Amin Ijbara Equity Corp. v. Village of Oak Lawn ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2655
AMIN IJBARA EQUITY
CORPORATION and AMIN IJBARA,
Plaintiffs-Appellants,
v.
VILLAGE OF OAK LAWN,
JEAN GALZIN, and LARRY DEETJEN,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 9337 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED JUNE 2, 2016 — DECIDED JUNE 19, 2017
____________________
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 mort-
* Of the Southern District of Illinois, sitting by designation.
2 No. 15-2655
gage 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 constitu-
tional 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 foreclo-
sure 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
No. 15-2655 3
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 com-
plain 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 compli-
ant 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 re-
striction on liquor sales. Ijbara refused to budge. In January
1 His company, Amin Ijbara Equity Corp., actually owned the property.
The company is also a plaintiff here, but we do not need to mention it
further.
4 No. 15-2655
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 initiat-
ed 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 pay-
ments 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
No. 15-2655 5
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 antici-
pate 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 bor-
rowed from state law. Wallace v. Kato, 549 U.S. 384, 387
(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 com-
plete and present cause of action, that is, when the plaintiff
6 No. 15-2655
can file suit and obtain relief.” Wallace, 549 U.S. at 388 (inter-
nal 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 (quoting 1 CALVIN W. CORMAN, LIMITATION
OF ACTIONS § 7.4.1, 526–27 (1991) (footnote omitted)).
Ijbara’s amended complaint alleges that the unconstitu-
tional 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. According to
the complaint, these acts inflicted a cognizable injury almost
immediately: he was forced to make costly and unnecessary
repairs and sustained losses in revenue from tenants. The
claim necessarily accrued when these injuries occurred—that
is, while he was still in possession of the mall. His legal
possession of the mall ended on April 22, 2011, when the
receiver was appointed. 2 See 31A ILLINOIS LAW AND PRACTICE
2 Ijbara wisely refrains from challenging the district judge’s consultation
of documents from the foreclosure proceeding. When ruling on a motion
to dismiss, the court may consider “documents … attached to the
complaint, documents … central to the complaint and … referred to in it,
and information that is properly subject to judicial notice.” Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013). Ijbara’s amended complaint
explicitly refers to the foreclosure action, and the documents clearly
come from a source “whose accuracy cannot reasonably be questioned.”
FED. R. EVID. 201(b) (“The court may judicially notice a fact that is not
subject to reasonable dispute because it … can be accurately and readily
determined from sources whose accuracy cannot reasonably be ques-
tioned.”).
No. 15-2655 7
RECEIVERS § 1 (2011) (“A receiver is an officer of the court,
appointed on behalf of all parties to take possession of
property and hold it for the benefit of those ultimately
entitled thereto.”).
So we agree with the district judge that the cause of ac-
tion accrued not later than the date the receiver was ap-
pointed. Ijbara certainly knew of his injury and its cause by
then. Indeed, he was aware of the fact and cause of his injury
at least two months earlier—on February 22 when his lender
initiated foreclosure—and, we might add, much earlier still
when his revenues slowed and he was forced to incur un-
necessary repair costs. He filed suit on December 31, 2013,
well outside the two-year window measured from April 22,
2011.
Ijbara argues, as he did in the district court, that his claim
did not accrue until the foreclosure proceedings concluded
with the entry of final judgment in July 2012. He relies on
our decision in Hileman v. Maze, 367 F.3d 694 (7th Cir. 2004),
but that case doesn’t help him. Hileman involved a claim
under § 1983 for election fraud against a county clerk and
her coconspirators. The police raided the clerk’s home and
office five days before the election and found a cache of
absentee ballots that looked like they had been altered. Id. at
695. For reasons unknown, the police returned the seized
ballots to the clerk on the day of the election, and she and
her coconspirators commingled the falsified ballots with
valid ones, changing the outcome of the election. Id. at 695–
96. We held that the claim accrued when the falsified ballots
were commingled with the genuine ballots—not a few days
earlier when the police found and seized the ballots. The
constitutional injury, we said, was the commingling of the
8 No. 15-2655
altered ballots. Id. at 698. The seizure of the altered ballots
didn’t make injury “relatively certain” for claim-accrual
purposes; after all, uncovering possible election fraud before
an election would have been greeted “with a sigh of relief.”
Id. at 699. The constitutional injury occurred when the
falsified ballots were actually commingled with valid ballots
and counted. Id.
Ijbara argues that his injury likewise wasn’t “relatively
certain” until final judgment was entered in the foreclosure
action. Not so. Ijbara’s injury was known and certain much
earlier when he sustained monetary losses from the spurious
citations and the harassment of his tenants. He could have
filed suit as soon as these actions were taken. The foreclosure
filing and appointment of the receiver are just the latest
possible accrual dates. Ijbara had a cognizable claim and
could have sued far earlier.
The allegations in the amended complaint, together with
the filings in the foreclosure action, conclusively establish
that Ijbara’s claim accrued not later than April 22, 2011. The
judge properly dismissed this suit as untimely.
AFFIRMED.