Amin Ijbara Equity Corp. v. Vill. of Oak Lawn

• Decision Date: 19 June 2017
• Docket Number: No. 15-2655,15-2655
• Citation: 860 F.3d 489
• Parties: AMIN IJBARA EQUITY CORPORATION and Amin Ijbara, Plaintiffs–Appellants, v. VILLAGE OF OAK LAWN, Jean Galzin, and Larry Deetjen, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

860 F.3d 489

AMIN IJBARA EQUITY CORPORATION and Amin Ijbara, Plaintiffs–Appellants,

v.VILLAGE OF OAK LAWN, Jean Galzin, and Larry Deetjen, Defendants–Appellees.

No. 15-2655

United States Court of Appeals, Seventh Circuit.

Argued June 2, 2016

Decided June 19, 2017

Rehearing and Rehearing En Banc Denied July 28, 2017

Maurice J. Salem, Attorney, Law Offices of Salem & Associates, P.C., Palos Heights, IL, for Plaintiffs–Appellants.

Paul O'Grady, Attorney, Jennifer L. Turiello, Attorney, Peterson, Johnson & Murray–Chicago LLC, Chicago, IL, for Defendants–Appellees.

Before Posner and Sykes, Circuit Judges, and Yandle, District Judge.^*

Sykes, Circuit Judge.

Amin Ijbara owned a strip mall in the Village of Oak Lawn, Illinois, but defaulted on his mortgage payments, precipitating a foreclosure. He blames this misfortune on Oak Lawn officials, accusing them of waging a campaign of regulatory harassment that included frivolous inspections and citations for nonexistent or trumped-up building-code violations, which cost him money and scared off prospective tenants. He filed this suit under 42 U.S.C. § 1983 alleging that this abuse of power violated his right to equal protection of the law.

The district judge dismissed the suit as time-barred. She held that Ijbara's claim accrued when the foreclosure action was filed, or at the very latest, when the judge presiding in that action appointed a receiver to take control of the mall. Ijbara's suit, filed almost three years later, missed the two-year limitations deadline. Ijbara resists this conclusion, arguing that his claim did not accrue until the state court entered final judgment in the foreclosure action. If he's right, the suit was timely and dismissal was improper. He is not right. Ijbara confuses the eventual consequences of a constitutional violation with the constitutional injury that starts the limitations clock. Ijbara was well aware of his injury and its cause long before the entry of final judgment in the foreclosure proceeding. We affirm.

I. Background

We take the following narrative from Ijbara's amended complaint, the operative pleading in the case, and accept the factual allegations as true for purposes of the motion to dismiss. Ijbara owned a strip mall in Oak Lawn known as Central Plaza.¹ In March 2010 two of Ijbara's tenants, James Baker and Gregory Haraf, approached him about renewing their lease. Baker and Haraf operated a convenience store in the mall and had a license to sell liquor. Ijbara refused to renew their lease unless they stopped selling liquor and agreed to carry only groceries, meat, and produce. This naturally upset Baker and Haraf; they threatened to complain to their friends in village government if Ijbara didn't change his mind. Ijbara stuck to his guns.

About a week later, Larry Deetjen, Oak Lawn's village manager, and David Heilmann, the mayor, sent a team of fire inspectors to examine the mall's sprinkler system. The inspectors issued a citation finding code violations and requiring Ijbara to install an expensive new system. He did so, but the inspectors were not satisfied and withheld their approval until additional work was performed, raising the cost from $22,000 to $35,000. Village officials also required Ijbara to upgrade the mall's existing water pipes—at a cost of $12,600—even though the water pipes were code compliant and functioning normally. Later Ijbara heard from one of his tenants that village officials were preparing to order him to repave the mall parking lot (at an estimated cost of $100,000) and install a new roof (another $100,000), both needless repairs.

In November 2010 Heilmann called Ijbara to pressure him to renew the convenience store's lease with no restriction on liquor sales. Ijbara refused to budge. In January 2011 Oak Lawn inspectors issued several more baseless building-code citations. Village officials also slow-walked or blocked the issuance of business licenses to prospective tenants in the mall. Ijbara's existing tenants were pestered with groundless citations for ordinance violations.

This concerted harassment gradually reduced the mall's revenues to a trickle, and Ijbara was unable to make his mortgage payments. On February 22, 2011, his lender initiated foreclosure proceedings in state court, and on April 22 the judge presiding in that action appointed a receiver to take possession of and manage the property. The judge's order authorized the receiver to collect all rents relating to the property; tenants were directed to send their rental payments to the receiver. On July 3, 2012, the judge entered final judgment of foreclosure.

Ijbara filed this § 1983 suit for damages on December 31, 2013. His original complaint raised many claims, but the amended complaint trimmed that number and he now presses only one: a class-of-one equal-protection claim against the Village of Oak Lawn and two of its officials, Deetjen, the village manager, and Jean Galzin, the code enforcement officer.

The defendants moved to dismiss the case. See FED. R. CIV . P. 12(b)(6). They argued that the suit was untimely under the two-year statute of limitations applicable to § 1983 actions in Illinois. The district judge agreed, holding that Ijbara's claim accrued, at the very latest, on April 22, 2011. That's when the state court appointed a receiver to assume management of the mall. The judge reasoned that Ijbara was surely aware of his injury by that date. Because he filed this suit more than two years later, the judge dismissed it as time-barred.

II. Discussion

A limitations defense is not often resolved on a Rule 12(b)(6) motion because "a complaint need not anticipate and overcome affirmative defenses, such as the statute of limitations." Cancer Found., Inc. v. Cerberus Capital Mgmt. , LP , 559 F.3d 671, 674 (7th Cir. 2009). But dismissal at this early stage is appropriate when the complaint alleges facts sufficient to establish that the suit is indeed tardy. Id. at 674–75. That is the case here, according to the defendants. The district judge agreed, and we review her decision de novo. Ray v. Maher , 662 F.3d 770, 772 (7th Cir. 2011).

Ijbara's equal-protection claim is the class-of-one variety. He alleges that Oak Lawn officials singled him out for selective enforcement of building codes and other local ordinances for irrational or improper reasons. Generally speaking, a class-of-one plaintiff must prove that "(1) a state actor has intentionally treated him differently than others similarly situated, and (2) there is no rational basis for the difference in treatment." Reget v. City of La Crosse , 595 F.3d 691, 695 (7th Cir. 2010). Federal law determines when a § 1983 claim accrues, but the statute of limitations is borrowed from state law. Wallace v. Kato , 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Illinois the limitations period for personal-injury torts is two years. Id. (citing 735 ILL. COMP. STAT. 5/13–202 ); see also O'Gorman v. City of Chicago , 777 F.3d 885, 889 (7th Cir. 2015).

A cause of action accrues "when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain relief." Wallace , 549 U.S. at 388, 127 S.Ct. 1091 (internal quotation marks, citations, and alterations omitted). Accrual "occurs when a plaintiff knows the fact and the cause of an injury." O'Gorman , 777 F.3d at 889. Importantly, "[t]he cause of action accrues even though the full extent of the injury is not then known or predictable." Wallace , 549 U.S. at 391, 127 S.Ct. 1091 (quoting 1 CALVIN W. CORMAN, LIMITATION OF ACTIONS § 7.4.1, 526–27 (1991) (footnote omitted)).

Ijbara's amended complaint alleges that the unconstitutional acts of the defendants—the baseless citations and harassment of current and prospective tenants—all occurred before his lender commenced foreclosure proceedings and he lost possession of the mall to the receiver....