Tyrer, Marvin F. v. City of South Beloit

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2394
MARVIN F. TYRER,
Plaintiff-Appellant,
v.
CITY OF SOUTH BELOIT,
a municipal corporation,
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 NOVEMBER 30, 2007—DECIDED FEBRUARY 22, 2008
____________
Before CUDAHY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. In August 2004, Marvin Tyrer filed
a complaint in the United States District Court for the
Northern District of Illinois in which he alleged that the
City of South Beloit had demolished his house without
due process of law or just compensation. He previously
had filed a similar complaint in Illinois state court, and
pursuant to the Colorado River abstention doctrine, the
district court had chosen to stay the federal proceedings
pending final disposition of the state court action. We
2 No. 07-2394
affirmed the district court’s stay order in Tyrer v. City of
South Beloit, 456 F.3d 744 (7th Cir. 2006) (“Tyrer I”).
On March 7, 2007, citing “changed circumstances,” Mr.
Tyrer filed a motion in the district court in which he
requested that it lift the stay on the federal proceedings. On
May 18, 2007, the district court denied his motion. For
the reasons set forth in this opinion, we affirm the deci-
sion of the district court.
I
BACKGROUND
A. Facts1
In September of 1997, Marvin Tyrer purchased residential
property in the City of South Beloit, Illinois. The house on
this property had been built in the early 1900s, prior to the
enactment of city ordinances regulating minimum lot size,
front-yard setbacks and minimum flood plain elevation
requirements. Although the house did not comply with
these regulations, it was deemed by the City to be a
“legally nonconforming structure” because it had been
built lawfully prior to the passage of the ordinances.
The City’s zoning ordinances provide that, if a legally
nonconforming structure is damaged, destroyed or sub-
stantially changed, it no longer is exempted from cur-
rent zoning laws. Under these circumstances, the owner
must apply for a variance. Shortly before Mr. Tyrer pur-
1
A more thorough account of the facts of this case can be
found in our previous opinion, Tyrer v. City of South Beloit,
456 F.3d 744 (7th Cir. 2006).
No. 07-2394 3
chased the property, its previous owner had applied for
and received a variance in order to remodel and add onto
the house.
When Mr. Tyrer purchased the property in Septem-
ber 1997, no work had begun on these projects. In the
spring of 1998, with the intent of carrying out the previous
owner’s building plans, Mr. Tyrer obtained the required
building permits and commenced construction. After
installing the walls, footings and foundation for the
addition, Mr. Tyrer was informed that, to be in com-
pliance with city ordinances, he needed to obtain addi-
tional fill for the purpose of covering the footings above
the frost line. Mr. Tyrer complied with this request. In
November 1998, however, a building inspector discov-
ered that the additional fill was causing excess run-off
onto neighbors’ property and that Mr. Tyrer had exceeded
the scope of his work permit.
The city clerk issued a cease and desist order in Novem-
ber 1998. Mr. Tyrer protested the order, but he ultimately
was forced to halt construction. The City then issued
a notice of demolition on January 4, 2000, pursuant to
65 ILCS 5/11-31-1.
On January 27, 2000, the parties met at City Hall and
attempted to resolve their dispute. At this meeting, Mr.
Tyrer presented building plans that he claimed would
resolve the run-off problem and bring the house into
compliance with city ordinances. The City disputed this
claim. Its architect opined that his proposed plans
would not eliminate the excess drainage on neighboring
properties and that, instead, the entire structure had to
be torn down and the fill removed. The Zoning Board
of Appeals ultimately rejected Mr. Tyrer’s plans, as well
as his subsequent petition for a variance.
4 No. 07-2394
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 demolition order had deprived him of a property
interest without due process of law; he also sought to
enjoin the City from demolishing or further interfering
with the use of his property. He amended his complaint
in September 2001 to add a second count, alleging that
the City’s actions constituted a regulatory or temporary
taking of his property that warranted just compensation
under the Fifth and Fourteenth Amendments. The City
filed an answer as well as a counterclaim in which it
sought authorization to demolish the house.
In May 2001, the City filed a motion for summary
judgment. It contended that no work had been done on
the house since the beginning 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 the City’s
view, because the house was in a “dangerous condition,”
demolition was proper according to 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 con-
tinue with construction even though the project exceeded
the scope of the original permit. Mr. Tyrer did not acknowl-
edge this offer, but he instead filed his own motion
for summary judgment on his Fifth and Fourteenth
Amendment claims.
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 nonconforming status and that it did
No. 07-2394 5
not meet city building requirements. It invited Mr. Tyrer
to submit a plan for demolition and noted that, if he did
not, it would enter an order for the City allowing demoli-
tion. Mr. Tyrer did not submit such a plan and, on
August 29, 2002, the court issued a final order auth-
orizing demolition. Before the entry of the August 29th
order, however, the city already had demolished the house.
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 demolition, the Illinois Appellate Court held that
Mr. Tyrer’s challenge to the demolition order was moot
because the house already had been destroyed; therefore,
effective relief was precluded. The court remarked, how-
ever, that the demolition raises other legal issues,
which may be presented by another proceeding.
The state appellate court also affirmed the denial of
summary judgment on Mr. Tyrer’s takings claim. It held
that there was a genuine issue of material fact con-
cerning whether Mr. Tyrer’s architectural plans, as pre-
sented to the City Council, would have resolved the
alleged run-off problem and complied with the defendant’s
zoning ordinances. The court remanded for further pro-
ceedings consistent with the opinion.
After the case was remanded to the trial court, discovery
proceeded. Mr. Tyrer amended his complaint, adding a
third count alleging that the actions of the City and its
council members had deprived him of the use of his
property from the date of the cease and desist order in
violation of the Fifth Amendment Takings Clause and of
the Illinois Constitution. This new count also added as
6 No. 07-2394
defendants the city council members in their individual
capacities.
C. Federal Court Proceedings
In August 2004, Mr. Tyrer filed an action against the
City in the United States District Court for the Northern
District of Illinois. There, he alleged that the City’s demoli-
tion of his house lacked legal authorization and violated
the Fifth and Fourteenth Amendments’ Due Process
Clauses. He named both the City and the individual city
council members as defendants.
In October 2004, the City filed a motion asking that the
district court abstain from further proceedings accord-
ing to the Colorado River abstention doctrine. See Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800(1976). The district court first determined that the state
and federal cases were parallel, noting that both cases
arose out of substantially the same set of facts, and the legal
issues were substantially the same. The court then consid-
ered whether the case involved the requisite exceptional
circumstances necessary for a federal court to decline to
exercise its jurisdiction. Noting that the state proceedings
had been ongoing for more than four years at that point,
that the plaintiff could effectively litigate his claims in state
court, and that allowing both suits to proceed concurrently
would promote piecemeal and duplicative litigation, the
district court concluded that a stay was appropriate in this
case. Therefore, the district court stayed the federal pro-
ceedings pending final disposition of the state court action.
Mr. Tyrer appealed the district court’s stay order. In
Tyrer I, we affirmed the decision of the district court. We
noted that the two suits, though not stating identical
No. 07-2394 7
claims, were parallel: They involved the same parties,
the same factual situation, the same evidence and very
similar claims. Additionally, we recognized that “excep-
tional circumstances” existed that justified the district
court’s decision not to exercise jurisdiction. Specifically,
we noted that the state proceedings were substantially
further along than the federal proceedings, and that a
significant risk of piecemeal and duplicative litigation
existed if both suits continued simultaneously. Therefore,
we held that abstention under the Colorado River doctrine
was proper.
D. Subsequent State Court Proceedings
Since our decision in Tyrer I, Mr. Tyrer has continued
to pursue his claim in state court. On February 9,
2006—apparently for the first time—Mr. Tyrer deposed the
city engineer and city commissioners who had been
involved in the decision to demolish his house. In these
depositions, the officials allegedly exhibited a lack of
awareness of many details relevant to Mr. Tyrer’s dispute
with the City. Mr. Tyrer considers these deposition state-
ments to be “incredible” evidence of a dereliction of
duty by the city council members. He asserts that the
recently acquired deposition testimony constitutes sub-
stantial new evidence in his case, and he filed a brief in
the Illinois Appellate Court to that effect.
Despite this late-discovered evidence, however, the
state trial court granted summary judgment for the
City, dismissing Mr. Tyrer’s complaint in its entirety and
with prejudice. It found that Mr. Tyrer had failed to seek
timely review of the administrative decision of the South
Beloit Zoning Board of Appeals, and therefore the court
8 No. 07-2394
lacked jurisdiction to hear his case. Mr. Tyrer has ap-
pealed this decision to the state appellate court.
E. Subsequent Federal Court Proceedings
On March 7, 2007, Mr. Tyrer filed a motion in the district
court, requesting that it lift its previously issued stay.2
His motion cited two alleged “changed circumstances” in
the state court proceedings, which he claims would war-
rant lifting the stay:
1) the state court’s hostility to his claims, as evidenced
by the court’s decision to dismiss his case for lack of
jurisdiction rather than giving him a trial on the merits;
2
Mr. Tyrer’s motion to lift the stay also included an “embed-
ded” motion, requesting leave to amend his complaint to add a
Fourth Amendment unlawful seizure claim. The district court
rejected Mr. Tyrer’s request because all federal proceedings
had been stayed pending final disposition of his case in state
court. The court noted that such a tactic, intended in part to
make the federal court proceeding no longer parallel to the
state court proceeding, was both procedurally irregular and
unsupported by authority.
On appeal, Mr. Tyrer relies on SELBST v. McDonald’s Corp.,
No. 04-C-2422, 2006 WL 566450 (N.D. Ill. March 2006), as
authority for his attempt to amend his complaint despite the
stay. The situations are clearly distinguishable, however.
SELBST involved an amendment to a complaint during a stay
of discovery, and nothing about a discovery stay precludes
amendments to a complaint. Here, by contrast, the order was
for a stay of “all proceedings.” The district court did not err
when it refused to allow Mr. Tyrer to circumvent the stay
by amending his federal complaint.
No. 07-2394 9
2) the changed procedural posture, specifically the
“unwarranted delay” caused by the state court’s
dismissal for want of jurisdiction, which has resulted
in the federal proceedings effectively being “further
along” than the state proceedings.
The district court rejected Mr. Tyrer’s request, con-
cluding that neither of these so-called changed circum-
stances justified lifting the stay. The court noted that no
evidence substantiated Mr. Tyrer’s suggestion that the
state court was indifferent or hostile to his rights. It also
found the assertion that the state case was further from
resolution than the federal case because it now was
being heard on appeal in state court to be “simply dis-
ingenuous.” R.49 at 1. Mr. Tyrer timely appealed the
district court’s denial of his motion to lift the stay.
II
DISCUSSION
Mr. Tyrer spends the greatest portion of his brief arguing
that the stay should not have been granted in the first
instance; he contends that the federal and state cases
are not parallel, and that no exceptional circumstances
warranted the court abdicating its duty to exercise juris-
diction in this case. These arguments, however, already
have been addressed twice by the district court, as well
as by this court in Tyrer I. We entertain a strong presump-
tion that “a court ought not to revisit an earlier ruling in a
case absent a compelling reason, such as manifest error
or a change in the law, that warrants reexamination.”
Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007); see
also Moriarty v. Svec, 429 F.3d 710, 722 (7th Cir. 2005)
(refusing to reconsider an earlier jurisdictional determina-
10 No. 07-2394
tion and noting that “this Court will not revisit an issue it
resolved seven years ago,” and that the “law of the case
doctrine advises against a court reopening previously
decided issues”).
We already have determined conclusively that the
district court properly granted the stay of federal pro-
ceedings pending the completion of state proceedings. See
Tyrer I, 456 F.3d at 757. Mr. Tyrer, therefore, may not
relitigate this issue; instead, he must show that substan-
tially changed circumstances since the time of that deci-
sion now warrant dissolution of the stay. Winterland
Concessions Co. v. Trela, 735 F.2d 257, 260 (7th Cir. 1984); see
also Cruz v. Melecio, 204 F.3d 14, 25 (1st Cir. 2000); Twp. of
Franklin Sewerage Auth. v. Middlesex County Util. Auth., 787
F.2d 117, 120 (3d Cir. 1986). The district court determined
that Mr. Tyrer had not presented any changed circum-
stances that would warrant lifting the stay in this case. We
review this decision for abuse of discretion. Tyrer I, 456
F.3d at 751.
As his first example of “changed circumstances,”
Mr. Tyrer points to the current disposition of the case in
state court. We noted in Tyrer I that “if down the road the
state court judge proves unwilling or unable to enforce
[his] valid rights . . . and [he] cannot get prompt relief
from the state appellate courts, [he] can ask the district
judge to lift the stay.” 456 F.3d at 757 (quoting CIGNA
Healthcare of St. Louis v. Kaiser, 294 F.3d 849, 855 (7th Cir.
2002)). Since Tyrer I, the state trial court has dismissed
Mr. Tyrer’s claim based on a lack of jurisdiction: It deter-
mined that Mr. Tyrer had failed to exhaust his admin-
istrative remedies in challenging the determination of
the zoning board. That decision currently is being appealed
to the state appellate court.
No. 07-2394 11
We previously have recognized that a state court’s
hostility can warrant a motion to lift the stay. Tyrer I, 456
F.3d at 757; CIGNA Healthcare, 294 F.3d at 855. Other
than the fact that the state court dismissed his claim,
however, Mr. Tyrer has pointed to no evidence that it has
been hostile, biased or otherwise unable to address his
claims. A plaintiff attempting to prove state court hostility
must point to evidence of actual bias or hostility against
the party himself—not merely legitimate rulings against
a party on a contested claim. We expressly noted in
Tyrer I that rulings against a party, without more, did not
render the state court “inhospitable,” and we opined
that an “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.” 456 F.3d
at 757 (internal citations and quotation marks omitted).
Nothing about the state court proceedings since Tyrer I
constitutes the type of judicial hostility that would war-
rant lifting the stay.
Mr. Tyrer’s second proffer of “changed circumstances” is
his contention that the federal court proceeding is now
further along than the state court action. In his view,
in order for the state court to reach the merits of his
claim, the state appellate court will have to reverse the
trial court’s jurisdictional decision and remand the pro-
ceedings to the trial court, which only then will be able
to begin a trial on the merits. In the federal proceeding,
on the other hand, a trial on the merits (according to
Mr. Tyrer) could begin shortly.
In support of this contention, Mr. Tyrer relies on a
First Circuit decision, Elmendorf Grafica, Inc. v. D.S. America,
48 F.3d 46 (1st Cir. 1995). In Elmendorf, a contract dispute
developed between a Puerto Rico corporation and an
12 No. 07-2394
Illinois corporation. Screen, the Illinois corporation, filed
suit in the Circuit Court of Cook County, Illinois.
Elmendorf, the Puerto Rico corporation, filed a limited
appearance and moved for dismissal based on a lack of
personal jurisdiction. The Illinois court dismissed the
suit, and Screen appealed. Meanwhile, two months after
Screen filed suit in Illinois, Elmendorf filed suit against
Screen in the Superior Court of Puerto Rico. Screen re-
moved to the district court and moved to dismiss and/or
stay the Puerto Rico proceeding according to the Colorado
River doctrine. The district court granted a stay, and
Elmendorf appealed.
The First Circuit reversed, holding that, although the
two actions certainly were parallel, the case did not pre-
sent an “exceptional basis” for refusing to exercise its
jurisdiction. Elmendorf, 48 F.3d at 51. At the time the fed-
eral court granted the stay, the state proceeding had
consisted of nothing more than a pending appeal from a
decision dismissing the case for lack of personal jurisdic-
tion. It noted:
This was not a case where the parallel state action was
strongly underway . . . . Here, if the . . . court’s dis-
missal for lack of personal jurisdiction should be
affirmed by the Illinois Appellate Court, there will
be left in existence no state action whatever; while if
the lower court’s dismissal should be reversed on
appeal, the parties will merely be back at the very
beginning of the process of litigating the merits of
their controversy. Under such circumstances, the
federal diversity action in Puerto Rico, which was not
encumbered by any threshold jurisdictional question,
was the more immediately available vehicle for lit-
igating the dispute.
No. 07-2394 13
Id. The court further stated: “[F]orcing the plaintiff in the
federal case to sit on its hands for so long is not consonant
with Colorado River and its progeny, which describe the
balance as ‘heavily weighted in favor of the exercise of
[federal court] jurisdiction.’ ” Id. (citations omitted). Absent
other compelling circumstances, then, the court in
Elmendorf refused to stay its exercise of federal jurisdiction.
Mr. Tyrer’s case and Elmendorf have important differ-
ences.3 The only litigation that had occurred in Elmendorf’s
state proceeding prior to Elmendorf’s filing in federal
court was a limited appearance to contest personal juris-
diction. Id. No depositions had been taken; no other
discovery had occurred; no motions had been filed; and the
case had been proceeding in state court for only two
months. Conversely, in this case, discovery has been
underway in the state court for more than four years;
depositions have been taken; numerous motions and
briefs have been filed; and a summary judgment motion
has been granted and appealed. A far more substantial
risk of duplication and/or interference exists in this case.
Additionally, in Elmendorf, the federal court sitting
in Puerto Rico did not have to confront the same personal
jurisdiction issue because the defendant clearly was
amenable to jurisdiction in Puerto Rico; accordingly, it
was uniquely suited to resolve the issue at hand. In this
case, however, the jurisdictional dispute is not unique to
the state court proceeding. If the district court were to
lift the stay, the issue of exhaustion of administrative
remedies likely would still be litigated in federal court. See
3
Of course, Elmendorf also is not controlling precedent in this
circuit.
14 No. 07-2394
Peters v. Vill. of Clifton, 498 F.3d 727 (7th Cir. 2007) (holding
that a plaintiff alleging a takings claim may not proceed
in federal court until he has exhausted his state law
remedies because his claim would not be ripe). This
would be a rather duplicative exercise, and one bearing
a substantial risk of conflicting judgments. Thus, the
numerous factors that weighed heavily against a stay in
Elmendorf point in the opposite direction in this case.
Finally, although he did not reference the new deposi-
tion testimony in his motion to the district court, Mr. Tyrer
contends on appeal that the “new evidence” discovered
in his belated depositions of city council members con-
stitutes a changed circumstance that warrants lifting the
stay.4 Mr. Tyrer fills ten pages of his appellate brief
with descriptions of the depositions, contending that the
testimony illustrates that the city council members were
“completely out of the loop” on the decision to demolish
his house. He does not explain, however, why this newly
discovered evidence warrants lifting the stay in federal
court. There is no reason why the state court could not
properly address the evidence proffered by Mr. Tyrer.
Indeed, when discussing the new evidence, he cites
almost exclusively to his brief that already was presented
in the state court. Should the Illinois appellate court
determine that Mr. Tyrer did not fail to exhaust his ad-
ministrative remedies and thus that the court has juris-
diction, the state trial court can consider this “new evi-
dence” on remand. Perhaps it would be addressed
4
This argument, not raised before the district court, may
have been forfeited. However, as it is easily disposed of here,
we address the issue so that it does not become the basis
for another petition to lift the stay.
No. 07-2394 15
slightly faster in federal court if we lifted the stay (al-
though this view is certainly debatable, considering that
the same jurisdictional issue likely would be litigated here),
but that in itself is not a sufficient reason to lift a properly-
entered stay order.
In sum, Mr. Tyrer points to no changed circumstances
since Tyrer I that would warrant the district court re-
visiting its stay order. Therefore, we conclude that the
district court did not abuse its discretion when it declined
Mr. Tyrer’s invitation to lift the stay in this case.
Conclusion
For the foregoing reasons, we affirm the decision of the
district court.
AFFIRMED
USCA-02-C-0072—2-22-08