Tyrer, Marvin F. v. City of South Beloit ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1602
MARVIN F. TYRER,
Plaintiff-Appellant,
v.
CITY OF SOUTH BELOIT,
ILLINOIS,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 C 50353—Philip G. Reinhard, Judge.
____________
ARGUED JANUARY 4, 2006—DECIDED AUGUST 2, 2006
____________
Before CUDAHY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. In August 2004, Marvin Tyrer
brought this action against the City of South Beloit, Illi-
nois (“City”). He alleged that the City demolished his house
without affording him due process of law. In October 2004,
the City filed a motion asking the district court to dismiss
the action or, in the alternative, to abstain in light of pend-
ing parallel state court proceedings. The district court
denied the City’s motion to dismiss, but granted the motion
to abstain pending final disposition of the state court action.
See Colorado River Water Conservation Dist. v. United States,
2 No. 05-1602
424 U.S. 800 (1976). Mr. Tyrer now appeals this decision. He
submits that the court abused its discretion in determining
that his federal and state actions are parallel proceedings
and that his case presents an “exceptional circumstance”
that warrants invocation of the Colorado River abstention
doctrine. Id. at 813 (internal quotation marks omitted). For
the reasons set forth in the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
In September 1997, Mr. Tyrer purchased residential
property in the City of South Beloit, Illinois.1 The house on
this property was built in the early 1900s, prior to the
enactment of city ordinances regulating minimum lot
size and mandating a front-yard setback. Additionally, after
the house was built, the City adopted a Flood Plain Ordi-
nance, which imposes minimum elevation requirements.
Although the house does not comply with these regulations,
it was deemed by the City to be a “legally non-conforming
structure” because it lawfully existed prior to the passage of
the ordinances. App. at 12.2
The City’s zoning ordinances provide that, if a legally
non-conforming structure is damaged, destroyed or
changed to an extent of 50% or more of its replacement
1
The address of this premises is 531 Hayes Avenue, South Beloit,
Illinois; it also is described as Lot 15 in Block 1 of the Hayes
Addition to the City of South Beloit.
2
Because of the disorganized and incomplete state of the record,
we shall refer to the Appellant’s Appendix.
No. 05-1602 3
value, it no longer is exempted from current zoning laws.
Under these circumstances, the owner must apply for a
variance. See South Beloit, Zoning Ordinance, Art.V, § 505,
Damage and Destruction; id., Art.XVI, Variation. Shortly
before Mr. Tyrer purchased the property, its previous owner
applied for a petition for variance in order to remodel the
house, to construct a 20’ x 14’ addition to the house, and to
construct a 20’ x 20’ non-attached garage. The Zoning Board
of Appeals of South Beloit heard testimony on November
11, 1996, and voted to grant the variance; it found that the
remodeling, the addition to the home and the garage would
improve the appearance of the property.3
When Mr. Tyrer purchased the property in September
1997, no work yet had begun on these projects. With the
intent of carrying out the previous owner’s building
plans, Mr. Tyrer applied for and obtained the required
building permit from the Winnebago County Building
Department in April 1998. According to the permit, the
garage, as a new structure, had to be built at an elevation of
741.5 feet, 1 foot above the 100-year flood level. This
requirement also applied to the 20’ x 14’ addition; thus,
Mr. Tyrer was required to raise the existing structure by
4.5 feet.
Construction began in the spring or summer of 1998;
Mr. Tyrer installed the walls, footings and foundation for
the addition, as well as the garage floor. According to
Mr. Tyrer, he was approached by John Hunt of the
Winnebago County Building Inspector’s Office in May or
June 1998. Hunt informed Mr. Tyrer that, to be in com-
3
To comply with relevant city ordinances, the prior owner
was required to obtain an elevation survey, which was completed
in December 1996.
4 No. 05-1602
pliance with city ordinances, he would have to obtain
additional fill for the purpose of covering the garage
footings by ten inches above the frost line. Mr. Tyrer
complied with this request. However, when Hunt re-
turned to Mr. Tyrer’s property in November 1998, he
noticed that the additional fill was causing excess run-off
and that Mr. Tyrer had exceeded the scope of his work
permit.
The City Clerk issued a cease and desist order in No-
vember 1998. This order stated that the construction vio-
lated the Flood Plain Ordinance and exceeded the scope of
Mr. Tyrer’s work permit. Mr. Tyrer protested the order; the
parties attempted to resolve their differences amicably;
these efforts were not successful. Mr. Tyrer thereafter halted
construction. Since November 1998, no additional work has
been done on the property.4
Notice of demolition was issued by the City to Mr. Tyrer
on January 4, 2000, pursuant to 65 ILCS 5/11-31-1.5 Sub-
4
Additional work on the property may not commence until a
variance is granted by the City, finding that the proposed
construction satisfies the requirements of the Flood Plain
Ordinance and other applicable city ordinances.
5
In pertinent part, 65 ILCS 5/11-31-1 provides that a municipal-
ity may demolish “dangerous and unsafe buildings” within its
territory provided that it
apply to the circuit court of the county in which the building
is located . . . for an order authorizing action to be taken with
respect to a building if the owner or owners of the building,
including the lien holders of record, after at least 15 days’
written notice by mail so to do, have failed to put the
building in a safe condition or to demolish it . . . .
(continued...)
No. 05-1602 5
sequently, on January 27, 2000, the parties met at City
Hall and attempted to resolve their dispute. At this meeting,
Mr. Tyrer’s architect, Dave Jenkins, presented build-
ing plans that he claimed would resolve the run-off problem
and would bring the building into compliance with city
ordinances. The City disputed this claim. Its architect
opined that the proposed plans would not eliminate the
excess drainage on neighboring properties and that, instead,
the entire structure must be torn down and the fill removed.
The Zoning Board of Appeals ultimately rejected Jenkins’
architectural plans, as well as Mr. Tyrer’s subsequent
petition for a variance. Notice of demolition was issued to
Mr. Tyrer’s mortgage company, First American Credit
Union, on March 28, 2000.
B. State Court Proceedings
In April 2000, Mr. Tyrer filed suit against the City of South
Beloit in the Circuit Court of Winnebago County, Illinois.
He alleged that the cease and desist order and the demoli-
tion order deprived him of a property interest without due
process of law; he sought to enjoin the City from demolish-
ing or further interfering with the use of his property. The
complaint was amended in September 2001 to add a second
count alleging that the City’s actions constituted a regula-
tory or temporary taking of his property that warranted just
compensation under the Fifth and Fourteenth Amendments.
In August 2000, the City filed an answer and a counter-
claim, seeking authorization to demolish the house on
(...continued)
65 ILCS 5/11-31-1(a). The statute also sets forth what constitutes
appropriate notice to the property owner.
6 No. 05-1602
Mr. Tyrer’s property. In May 2001, the City filed a motion
for summary judgment on this counterclaim. It contended
that no work had been done on the house since the begin-
ning of the dispute between the City and Mr. Tyrer and that
run-off from the fill now was draining into the yards of
neighbors. In its view, because the house was in a “danger-
ous condition,” demolition was proper under 65 ILCS 5/11-
31-1. The City also submitted, however, that, if Mr. Tyrer
would agree to remove the fill, it would permit him to
continue with construction even though the project ex-
ceeded the scope of the original permit. Mr. Tyrer did not
acknowledge this offer, but instead filed his own motion for
summary judgment on his Fifth and Fourteenth Amend-
ment takings claim.
On May 21, 2002, the state trial court denied Mr. Tyrer’s
motion for summary judgment on the takings claim and
granted the City summary judgment on its demolition
counterclaim. The court determined that the structure had
lost its legal non-conforming status and that it did not
meet City building requirements. It invited Mr. Tyrer to
submit a plan for demolition “if he wishe[d] to do so,” and
noted that, if he did not, it would “enter an order for the city
to demolish.” App. at 17. Mr. Tyrer did not submit such a
plan and, on August 29, 2002, the court issued a final order
authorizing demolition. The house actually was demolished
sometime in July 2002—before the entry of the August 29th
order.
Mr. Tyrer appealed the judgment of the state trial court.
He challenged both the trial court’s demolition order and its
denial of summary judgment on his takings claim. Noting
that Mr. Tyrer had failed to “file a motion to stay the
enforcement of the trial court’s memorandum of decision
granting the defendant’s motion for summary judgment for
No. 05-1602 7
demolition,” the Appellate Court of Illinois held that Mr.
Tyrer’s challenge to the trial court’s demolition order was
moot because the house already had been destroyed;
therefore, effective relief was precluded. Id. at 20. The court
remarked, however, that the demolition raises other legal
issues, which “may be presented by another proceeding.”
Id. at 21 (noting that the present matter “will not be res
judicata as to whether the defendant had proper grounds to
demolish the plaintiff’s home, since there is no judgment on
the merits”).
The state appellate court also affirmed the trial court’s
denial of summary judgment on Mr. Tyrer’s takings claim.
It held that there was a genuine issue of material fact
concerning whether the plaintiff’s architectural plans, as
presented to the City Council, “would have resolved the
alleged runoff problem and complied with the defendant’s
zoning ordinances.” Id. at 23. The court remanded for
further proceedings consistent with the opinion.
Very little of substance has taken place in Mr. Tyrer’s state
action since the case was remanded to the trial court. A few
depositions appear to have been taken; no orders since have
been entered.6 Most significant to this appeal, after remand,
Mr. Tyrer amended his complaint, adding a third count.
This new count adds as defendants City Council members
in their individual capacities. It alleges that the actions of
the City and its Council members “deprived the plaintiff of
the use of his property from the date of the cease and desist
order,” in violation of the Fifth Amendment Takings Clause
6
In fact, inactivity in the state court action prompted the state
court in 2004 to ask the parties to address whether the case ought
to be dismissed for want of prosecution. The court, after hearing
from Mr. Tyrer, apparently took no further action.
8 No. 05-1602
and the Illinois Constitution. Contrary to the City’s asser-
tion, this new count does not mention specifically the
demolition of Mr. Tyrer’s property as grounds for liability.
C. District Court Proceedings
In August 2004, Mr. Tyrer filed the present action against
the City in the United States District Court for the North-
ern District of Illinois. He alleged that the City’s demolition
of his house lacked legal authorization and violated the
Fifth and Fourteenth Amendment’s Due Process Clauses.
See App. at 25-28.
In October 2004, the City filed a motion to dismiss,
contending that the district court lacked subject matter
jurisdiction under the Rooker-Feldman doctrine to review the
state court’s order authorizing demolition. See Rooker v. Fid.
Trust Co., 263 U.S. 413 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983). In the alternative, the
City contended that the district court should abstain under
the Colorado River doctrine, see 424 U.S. 800, or other absten-
tion doctrines, see Louisiana Power & Light Co. v. City of
Thibodaux, 360 U.S. 25 (1959); Burford v. Sun Oil Co., 319 U.S.
315 (1943); R.R. Comm’n of Texas v. Pullman Co., 312 U.S. 496(1941). The district court denied the City’s motion to
dismiss. It held that Rooker-Feldman does not apply to the
facts of this case. See App. at 40 (“[P]laintiff’s complaint
does not directly challenge any state court judgment. Nor is
it inextricably intertwined.”). The district court also rejected
the City’s contention that abstention was warranted under
Pullman, see id. (“[T]here is no substantial uncertainty as to
the meaning of state law and there is no reasonable proba-
bility that the state court’s clarification of state law might
obviate the need for a federal constitutional ruling.”), under
No. 05-1602 9
Burford, see id. (“[T]he law governing plaintiff’s claims in
state court is well-settled and clear.”), or under Thibodaux,
see id. (same).
However, the district court held that abstention was
proper under the Colorado River doctrine. Turning to the first
Colorado River prong, whether the federal and state proceed-
ings are parallel, it found that “both cases arise out of
substantially the same set of facts, and the legal issues are
substantially the same.” Id. (also noting that “the parties are
substantially the same”). The court then considered whether
the case involves the requisite exceptional circumstances.
Noting that the state proceedings had been ongoing for
more than four years and that allowing both suits to
proceed concurrently would “promote piecemeal and
duplicative litigation,” the court concluded that “there is no
reason that [the plaintiff] cannot litigate those claims in state
court that he seeks to assert here.” Id.7 Therefore, the district
court stayed the federal proceedings pending final disposi-
tion of the state court action.
II
DISCUSSION
In Colorado River, the Supreme Court emphasized the
“virtually unflagging obligation of the federal courts to
exercise the jurisdiction given them.” Colorado River, 424
U.S. at 817. “Abstention from the exercise of federal jurisdic-
tion is the exception, not the rule: The doctrine of absten-
tion, under which a District Court may decline to exercise or
postpone the exercise of its jurisdiction, is an extraordinary
7
The district court denied the plaintiff’s motion to reconsider its
decision on February 10, 2005. See App. at 47.
10 No. 05-1602
and narrow exception to the duty of a District Court to
adjudicate a controversy properly before it.” Id. at 813(internal quotation marks omitted). The “clearest of justifi-
cations” must be present for a federal court to stay a
proceeding pending completion of a state action. Id. at 819.
To determine whether a stay is appropriate under the
Colorado River doctrine, the district court must undertake a
two-part inquiry. First, the court must determine whether
“the concurrent state and federal actions are actually
parallel. Then, once it is established that the suits are
parallel, the court must consider a number of non-exclusive
factors that might demonstrate the existence of ‘exceptional
circumstances.’ ” Clark v. Lacy, 376 F.3d 682, 685 (7th Cir.
2004) (internal quotation marks and citations omitted).
In Colorado River, the Supreme Court set forth four such
factors for a district court’s consideration: the difficulties
posed when a state and federal court concurrently assume
jurisdiction over the same res; the inconvenience of the
federal forum; the desirability of avoiding piecemeal
litigation; and the order in which the state and federal
proceedings were filed. See 424 U.S. at 818-19. In Moses H.
Cone, the Court identified two additional factors relevant to
the Colorado River inquiry: whether state or federal law
provides the rule of decision; and whether the state action
will adequately protect the federal plaintiff’s rights. See
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 23-27 (1983). In applying these requirements, there is a
“general presumption against abstention.” AXA Corporate
Solutions v. Underwriters Reins. Corp., 347 F.3d 272, 278 (7th
Cir. 2003).
In this case, the district court concluded that both the
parallel-actions and the exceptional-circumstances re-
quirements had been fulfilled and stayed Mr. Tyrer’s federal
No. 05-1602 11
suit “pending final disposition of the state court action.”
App. at 40. We review a district court’s ruling on a motion
to stay under the Colorado River doctrine for abuse of
discretion. See Sverdrup Corp. v. Edwardsville Cmty. Unit Sch.
Dist. #7, 125 F.3d 546, 548-49 (7th Cir. 1997); see also CIGNA
HealthCare of St. Louis, Inc. v. Kaiser, 294 F.3d 849, 852 (7th
Cir. 2002) (“[T]he close relation between the decision to
abstain and normal docket control (a district judge is
routinely required to decide how fast to move particular
cases along) makes it appropriate to give at least some
weight to the judge’s decision to abstain.”).
A. Parallel Actions
Mr. Tyrer first contends that the district court abused its
discretion by determining that his state and federal actions
are parallel. According to Mr. Tyrer, that finding was
improper because “the issues presented to the state
court differ significantly from those presented to the federal
district court in the instant matter.” Appellant’s Br. at 16. In
state court, according to Mr. Tyrer, he challenges the
constitutionality of the events leading up to demolition,
including the application of city ordinances to his case
and the City Council’s cease and desist order. In the fed-
eral action, by contrast, he challenges the constitutionality
of the “actual demolition of the structures that existed on his
property.” Id. at 17 (emphasis added). Thus, while the
parties and operative facts are identical, Mr. Tyrer sub-
mits that the “ultimate issues to be resolved in each forum
diverge.” Id. at 12.
To be parallel, however, “it is not necessary that there be
formal symmetry between the two actions.” Clark, 376 F.3d
at 686 (internal quotation marks omitted). Generally, a “suit
12 No. 05-1602
is parallel when substantially the same parties are contem-
poraneously litigating substantially the same issues in
another forum.” Interstate Material Corp. v. City of Chicago,
847 F.2d 1285, 1288 (7th Cir. 1988) (internal quotation marks
omitted). Among other things, to determine whether two
suits are parallel, a district court should examine whether
the suits involve the same parties, arise out of the same facts
and raise similar factual and legal issues. See Clark, 376 F.3d
at 686.
The district court’s brief examination of whether Mr.
Tyrer’s suits are parallel was far from the “painstaking
comparison of the federal and state complaints” that we
previously have praised in similar cases. See, e.g., Interstate
Material, 847 F.2d at 1288 (internal quotation marks omit-
ted). The district court, in a single sentence, simply
stated that Mr. Tyrer’s state and federal actions raise the
same factual and legal issues. See App. at 40. The court did
not articulate the issues it believed to be identical; nor did
it examine the differences between the two actions. Al-
though we do not require the “rote application” of any of
the Colorado River factors, Sverdrup, 125 F.3d at 550, we
previously have noted that district courts should consider
the relevant requirements and weigh the relevant factors “in
a way that allows this court to review it,” id. (internal
quotation marks omitted).
Although the district court’s review of the parallel-actions
requirement was less comprehensive than we would like,
we must conclude that the record before us makes “obvious
the path of decision followed by the district court.” Id. After
reviewing the two complaints, it is clear that Mr. Tyrer’s
two suits are parallel. First, Mr. Tyrer raises the same due
process claim in both the state and the federal action. In
both suits, he alleges that the City of South Beloit arbitrarily
No. 05-1602 13
or without legal authorization interfered with the use of his
property, thus “depriv[ing] [him] of his property without
due process of law.”8 State Complaint, App. at 10; Federal
Complaint, id. at 26 (internal quotation marks omitted).
Indeed, the parties in both cases cite the same statutes and
cases to define the scope of the City Council and the Zoning
Board’s authority to order demolition and to define the
requisite protections and procedures to be followed in the
course of carrying out this order. Second, the parties in the
federal suit—Mr. Tyrer and the City—are also parties to the
state suit.9 Lastly, the facts alleged in both complaints are
identical; the two suits will be resolved largely by reference
to the same evidence.10 See Vulcan Chem. Techs., Inc. v. Barker,
8
In his state action, Mr. Tyrer alleges that the defendants’
actions violated both the Due Process Clause of the Fourteenth
Amendment and the Takings Clause of the Fifth Amendment; the
federal action, by contrast, is more narrow, alleging only a due
process violation.
9
Mr. Tyrer in his state action also names as defendants the City
Council members in their individual capacities. But “[t]he
existence of additional parties in one suit does not of itself
destroy parallelism.” Schneider Nat. Carriers, Inc. v. Carr, 903 F.2d
1154, 1156 (7th Cir. 1990). Significantly, the City of South Beloit
is a defendant in both the state and the federal action; that
Mr. Tyrer also named the City Council members as defendants in
his state suit does not undermine the conclusion that Mr. Tyrer’s
federal suit raises the same claims against the City that are being
litigated currently in his state action.
10
For example, as we shall discuss further in the text below, the
same persons would be deposed in both suits—namely the
City Council members, the architects who submitted plans to
the Zoning Board of Appeals and Mr. Tyrer. The same documents
also would be evaluated in both suits, including the records of
(continued...)
14 No. 05-1602
297 F.3d 332, 341 (4th Cir. 2002) (holding that because the
federal court was required to “consider[] the same evidence
and arguments” as did the state court in an earlier action,
dismissal or stay under Colorado River was proper (emphasis
added)); New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 911 F.2d 993, 1005 (5th Cir. 1990) (“There is little to
be gained from rehashing the same evidence in another forum
. . . . The district court thus properly concluded that the
desire to avoid piecemeal litigation counseled in favor of a
stay.” (emphasis added)).
Mr. Tyrer responds that, although the state suit focuses
exclusively on events pre-demolition, the federal suit
focuses on the constitutionality of the demolition itself—“a
specific and discrete act of [the] defendant which took place
long after [the] plaintiff’s state complaint was filed.”
Appellant’s Br. at 17 (“Notably, the actual demolition of
[the] plaintiff’s property was not alleged in his state
court complaint or any of its amendments . . . .”). This
statement is not an accurate characterization of the state
court proceedings. Although Mr. Tyrer’s original state
complaint challenged relevant city ordinances, the cease and
desist order, the zoning and condemnation proceedings and
the demolition order, the complaint was amended after the
case was remanded by the Appellate Court of Illinois to the
state trial court and after the federal suit had been initiated.
Count III of the amended state complaint now alleges that
the
action[s] of the defendant City of South Beloit and each of
the named Counsel [sic] members deprived the plaintiff
10
(...continued)
the City Council hearings, the substance of the notice given to Mr.
Tyrer, and the work permit issued by Winnebago County.
No. 05-1602 15
of the use of his property from the date of the cease and
desist order and that such action constitutes either a
temporary or a permanent taking of plaintiff’s subject
premises.
Although the amended complaint does not challenge
explicitly the constitutionality of the demolition, it broadly
encompasses all events after construction halted, includ-
ing the actual demolition and its authorization by the City.
To be sure, Count III alleges violation of the Fifth
Amendment Takings Clause, not violation of the Fourteenth
Amendment Due Process Clause—the focus of the federal
complaint. Nevertheless, we repeatedly have held that two
actions are “parallel” where the underlying issues are the
same, even if they have been “repackag[ed] . . . under
different causes of action.” Clark, 376 F.3d at 687. In this
case, Mr. Tyrer’s claims in the federal and state actions are
inextricably interlinked: Government action effecting a
taking is only valid if the plaintiff is compensated justly and
is afforded due process of law. Thus, his takings claim
requires the court to probe not only the public use of the
property and the proper amount of compensation to be
paid, but also the protections afforded the property owner
prior to the taking. See Thomas Merrill, The Goods, the Bads,
and the Ugly, Legal Aff., Jan.-Feb. 2005, at 16, 18 (“The law
requires that [owners of property] receive just compensation
for any taking of their property, and due process affords
them a fair hearing on the legal authority for the taking and
the amount of just compensation they are entitled to
receive.”); cf. Coniston Corp. v. Vill. of Hoffman Estates, 844
F.2d 461, 464-65 (7th Cir. 1988) (discussing the overlap
between the Due Process and Takings Clauses). In addition,
in Count I of his state complaint, Mr. Tyrer contests the
procedures utilized by the City, see App. at 9 (“[The] City
16 No. 05-1602
Council . . . arbitrarily passed a resolution directing [con-
demnation and demolition].”), and explicitly states
a separate due process claim, id. at 10 (alleging that the
“plaintiff is being deprived of property without due process
of law”). Necessarily, then, the legal and factual analysis
required to resolve the state-court claims is substantially
similar to the analysis that a federal court would undertake
in evaluating Mr. Tyrer’s due process challenge to the
demolition of his house. For example, in examining the
legitimacy of “actual demolition,” Appellant’s Br. at 17, the
federal court would have to examine precisely the matters
in question in the state suit: the City Council hearings; the
notice given before demolition, including whether Mr. Tyrer
was given fair warning that his property was in a dangerous
condition; the procedures followed by the Zoning Board of
Appeals; and whether the City acted within the scope of its
legal authority. In sum, although the state and federal suits
are not identical, and although the focus of the federal
proceeding is more specific than the focus of the state
proceeding, both actions “rely on the same factual predicate
to raise substantially similar legal issues against substan-
tially similar parties.” Clark, 376 F.3d at 687.
B. Exceptional Circumstances
As we explained in Clark, “a conclusion that federal and
state proceedings are parallel only begins the inquiry into
whether a stay is appropriate under Colorado River.” Id.Having determined that the proceedings are parallel,
we now must turn to the district court’s determination that
Mr. Tyrer’s case presents an “exceptional circumstance[].”
Id. As mentioned previously, Colorado River set forth four
primary factors to be considered when deciding whether
abstention is appropriate: whether the same res is involved
in both cases; inconvenience to the parties; the need to avoid
No. 05-1602 17
piecemeal litigation; and the order of state/federal filings.
See 424 U.S. at 818-19. This list was expanded by the Su-
preme Court in Moses H. Cone, 460 U.S. at 23-27, and
this circuit has refined the analysis to a consideration of
ten factors:
1) whether the state has assumed jurisdiction over
property; 2) the inconvenience of the federal forum; 3)
the desirability of avoiding piecemeal litigation; 4) the
order in which jurisdiction was obtained by the concur-
rent forums; 5) the source of governing law, state or
federal; 6) the adequacy of state-court action to protect
the federal plaintiff’s rights; 7) the relative progress of
state and federal proceedings; 8) the presence or ab-
sence of concurrent jurisdiction; 9) the availability of
removal; and 10) the vexatious or contrived nature of
the federal claim.
Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d
698, 701 (7th Cir. 1992) (internal quotation marks omitted).
We are guided, in reviewing the district court’s applica-
tion of these factors, by the Supreme Court’s admonition
that no single factor is “necessarily determinative.” Colorado
River, 424 U.S. at 818; see also Schneider Nat’l Carriers, Inc. v.
Carr, 903 F.2d 1154, 1157 (7th Cir. 1990) (“The weight to be
given any one factor is determined solely by the circum-
stances of the particular case—there is no mechanical
formula by which to determine when a stay is appropriate”
(citing Moses H. Cone, 460 U.S. at 16)). In the end, what is
required is a carefully considered judgment taking into
account both the obligation to exercise jurisdiction and the
combination of factors counseling against that exercise.
Once it is clear that the district court carefully weighed the
appropriate factors, we deferentially review its decision. See
AXA, 347 F.3d at 279.
18 No. 05-1602
The district court in this case did not discuss extensively
the relevant factors, although it did give far more atten-
tion to the presence or absence of “exceptional circum-
stances” than it did to whether Mr. Tyrer’s state and federal
suits are parallel. It listed the relevant factors in a descrip-
tive fashion and summarily applied them to the facts of Mr.
Tyrer’s case.11 Specifically, the court determined that,
although the federal forum was not inconvenient (factor 2)
and although federal law provides the rule of decision
(factor 5), allowing the federal proceeding to continue
would promote “piecemeal and duplicative litigation as
both courts are capable of deciding the issues raised” (factor
3). App. at 40. It also concluded that the state action was
much further along procedurally than the federal action
(factor 7) and that “the state court action will clearly allow
plaintiff to vindicate any violation of his federal rights”
(factor 6). Id. On balance, the court concluded, the “factors
overall support abstention under the Colorado River doc-
trine.” Id.Because several of the relevant factors strongly sup-
port the district court’s decision not to exercise jurisdic-
tion over Mr. Tyrer’s federal action, its decision to abstain
under Colorado River does not constitute an abuse of discre-
tion. Certainly, the district court’s concern about
the progress made in the state proceeding is well-founded
11
Thus, the district court’s actions in this case differed from the
district court’s treatment of the relevant Colorado River factors
in Sverdrup. See Sverdrup Corp. v. Edwardsville Cmty. Unit Sch. Dist.
#7, 125 F.3d 546, 550 (7th Cir. 1997) (reversing the abstention
order because “the district court never discussed the Colorado
River factors and articulated no reason for its decision to stay the
pending federal suit”).
No. 05-1602 19
and, given the procedural history of this dispute, was
entitled to great weight. We cannot accept Mr. Tyrer’s
submission that “very little of substance has, in fact, taken
place [in the state suit], other than the parties’ opposing
motions for summary judgment.” Appellant’s Br. at 22. By
the time that Mr. Tyrer filed his federal suit, his state
suit had been ongoing for approximately four years. A
number of significant events have taken place in that case:
it has been through an order for demolition; motions for
summary judgment; an appeal and remand; and various
amendments to the plaintiff’s complaint, including the
addition of Count III after the federal litigation was com-
menced. Although the precise status of discovery is not
apparent from the record before us, it is clear that various
depositions have been taken in the state case. At the
very least, the “controversy appear[s] to be closer to a
resolution in the state proceedings than in the federal.”
Caminiti & Iatarola, 962 F.2d at 702.
The district court’s concern over the danger of piecemeal
litigation is also well-founded. “Piecemeal litigation occurs
when different tribunals consider the same issue, thereby
duplicating efforts and possibly reaching different results.”
LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1560 (7th Cir.
1989) (internal quotation marks omitted). As the district
court recognized, if Mr. Tyrer pursues both his federal and
his state action, substantially similar issues will be litigated
simultaneously in different forums. As we explained in
LaDuke, this circumstance gives rise to two problems:
First, a party may try to accelerate or stall proceedings
in one of the forums in order to ensure that the court
most likely to rule in its favor will decide a particular
issue first. Second, the possibility exists that one
court, unaware that the other court has already ruled,
20 No. 05-1602
will resolve an issue differently and create a con-
flict between the two forums.
Id.Mr. Tyrer responds that the issues in the federal and the
state suit are not identical and, therefore, resolution of the
issues in his state case “will not lay to rest the claims
remaining in the other proceedings.” Appellant’s Br. at 20.
For example, he notes that the federal suit raises the consti-
tutionality of the actual demolition, while the state suit
raises the constitutionality of the city ordinances and
whether the Zoning Board’s actions constituted a “taking of
[the] plaintiff’s property.” Id. But, as we already have noted,
the actions are parallel in nature. Count III of Mr. Tyrer’s
state complaint now contests the constitutionality of the
actions taken by the City and by its Council members “from
the date of the cease and desist order,” including, necessar-
ily, the actual demolition. It is true that the state action
alleges a violation of the Fifth Amendment Takings Clause,
not the Fourteenth Amendment Due Process Clause as does
the federal action. But the danger of piecemeal litigation
does not turn on formal identity of issues but on concerns
about the efficient use of judicial resources and the public’s
perception of the legitimacy of judicial authority:
When a case proceeds on parallel tracks in state and
federal court, the threat to efficient adjudication is self-
evident. But judicial economy is not the only value that
is placed in jeopardy. The legitimacy of the court system
in the eyes of the public and fairness to the individual
litigants also are endangered by duplicative suits that
are the product of gamesmanship or that result in
conflicting adjudications.
Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 694
(7th Cir. 1985). We continued:
No. 05-1602 21
While the doctrine of res judicata largely obviates the
risk of conflicting final dispositions on the merits, a
significant risk of conflict attends interlocutory rul-
ings that are not ordinarily entitled to preclusive ef-
fect. To take a fairly pedestrian example, the state and
federal courts may issue contradictory orders on discov-
ery matters. This single, simple conflict, on matters
ordinarily within the trial courts’ broad discretion, leads
ineluctably to a “rush to judgment,” with each side
attempting to push forward the litigation in the forum
ruling in its favor on the preliminary matter.
Id. at 694 n.2 (internal citations omitted).
In this case, allowing the two suits to proceed concur-
rently would waste the parties’ resources, risk duplicative
rulings and reward a strategic gamesmanship that has no
place in a dual system of federal and state courts.12 As
discussed previously, the claims in the federal and state
suits are predicated on the same facts and will be resolved
largely by reference to the same evidence. Both suits require
the court to examine the protections afforded Mr. Tyrer
before his property was destroyed. To that end, the same
persons will be deposed, the same witnesses called and the
same evidence produced. Not only would duplicative
litigation waste judicial resources, but it also would create
an undue risk of conflicting final judgments on the merits of
Mr. Tyrer’s claims. See Clark, 376 F.3d at 687 (finding that
similar facts warranted abstention: “[T]he two courts would
12
As we note above, it is troubling that Mr. Tyrer limited
reference to the demolition in his state claim to takings issues,
while narrowly drawing his federal complaint to allege only
a due process claim. Both claims could have, and should have,
been brought in the state forum.
22 No. 05-1602
oversee similar pre-trial motions and discovery matters and
two different triers of fact would be asked to consider the
same issues, evidence and witnesses. . . . Not only would a
stay save judicial resources, but it would also protect against
the danger of the two proceedings reaching inconsistent
results”).
Mr. Tyrer nevertheless contends that the state court has
proven inhospitable to his claims. He points to the state
court’s summary denial of his constitutional claims, as
well as its denial of his demand for a jury trial.13 He does
nothing to substantiate this argument, however, except
to complain that the state court rejected his claims. See
Appellant’s Br. at 21-22. The insinuation that Illinois
courts will not live up to the standard of full and fair
adjudication of the issues “is pure speculation that we
expressly disavow.” AXA, 347 F.3d at 280; see also CIGNA
HealthCare, 294 F.3d at 855 (“This is all speculation; it is
enough that we emphasize—and we do emphasize—that if
down the road the state court judge proves unwilling
or unable to enforce CIGNA’s valid rights . . . and CIGNA
cannot get prompt relief from the state appellate courts,
it can ask the district judge to lift the stay[.]”).14
13
Mr. Tyrer also contends that the state court’s ruling may
foreclose to him a jury trial on his federal claims. However, if
he believes the state court improperly has denied him the right to
trial by jury on his federal claims in violation of the Seventh
Amendment, Mr. Tyrer can appeal that decision.
14
We noted in CIGNA that, although the preclusive effect of a
state court judgment in a federal case is a matter of state rather
than federal law, see Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 380-81 (1985), “Illinois law denies collat-
eral estoppel effect to a finding not made on the basis of a fair
(continued...)
No. 05-1602 23
Second, Mr. Tyrer submits that a plaintiff with “federal
rights and claims” has a right to a federal forum. The
existence of a federal question typically “weighs heavily
against abstention.” Sverdrup, 125 F.3d at 549. However, Mr.
Tyrer chose to bring his federal claims first in a state forum.
He filed a complaint in state court in 2000, raising a due
process claim. He amended this same complaint in 2001,
adding a Fifth and Fourteenth Amendment takings claim.
He again amended the complaint in 2005, expanding the
federal constitutional takings claim to encompass events
occurring after the cease and desist order. See Interstate
Material, 847 F.2d at 1289 (finding it significant that the
party opposing abstention “filed both actions and chose to
file in state court first”). Mr. Tyrer simply has not estab-
lished that he will be denied an opportunity to litigate fully
and fairly his federal claims in the state forum that he
initially chose.
Conclusion
The district court did not abuse its discretion in weigh-
ing the factors bearing on whether Mr. Tyrer’s state and
federal suits are parallel and present those “exceptional
circumstances” warranting abstention. For the reasons set
forth in this opinion, we affirm the judgment of the dis-
trict court.
AFFIRMED
(...continued)
and adequate hearing.” CIGNA HealthCare of St. Louis, Inc.
v. Kaiser, 294 F.3d 849, 856 (7th Cir. 2002) (citing Fried v. Polk Bros.,
Inc., 190 Ill. App. 3d 871 (Ill. App. Ct. 1989)).
24 No. 05-1602
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-2-06