Chicago Joe's Tea Room, LLC v. Village of Broadview ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1989
CHICAGO JOE’S TEA ROOM, LLC and PERVIS CONWAY,
Plaintiffs-Appellants,
v.
VILLAGE OF BROADVIEW, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07-CV-2680 — John Z. Lee, Judge.
____________________
ARGUED SEPTEMBER 8, 2017 — DECIDED JUNE 29, 2018
____________________
Before MANION, KANNE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. For the last eleven years, the par-
ties to this appeal have litigated a land contract that never
closed and a strip club that never opened. Yet this appeal is
still an interlocutory one. We conclude that the claim for in-
junctive relief that gives us appellate jurisdiction is actually
moot, and we affirm its dismissal. Along the way to that con-
clusion, we address a tangled record of transactions that seem
2 No. 16-1989
designed to conceal the real parties in interest and their sub-
stantive deals, and we decide issues of appellate jurisdiction,
standing, and the law of the case.
I. Factual and Procedural Background
Plaintiff Chicago Joe’s Tea Room, LLC, was formed to op-
erate not a tea room but a strip club, in a small, near-west sub-
urb of Chicago that does not want one. The paper trail of legal
entities, abandoned transactions, and apparently illusory ob-
ligations in this case makes for a dense record. We sketch the
essential facts at the outset and provide more detail in dis-
cussing specific issues.
The story begins in 2006 when plaintiff Pervis Conway
contracted to sell land in the Village of Broadview to David
Donahue. Donahue has never been a party to this lawsuit. Do-
nahue assigned the land contract to Chicago Joe’s Tea Room,
LLC. Joseph Inovskis (who also has never been a party to this
lawsuit) was Chicago Joe’s sole manager. He applied for the
special-use permit needed to operate a strip club on the prop-
erty. Broadview denied the application in 2007. The land sale
agreed to in the contract between Conway and Chicago Joe’s
Tea Room, LLC, has never closed, and the planned club, Chi-
cago Joe’s Tea Room, has never opened.
Chicago Joe’s Tea Room, LLC and Conway (collectively,
“Chicago Joe’s”) filed this suit in 2007 alleging that Broadview
violated the First Amendment. Chicago Joe’s sought: (1) a dec-
laration that certain Broadview ordinances are unconstitu-
tional, (2) “such further relief pursuant to 28 U.S.C. § 2202 as
this Court may deem appropriate, including requiring issu-
ance of any necessary licenses or permits for Plaintiff
CHICAGO JOE’S and CONWAY to use its property in the
No. 16-1989 3
manner it seeks,” (3) an injunction blocking Broadview from
enforcing its ordinances, and (4) damages and attorney fees.
Under Broadview’s zoning ordinance, Chicago Joe’s
needed to apply for and be granted a special-use permit to
operate a strip club there. Broadview also categorized strip
clubs as “adult businesses” and used a separate adult-use
zoning ordinance to regulate their placement. Broadview
amended its ordinances multiple times during the lawsuit, so
the district court has faced a moving target. One of those
amendments led the district judge presiding over the first
round of summary judgment, Judge Gottschall, to conclude
that Broadview’s amendment to its adult-use setback ordi-
nance was “aimed solely at Chicago Joe’s.” Chicago Joe’s Tea
Room, LLC v. Village of Broadview (Chicago Joe’s I), No. 07 C 2680,
2008 WL 4287002, at *6 (N.D. Ill. Sept. 11, 2008).
After the case was transferred from Judge Gottschall to
Judge Lee in 2012, the parties litigated a third round of sum-
mary judgment motions. Broadview also moved for reconsid-
eration of Judge Gottschall’s ruling from the first round of
summary judgment and incorporated by reference its argu-
ments on that motion into its motion for summary judgment.
Judge Lee granted the motion to reconsider and granted
Broadview’s motion for summary judgment on Chicago Joe’s
declaratory judgment and injunction claims, but denied
Broadview’s motion for summary judgment on the damages
claim. Chicago Joe’s Tea Room, LLC v. Village of Broadview (Chi-
cago Joe’s II), No. 07-cv-2680, 2016 WL 1270398, at *9 (N.D. Ill.
Mar. 31, 2016). Chicago Joe’s has appealed that order but lim-
ited its arguments on appeal to the denials of injunctive relief.
4 No. 16-1989
II. Analysis
This appeal presents a series of issues. We begin with ap-
pellate jurisdiction, which we have. We then move to the dis-
trict court’s subject-matter jurisdiction over the claims over
which we have appellate jurisdiction, and we examine both
standing and mootness. We conclude by considering the ap-
plication of the law-of-the-case doctrine.
The decisive issue of mootness turns on the limits of the
vested-rights doctrine of Illinois law and a recently amended
state statute that prevents Chicago Joe’s from operating a strip
club anywhere in Broadview. The Illinois vested-rights doc-
trine can be used to recognize property rights to use property
in established or planned ways even when state or local law
changes to prohibit those uses. Under the doctrine, though, a
property owner’s claims must be based on a timely assertion
of a right to use the property in a way that is actually allowed
by law. See City of Elgin v. All Nations Worship Ctr., 860 N.E.2d
853, 856–57 (Ill. App. 2006). The vested-rights doctrine cannot
help plaintiffs here because the undisputed facts show that at
every stage of the process through the district court’s decision,
Chicago Joe’s has proposed to use the property in a way pro-
hibited by then-current local law. And since 2007, Chicago
Joe’s has been proposing to use the property in a way prohib-
ited by an Illinois statute, yet without challenging that statute.
A. Appellate Jurisdiction
We have jurisdiction over this interlocutory appeal be-
cause the district court’s order granted summary judgment
for Broadview on all of Chicago Joe’s equitable claims. With a
few key exceptions, federal courts of appeal can review only
No. 16-1989 5
final judgments, but 28 U.S.C. § 1292(a)(1) permits an inter-
locutory appeal of an order refusing an injunction. We con-
strue the statute narrowly, as a limited exception. E.g., Albert
v. TransUnion Corp., 346 F.3d 734, 737 (7th Cir. 2003) (“There-
fore, we approach the § 1292(a)(1) exception ‘somewhat gin-
gerly lest a floodgate be opened’ that would deluge the appel-
late courts with piecemeal litigation.”), quoting Gardner v.
Westinghouse Broadcasting Co., 437 U.S. 478, 481–82 (1978). In
Albert, we said that interlocutory appeals “represent a contin-
uum” with unreviewable orders not denying any injunctive
relief at one end and reviewable orders denying all injunctive
relief at the other end. Id. at 739.
This appeal falls toward the reviewable end of that contin-
uum, at least in this circuit. Even though the district court de-
nied summary judgment on the damages count, it granted
summary judgment for Broadview on the two counts request-
ing equitable relief. Chicago Joe’s II, 2016 WL 1270398, at *9. So
the order “stripped the case of its equitable component,”
which we have held is sufficient to allow an interlocutory ap-
peal based on the denial of injunctive relief. Holmes v. Fisher,
854 F.2d 229, 230 (7th Cir. 1988). Chicago Joe’s has limited its
appellate arguments to the injunction issues, so we need not
worry here about what narrow vestiges remain of pendent ap-
pellate jurisdiction. See Swint v. Chambers County Comm’n, 514
U.S. 35 (1995); Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir.
2012).
Even with those limits, appeals like this one call for juris-
dictional caution. Holmes held that irreparable harm is not re-
quired for appellate jurisdiction for an interlocutory appeal of
an order denying an injunction. “Asking whether an order
plainly denying an injunction also caused irreparable injury
6 No. 16-1989
would add a gratuitously complicating factor to the simple
statutory rule. We therefore … hold that an order denying in-
junctive relief is immediately appealable even though a re-
quest for damages remains pending.” 854 F.2d at 232. But al-
lowing interlocutory appeals from grants of summary judg-
ment for defendants on permanent injunction claims invites
piecemeal appeals. That is especially true in cases like this
one, where parties appeal after years of litigation and without
ever having asked for a preliminary (i.e., interlocutory) in-
junction. Nevertheless, under the logic of Holmes and the sub-
stantial authority it relied upon, we have jurisdiction over this
appeal. 1
B. District Court’s Jurisdiction Over Equitable Claims
We now turn to the district court’s subject-matter jurisdic-
tion over the claims properly before us, those seeking injunc-
tive relief. (We see no basis to question the court’s jurisdiction
over the rest of the case.) The question of subject-matter juris-
diction here lies close to the sometimes blurry line between
standing and mootness, which has sometimes been called
“the doctrine of standing set in a time frame,” Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528
U.S. 167, 189 (2000), quoting Arizonans for Official English v.
Arizona, 520 U.S. 43, 68 n.22 (1997), and the merits of the
1 Our approach has been criticized and, in a proper case, may need a
fresh look. See 16 Wright & Miller, Federal Practice and Procedure § 3924.1
(3d ed.) (comparing different circuits’ approaches and concluding that
“these considerations suggest that ordinarily § 1292(a)(1) appeals should
be limited to orders refusing express requests for preliminary injunctions.
Routine appeal from interlocutory orders that narrow or deny permanent
relief is unwarranted.”).
No. 16-1989 7
claims. We conclude that at least plaintiff Conway had stand-
ing to seek injunctive relief at earlier stages of the case, but
that a new Illinois statutory amendment that plaintiffs have
not challenged renders their claims for injunctive relief moot.
A court could not grant them the relief they seek from the Vil-
lage of Broadview.
1. Standing
The standing of Chicago Joe’s Tea Room, LLC itself is at
least doubtful, especially in view of the obscure trail of con-
tracts, trusts, and illusory commitments, but we need not
wrestle those issues to the ground. The other plaintiff-appel-
lant, Conway, had standing, at least at earlier stages of the
case. “As long as there is ‘at least one individual plaintiff who
has demonstrated standing to assert these rights as his own,’
a court ‘need not consider whether the other ... plaintiffs have
standing to maintain the suit.’” Bond v. Utreras, 585 F.3d 1061,
1070 (7th Cir. 2009), quoting Village of Arlington Heights v. Met-
ropolitan Housing Development Corp., 429 U.S. 252, 264 & n.9
(1977).
Standing requires three elements, and Conway satisfied
all three. “The plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992), and Friends of the Earth, 528 U.S. at 180–81. Addition-
ally, a plaintiff must have standing for each form of relief
sought. E.g., Town of Chester v. Laroe Estates, Inc., 137 S. Ct.
1645, 1651 (2017) (“At least one plaintiff must have standing
to seek each form of relief requested in the complaint.”); Lau-
rens v. Volvo Cars of North America, LLC, 868 F.3d 622, 625 (7th
8 No. 16-1989
Cir. 2017) (“an individual plaintiff ‘bears the burden of show-
ing that he has standing for each type of relief sought’”), quot-
ing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
It is undisputed that Conway owned the property when
Broadview denied the application for a special-use permit
and that Conway still owns the property.2 The original con-
tract between Chicago Joe’s and Conway was contingent not
on Chicago Joe’s actually obtaining zoning approval but on its
being satisfied that it could obtain that approval. Broadview’s
denial killed the deal—at least as the parties originally envi-
sioned it. The evidence of that result means that Conway has
offered evidence of a concrete, actual injury traceable to
Broadview’s conduct and redressable by all three forms of re-
lief sought in the complaint. See Parvati Corp. v. City of Oak
Forest, 630 F.3d 512, 516 (7th Cir. 2010) (property owner had
2 On August 9, 2007, Conway and the State Bank of Countryside as
Trustee under Trust No. 072982 executed “Articles of Agreement for
Deed.” In that contract, Conway agreed to deed the property to the trust
following receipt of all payments from the trust. The agreement provided
for a quitclaim deed and a warranty deed to be tendered at the initial clos-
ing and held in escrow until the trust performed all of its obligations under
the agreement. In the district court, Broadview did not dispute that Con-
way owned 2850 Indian Joe Drive “at all times relevant herein.” But
Broadview also attempted to designate the Articles of Agreement for Deed
as evidence that Conway sold the property, which Chicago Joe’s disputed.
Broadview did not designate any evidence to show that the deeds refer-
enced in the Articles of Agreement for Deed ever changed hands or that
the sale ever closed. Without that evidence, the record contradicts Broad-
view’s assertions in its appellate brief, at oral argument, and again in its
post-argument submission that the property was sold and that Conway
has no ownership interest in the property. In its post-argument submis-
sion, Chicago Joe’s told this court that the sale “has not yet closed.” As far
as we can tell, the record supports that claim.
No. 16-1989 9
standing at outset of litigation because city’s denial of buyer’s
zoning application “scuttled the … deal and prevented the
sale” but later lost standing by selling property).3 Unlike the
seller in Parvati, Conway still has standing because he still
owns the property—even though he entered into a different
contract with another buyer that purports to lease the prop-
erty to Chicago Joe’s and even though all of the nominal rent
is supposedly “due and owing.”
2. Mootness
Judge Lee correctly held that plaintiffs’ injunction claims
are moot. Because mootness is a jurisdictional issue, not a
merits issue, Broadview should have raised its jurisdictional
arguments as a motion under Rule 12(b)(1), not Rule 56. See
Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987) (“Seek-
ing summary judgment on a jurisdictional issue, therefore, is
the equivalent of asking a court to hold that because it has no
3 All three forms of relief would redress the injury the ordinances al-
legedly impose on Conway. A declaration that the ordinances violated the
First Amendment would remove an impediment to a sale for a buyer like
Chicago Joe’s who intended a use prohibited by the ordinances. Enjoining
Broadview from enforcing its ordinances would have a similar effect.
Damages based on the abandoned sale could also redress Conway’s in-
jury.
Although the complaint seems to frame the damages request primar-
ily from Chicago Joe’s perspective, the complaint states that both plaintiffs
seek $10 million in damages. The complaint does not explain the nature of
Conway’s damages. Its references to a singular plaintiff imply that the
damages for Conway would be different than the damages for Chicago
Joe’s. The complaint alleges that the permit denial “deprived Plaintiff of
its investment in [the] property, and has also deprived it of the profits it
would have earned had Plaintiff been able to use its property for the pur-
poses it desires.”
10 No. 16-1989
jurisdiction the plaintiff has lost on the merits. This is a nonse-
quitur.”), citing Exchange Nat’l Bank v. Touche Ross, 544 F.2d
1126, 1130–31 (2d Cir. 1976). 4 The distinction matters because
the res judicata effect of a dismissal for lack of jurisdiction is
limited to the jurisdictional issue. Id. (At the same time, a de-
fendant challenging jurisdiction need not accept as true the
allegations in the complaint and may ask the court to decide
the jurisdictional issue by considering additional documents
and affidavits, which makes the motion look a lot like a sum-
mary judgment motion, or by holding an evidentiary hearing
and making factual findings. See, e.g., Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 444–45 (7th Cir. 2009) (af-
firming dismissal for lack of jurisdiction based on affidavits
that plaintiff was unable to rebut); Sapperstein v. Hager, 188
F.3d 852, 855–56 (7th Cir. 1999) (reversing dismissal for lack of
jurisdiction based on affidavit plaintiff never had opportunity
to challenge).)
The boundary between mootness and the merits, as with
the boundary between standing and the merits, can some-
times be difficult to discern, as it is in this case. As in Winslow,
and because jurisdictional issues like standing and mootness
are not waivable, we overlook the misnomer and address the
substance of the motion. Because the district court was correct
that the injunction claims are moot, we affirm their dismissal
on that ground.
4
As Judge Gottschall noted in her order on Broadview’s second sum-
mary judgment motion, Broadview made this same error in that earlier
motion. See Chicago Joe’s Tea Room, LLC v. Village of Broadview, 790 F. Supp.
2d 693, 694–95 (N.D. Ill. 2011).
No. 16-1989 11
“Whether a case has been rendered moot is a question of
law that we review de novo.” Zessar v. Keith, 536 F.3d 788, 793
(7th Cir. 2008), quoting Federation of Advertising Industry Rep-
resentatives, Inc. v. City of Chicago, 326 F.3d 924, 928–29 (7th Cir.
2003). Mootness strips a federal court of subject-matter juris-
diction. DJL Farm LLC v. EPA, 813 F.3d 1048, 1050 (7th Cir.
2016) (per curiam), citing Pakovich v. Verizon LTD Plan, 653 F.3d
488, 492 (7th Cir. 2011). If “an event occurs while a case is
pending … that makes it impossible for the court to grant ‘any
effectual relief whatever’ to a prevailing party, the [case] must
be dismissed.” Cornucopia Institute v. USDA, 560 F.3d 673, 676
(7th Cir. 2009) (alterations in original), quoting Church of Sci-
entology of California v. United States, 506 U.S. 9, 12 (1992). This
analysis proceeds claim by claim. See, e.g., Pakovich, 653 F.3d
at 492 (holding that district court retained jurisdiction over
claim for attorney fees despite moot claim for benefits and
noting that an “entire claim is not mooted simply because the
specific relief it sought has been rendered moot”), quoting Cor-
nucopia Institute, 560 F.3d at 676); see also 13B Wright & Miller,
Federal Practice and Procedure § 3533 (3d ed.) (“As long as
damages can be claimed, it remains necessary to resolve the
issues that control damages liability. The continuing availabil-
ity of an injunction, declaratory judgment, or other form of
specific relief may be much more uncertain.”).
a. Vested Rights
To explain the mootness problem the district court faced,
we must detour briefly into the vested-rights doctrine under
Illinois law. The general rule is that a property owner has no
right to the continuation of an existing zoning classification.
Under the vested-rights doctrine, however, a party may ac-
quire a vested right to continue using its property in accord
12 No. 16-1989
with existing law, particularly zoning classifications. See 1350
Lake Shore Associates v. Healey, 861 N.E.2d 944, 950 (Ill. 2006).
A right may vest before actual use begins where “there has
been a substantial change of position, expenditures or incur-
rence of obligations made in good faith by an innocent party
under a building permit or in reliance upon the probability of
its issuance. . . .” Id., quoting People ex rel. Skokie Town House
Builders, Inc. v. Village of Morton Grove, 157 N.E.2d 33, 37 (Ill.
1959).
The problem for Chicago Joe’s here is that when it claims
its rights vested, its proposal to use the property would have
violated at least one Broadview ordinance. This is not a case
where Chicago Joe’s made substantial investments in good
faith, filed a special-use permit application that complied
with existing law, and the local government then responded
by amending its ordinances to prohibit the planned use. The
undisputed facts here show that Chicago Joe’s original appli-
cation proposed a use with sales of alcoholic beverages, which
would have violated a presumptively valid ordinance that
Chicago Joe’s did not challenge before applying for the per-
mit.
The Illinois courts have made clear that a property owner
who claims a vested right must proceed according to the law
as it existed at an earlier time, by “attempting to comply with
an ordinance as written.” City of Elgin, 860 N.E.2d at 857 (no
vested right for church that conducted worship services in
district where zoning ordinance prohibited churches because
church attempted to “claim a vested right to ignore the exist-
ing ordinance”). See generally Christian Assembly Rios de Agua
Viva v. City of Burbank, 948 N.E.2d 251, 255 (Ill. App. 2011)
(plaintiff must show “probability” of municipal approval and
No. 16-1989 13
substantial change in position based upon that probability),
quoting Bank of Waukegan v. Village of Vernon Hills, 626 N.E.2d
245, 251 (Ill. App. 1994).
Chicago Joe’s vested-rights theory fails that requirement.
Inovskis sought permission to do what Broadview’s adult-use
ordinance expressly forbade at the time. That is the opposite
of what the vested-rights doctrine requires. When he applied
for the special-use permit, it was “unlawful for any adult busi-
ness to sell, distribute, or permit beer or alcoholic beverages
on the premises.” Inovskis was seeking permission to violate
the adult-use ordinance:
I am seeking the following from the Village of Broad-
view:
Permission to operate an adult use facility in all adult
use categories as defined in the Code of Ordinances of
the Village of Broadview, permission to operate a restau-
rant with the ability to sell alcohol, permission to operate
24 hours per day – seven days per week, permission to
operate a valet parking service for customers and em-
ployees in order not to disturb current traffic or park-
ing patterns in the surrounding area, and permission
to use an off site parking lot in addition to on site park-
ing.
Complaint at 17 (emphasis added). That was the basis for
Broadview’s denial of the application. Because adult-use facil-
ities could not serve alcohol, Chicago Joe’s cannot make the
required showing that it probably would have won approval
under the law as it stood when it applied for a special-use per-
mit.
14 No. 16-1989
On appeal, Chicago Joe’s argues that it could still acquire
a vested right because the application was for a special-use
permit and not for serving alcohol, which would have re-
quired a separate liquor license. This argument is unpersua-
sive. In considering an application under the special-use ordi-
nance, Broadview did not have to blind itself to proposed vi-
olations of other ordinances. In fact, the special-use ordinance
required Broadview to consider the restrictions in the adult-
use ordinance: “Special uses shall be authorized or denied by
the village board of trustees in accordance with the statutes of
the state applicable to amendments of this title, and the regu-
lations and conditions set forth in this title for special uses.”
Because the vested-rights doctrine does not apply to Chicago
Joe’s planned operation of a strip club in Broadview, we need
not explore a number of further issues that would arise other-
wise. 5
b. The Illinois Statute
In the end, we agree with the district court that Chicago
Joe’s claims for injunctive relief are moot because an applica-
ble Illinois statute now prohibits Chicago Joe’s from opening
anywhere in Broadview. Chicago Joe’s has not challenged that
statute, and it would effectively prohibit a court from grant-
ing effective relief to Chicago Joe’s even if Chicago Joe’s pre-
vailed on its federal constitutional challenges to the Broad-
view ordinances. That is so whether Chicago Joe’s had a
5The district court assumed that the vested-rights doctrine “applies
to federal claims such as those at issue here.” Chicago Joe’s II, 2016 WL
1270398, at *5. We have made that same assumption for purposes of argu-
ment.
No. 16-1989 15
vested right or not, though it is certainly clearer in the absence
of a vested right.
Illinois statutes preempt conflicting ordinances by non-
home-rule municipalities. Village of DePue v. Exxon Mobil
Corp., 537 F.3d 775, 787 (7th Cir. 2008), citing Hawthorne v. Vil-
lage of Olympia Fields, 790 N.E.2d 832, 842 (Ill. 2003). It is un-
disputed that Broadview is a non-home-rule municipality.
And we have declined to apply the vested-rights doctrine be-
fore because Illinois state courts “would not interpret a com-
mon law doctrine in a manner that neutralizes the meaning of
a state statute.” Vision Church, United Methodist v. Village of
Long Grove, 468 F.3d 975, 1005 (7th Cir. 2006) (vested right in
zoning classification would have made Illinois involuntary
annexation statute “meaningless”). We reach the same con-
clusion here.
In August 2007, a few months after Broadview had denied
Chicago Joe’s permit application in March 2007, the Illinois
legislature amended its “Adult entertainment facility” statute
to prohibit “locat[ing], construct[ing], or operat[ing] a new
adult entertainment facility within one mile of the property
boundaries of any school, day care center, cemetery, public
park, forest preserve, public housing, or place of religious
worship located in that area of Cook County outside of the
City of Chicago.” 65 Ill. Comp. Stat. Ann. 5/11-5-1.5 (emphasis
added). The prior version was less restrictive, with only a
1,000-foot setback. Plaintiff Conway’s property is within one
mile of a cemetery, two schools, three parks, and a church. By
its terms, the state statute forecloses any attempt to operate a
strip club on Conway’s property, and apparently anywhere
else in Broadview. Chicago Joe’s II, 2016 WL 1270398, at *6. A
16 No. 16-1989
court could not grant Chicago Joe’s “any effectual relief what-
ever,” see Cornucopia Institute, 560 F.3d at 676, quoting Church
of Scientology, 506 U.S. at 12, by enjoining Broadview from en-
forcing its ordinances. Chicago Joe’s has not sued any defend-
ants who could be enjoined from enforcing the Illinois statute
and has not otherwise challenged it. We agree with the district
court that Chicago Joe’s claims for injunctive relief are moot. 6
3. Law of the Case
Finally, Chicago Joe’s has also suggested that under the
law-of-the-case doctrine, the district court erred by even en-
tertaining any arguments about mootness and vested rights.
Judge Gottschall’s first summary judgment ruling in 2008
held that Chicago Joe’s had a “vested right” in the setback
subsection of Broadview’s adult-use ordinance, but only in
that subsection. Chicago Joe’s I, 2008 WL 4287002, at *6 & n.10.
Chicago Joe’s argues that the issue of its vested rights should
have been closed after that ruling, at least in the district court.
Because Chicago Joe’s raised the issue only in a footnote and
without any citation, this issue was waived. Evergreen Square
of Cudahy v. Wisconsin Housing & Economic Dev. Auth., 848 F.3d
822, 829 (7th Cir. 2017), citing United States v. Warner, 792 F.3d
847, 856 (7th Cir. 2015), and Harmon v. Gordon, 712 F.3d 1044,
1053 (7th Cir. 2013).
6 In the last summary judgment order, the district court noted that
Chicago Joe’s briefing “suggest[ed] that Broadview’s local analog to the
[statute] is unconstitutional,” but that this is “quite different from chal-
lenging the validity of the statute itself.” Chicago Joe’s II, 2016 WL 1270398,
at *7 n.7. On appeal, Chicago Joe’s appears to have made the strategic de-
cision not to challenge the statute. Reply Br. at 7 (“Chicago Joe’s will have
the opportunity to challenge the state statute once it has overcome the hur-
dle of the Village’s wrongful denial of its special use permit.”).
No. 16-1989 17
In any event, Judge Lee did not abuse his discretion by
taking a fresh look at the issue of vested rights. The law of the
case is a discretionary doctrine, not an inflexible dictate. E.g.,
Pepper v. United States, 562 U.S. 476, 506–07 (2011), quoting Ar-
izona v. California, 460 U.S. 605, 618 (1983); Galvan v. Norberg,
678 F.3d 581, 587 (7th Cir. 2012), citing Gallimore v. Missouri
Pacific R.R. Co., 635 F.2d 1165, 1170–72 (5th Cir. 1981); Minch v.
City of Chicago, 486 F.3d 294, 302 (7th Cir. 2007), citing Santama-
rina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006);
Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227
(7th Cir. 1995) (law of the case is “a presumption … not a
straitjacket”), citing Philips Medical Sys. Int’l B.V. v. Bruetman,
8 F.3d 600, 603 (7th Cir. 1993); see also Best v. Shell Oil Co., 107
F.3d 544, 546–47 (7th Cir. 1997) (second judge’s discretion to
revisit issues depends on standard of appellate review and
records and procedural postures for different decisions); Pe-
terson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985) (“[W]hen
good reasons for [re-examination] appear (such as new evi-
dence or controlling law, or clear error), the ‘law of the case’
doctrine must yield to rational decisionmaking.”) (second al-
teration added), citing 20 A.L.R. Fed. 13 (1974). Also, a second
judge is “significantly less constrained by the law of the case
doctrine with respect to jurisdictional questions.” Gilbert v. Il-
linois State Bd. of Educ., 591 F.3d 896, 903 (7th Cir. 2010), quot-
ing O’Sullivan v. City of Chicago, 396 F.3d 843, 849–50 (7th Cir.
2005). And the doctrine does not apply when the first judge
never decided the precise issue before the second judge. Id.,
citing FMS, Inc. v. Volvo Construction Equipment North America,
Inc., 557 F.3d 758, 762–63 (7th Cir. 2009).
In this case, several factors made it reasonable for Judge
Lee to revisit the issue of vested rights. The issue affects sub-
18 No. 16-1989
ject-matter jurisdiction; the two judges actually decided dif-
ferent questions, particularly since Judge Gottschall limited
her decision to only the setback subsection of the local ordi-
nance rather than the planned use of the property; and Judge
Lee had a more detailed and complete record, after discovery
had been completed. Judge Lee did not err by reconsidering
Judge Gottschall’s order; Chicago Joe’s claims for an injunc-
tion are moot.
The district court’s dismissal of Chicago Joe’s claims for in-
junctive relief is
AFFIRMED.