Bishop Harvey, Jr., et al v. Town of Merrillville, et al
Filing
Filed opinion of the court by Judge Tinder. AFFIRMED as MODIFIED. We nevertheless decline appellees' invitations to strike the residents' brief. Richard D. Cudahy, Circuit Judge; Michael S. Kanne, Circuit Judge and John Daniel Tinder, Circuit Judge. [6321400-3] [6321400] [11-1041]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1041
B ISHOP H ARVEY, JR., et al.,
Plaintiffs-Appellants,
v.
T OWN OF M ERRILLVILLE, an Indiana
municipal corporation, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 07 CV 98—Joseph S. Van Bokkelen, Judge.
A RGUED M AY 13, 2011—D ECIDED JULY 11, 2011
Before C UDAHY, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Henry David Thoreau found
solace when he lived near Walden Pond. Homeowners
perhaps seeking the same from a small pond in the
Innsbrook subdivision in Merrillville, Indiana, claim to
have found anything but. They allege that the retention
pond their lots abut is a haven not for tranquility but
for algae and mosquitoes, a source of flooding and frustra-
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tion rather than inspiration and insight. They feared that
a proposed expansion of the subdivision would only
exacerbate their problems with the pond, and they attempted to voice their concerns with Merrillville town
officials during and after the subdivision approval process. The disgruntled homeowners, most of whom
are African American, claim that Merrillville refused to
listen to them, with a town council member (also African
American) allegedly turning his back to them on one
occasion and slinging a racial epithet at them on another. They also contend that Merrillville violated
their Fourteenth Amendment equal protection rights
by being more responsive to similar complaints lodged
by white residents of another subdivision years later.
Twenty-one of the aggrieved Innsbrook residents obtained counsel and sought redress for the alleged equal
protection violations against the Town of Merrillville
(“Town”), sixteen individuals who worked for the Town
in various capacities (collectively the “Town Defendants”),
and the Town’s acting engineer (“Warmelink”) by
filing suit pursuant to 42 U.S.C. § 1983 in the Northern
District of Indiana. The Innsbrook residents also raised
several state law claims against these and a collection of
other defendants, a total of thirty-one in all. The Town
and Town Defendants responded to the residents’ sprawling scattergun complaint by filing a counterclaim
seeking a declaration that the Town was not obligated
to maintain the retention pond.
About three years and over 400 docket entries into
the case, the residents moved for summary judgment on
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twelve issues, among which was whether “the Town
of Merrillville and the Town Defendants deprived [them]
of equal protection of the law.” The Town and Town
Defendants responded in kind, moving for summary
judgment on all the residents’ claims as well as their
counterclaim. Among other things, they argued that
they were entitled to summary judgment on the § 1983
claim because “plaintiffs cannot establish that there
exist similarly situated communities to serve as comparators.” R.434 at 59. Defendant Warmelink separately
moved for summary judgment on the residents’ claims
against him.
In an order dated December 2, 2010, the district court
granted summary judgment in favor of the Town and
the Town Defendants, finding that the residents’ § 1983
equal protection claim could not succeed because
they failed to identify a similarly situated class that the
Town and Town Defendants treated more favorably.
Believing this order fully disposed of the residents’
sole federal claim, the district court declined to exercise
supplemental jurisdiction over the state law claims and
ordered the case “remanded to state court.” But the
next day, Warmelink, who was not mentioned in the
December 2 order, filed a motion seeking clarification as
to the status of his summary judgment motion. The
district court issued an order (“the December 3 order”) in
which it invoked Fed. R. Civ. P. 60(a) and purported
to enter, “[f]or the same reasons stated in its December 2,
2010, Opinion and Order . . . summary judgment in
favor of Defendant John E. Warmelink on Plaintiffs’ § 1983
claim against him, because Plaintiffs are unable to
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establish that any constitutional violation occurred.” The
court went on to deny as moot Warmelink’s motion for
clarification.
On December 28, 2010, four residents timely filed a
notice of appeal as to the December 2 order. The notice
mentioned the Town, the Town Defendants, and
Warmelink, but not the December 3 order. Later, at
Warmelink’s request, the district court entered a separate
judgment pursuant to Fed. R. Civ. P. 58(a). This February
15, 2011, order mentioned by name all relevant
defendants, including Warmelink. The residents did not
file a new notice of appeal after the February 15 order
was issued.
Warmelink contends that the peculiar procedural
posture we just described precludes us from exercising
jurisdiction over him. Because the notice of appeal fails
to mention either the December 3 or February 15 orders,
the only orders in which he is named, Warmelink asserts
that the residents failed to comply with Fed. R. App. P.
3(c)(1)(B), which requires appellants to “designate the
judgment, order, or part thereof being appealed.”
The requirements of Rule 3(c) are technically jurisdictional, see Smith v. Barry, 502 U.S. 244, 248 (1992), but as a
general rule “ ‘inept’ attempts to comply with Rule 3(c) are
accepted as long as the appellee is not harmed,” Moran
Foods, Inc. v. Mid-Atl. Mkt. Dev. Co., 476 F.3d 436, 440 (7th
Cir. 2007). That means that “an error in designating
the judgment will not result in a loss of appeal if the
intent to appeal from the contested judgment may be
inferred from the notice and if the appellee has not been
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misled by the defect.” United States v. Dowell, 257 F.3d 694,
698 (7th Cir. 2001). Warmelink makes quite a fuss about
the residents’ failure to comply with Rule 3, but conspicuously absent from his argument is any allegation that
he was misled or otherwise prejudiced by the imprecision of the residents’ notice of appeal, which explicitly
named him as an appellee. And while he correctly
observes that a copy of the December 3 order is absent
from the residents’ briefing, see Fed. R. App. P. 30(a)(1);
Cir. R. 30(a), he fails to note that the residents included
a copy of the February 15 order, which unambiguously
enters judgment in his favor. Because “the notice
afforded by a document . . . determines the document’s
sufficiency as a notice of appeal,” Smith, 502 U.S. at 248,
and Warmelink was plainly “apprise[d] . . . of the
issues challenged,” United States v. Segal, 432 F.3d 767,
772 (7th Cir. 2005), we conclude that we have jurisdiction over the appeal as to him.
Warmelink contends in the alternative that the
residents waived any argument as to him by failing to
adequately develop one in their opening brief. See, e.g.,
Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344, 349 (7th Cir.
2009) (“[U]nsupported and underdeveloped arguments
are waived.”(quotation omitted)). We again disagree.
The residents’ briefing, while not exemplary by any
means, discusses Warmelink and includes in its
appendix the Rule 58(a) judgment he requested. It also
implicitly addresses Warmelink inasmuch as the residents’ claim against him rises or falls with their
claims against the other defendants. That is enough, barely.
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The underdeveloped argument as to him is not the
only briefing deficiency Warmelink identifies. He, like
the Town and Town Defendants, also argues that the
residents’ opening brief so egregiously violates Fed. R.
App. P. 28(a)(7) and Circuit Rule 28 that all or parts of
it should be stricken. See, e.g., Gross v. Town of Cicero, Ill.,
619 F.3d 697, 701-03 (7th Cir. 2010); Casna v. City of
Loves Park, 574 F.3d 420, 423-24 (7th Cir. 2009).
It is true that the residents’ briefing leaves much to
be desired. Portions of the facts section have a decidedly
argumentative tinge (there are eight sentences beginning
with“Consistent with the other irregularities . . .”, and
several featuring conclusory statements like “the town
did not hold [Innsbrook developer] Washburn to the
requirements of the law”), several propositions lack
citations, and many of the unusually formatted citations
that are included do not actually support the propositions they purport to. These deficiencies render both
the residents’ and our jobs more difficult than they ought
to be. See Gates v. Caterpillar, Inc., 513 F.3d 680, 688 n.4
(7th Cir. 2008); cf. Corley v. Rosewood Care Ctr., Inc. of
Peoria, 388 F.3d 990, 1001 (7th Cir. 2004) (“[W]e will not
root through the hundreds of documents and thousands
of pages that make up the record here to make [plaintiff’s] case for him.”); United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting
for truffles buried in [the record].”). Perhaps most troubling is the residents’ reliance on allegations made in
their complaint as “evidence” to support their claims on
summary judgment, which is “not the proper standard
for summary judgment.” Mosley v. City of Chi., 614 F.3d
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391, 400 (7th Cir. 2010); see also Fed. R. Civ. P. 56(c); Payne
v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) (“[T]he
Federal Rules of Civil Procedure require the nonmoving
party to ‘set forth specific facts showing that there is a
genuine issue for trial.’ Conclusory allegations, unsupported by specific facts, will not suffice.” (quoting Fed.
R. Civ. P. 56(e))).
We nevertheless decline appellees’ invitations to strike
the residents’ brief. We caution counsel, however, that
flouting the rules in the future may well lead to striking
or even sanctions. See L.S.F. Transp., Inc. v. N.L.R.B., 282
F.3d 972, 975 n.1 (7th Cir. 2002). Even without much
help from the residents, we are confident that we
have located and considered the relevant evidence such
that we may make an informed assessment of the residents’ arguments. It is to those arguments we now turn.
The residents challenge the district court’s entry of
summary judgment on their § 1983 equal protection
claim. “In a § 1983 case, the plaintiff[s] bear[ ] the burden
of proof on the constitutional deprivation that underlies
the claim, and thus must come forward with sufficient
evidence to create genuine issues of material fact to
avoid summary judgment.” McAllister v. Price, 615 F.3d
877, 881 (7th Cir. 2010). In conducting our de novo
review, we view the facts in the light most favorable to
the residents and draw all reasonable inferences in
their favor. E.g., Ault v. Speicher, 634 F.3d 942, 945 (7th Cir.
2011).
The residents’ first argument does not look any better
even through the summary judgment lens angled in
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their favor, however, because it wholly lacks a basis in
the record. The residents contend that the district court
erred by sua sponte granting summary judgment on
grounds the defendants failed to raise. But not only was
the district court’s summary judgment ruling made at
the behest of both sides, see R.401 & 406 (residents’
motions for summary judgment); R.432 (Town & Town
Defendants’ motion for summary judgment); R. 449
(Warmelink’s motion for summary judgment), contra
Black’s Law Dictionary 1560 (9th ed. 2009) (defining “sua
sponte” as “[w]ithout prompting or suggestion; on its
own motion”), it also rested on grounds briefed by the
Town and Town Defendants, see R.434 at 59. Warmelink
did not brief those grounds, see R.445, but a district
court may enter summary judgment even in favor of nonmoving defendants “if granting the motion would bar
the claim against those non-moving defendants.” Judson
Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529
F.3d 371, 384 (7th Cir. 2008); see also Acequia, Inc. v. Prudential Ins. Co. of Am., 226 F.3d 798, 807 (7th Cir. 2000)
(“[W]here one defendant succeeds in winning summary judgment on a ground common to several defendants, the district court may also grant summary judgment
to the non-moving defendants, if the plaintiff had an
adequate opportunity to argue in opposition.”). The
residents had ample notice of the grounds on which the
defendants sought summary judgment and submitted
briefs in opposition to the motions. See R.505 & 511. The
district court committed no error here.
The residents’ second argument is more palatable than
their first but in the end is equally unavailing. They
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contend that they raised a genuine issue of material fact as
to whether the defendants treated them worse than
similarly situated white homeowners, both by failing
to hold the developer whose subdivision they opposed
to stringent standards and by failing to maintain the
troublesome retention pond.
To prevail in this § 1983 action, the residents need to
establish that they were deprived of a federal right,
privilege, or immunity by a person (or persons) acting
under color of state law. Brown v. Budz, 398 F.3d 904, 908
(7th Cir. 2005). There is no dispute that the residents
have a right to be treated without regard to their race. U.S.
Const. amend. XIV. The district court found that the
residents failed to show that the defendants, all of
whom it assumed were acting under color of state law,
deprived them of that right.1 To make such a showing,
which is analogous to that necessary in the more
familiar Title VII context, see Williams v. Seniff, 342 F.3d 774,
788 n.13 (7th Cir. 2003), the residents, who proceeded
under the indirect method, needed to come forward
with evidence from which a jury could conclude (1) they
were members of a protected class; (2) they were
similarly situated to members of an unprotected class in
1
Defendant Warmelink maintains that he is not a “state actor”
susceptible to suit under 42 U.S.C. § 1983. We need not
address this argument, for, as we explain below, the residents
are unable to establish a crucial element of their claim as to
all defendants: that they are similarly situated to a bettertreated comparator. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
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all relevant respects; and (3) they were treated differently
from members of the unprotected class, Brown, 398 F.3d
at 916. The district court found that the residents, all
of whom are non-white, demonstrated that they were
members of a protected class. It found that they could
not show, however, that they were similarly situated to
members of an unprotected class. The district court
recognized that the residents were attempting to liken
themselves to residents of Southmoor, a different subdivision next to which new construction was also being
proposed and opposed. It noted that the residents
alleged in their complaint that Southmoor’s residents
were “predominately white,” but was unable to discern
any admissible evidence showing that or other
similarities between Innsbrook and Southmoor, such
as their zoning statuses, locations, relative sizes, or neighborhood infrastructures.
The equal protection clause requires similar treatment
of similarly situated persons; it “does not require
things which are different in fact or opinion to be treated
in law as though they were the same.” Varner v. Monohan,
460 F.3d 861, 865 (7th Cir. 2006) (quoting Plyler v. Doe,
457 U.S. 202, 216 (1982)). Demonstrating that they are
similarly situated to another group consequently is essential to the success of the residents’ claims. “The
‘similarly situated’ analysis is not a ‘precise formula,’ but
we have stated repeatedly that what is ‘clear [is]
that similarly situated individuals must be very similar
indeed.’ ” La Bella Winnetka, Inc. v. Vill. of Winnetka, 628
F.3d 937, 942 (7th Cir. 2010) (quoting McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004)). For instance,
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in evaluating workplace equal protection claims, we
consider whether the employees at issue had the same
job description, dealt with the same supervisor, were
subject to the same standards, and had comparable experience, education, and qualifications. Ajayi v. Aramark
Bus. Servs., Inc., 336 F.3d 520, 532 (7th Cir. 2003).
The residents claim they are similarly situated to the
residents of Southmoor in a variety of ways. According
to the residents, both groups voiced opposition to new
developments while those developments were in the
preliminary zoning phase; both groups attended the
same zoning board meetings in 2005; both new developments consisted of single-family homes in areas zoned
R2; and the same ordinances were in effect while both
developments were being approved and built. The residents also point us to their complaint to support their
allegations that the residents of Southmoor were white.
These alleged similarities might seem superficially
adequate to create a genuine issue of material fact, but on
closer inspection of the residents’ proffered evidence
no rational jury could conclude that they were similarly
situated to the residents of Southmoor. Indeed, the residents have not pointed to any admissible evidence supporting their predicate contention that the Southmoor
residents were a different race than they are. Plaintiffs
cannot idly rest on the conclusory allegations of their
complaint at this stage of the game. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[T]he plaintiff could not rest on his allegations of a conspiracy to get
to a jury without any significant probative evidence
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tending to support the complaint.” (quotation omitted));
Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th
Cir. 2010) (“We often call summary judgment the ‘put up
or shut up’ moment in litigation, by which we mean
that the non-moving party is required to marshal and
present the court with the evidence she contends will
prove her case. And by evidence, we mean evidence
on which a reasonable jury could rely.” (citations omitted)). They need some evidence to present to a jury, and
they simply do not have it.
To the contrary, several portions of the record to which
they point seemingly undermine their contentions. Madison Meadows, the subdivision the Southmoor residents
were contesting, was slated to consist of mostly duplexes
and was zoned R2 and R3, see R.528-6, while the
contested Innsbrook expansion comprised exclusively
single-family homes in an R2 zone, see R.541-8. The record
does support the contention that both sets of residents
objected during the preliminary approval process, but the
residents neglect to mention that the Town deferred its
approval of the Innsbrook expansion and granted them
a private meeting to address their concerns about the
development before taking up the issue at a subsequent
zoning meeting. See R.541-8; 542-1; 542-4. No residents
raised objections to the development at that subsequent
meeting, see R.542-1, or at the meeting during which the
Innsbrook expansion was given the final go-ahead,
see R.528-2. The Southmoor residents, over whose objections the Town granted conditional preliminary approval without any such deferral or private meeting,
seem to have been treated less favorably than the
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Innsbrook residents in this regard. Moreover, the record
reveals that Southmoor does not even contain a
retention pond, the ostensible font of all the Innsbrook
residents’ troubles.
Without a similarly situated comparator, the Innsbrook
residents’ equal protection claim cannot hold water.
The district court did not err in granting summary judgment in the defendants’ favor. It likewise did not err
in failing to address the residents’ belatedly asserted
and undeveloped contention that the defendants violated their First Amendment rights by suppressing their
speech. The residents theorized at oral argument—and
in a single paragraph of their opening brief—that the
defendants violated their free speech rights by failing to
listen to them. They conceded, however, that none of
their submissions to this court or to the district court
cited a single free speech case, or even a case involving
the intersection of equal protection and the freedom of
speech, an oblique allusion to which is minimally discernible from a generous reading of their second amended
complaint. Any First Amendment claim they purport
to raise is therefore waived. See United States v. Useni, 516
F.3d 634, 658 (7th Cir. 2008) (“We have repeatedly warned
that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are
waived.” (quotation omitted)).
The district court did commit one small error that
we must address. When it declined to exercise supplemental jurisdiction over the residents’ state law claims,
the district court “remanded” them back to state court.
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But this case did not originate in state court, so there was
nowhere to remand the state law claims to. See Black’s
Law Dictionary 1407 (9th ed. 2009) (defining the verb
“remand” as “[t]o send (a case or claim) back to the
court or tribunal from which it came for some further
action”). Once the district court declined to exercise
supplemental jurisdiction over the claims, the proper
course would have been to dismiss them without prejudice. E.g., Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th
Cir. 1999) (“[I]t is the well-established law of this circuit
that the usual practice is to dismiss without prejudice
state supplemental claims whenever all federal claims
have been dismissed prior to trial.”). We M ODIFY the
district court’s judgment to dismiss without prejudice
rather than remand the state law claims. As modified,
the judgment is otherwise A FFIRMED.
7-11-11
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