintiffs until June 9, 2014 to file their response. See . On that date, the case was transferred to Magistrate Judge Iain D. Johnston because of Magistrate Judge Mahoney's upcoming retirement. See id.
On May 1, 2014, Magistrate Judge Johnston issued an order to notify the parties that their next status hearing was scheduled for August 7, 2014. In that order, Magistrate Judge Johnston informed the parties that "no further extensions of the briefing schedule [for the pending motion to dismiss] w[ould] be allowed." See . To date, plaintiffs have failed to file a response.
"[T]he Seventh Circuit adheres to the longstanding rule that a litigant waives an argument by failing to make it." Burton v. City of Franklin, No. 1:11-cv-00267-JMS-TAB, 2011 WL 2938029 at *2 (S.D. Ind. July 18, 2011) (citing Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 480 (7th Cir.2010)). "Courts apply that rule where a party fails to develop arguments related to a discrete issue, as well as where a litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss.'" Burton, 2011 WL 2938029 at *2 (citations omitted).
Applying this principle to the instant case, the court concludes that plaintiffs have effectively defaulted any argument in opposition to defendant's motion to dismiss because they have failed to respond. See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir.1999) (stating "[a]n unresponsive response is no response... [and] the plaintiff was defaulted for refusing to respond to the motion to dismiss."). Plaintiffs have repeatedly missed their deadlines to file a response and the court has (on at least three different occasions) graciously excused their negligence and granted extensions. The court refuses to do so again here and therefore finds it appropriate to proceed to the merits of defendants' motion to dismiss without the benefit of a response from plaintiffs.
This case involves historical property plaintiffs allegedly own in Fox River Grove, Illinois. The property is commonly known as the Bettendorf Castle and is particularly unique because it is apparently the only castle in North America that is known to have been constructed by "just one man." See  ¶ 2. In the amended complaint, plaintiffs state they use the property for a variety of social functions and gatherings. Specifically, plaintiffs reference an Easter egg hunt they host for the Easter holiday and a number of political meetings and family events which take place on the property. Id. ¶ 6-8.
The amended complaint states that at some point in 2011 the Village of Fox River Grove sued plaintiffs in the Circuit Court of McHenry County and claimed that the plaintiffs were illegally occupying the Bettendorf Castle. Id. ¶ 5. Plaintiffs believe the Village of Fox River Grove filed suit because it sought to prevent plaintiffs from hosting events and otherwise having unfettered access to the property. Id. ¶ 5. Plaintiffs state that the 2011 lawsuit was ultimately decided in their favor, but the Village of Fox River Grove still wanted to prevent them from hosting events at the Bettendorf Castle. Thus, plaintiffs claim after the case in McHenry County concluded, the Village of Fox River Grove "began having public hearings on a proposed "Castle Ordinance" to prevent plaintiffs from exercising their "rights of association."" Id.
Specifically, plaintiffs complain about an amendment to a zoning ordinance the Village of Fox River Grove adopted in September 2013. The amendment purports to regulate home tours for properties with "special architectural or historical significance" and plaintiffs claim that the Bettendorf Castle is the only property in the Village of Fox River Grove that has "special architectural or historical significance." Id. ¶ 18. Because of this, plaintiffs believe the amendment violates their First Amendment rights. They argue that their speech and assembly rights are being violated because they are now required to receive permission from the Village of Fox River Grove before hosting a "home tour." These allegations form the basis of count I, plaintiffs' First Amendment claim.
Count II of the amended complaint is entitled "illegal spot zoning" and is styled as a takings claim. Plaintiffs allege that the previously described amendment amounts to "an unauthorized taking of their property rights without due process of law." Id. ¶ 30. They ask that the court enjoin the Village of Fox River Grove from enforcing the zoning amendment and ask the court to declare the amendment null and void. They also seek attorneys fees.
The Village of Fox River Grove ("the Village") contends these allegations are insufficient to form cognizable claims. The Village argues that count I fails because plaintiffs have not specified what "speech" rights the amendment to the zoning ordinance violates. It also claims that courts in this district have upheld similar ordinances that require special use permits and this also supports dismissal. The Village argues count II fails because it is not ripe for consideration. It contends that plaintiffs have not alleged that they applied for and were denied a special use permit and their takings claim is therefore premature and should be dismissed for jurisdictional reasons.
"To survive a motion to dismiss under Rule 12 (b)(6), the complaint must state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Yeftich v. Navistar, 722 F.3d 911, 915 (7th Cir. 2013) (internal quotation marks and citations omitted). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of ...