Schiessle v. Stephens, 79 C 3160.

Citation525 F. Supp. 763
Decision Date30 October 1981
Docket NumberNo. 79 C 3160.,79 C 3160.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
PartiesEleanor SCHIESSLE, individually and as trustee under trust number 101, Plaintiff, v. Donald E. STEPHENS; Hubert Langer; Stephan Giles; Leslie Scott; Chester Kolaski; Lorraine Clemenson; Steve Minale; the Village of Rosemont, an Illinois municipal corporation; O'Hare Executive Towers, Ltd., an Illinois limited partnership; George Soteras; Lawrence G. Malanfant; Morando Berrettini; O'Hare Executive Towers, Inc., an Illinois Corporation; Arthur Swanson, Paul Swanson, and Carl Swanson, individually and d/b/a Arthur Swanson & Associates, and Edward R. Kenefick, Defendants.

Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago, Ill., Arthur M. Scheller, Jr., Craig Peterson, Evanston, Ill., for plaintiff.

Burke, Weber & Egan, Burke, Nash & Shea Ltd., Richard M. Panichi & Assoc., Ltd., Chicago, Ill., for defendants.

MEMORANDUM OPINION

FLAUM, District Judge:

This matter comes before the court on the defendants' renewed motion to abstain and dismiss1 or, alternatively, to stay this proceeding upon the basis of abstention and immunity. For the reasons set forth below, the motion to abstain and dismiss is granted in part and denied in part.

The plaintiff Eleanor Schiessle ("Schiessle") filed suit in this court on August 1, 19792 against the defendants Donald Stephens ("Stephens"), president of the board of trustees of the Village of Rosemont, Illinois; the Village of Rosemont Illinois ("the village"); the individual members of the village's board of trustees; O'Hare Executive Towers, Ltd. ("O'Hare Ltd."); O'Hare Executive Towers, Inc. ("O'Hare Inc."); George Soteras, Lawrence Malanfant, and Morando Berrettini ("the developers"); Arthur Swanson, Paul Swanson, and Carl Swanson, individually and doing business as Arthur Swanson and Associates ("the Swansons"); and Edward Kenefick ("Kenefick"), a real estate developer (hereinafter sometimes collectively referred to as "the defendants").

The well-pleaded facts alleged in the complaint must be taken as true for the purpose of a motion to dismiss. Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1332 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). Accordingly, the facts alleged in the complaint are as follows. Schiessle owns approximately seventeen acres of land ("the property") in the village. Schiessle is in the business of owning, marketing, and developing real estate in Cook County, Illinois. The village and the village board are in charge of implementing the Rosemont Redevelopment Plan ("the redevelopment plan"). The defendants O'Hare Ltd., O'Hare Inc., and the developers are involved in the development of real estate in the vicinity of and abutting Schiessle's property. Schiessle's property is currently zoned for commercial use under the village's zoning ordinance and is used for several businesses. Schiessle's property is within the boundaries of the redevelopment plan as adopted by the village board on July 5, 1979. On July 18, 1979, the village board passed an ordinance authorizing the institution of proceedings for the condemnation of Schiessle's property. No suit for condemnation of Schiessle's property, however, had been filed at the time that the complaint in this case was filed. Schiessle contends that an agreement exists among the defendants to acquire Schiessle's property by condemnation or threat of condemnation and then convey the property to O'Hare Ltd., O'Hare Inc., the developers, the Swansons, and Kenefick for private development. Schiessle further contends that she granted an option to Lakewoods Realty and Mortgage Corporation to purchase her property and that Schiessle has been prevented from consummating this transaction by the defendants' actions.

In counts I and II of the complaint, Schiessle alleges that the defendants' actions are in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1978), and section 16 of the Clayton Act, 15 U.S.C. § 26 (1978). Schiessle requests money damages, attorneys' fees, and an injunction enjoining the defendants from continuing the allegedly unlawful conduct. In counts III through VIII of the amended complaint, Schiessle alleges that Stephens, the village, and the individual members of the village board of trustees have deprived Schiessle of her constitutional rights in violation of 42 U.S.C. § 1983 (1978). Schiessle asks for money damages, attorneys' fees, and an injunction enjoining the village and the village board from implementing the plan or condemning Schiessle's property. In count IX of the amended complaint, Schiessle challenges the constitutionality of the Illinois Real Property Tax Increment Allocation Redevelopment Act, Ill.Rev.Stat. ch. 24, § 11-74.4-1 et seq. (1977) ("the Illinois act"). The village's redevelopment plan was promulgated pursuant to the Illinois act. Schiessle asks for a declaratory judgment pursuant to 28 U.S.C. § 2201 (1978) that the Illinois act is unconstitutional and an injunction enjoining the defendants from enforcing the Illinois act. In count X of the amended complaint, Schiessle alleges a cause of action based upon common law conspiracy against the defendants. Schiessle asks for money damages and an injunction enjoining the defendants from further allegedly unlawful conduct. In count XI of the amended complaint, Schiessle alleges a cause of action against the defendants based upon tortious interference with business relations. Schiessle asks for money damages and an injunction enjoining the defendants from further allegedly unlawful conduct.

On October 22, 1979, the village filed suit against Schiessle in the Circuit Court of Cook County, Illinois to acquire her property pursuant to eminent domain. On March 16, 1981, Schiessle filed a motion to dismiss and traverse the suit in state court. In her motion to dismiss the complaint in state court, Schiessle contends that the village's redevelopment plan is illegal, that the Illinois act is unconstitutional, and that the village's actions have prevented Schiessle from developing her property.

The defendants filed a renewed motion to dismiss and abstain in this case on March 30, 1981. In support of their motion, the defendants contend that this court should abstain from further proceedings with regard to counts III through XI of the amended complaint based upon the abstention doctrine as enunciated in Younger v. Harris, 401 U.S. 37, 54, 91 S.Ct. 746, 755, 27 L.Ed.2d 669 (1971). The defendants further contend that counts I and II of the amended complaint must be dismissed in that municipalities are immune from any liability under the federal antitrust laws. The defendants also contend that the individual board members are entitled to legislative immunity from liability under the federal civil rights laws. Alternatively, assuming that the defendants are not immune under the antitrust laws, the defendants contend that this court should abstain as to counts I and II of the amended complaint based upon the abstention doctrine set forth by the United States Supreme Court in Railroad Commission v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941). In response to the defendants' renewed motion to dismiss and abstain, Schiessle contends that the defendants' renewed motion is procedurally improper pursuant to Federal Rule of Civil Procedure 12(g). Schiessle further contends that abstention would be inappropriate in this case. The court will address these various contentions seriatim.

The first inquiry is whether the defendants' renewed motion to dismiss and abstain is properly before the court. Federal Rule of Civil Procedure 12(g) provides, in pertinent part:

If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

Fed.R.Civ.P. 12(g). Therefore, a party who makes a motion under rule 12 is precluded from raising a similar objection omitted in the first motion unless the motion is based upon a ground set forth in Federal Rule of Civil Procedure 12(h)(2). Rule 12(h)(2) includes a motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(h)(2). Accordingly, the court concludes that the defendants' renewed motion to dismiss and abstain is properly before the court.

Regarding the defendants' motion to abstain,3 when a plaintiff properly invokes one of the statutory grants of federal jurisdiction, a federal district court generally must assume and exercise jurisdiction over the plaintiff's claims. FSLIC v. Krueger, 435 F.2d 633, 637 (7th Cir. 1970). The "judge-made" doctrine of abstention, however, allows a federal court, in certain limited circumstances, to decline this properly-invoked federal court jurisdiction because the rights asserted before the court may be more appropriately adjudicated in some other forum. See C. Wright & A. Miller 17 Federal Practice and Procedure: Civil § 4241 (1978). The question of when the doctrine of abstention should be invoked by the court is a matter of discretion which must be approached on a case-by-case basis. Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50 (1965); Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964).

Three abstention doctrines have been developed by the United States Supreme Court. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-16, 96 S.Ct. 1236, 1244-46, 47 L.Ed.2d 483 (1976); City Investing Co. v. Simcox, 633 F.2d 56, 59-60 (7th Cir. 1980). The oldest and best-settled abstention approach is that set forth by the United States Supreme Court in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Under the P...

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