Limestone Development v. Village of Lemont, Ill.

• Decision Date: 01 April 2008
• Docket Number: No. 07-1438.,07-1438.
• Citation: 520 F.3d 797
• Parties: LIMESTONE DEVELOPMENT CORP., Plaintiff-Appellant, v. VILLAGE OF LEMONT, ILLINOIS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

520 F.3d 797

LIMESTONE DEVELOPMENT CORP., Plaintiff-Appellant, v. VILLAGE OF LEMONT, ILLINOIS, et al., Defendants-Appellees.

No. 07-1438.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2007.

Decided April 1, 2008.

John R. Wimmer (argued), Downers Grove, IL, for Plaintiff-Appellant.

Russell W. Hartigan, Hartigan & Cuisinier, Chicago, IL, Michael D. Bersani (argued), Hervas, Condon & Bersani, Itasca, IL, Louis J. Aurichio, Butler, Rubin, Saltarelli & Boyd, Thomas G. Dicianni, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, POSNER, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

Limestone Development Corporation owned a 55-acre tract of land, in a rural area within the limits of the Village of Lemont (a small town — population 13,000 — near Chicago), that it wanted to develop. Limestone charges that the Village and other public bodies, controlled by or acting in cahoots with the mayor, other Village officials, and K.A. Steel Chemicals, another Village landowner, constituted an enterprise whose affairs were conducted through a pattern of racketeering activity, in violation of RICO, and that the Village also violated the equal protection clause of the Fourteenth Amendment and thus committed a constitutional tort made actionable by 42 U.S.C. § 1983. The defendants' aim in committing these unlawful acts, according to the complaint, was to prevent Limestone from developing its property. The district court dismissed the complaint for failure to state a claim.

Limestone had bought the tract of land, which straddles a canal, in 1989. The tract's northern segment, 26 acres in size, includes an abandoned quarry in which water has collected, forming a small lake. Limestone wanted to develop the northern segment as a commercial marina. An unimproved road, a section of which was owned by the Village, provided the only land access to Limestone's northern parcel. In order to bring in materials for building the marina, Limestone widened the road without seeking the Village's permission. The Village responded by locking a gate across the road, barring Limestone's use of it.

Limestone sued the Village in state court in 1992. The suit was resolved in 1998 by a ruling by the Illinois Appellate Court that Limestone was indeed entitled to use the road — but not for building a commercial marina, because of the impact that such use would have on K.A. Steel Chemicals, which owned and used a section of the road, and on the Village, which besides owning another segment of the road maintained the entire road.

Limestone sued the Village again the following year, 1999, complaining that the Village was failing to maintain the road. It lost. That same year, the Village sued to condemn Limestone's property, but in 2002 it dismissed the suit voluntarily. These also were state court suits.

The complaint in the present case, filed in 2005, repeats the allegations in Limestone's previous suits but adds the following: The RICO enterprise was created in 1993 and operated through 2004. When in 1993 Limestone became delinquent in paying its Village property tax, the defendants made fraudulent representations in an effort to force the sale of the property, though they backed down when Limestone paid the tax. At the same time, the Lemont Park District (one of the members of the RICO enterprise, remember) pretended to be interested in joining with Limestone to build a canal that by connecting the lake on Limestone's property to the Illinois Sanitary and Ship Canal would facilitate the property's development as a marina. By stringing Limestone along, the Park District delayed the development of the property. In 2000, the defendants used an appraisal that they knew to be too low to obtain the state's required permission to launch the eminent-domain proceeding, which they knew would fail — for they had no intention of paying the true market value of the property — but hoped would impede Limestone's development of the property.

All these alleged frauds — "predicate acts" in RICO-speak that if proved would establish the "pattern of racketeering" required for liability under the statute — occurred outside the limitations period for RICO suits, which was four years from the date that Limestone discovered (or should, if diligent, have discovered) that it had been injured by the defendants. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 152-53, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987); Rotella v. Wood, 528 U.S. 549, 553-60, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000); Perry v. Globe Auto Recycling, Inc., 227 F.3d 950, 954 (7th Cir.2000). But then in 2003 — three years before the suit was filed and thus within the limitations period — the Village published in the Village News a statement by the mayor, accompanied by a map, announcing the imminent creation of the "Heritage Quarries Park" without disclosing that the park's boundaries "included most of Limestone's property"; and by thus leading "the public and potential purchasers of Limestone's property to believe that the property was owned or controlled by the Village," the statement "impaired and thwarted Limestone's efforts to market its property." Also in that year, the defendants falsely represented (we are just reciting allegations, remember, and not vouching for them) to Limestone that they would conduct an appraisal of its property to serve as a basis for negotiations for its sale to the Village. They had no intention of conducting the appraisal; they wished merely to cause Limestone "to forego other efforts to market its property."

As a result of the defendants' efforts to impede the development and sale of its property, Limestone was eventually forced to sell the property at less than its fair market value. Oddly, the complaint does not say when the sale took place.

Limestone acknowledges that were it not for the predicate acts committed in 2003, its RICO claim would be time-barred. But it contends that those acts not only enable it to escape the bar of the statute of limitations as to them, but by virtue of the "continuing violation" doctrine — a defense to a statute of limitations defense — enable it to revive the time-barred predicate acts and thus obtain redress for the harm caused by them.

That does not make good sense, and is not the law. Klehr v. A.O. Smith Corp., 521 U.S. 179, 186-87, 117 S.Ct. 1984, 138 L.Ed.2d 373 (1997); McCool v. Strata Oil Co., 972 F.2d 1452, 1466 (7th Cir. 1992).

Like too many legal doctrines, the "continuing violation" doctrine is misnamed. Suppose that year after year, for ten years, your employer pays you less than the minimum wage. That is a continuing violation. But it does not entitle you to wait until year 15 (assuming for the sake of illustration that the statute of limitations is five years) and then sue not only for the wages you should have received in year 10 but also for the wages you should have received in years 1 through 9. The statute of limitations begins to run upon injury (or, as is standardly the case with federal claims, upon discovery of the injury) and is not tolled by subsequent injuries. Ledbetter v. Goodyear Tire & Rubber Co., ___ U.S. ___, 127 S.Ct. 2162, 2169, 2175-76, 167 L.Ed.2d 982 (2007); Heard v. Sheahan, 253 F.3d 316, 318-19 (7th Cir.2001); Pollis v. New School for Social Research, 132 F.3d 115, 119 (2d Cir.1997).

The office of the misnamed doctrine is to allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be brought. Heard v. Sheahan, supra, 253 F.3d at 319-20; Matson v. Burlington Northern Santa Fe R.R., 240 F.3d 1233, 1237 (10th Cir. 2001). It is thus a doctrine not about a continuing, but about a cumulative, violation. A typical case is workplace harassment on grounds of sex. The first instance of a coworker's offensive words or actions may be too trivial to count as actionable harassment, but if they continue they may eventually reach that level and then the entire series is actionable. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). If each harassing act had to be considered in isolation, there would be no claim even when by virtue of the cumulative effect of the acts it was plain that the plaintiff had suffered actionable harassment. As we explained at greater length in Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1166 (7th Cir.1996) (citations omitted), "Sexual harassment serious enough to constitute unlawful discrimination on grounds of sex is often a cumulative process rather than a one-time event. In its early stages it may not be diagnosable as sex discrimination, or may not cross the threshold that separates the nonactionable from the actionable, or may not cause sufficient distress to be worth making a federal case out of, or may not have gone on long enough to charge the employer with knowledge and a negligent failure to take effective remedial measures. (And such knowledge and such failure normally are prerequisites to the employer's being made liable for the harassment.).... If the victim of sexual harassment sues as soon as the harassment becomes sufficiently palpable that a reasonable person would realize she had a substantial claim under Title VII, then she sues in time and can allege as unlawful conduct the entire course of conduct that in its cumulative effect has made her working conditions unbearable."

One can imagine conducting a similar analysis in a RICO case; indeed, since a course of racketeering activity, to amount to a "pattern" and thus be actionable under RICO, requires at least two predicate acts and some temporal continuity, H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 250, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Sedima, S.P.R.L. v. Irnrex Co., 473 U.S. 479, 496 and n. 14, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); Management Computer Services, Inc....