Hapaniewski v. City of Chicago Heights, Civ. No. H87-105.

• Decision Date: 18 April 1988
• Docket Number: Civ. No. H87-105.
• Citation: 684 F. Supp. 1011
• Parties: William HAPANIEWSKI, Plaintiff v. CITY OF CHICAGO HEIGHTS, a Municipal Corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

684 F. Supp. 1011

William HAPANIEWSKI, Plaintiff v. CITY OF CHICAGO HEIGHTS, a Municipal Corporation, et al., Defendants.

Civ. No. H87-105.

United States District Court, N.D. Indiana, Hammond Division.

April 18, 1988.

William P. Hapaniewski, pro se.

Steve H. Tokarski, Schererville, Ind., for plaintiff.

Edward Janski, Chicago, Ill., for defendants.

ORDER

LOZANO, District Judge.

This matter is before the court on a Motion to Transfer Venue and to Extend Time to Perfect Service of Process, filed by the plaintiff, William Hapaniewski, on September 14, 1987. For the reasons set forth below, the Motion to Transfer Venue and Extend Time to Perfect Service is DENIED and the action is hereby DISMISSED.

Background

On April 13, 1981, the plaintiff, William P. Hapaniewski (hereafter Hapaniewski) brought suit in Illinois State Court against the defendant, City of Chicago Heights, pursuant to state law and 42 U.S.C. § 1983 for the alleged destruction of real property resulting in a violation of his due process rights under the State and United States Constitution. After the defendant, City of Chicago Heights (hereafter City) filed a Motion to Dismiss, Hapaniewski filed a Second Amended Complaint. Finally, on March 13, 1984, the Illinois court granted the City's Motion to Dismiss all counts of plaintiff's complaint based on a two-year statute of limitations. Subsequently on August 23, 1985, the Appellate Court affirmed the trial court's dismissal of Hapaniewski's action. 147 Ill.App.3d 528, 100 Ill.Dec. 217, 497 N.E.2d 97. Hapaniewski's Petition for Rehearing and Petition for Leave to Appeal to the Illinois Supreme Court were also denied.

However, on February 12, 1987, Hapaniewski filed a complaint in this federal court. The first cause of action appears to be the same four counts that Hapaniewski alleged in his prior state court proceeding which were dismissed by the court as time barred. Additionally, Hapaniewski alleges two other causes of action, one against the trial court judge and the other against the appellate judges. Hapaniewski is seeking damages from the City and declaratory and injunctive relief from the judges pursuant to state law and 42 U.S.C. § 1983 for the alleged deprivation of his constitutional rights. Hapaniewski specifically alleges that the demolition of his building, which was the subject of his prior Illinois state court proceeding, and the defendant Circuit Judge's application of a two-year statute of limitations in the prior proceeding along with the Appellate Court Judges' affirmance of the statute's application, violated his Fifth and Fourteenth Amendment rights.

When the federal complaint was filed, no summonses were issued by the Clerk. Thereafter, plaintiff, in response to a Local Rule 36(b) Dismissal Notice sought an additional 30 days in which to perfect service. However, service of process was not perfected on the defendants in accordance with N.D.Ind. Local Rule 36(b) and plaintiff was given an extension of time by Order dated August 14, 1987, to perfect service of process on or before September 16, 1987. Instead, on September 14, 1987, plaintiff filed the present motion stating venue was improper in this court and requesting a transfer of venue and an additional 30 days in which to perfect service. Hapaniewski has informed the court that he will be greatly prejudiced if the case is not transferred in that the statute of limitations ran on this action on April 17, 1987.

Discussion

Plaintiff concedes that venue in this court is improper because the defendants are either residents or an entity of Illinois and that the claim arose out of litigation that was before the Illinois State Court. Therefore, plaintiff seeks to transfer the case pursuant to 28 U.S.C. § 1406(a) which provides:

The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

In accordance with federal question jurisdiction, 28 U.S.C. § 1331, venue is proper where all defendants reside or where the claim arose. 28 U.S.C. § 1391(b). In fact, plaintiff alleged in his complaint filed in February, 1987, that "venue as to the defendants is proper in this district pursuant to 1391(b)." (Complaint, ¶ 2) Further, plaintiff alleged the jurisdictional basis for each of the defendants, the City of Chicago Heights and the Circuit and Appellate Court Judges as the State of Illinois. (Complaint, ¶¶ 4-6) Clearly none of the defendants are residents of Indiana, nor does the claim arising out of the Illinois litigation have any connection with the State of Indiana. Even plaintiff at the time the action was commenced was a resident of Illinois. He could have easily filed the action in Illinois.

Accordingly, from the face of the complaint, attorney Hapaniewski, a member of the State Bar of Indiana since May, 1980 and his attorney, Edward Janski, a member of the Illinois Bar since May, 1978, both should have known that venue pursuant to 28 U.S.C. § 1391(b) was improper when the suit was filed, contrary to their assertion it was proper. Plaintiff's revelation on September 14, 1987, that venue was improper because the defendants all reside in Illinois and the action arose in Illinois does not appear to parallel the type of "mistake" contemplated by the court in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 916, 8 L.Ed.2d 39, 42 (1962). Rather, the improper filing in Indiana, the failure to effectuate service at least seven months after commencing suit, waiting until after the time the statute of limitations had run, and then seeking transfer and an extension of time to effectuate service in a proper venue, now 11 months after suit was filed, is more like the "elementary mistake" in Saylor v. Dyniewski, 836 F.2d 341, 345 (7th Cir.1988); Cote v. Wadel, 796 F.2d 981, 984-85 (7th Cir.1986); and Brown v. Grimm, 624 F.2d 58, 59 (7th Cir.1980).

In Cote, the plaintiff brought suit in Wisconsin against Michigan defendants and the court dismissed plaintiff's action rather than transferring it. The plaintiff had filed the suit in a proper venue but the court had no basis for asserting personal jurisdiction over the defendants. After the statute of limitations ran, plaintiff sought to transfer venue. In support of its dismissal the court stated:

But the mistake was elementary. Elementary prudence would have indicated to her lawyer that he must file a protective suit in Michigan because there was only a slight probability of obtaining jurisdiction in Wisconsin over the defendants ... We adhere to Brown and remind plaintiffs and their counsel that they must determine where the plaintiff can get personal jurisdiction over the defendant before, not after, the statute of limitations runs; otherwise they court disaster.

796 F.2d at 985.

Plaintiff cannot merely assert that defendants will not be prejudiced if their motion to transfer is granted in that defendants will be greatly prejudiced because the statute of limitations has run and defendants have not received notice of the suit commensurate with the time period for filing the complaint. Plaintiff's improper "mistaken" venue and possible attempt to usurp the statute of limitations cannot be tolerated. Therefore, in the interest of justice, the case will not be transferred but dismissed. Not only has the plaintiff failed to effectuate service of the summons and complaint on the defendants within the applicable time after filing the complaint, but the plaintiff asserts no possible basis for this court's assertion of personal jurisdiction over the defendants. 28 U.S.C. § 1406(a); Fed.R.Civ.Pro. 4(d), 4(j); N.D. Ind. Local Rule 36(b); Saylor, 836 F.2d at 345; Ordower v. Feldman, 826 F.2d 1569, 1571 (7th Cir.1987); Cote, 796 F.2d at 984-85; and Brown, 624 F.2d at 59. Further, after review of Hapaniewski's complaint, it is apparent that Hapaniewski's federal complaint is best categorized as frivolous, vexatious and not warranted by existing law. Plaintiff's first cause of action in his federal suit is against the City of Chicago Heights for violations of his state and federal constitutional rights. This same action, instituted in state court in 1981, was found to be time barred by the statute of limitations and subsequently dismissed by the court. Plaintiff is now attempting to re-litigate his claim in federal court against the city for the same alleged injurious actions that was the subject matter of the state proceeding. Therefore, the well established doctrines of full faith and credit and res judicata would bar Hapaniewski's retrial of this issue.

It is well settled that a state court judgment is entitled to the same preclusive effect in a federal court as it would have in the state court rendering it. 28 U.S.C. § 1738; Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 519, 106 S.Ct. 768, 769-70, 88 L.Ed.2d 877, 880-81 (1986); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274, 281 (1985) reh. den., 471 U.S. 1062, 105 S.Ct. 2127, 85 L.Ed.2d 491 (1985); Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56, 61-2 (1984); Pliska v. City of Stevens Point, Wisconsin, 823 F.2d 1168, 1172 (7th Cir.1987); Leal v. Krajewski, 803 F.2d 332, 334 (7th Cir.1986); Morris v. Spratt, 768 F.2d 879, 883 (7th Cir.1985); Jones v. City of Alton, Illinois, 757 F.2d 878, 883 (7th Cir.1985); and Vandenplas v. City of Muskego, 753 F.2d 555, 559 (7th Cir.1985), cert. denied, 472 U.S. 1018, 105 S.Ct. 3481, 87 L.Ed.2d 616 (1985). This rule applies in § 1983 suits not only to issues actually litigated but also to those issues which could have been litigated in the state court proceeding. Migra, 465 U.S. at 83-85, 104 S.Ct. at 897, 79 L.Ed.2d at 63-4; Pliska, 823 F.2d at 1172; Torres v. Rebarchak, 814 F.2d...