145 Fisk, LLC v. F. William Nicklas ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1868
145 FISK, LLC,
Plaintiff-Appellant,
v.
F. WILLIAM NICKLAS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 19-cv-50093 — Philip G. Reinhard, Judge.
____________________
ARGUED DECEMBER 10, 2020 — DECIDED JANUARY 26, 2021
____________________
Before SYKES, Chief Judge, and FLAUM and KANNE, Circuit
Judges.
FLAUM, Circuit Judge. Illinois authorizes municipalities to
invest in revitalizing areas of “commercial blight.” See 65 Ill.
Comp. Stat. 5/11-74.4 et seq. The City of DeKalb, Illinois (the
“City”), entered into a preliminary agreement to allocate just
such an incentive to 145 Fisk, LLC (“Fisk”). After more due
diligence, however, the City reversed course.
2 No. 20-1868
Fisk is convinced the City would have proceeded with the
funding as planned but for the meddling of City Manager F.
William Nicklas. According to Fisk, Nicklas sought to retali-
ate against it and favor other local developers in violation of
its First and Fourteenth Amendment rights. The district court
dismissed Fisk’s suit for failure to state a claim upon which
relief can be granted and relinquished supplemental jurisdic-
tion over the remaining state law claims. Because we agree
that Fisk has not plausibly stated grounds for relief, we affirm
the judgment of the district court.
I. Background
Plaintiff-appellant Fisk is a limited liability company. The
entity was formed on December 13, 2018, and it consisted of
two members, one of whom is an attorney (“Attorney Mem-
ber”).
Fisk alleges that for over two years it collaborated with the
City regarding a proposed redevelopment of a dilapidated
property at 145 Fisk Avenue in DeKalb. On December 18,
2018, the City adopted Resolution 2018-166 approving a Pre-
liminary Development Incentive Agreement (“PDA”) with
Fisk regarding potential financing for the project. The PDA,
into which the parties entered on or about January 1, 2019,
provided that if Fisk met certain contingencies set forth
therein, the City would provide an approximate $2,500,000
Development Incentive (“Development Incentive”) in Tax In-
crement Financing (“TIF”) to Fisk for the redevelopment. Per
the PDA, the Development Incentive was “intended to be re-
paid as a forgivable incentive, payable through the generation
of revenues from the development of the Property after the
date of final plan approval.”
No. 20-1868 3
Both the PDA and the Resolution, however, imposed con-
ditions and obligations on both parties before finalizing the
development agreement and distributing the funds. The Res-
olution provided that the City Council “hereby approves of
the Development Incentive Agreement … subject to such
amendments as shall be acceptable to the Mayor with the rec-
ommendation of the City Manager. Staff is authorized to ne-
gotiate and proceed with presentation of [the] Final Develop-
ment Agreement for consideration of approval at a future
date.”
The PDA likewise subjected the Development Incentive to
various contingencies. For example, Recital C of the PDA
states “the Parties have entered into this Agreement so as to
provide an incentive for [Fisk] to … proceed with the pro-
posed project, subject to the contingencies outlined herein.”
Recital E continued: “[Fisk] acknowledges that the City is not
required to provide the incentive contemplated herein ….” In-
deed, the extent of the arrangement is an “agreement to con-
ditionally approve.” The PDA further states in Article II(A)
that “[Fisk] acknowledges all contingencies outlined in this
Agreement, and agrees and acknowledges that until all such
contingencies are fully satisfied, it has no basis to detrimen-
tally rely upon the representations of the City with respect to
the availability of incentive funding.” With respect to costs in-
curred, under Article II(A) “[Fisk] agrees and acknowledges
that any costs incurred prior to approval of a planned devel-
opment agreement as contemplated herein … are incurred at
[Fisk]’s sole risk and cost until such point in time as the Prop-
erty is rezoned and the planned development agreement is
approved, and any other conditions or contingencies outlined
herein are satisfied in full.” (Emphasis added). Even in defin-
ing the “Development Incentive,” Article V(B) states “All
4 No. 20-1868
provisions of this Article V are contingent upon [Fisk] obtain-
ing final approval of its plans, rezoning the Property, lender
financing, and executing a planned development agreement
as described above.”
Amid the negotiations over the redevelopment project, a
transition in the City’s personnel marked the beginning of the
end for Fisk’s proposed Development Incentive. Around Jan-
uary 1, 2019, F. William Nicklas became the new City Man-
ager. Unsatisfied with previous due diligence, Nicklas
opened his own inquiries into Fisk’s financial affairs and de-
velopment plans. This included a series of in-person meetings
and exchanges during February and March 2019 between
Nicklas and Fisk’s principals. Nicklas requested “personal in-
formation” about the principals, their affiliates, and their fi-
nancial situation. Nicklas even spoke with the Attorney Mem-
ber’s personal banker. Nicklas also requested information
about the corporate entity itself, including a worksheet to in-
dicate its “financial viability.” Fisk never, however, affirma-
tively states in the record what amount of working capital the
principals or the corporate entity specifically had to fund the
project contemplated by the PDA. By Fisk’s account, all Nick-
las’s requests duplicated the City’s prior ones and were not
required by the Resolution or PDA.
Nicklas’s review exposed cracks in the project’s founda-
tion. In an email to Fisk dated April 1, 2019, Nicklas stated he
felt “duty-bound” to inform the Council that in his opinion
Fisk did not have “the financial capacity or the experience”
needed for the funding. Nicklas based this conclusion on sub-
missions from Fisk, including the financial worksheet, a
budget for three years of operation following 145 Fisk Ave-
nue’s completion, and the principals’ own
No. 20-1868 5
“acknowledgment” during a March 2019 meeting that neither
“ha[d] ever developed a hotel property in the past.” Nicklas
recommended Fisk withdraw its application. Specifically,
Nicklas stated:
[M]y judgment is based upon the following con-
clusions:
1. No balance sheet for 145 Fisk LLC has been
submitted, but your submittal shows no current
or long-term assets that can be pledged as col-
lateral. The corporation controls a 24,000 square
foot, uninhabitable facility with an estimated
market value of only $300,000.
2. 145 Fisk LLC has not secured any sources of
income to complete the project or operate the
project upon its completion.
3. 145 Fisk LLC has no working capital and its
operations are not generating any capital to pay
for current expenses, much less the ongoing
professional consulting fees incurred to date in
the conceptual planning phase of the project.
4. On the basis of your submittal, it appears that
145 Fisk LLC is relying upon a $2.5 million TIF
grant from the City and 100% of the balance of
the equity funding from one or more financial
institutions. Your submittal offers no working
cash from the principals, or pledged private as-
sets, or lines of credit, or other private equity to
help finance the project.
5. You do not reveal the real and comparable ho-
tel development upon which you are basing the
6 No. 20-1868
projected three-year profit and loss prospectus
you submitted. Since you have not developed a
hotel, your numbers are not rooted in an actual
operation, so far as you have revealed. They
[sic] are so many numbers on a page.
6. As you may know, TIF assistance carries a
federal income tax liability. Your submittal
shows no indication that 145 Fisk LLC could
carry that liability except at the expense of the
project’s development. 1
Disagreement ensued. In a series of subsequent ex-
changes, the Attorney Member reiterated that the corporate
entity was “simply a holding [LLC] at this point” and Nick-
las’s “specific comments 1-6 [were]n’t accurate, include[d] er-
roneous assumptions, [we]re disingenuous, or [we]re com-
pletely out of context.” The Attorney Member emphasized
“[a]ll [they] need is a loan commitment to proceed, but …
commitment and income sources cannot be secured until a
formal commitment from the City is finalized.” Fisk also re-
jected Nicklas’s recommendation to withdraw its application
for the Development Incentive.
1 The City Attorney reiterated these concerns as well. In an April 2, 2019
email attached as an exhibit to Fisk’s operative complaint, he wrote the
“fundamental question that the City Manager is trying to address is the
appropriateness of and/or necessity for a financial incentive.” Moreover,
he contextualized that the City required submission of a detailed financial
pro forma (along with other documents) in its review of previous requests
for incentives for hotel projects that a third-party consultant reviewed for
completeness, reasonableness, and accuracy. The City Attorney also in-
vited Fisk to share any additional information in its possession.
No. 20-1868 7
As it turns out, the events of 2019 were not the first en-
counter between Nicklas and Fisk’s members. The Attorney
Member represented a client in a state court lawsuit involving
the City of Sycamore. In response to an interrogatory dated
April 21, 2017, that client identified Nicklas—who was previ-
ously Sycamore’s City Manager—as a witness. Through the
proceedings, an email surfaced in which Nicklas referred to
regulatory requirements imposed by “[t]hat pesky Constitu-
tion” which “has strictures against artificial distinctions.”
However, the client in that suit was not Fisk. In fact, Fisk had
not yet come into corporate existence.
During that same period, Nicklas considered two other
development projects with which, Fisk alleges, Nicklas had
previous financial and personal ties for funding incentives.
The first was a TIF-backed hotel project with a developer
named Shodeen. Nicklas had previously collaborated on a ho-
tel with Shodeen that never came to fruition. The second was
a TIF-backed apartment development project with John Pap-
pas. Nicklas had previously represented Pappas’s major in-
vestor, who intended to invest in the TIF-backed apartment,
in consulting work.
Nicklas ultimately recommended the City terminate the
PDA with Fisk. During an April 22, 2019, meeting, the City
Council addressed Nicklas’s findings. The City’s Agenda
notes indicated the City did not receive “the necessary finan-
cials and development plans to justify a permanent commit-
ment to the allocation of $2.5 million” within 120 days of the
Resolution. Specifically, the Council found the financial doc-
uments “were barren of any assurance that the LLC could af-
ford ongoing preliminary planning and engineering fees.”
The Council further cited “insufficient project details” to
8 No. 20-1868
advance “to a formal development hearing.” Specifically, the
lack of documentation for a traffic impact study, final site en-
gineering plans, “storm water management report examining
the site’s runoff,” floor plans, and “variances or exceptions
from the City’s development ordinances.” Accordingly, “[t]he
Council determined that—on the basis of all known docu-
ments—there was no reasonable or informed basis upon
which the project could be considered viable.” The City Coun-
cil unanimously voted to terminate the PDA. Fisk filed suit
that same day.
Fisk commenced this action in federal court against Nick-
las in his individual capacity claiming violations of state and
federal law. The state law claims included tortious interfer-
ence with Fisk’s business expectancy, defamation per se, and
defamation per quod. Relevant to this appeal, Fisk sued under
42 U.S.C. § 1983 for violations of its rights under the First and
Fourteenth Amendments.
Nicklas moved to dismiss the complaint for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). In lieu
of a reply to Nicklas’s Rule 12(b)(6) motion, Fisk obtained
leave to file an amended complaint. Fisk filed the First
Amended Complaint, the operative complaint for this appeal,
on November 5, 2019. Pertinent here, Fisk claims Nicklas vio-
lated its First Amendment right (Count II), as well as its Four-
teenth Amendment rights to due process (Count III) and
equal protection (Count IX). Nicklas again moved to dismiss
pursuant to Rule 12(b)(6). Fisk opposed and alternatively re-
quested leave to replead.
On April 27, 2020, the district court dismissed Fisk’s fed-
eral claims against Nicklas for failure to state a claim with
No. 20-1868 9
prejudice and relinquished jurisdiction over the supple-
mental state law claims. 2
II. Discussion
We review the district court’s grant of Nicklas’s motion to
dismiss de novo to determine whether Fisk has stated a claim
upon which relief can be granted. Bridges v. Gilbert, 557 F.3d
541, 545 (7th Cir. 2009). “We accept well-pleaded facts as true
and draw all reasonable inferences in the plaintiff[’s] favor.”
Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d 1056, 1060–61
(7th Cir. 2020). Notwithstanding that deference, “[t]o survive
a motion to dismiss, a plaintiff must allege ‘enough facts to
state a claim to relief that is plausible on its face.’” Boucher v.
Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 365–66 (7th Cir. 2018)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A. First Amendment
Count II of the complaint alleges that Nicklas retaliated
against Fisk for exercising its First Amendment right. Specifi-
cally, Fisk alleges that as City Manager of DeKalb, Nicklas
blocked the Development Incentive and “orchestrated [a]
campaign” against Fisk because its Attorney Member ex-
posed unflattering information about Nicklas and named him
in discovery in connection with the unrelated 2017 lawsuit.
Fisk pleaded that the Attorney Member’s representation in
2 Fisk also added the City of DeKalb as a defendant in the First Amended
Complaint, claiming breach of contract and the duty of good faith and fair
dealing. The City moved to dismiss, or transfer, based on a forum selection
clause in the PDA. The district court relinquished the state law claims
against the City and therefore denied its motion to transfer as moot.
10 No. 20-1868
the 2017 lawsuit fell within “the First Amendment’s right to
petition the government for the redress of grievances.” The
district court dismissed Fisk’s First Amendment retaliation
claim, reasoning that Fisk did not engage in protected activ-
ity. That is because the client in the 2017 lawsuit, who is not a
party to this litigation, engaged in protected activity by exer-
cising his or her right to petition the government when he or
she accessed the courts. Thus, that nonparty client has the
right to be free from retaliation for exposing Nicklas, not Fisk.
To make a prima facie showing on its First Amendment
retaliation claim, Fisk must establish that “(1) it engaged in
activity protected by the First Amendment, (2) it suffered a
deprivation that would likely deter First Amendment activity
in the future, and (3) the First Amendment activity was … ‘at
least a motivating factor’ in the Defendant[’s] decision to take
the retaliatory action.” Woodruff v. Mason, 542 F.3d 545, 551
(7th Cir. 2008) (quoting Massey v. Johnson, 457 F.3d 711, 716
(7th Cir. 2006)). We have recognized that a plaintiff’s exercise
of “[t]he First Amendment right to petition the government
for the redress of grievances” may qualify for the first prong
of a First Amendment retaliation claim. See id. Furthermore,
the right to petition “extends to the courts in general and ap-
plies to litigation in particular.” Id. (citing Cal. Motor Transp.
Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); NAACP v.
Button, 371 U.S. 415, 429–30 (1963)).
On appeal, Fisk argues the district court erred in conclud-
ing it did not engage in protected conduct to satisfy the first
prong of a First Amendment retaliation claim. Fisk asserts
that its protected conduct was “the work of one of its princi-
pals in [the 2017] litigation.” It appears that Fisk now contends
that the Attorney Member exercised his own First
No. 20-1868 11
Amendment right to free speech, as distinct from his right to
petition the government. Specifically, Fisk asserts that the At-
torney Member exposed Nicklas in the 2017 litigation, while
acting as Fisk’s agent, and thus the protected conduct is at-
tributable to Fisk. Failing that, Fisk argues that even if we re-
ject its arguments based on agency theory, Nicklas’s retalia-
tory conduct against the Attorney Member for exercise of his
free speech right nonetheless chilled Fisk from exercising its
own First Amendment rights.
The district court did not “erroneously ignore[] agency
principles” when it concluded that Fisk did not engage in pro-
tected activity in the 2017 lawsuit. The agency question is ir-
relevant because the district court rightfully found that the
underlying right to be free from retaliation for petitioning the
government belonged to neither Fisk nor the Attorney Mem-
ber. As the district court explained, “[t]he Attorney Member
named Nicklas as a witness in that suit on behalf of his client
in that case. He did not do so on behalf of [Fisk].” (Emphasis
added). Stated another way, the client’s exercise of its First
Amendment petition rights in 2017 cannot be Fisk’s “pro-
tected conduct” for the purposes of Fisk’s “petition for redress
of grievances retaliation claim.” See Bridges, 557 F.3d at 553(dismissing claim because individual not party to lawsuit
“ha[d] no ‘underlying claim’ that implicates his own right of
access to the courts” (emphasis added) (quoting Christopher v.
Harbury, 536 U.S. 403, 415 (2009))). Fisk did not exercise its
First Amendment petition right; in fact, Fisk did not even exist
prior to 2018. That First Amendment right ran to the client in
the 2017 suit. Fisk cannot “rely on another plaintiff’s injury in
support of [its] own … claim” to show it engaged in protected
activity. Id. at 554.
12 No. 20-1868
To the extent that Fisk advances a retaliation argument
based on the exercise of free speech rights through the Attorney
Member, that argument was waived.3 Fisk contends that it en-
gaged in protected free speech when the Attorney Member
filed evidence and witness disclosures implicating Nicklas in
the 2017 suit. Cf. id. at 551–52 (reasoning plaintiff’s affidavit
supplying his eyewitness account of alleged incident of in-
mate mistreatment by prison officials could plausibly amount
to protected First Amendment speech). However, Fisk did not
frame Count II in the operative complaint as a retaliation
claim based on its exercise of its free speech rights. Rather,
Count II referred exclusively to “[t]he First Amendment right
to petition the government for the redress of grievances [that]
extends to the courts in general and is protected activity,” and
alleged “[t]hat filing, prosecuting and defending the lawsuit
where Defendant Nicklas was discovered as referring to the
3 In its opening brief on appeal, Fisk refers broadly to a single form of
protected conduct to satisfy the first prong of its First Amendment retali-
ation claim: “the work of one of its principals in parallel litigation.” Then,
in reply, Fisk appears to refer to two forms of “protected conduct”: “Par-
agraph 139 of the Amended Complaint alleges a retaliation against speech
and for accessing the courts, which is also a speech claim.” To the extent
Fisk attempts to add a new argument regarding the Attorney Member’s
own “access[] [to] the courts,” Fisk may not raise a new theory in its reply
brief. United States ex rel. Berkowitz v. Automation Aids, Inc., 896 F.3d 834,
843 (7th Cir. 2018) (“Arguments raised for the first time in an appellate
reply brief are waived.”). However, whether we characterize this argu-
ment as two theories or one does not affect the crux of Fisk’s argument:
The Attorney Member, acting as Fisk’s agent, engaged in protected con-
duct when it participated in the 2017 lawsuit, which in Fisk’s view satis-
fied the first prong for a First Amendment retaliation claim. Nor does it
affect our analysis. As we stated above, the petition right belonged to the
client, and as we explain infra, Fisk never presented the free speech argu-
ment to the district court, and therefore it is waived.
No. 20-1868 13
Constitution as ‘pesky’ was a protected activity because ‘the
First Amendment’s right to petition the government for the
redress of grievances extends to the courts in general and ap-
plies to litigation in particular.’” In opposition to Nicklas’s
Rule 12(b)(6) motion in the district court, Fisk referred to
“[t]he right to petition for redress of grievances … includ[ing]
the right to file a claim before a judicial body. [Cal. Motor
Transp., 404 U.S. at 510]. The right to petition provides addi-
tional protection for communication specifically aimed at the
redress of grievances.”
Fisk therefore advances this free speech theory for the first
time on appeal. “In civil litigation, issues not presented to the
district court are normally forfeited on appeal.” Russian Media
Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 308 (7th Cir. 2010).
As a final backstop, Fisk asserts that “[e]ven setting agency
principles aside” the First Amendment applies to close par-
ties. In Fisk’s view, Nicklas retaliated against the Attorney
Member for his protected speech, which then chilled Fisk’s
speech. As with its free-speech-retaliation theory described
above, Fisk did not argue this close-party theory to the district
court below, so we decline to reach it on appeal. Id. (“[I]t will
be a rare case in which failure to present a ground to the dis-
trict court has caused no one—not the district judge, not us,
not the appellee—any harm of which the law ought to take
note.” (citation and internal quotation marks omitted)).
Because Fisk has not alleged that the corporate entity itself
engaged in any protected conduct, its First Amendment claim
fails at the outset.
14 No. 20-1868
B. Due Process
We consider next Fisk’s claim in Count III that Nicklas de-
prived it of its property in violation of the Fourteenth Amend-
ment’s Due Process Clause. Relying on our decision in Bar-
rows v. Wiley, 478 F.3d 776 (7th Cir. 2007), the district court ex-
plained that Fisk had no constitutionally protected property
interest because the PDA and contract for the purchase pro-
vided only “a right to acquire the property,” not a right in the
property itself, see id. at 780.
To prevail on a procedural due process claim, a plaintiff
must make a threshold showing that it “possessed a constitu-
tionally protected property interest.” Kim Constr. Co., Inc. v.
Bd. of Trs. of Vill. of Mundelein, 14 F.3d 1243, 1245 (7th Cir. 1994)
(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985)). “A property interest for purposes of the Due Process
Clause is created by ‘existing rules or understandings that
stem from an independent source such as state law—rules or
understandings that secure certain benefits and that support
claims of entitlement to those benefits.’” Id. at 1245–46 (quot-
ing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). But as we
reiterated in Kim, “property is what is securely and durably
yours under state … law, as distinct from what you hold sub-
ject to so many conditions as to make your interest meager,
transitory, or uncertain.” Id. at 1246 (alteration in original)
(quoting Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.
1983), overruled on other grounds by Brunson v. Murray, 843 F.3d
698 (7th Cir. 2016)).
On appeal, Fisk argues that the Resolution and PDA cre-
ated a specific property right to the incentive. Alternatively,
Fisk contends that the business relationship created by the
No. 20-1868 15
Resolution, the contract to purchase the underlying land
(which was contingent on receipt of the incentive), and the
right to zoning approval were, on their own, each sufficient
for Fourteenth Amendment purposes.
Fisk’s argument that the Resolution created a protectable
interest fails. We have stated that “[t]o demonstrate a prop-
erty interest worthy of protection under the [F]ourteenth
[A]mendment’s [D]ue [P]rocess [C]lause, a party may not
simply rely upon the procedural guarantees of state law or
local ordinance.” Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.
1989). “[O]nly when the mandated procedure contains within
it a substantive liberty or property interest” can such “purely
procedural rules of … local law” give rise to a due process
claim. Lavite v. Dunstan, 932 F.3d 1020, 1033 (7th Cir. 2019).
The Illinois Supreme Court has pronounced that “[a] resolu-
tion or order is not a law, but merely the form in which the
legislative body expresses an opinion.” Chi. & N. Pac. R.R. Co.
v. City of Chicago, 51 N.E. 596, 598 (Ill. 1898). The existence of
the Resolution alone thus does not suffice to create a protected
property interest; Fisk must identify some other “substantive
liberty or property interest embedded within [relevant] pro-
cedural regulations.” Lavite, 932 F.3d at 1034.
Fisk has not met that burden, as the plain language of the
Resolution belies Fisk’s characterization of it as “non-discre-
tionary,” i.e., as offering anything more than procedural
rights. The Resolution was entitled “Authorizing A Prelimi-
nary Development Incentive Agreement,” and the City Coun-
cil resolved that “[s]taff is authorized to negotiate and pro-
ceed with presentation of Final Development Agreement for
consideration of approval at a future date.” (Emphases
added). By its own terms, the Resolution did not bind or
16 No. 20-1868
otherwise “substantively limit[]” the City “by mandating a
particular result when certain clearly stated criteria are met.”
See Kim, 14 F.3d at 1248 (“Where ‘the requisite ... mandatory
language’ is lacking, no protected interest is created.” (altera-
tion in original) (quoting Ky. Dep’t of Corr. v. Thompson,
490 U.S. 454, 464 (1989))); Hohmeier v. Leyden Cmty. High Schs.
Dist. 12, 954 F.2d 461, 465 (7th Cir. 1992) (“A rule or regula-
tion … must have ‘binding force’ in order to create constitu-
tionally protected property.”). We therefore agree with the
district court’s conclusion that no constitutionally protected
property interest arose from the Resolution.
The clear lack of binding language also defeats Fisk’s un-
supported assertion that the PDA created a protectable inter-
est. The PDA was riddled with discretionary language. True,
the PDA states, “the Parties agree and acknowledge that the
Development Incentive as described herein is necessary in or-
der to induce this project to occur, and satisfies all require-
ments applicable to such an incentive.” However, tellingly,
Fisk itself describes the PDA as a “mandatory consideration of
the project.” (Emphasis added). The PDA provided that Fisk
“acknowledge[d] that the City is not required to provide the
incentive contemplated herein.” Elsewhere, the PDA further
stated that until Fisk met all contingencies outlined in the
PDA, “it ha[d] no basis to detrimentally rely upon the repre-
sentations of the City with respect to the availability of incen-
tive funding.” The PDA therefore lacked “sufficient directives
to the decisionmaker to support a claim of entitlement” to the
Development Incentive. See Kim, 14 F.3d at 1248. For that
same reason, Fisk’s reliance on Barrows is misplaced; unlike
Barrows, the parties here did not agree that “a right to” the
contract existed. 478 F.3d at 779. Even setting that issue aside,
Barrows offers little help to Fisk, because we held in that case
No. 20-1868 17
that the plaintiff did not have a cognizable procedural due
process claim. Id. at 781–82.
Nor does Fisk’s argument that the Resolution created a
“business relationship” affect our analysis. Under Illinois law,
the existence of a business relationship may be cognizable for
tort protection. See Miller v. Lockport Realty Grp., Inc.,
878 N.E.2d 171, 175 (Ill. App. Ct. 2007). But Illinois tort law
only “recognizes that a person’s business relationships consti-
tute a property interest” for purposes of creating an “enti-
tle[ment] to protection from unjustified tampering by an-
other.” Id. (citing Belden Corp. v. InterNorth, Inc., 413 N.E.2d 98(Ill. App. Ct. 1980)). Illinois tort law does not transform a busi-
ness relationship into a constitutionally protected property
right. See Reed, 704 F.2d at 948 (urging courts to “look behind
labels” and instead “ask whether under Illinois law” the in-
terest in question is “securely and durably” the plaintiff’s); see
also Rebirth Christian Acad. Daycare, Inc. v. Brizzi, 835 F.3d 742,
747–48 (7th Cir. 2016) (“[W]hen determining the existence of
a property interest … ‘we must look behind labels.’” (quoting
Reed, 704 F.2d at 948)). For the reasons already stated, the Res-
olution did not create a constitutionally protected property
interest.
We find similarly unavailing Fisk’s remaining argument
that the underlying contract for the building and the rezoning
decision established cognizable constitutional property inter-
ests. No cognizable interest stems from the underlying con-
tract for the building. The contract was conditioned on the ex-
ecution of a final development agreement, and thus that con-
tract represented not a secure property interest but rather the
hope to acquire one. See Cole v. Milwaukee Area Tech. Coll. Dist.,
634 F.3d 901, 904 (7th Cir. 2011) (“To have a protectable
18 No. 20-1868
property interest in a benefit … a plaintiff must have more
than an ‘abstract need or desire for it’ and more than a ‘uni-
lateral expectation of it.’” (quoting Roth, 408 U.S. at 577)).
Meanwhile, the contention that Fisk lost “a mechanism for the
property to be rezoned” fares no better because the zoning
process is merely a “local procedural protection[],” which
“do[es] not by [itself] give rise to [a] federal due process inter-
est[].” Lavite, 932 F.3d at 1033.
Finally, adequate state law remedies remained available to
Fisk. The district court relinquished supplemental jurisdiction
over Fisk’s state law claims, and whether Nicklas’s or the
City’s conduct violated state laws is for the state courts to de-
cide. In line with Nicklas’s arguments, “[w]e have similarly
held that, regardless of how a plaintiff labels an objectionable
land-use decision (i.e., as a taking or as a deprivation without
substantive or procedural due process), recourse must be
made to state rather than federal court.” CEnergy-Glenmore
Wind Farm No. 1, LLC v. Town of Glenmore, 769 F.3d 485, 489
(7th Cir. 2014).
Fisk cannot claim a constitutionally protected property in-
terest, and so its procedural due process claim fails at the
threshold. Accordingly, the issue of whether Fisk “was af-
forded due process before being deprived of that interest does
not arise.” Kim, 14 F.3d at 1245.
C. Equal Protection
Fisk argues in Count IV that Nicklas singled it out for dis-
parate treatment without a rational basis in violation of the
Fourteenth Amendment’s guarantee against “den[ial] to any
person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. Specifically, Fisk claims
No. 20-1868 19
that Nicklas, in his role as City Manager, blocked the Devel-
opment Incentive arbitrarily and discriminately because of
personal animus or favoritism toward other developers. The
district court concluded that Fisk pled itself out of court by
providing several legitimate reasons for Nicklas’s conduct,
defeating any “class of one” equal protection claim under the
standard articulated in Miller v. City of Monona, 784 F.3d 1113,
1121 (7th Cir. 2015) (quoting Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000)).
Under the Fourteenth Amendment’s Equal Protection
Clause, a plaintiff who is not a member of a “protected class”
may nonetheless bring a claim under the “so-called ‘class-of-
one’ theory.” Fares Pawn, LLC v. Ind. Dep’t. of Fin. Insts.,
755 F.3d 839, 841 (7th Cir. 2014). To state a claim under this
theory, a plaintiff must allege “(1) that [it] has been intention-
ally treated differently from others similarly situated, and
(2) that there is no rational basis for the difference in treat-
ment.” Id. at 845 (citing Olech, 528 U.S. at 564). For the second
criteria, we ask whether “a conceivable rational basis for the
difference in treatment” exists. D.B. ex rel. Kurtis B. v. Kopp,
725 F.3d 681, 686 (7th Cir. 2013). In fact, the rational basis need
not even be “the actual justification.” Id. “[A]ny reasonably
conceivable state of facts that could provide a rational basis”
will suffice. See Scherr v. City of Chicago, 757 F.3d 593, 598 (7th
Cir. 2014) (quoting Lauth v. McCollum, 424 F.3d 631, 634 (7th
Cir. 2005)). We have further clarified that “[i]t is only when
courts can hypothesize no rational basis for the action that al-
legations of animus come into play.” Flying J Inc. v. City of New
Haven, 549 F.3d 538, 547 (7th Cir. 2008).
Fisk is not a member of a protected class, so it proceeds
under this class-of-one theory. On appeal, Fisk argues there
20 No. 20-1868
was no rational basis for Nicklas’s conduct. Failing that, Fisk
contends that McDonald v. City of Winnetka, 371 F.3d 992 (7th
Cir. 2004), held that even if Fisk’s complaint revealed a ra-
tional basis, its class-of-one-claim can nonetheless survive be-
cause Nicklas blocked the Development Incentive out of ani-
mus for embarrassing him in the 2017 lawsuit or favoritism,
see id. at 1001 (quoting Olech, 528 U.S. at 564).
The parties dispute whether Fisk can point to an appropri-
ate comparator to satisfy the first criteria for a class-of-one
claim, which requires intentionally different treatment from
others similarly situated. “Normally, a class-of-one plaintiff
will show an absence of rational basis by identifying some
comparator—that is, some similarly situated person who was
treated differently.” Fares Pawn, 755 F.3d at 845. “[I]f all prin-
cipal characteristics of the two individuals are the same, and
one received more favorable treatment, this may show there
was no proper motivation for the disparate treatment.” Id.
(quoting Swanson v. City of Chetek, 719 F.3d 780, 784 (7th Cir.
2013)). As explained below, however, because we conclude
that Nicklas had a rational basis for blocking the Develop-
ment Incentive, we need not resolve the issue of whether Fisk
can satisfy the first criteria for a class-of-one claim. Id. at 846(holding summary judgment appropriate where no reasona-
ble jury could find “[plaintiff] and the comparator were simi-
larly situated, or there was a rational basis for any differential
treatment”).
We agree with the district court that Fisk’s complaint re-
vealed a rational basis to explain why Nicklas recommended
termination of the PDA. Relying on Fisk’s own submissions
about the corporate entity and principals’ finances, Nicklas
ultimately concluded the project was not “financially viable.”
No. 20-1868 21
Nicklas’s due diligence revealed that Fisk had “no current or
long-term assets that can be pledged as collateral”—other
than the prospect of the Development Incentive—to obtain a
loan for the estimated approximate $4,600,000 balance needed
to pursue the project. Nicklas’s concerns about Fisk’s financial
wherewithal to execute the planned multimillion-dollar pro-
ject alone qualifies as a “reasonably conceivable state of facts
that could provide a rational basis.” Scherr, 757 F.3d at 598
(emphasis omitted) (citation omitted). Likewise, those finan-
cial concerns together with the litany of others cited in the
City Council’s April 22, 2019, meeting, including Fisk’s failure
to submit plans for a traffic study, square footage, storm wa-
ter management, and variances and ordinances, could pro-
vide a conceivable rational basis for blocking the Develop-
ment Incentive.
Fisk attempts to cast doubt on Nicklas’s stated reasons for
blocking the Development Incentive, but Fisk does not carry
its burden to “negative any reasonably conceivable state of
facts that could provide a rational basis” for Nicklas’s con-
duct. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367
(2001) (citation and internal quotation marks omitted); Bell v.
Duperrault, 367 F.3d 703, 707 (7th Cir. 2004) (burden lies with
plaintiff). Fisk makes three arguments why “[l]ogic, reason,
and common sense are missing” from this case, “given the pa-
tently and knowingly false statements being publicly re-
leased.” First, Fisk appears to assert that Nicklas’s public
statements to the media regarding concerns about Fisk repre-
sent nothing more than “an orchestrated campaign of retalia-
tion” for the 2017 lawsuit and thus evidence illegitimate ani-
mus. Fisk thus questions Nicklas’s motivation in blocking the
Development Incentive, which we do not consider until we
can “hypothesize no rational basis.” Flying J, 549 F.3d at 547.
22 No. 20-1868
Second, and more relevant on appeal, Fisk challenges
Nicklas’s doubts about Fisk’s financial health as a rational ba-
sis. However, Fisk does not affirmatively state what working
capital or collateral the principals had in hand. Fisk’s general-
ized, conclusory argument that Nicklas’s stated reasons for
terminating the PDA were “untrue reasons” and were “false,
illegitimate claims” does not “negative” Nicklas’s specific
doubts about Fisk’s financial health. 4 See id. at 546 (applying
Lauth standard on Rule 12(b)(6) motion). In its reply brief, Fisk
adds “alleging depend[e]nce on lender financing is an irra-
tional dichotomy: if [Fisk] had no working capital or collat-
eral, it could not receive lender financing.” It was not irrational
for Nicklas to conclude the City should not finance a company
that relies solely on those City-provided funds to obtain the
remainder of the money needed to complete the project. “The
rational-basis requirement sets the legal bar low ….” Kopp,
725 F.3d at 686. Nicklas’s concerns about the use of millions
of dollars in taxpayer funds easily clear that bar.
Third and finally, Fisk argues that another of Nicklas’s
proffered reasons for terminating the PDA, that the entity
lacked hotel experience, is not a rational basis either. Fisk con-
tends that it should have been “evaluated in its own right sep-
arate from its principal members or … only … through its two
principal-agent members.” We do not need to opine on whose
experience matters: Fisk has not claimed that Fisk or its
4At oral argument, Fisk for the first time affirmatively stated that it had
“working capital.” It referred to a March 2019 phone call between Nicklas
and the principal’s banker about the principal’s personal finances. Fisk did
not raise this argument before the district court, and it is therefore waived.
See Jackson v. Parker, 627 F.3d 634, 640 (7th Cir. 2010).
No. 20-1868 23
principals were not inexperienced. 5 Therefore, Fisk has not
negated Nicklas’s claim that it was inexperienced as a “con-
ceivable” rational basis either. See Miller v. City of Monona,
784 F.3d at 1121–22 (reasoning dismissal is warranted where
“the complaint reveals a rational basis … for the actions of
[the defendant]”).
In sum, the only evidence to which Fisk points to support
its position that Nicklas’s reasons were neither legitimate nor
true is unavailing. Fisk does not refute any of Nicklas’s con-
cerns about Fisk’s financial health or inexperience. The only
thing lacking “logic, reason, and common sense” is Fisk’s con-
voluted attempt to invalidate these justifications.
Even failing to show a valid comparator, Fisk pushes for-
ward, insisting that its class-of-one claim can proceed because
it has alleged that Nicklas acted on animus flowing from the
2017 litigation. Fisk relies on our decision in McDonald to ar-
gue that “the existence of a rational basis is not necessarily
fatal” to its case. Specifically, Fisk points to our statement in
McDonald that a plaintiff’s burden is an either–or proposition:
either “there is no rational basis for the difference in treatment
or the cause of the differential treatment is a ‘totally illegiti-
mate animus.’” McDonald, 371 F.3d at 1001 (emphasis added).
However, since McDonald we have clarified that “[i]t is only
when courts can hypothesize no rational basis for the action
that allegations of animus come into play.” Flying J, 549 F.3d
at 547. Thus, even assuming Nicklas had an ulterior motive,
5 Fisk’s broad statements that Nicklas’s stated reasons were “untrue” do
not suffice here either. Although Fisk affirmatively argued that the princi-
pals had experience for the first time during oral argument, it did not raise
this argument before the district court or in its briefing on appeal, and it
is therefore waived as well. See Jackson, 627 F.3d at 640.
24 No. 20-1868
the finding of a rational basis is “the end of the matter—ani-
mus or no.” Fares Pawn, 755 F.3d at 845.
Up to this point, Fisk has not adequately pleaded any of
its claims. Fisk’s additional arguments relying on our deci-
sions in Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), and
Swanson v. City of Chetek do not help Fisk because unlike this
case, in those cases we did not find a legitimate basis for the
state actors’ conduct. See Esmail, 53 F.3d at 179–80 (reversing
dismissal where “the unequal treatment is alleged to have
been the result solely of a vindictive campaign by the
mayor”); Swanson, 719 F.3d at 784–85 (reversing in absence of
alternative explanation for government actor’s facially illegit-
imate, hostile conduct).
Fisk’s allegations do not carry its burden to invalidate
Nicklas’s rational basis for blocking the Development Incen-
tive. Thus, the only way Fisk could proceed at this juncture
would be to identify a sufficiently similar developer with “red
flags” regarding its financial wherewithal and other deficien-
cies. Fares Pawn, 755 F.3d at 848. Fisk did not do so. Accord-
ingly, nothing in the complaint “cause[s] us to question”
Nicklas’s treatment of Fisk. See Sung Park v. Ind. Univ. Sch. of
Dentistry, 692 F.3d 828, 833 (7th Cir. 2012). Fisk has therefore
failed to state a violation of its Fourteenth Amendment equal
protection rights.
III. Conclusion
For the foregoing reasons, we AFFIRM the opinion of the
district court granting defendant’s motion to dismiss.