Thorncreek Apartments III, LLC et al v. Village of Park Forest et al

Filing 435

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 5/20/2015.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THORNCREEK APARTMENTS I, LLC,
THORNCREEK APARTMENTS II, LLC, and
THORNCREEK APARTMENTS III, LLC,
Plaintiffs,
vs.
VILLAGE OF PARK FOREST, an Illinois municipal
corporation, TOM MICK, in his individual capacity and
as Village Manager, MAE BRANDON, in her
individual capacity and as Village Trustee, BONITA
DILLARD, in her individual capacity and as Village
Trustee, GARY KOPYCINSKI, in his individual
capacity and as Village Trustee, KENNETH W.
KRAMER, in his individual capacity and as Village
Trustee, ROBERT McCRAY, in his individual capacity
and as Village Trustee, GEORGIA O’NEILL, in her
individual capacity and as Village Trustee,
LAWRENCE KERESTES, in his individual capacity
and as Village Director of Community Development,
and JOHN A. OSTENBURG, in his individual capacity
and as Mayor of the Village of Park Forest,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

08 C 869
08 C 1225
08 C 4303
Judge Feinerman

MEMORANDUM OPINION AND ORDER
The Village of Park Forest, Illinois, brought the first of these three consolidated suits
against Thorncreek Apartments II, LLC, in the Circuit Court of Cook County, Illinois, alleging
zoning code and building code violations. After removing the suit to federal court, Doc. 1 (08 C
869), Thorncreek II counterclaimed against the Village and filed third-party claims against
several Village officials, Doc. 102 (08 C 869). In February 2008, Thorncreek Apartments III,
LLC, filed suit in federal court against the Village and several of its officials. Doc. 1 (08 C
1225). And in July 2008, Thorncreek Apartments I, LLC, filed a materially identical suit in

1

federal court. Doc. 1 (08 C 4303). For ease of reference, and unless otherwise indicated, the
three Thorncreek entities (there are others, but they are superfluous and may be ignored) will be
referred to collectively as “Thorncreek,” the Village and its officials will be referred to
collectively as “the Village,” Thorncreek’s claims and counterclaims will be referred to simply
as “claims,” and all docket entries will refer to Case 08 C 1255.
Thorncreek’s claims against the Village, which were brought under 42 U.S.C. §§ 1981,
1983, 1985, and 1986, and Illinois law, arose from the Village’s denial of Thorncreek’s requests
for licenses to operate a multifamily dwelling, denial of “certificates of occupancy” required to
house new tenants, promulgation and allegedly discriminatory enforcement of an electricity
ordinance, and denial of a conditional use permit for Thorncreek’s leasing office. Thorncreek
alleged that the Village targeted it because the vast majority of its tenants were AfricanAmerican, and also out of irrational animus towards Thorncreek’s principal owner, David
Clapper. Although the three cases were assigned to three different judges, the parties agreed to
consolidate their cross-motions for summary judgment for decision in 08 C 1225 before the
undersigned judge. Doc. 132. The court denied Thorncreek’s motion, and granted in part and
denied in part the Village’s motion. Docs. 198-199 (reported at 970 F. Supp. 2d 828 (N.D. Ill.
2013)). The three cases were then consolidated for all purposes, including trial, before the
undersigned judge. Doc. 202.
After a thirteen-day trial, the jury found in favor of Thorncreek on its § 1983 class-of-one
equal protection claims against the Village and Village Manager Tom Mick, and on its § 1985(3)
conspiracy claim against Mick and Village Director of Community Development Lawrence
Kerestes; the jury found in favor of the Village, Mick, and Kerestes on Thorncreek’s race
discrimination claims, and in favor of the other defendants (all defendants other than Mick, the

2

Village, and Kerestes) on all of Thorncreek’s claims. Doc. 372. The jury awarded $1.00 to
Thorncreek I, which operated a group of buildings known as Area F; $2,014,00.00 to Thorncreek
II, which operated a group of buildings known as Area G; and $1.00 to Thorncreek III, which
operated a group of buildings known as Area H. Id. at 8. The jury awarded punitive damages of
$5,000.00 against Mick and $1,000.00 against Kerestes. Id. at 9. The court entered judgment
consistent with the verdict. Doc. 370.
Discussion
Before the court are three motions challenging or seeking to amend various aspects of the
judgment.
I.

Mick and Kerestes’ Rule 50(b) Motion for Judgment as a Matter of Law
Mick and Kerestes have moved under Federal Rule of Civil Procedure 50(b) for

judgment as a matter of law. Doc. 384. They argue that because § 1985(3) liability can lie only
where there has been race- or class-based discrimination, and because the jury found only a
class-of-one equal protection violation and rejected Thorncreek’s race-based equal protection
claim, the jury’s verdict against them on the § 1985(3) claim cannot stand. Id. at 3-5.
Thorncreek defends the § 1985(3) verdict only on the merits; it does not contend that Mick and
Kerestes failed to preserve their ability to seek such relief under Rule 50(b). Doc. 404.
Section 1985(3) creates a civil damages action against two or more persons who
“conspire … for the purpose of depriving” the plaintiff of “the equal protection of the laws” and
who take or cause to be taken “any act in furtherance of the object of such conspiracy.” 42
U.S.C. § 1985(3). Settled law holds that a plaintiff can prevail under § 1985(3) only if it first
establishes an underlying equal protection violation, meaning that the absence of an underlying
equal protection violation precludes § 1985(3) liability. See Xiong v. Wagner, 700 F.3d 282, 297

3

(7th Cir. 2012) (“As discussed, plaintiffs have not made a showing sufficient to establish the
existence of racial animus on the part of defendants. Accordingly, plaintiffs’ conspiracy claim
falls with their equal protection claim, and summary judgment in defendants' favor is
appropriate.”); Sow v. Fortville Police Dep’t, 636 F.3d 293, 305 (7th Cir. 2011) (“The district
court also correctly determined that the absence of any underlying violation of Plaintiff’s rights
precludes the possibility of Plaintiff succeeding on a conspiracy claim.”); Bublitz v. Cottey, 327
F.3d 485, 488 n.3 (7th Cir. 2003) (“Our discussion of Mr. Bublitz’s § 1983 claim is sufficient to
dispose of his other claims. Section 1985 prohibits conspiracies to interfere with civil rights ….
Because we hold that neither Mr. Bublitz nor the deceased members of his family have suffered
a deprivation of their constitutional rights under § 1983, there is similarly no constitutional
violation to support these other claims.”); Indianapolis Minority Contractors Ass’n, Inc. v. Wiley,
187 F.3d 743, 754 (7th Cir. 1999) (“As a threshold matter, we note that the absence of any
underlying violation of the plaintiffs’ rights precludes the possibility of their succeeding on this
conspiracy count.”).
Thorncreek does not seriously dispute this proposition, but it contends that the jury did
find an underlying equal protection violation. True enough, but that violation was a class-of-one
violation, not a race-based violation; in fact, the jury explicitly rejected Thorncreek’s race-based
equal protection claim. This is significant, for settled law further holds that the equal protection
violation necessary to predicate a § 1985(3) claim must be a race-based or other class-based
violation, not a class-of-one violation. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008)
(“Section 1985(3) prohibits a conspiracy to deprive another of equal protection under the law …,
but the conspiracy must be motivated by racial, or other class-based discriminatory animus.
Smith has failed to sufficiently allege such animus because status as a parolee is not considered a

4

‘suspect class’ for equal-protection purposes.”) (citing Griffin v. Breckenridge, 403 U.S. 88, 102
(1971), and Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002)); Bowman v. City of Franklin,
980 F.2d 1104, 1109 (7th Cir. 1992) (“§ 1985(3) does not reach bias based on economic status”
or “nonracial political conspiracies”); Munson v. Friske, 754 F.2d 683, 695 n.8 (7th Cir. 1985)
(“We follow the Seventh Circuit precedent requiring a class-based invidiously discriminatory
animus to be proved in all section 1985(3) cases because the Supreme Court added the animus
requirement in order to give full effect to the language and purpose of the statute.”); Underfer v.
Univ. of Toledo, 36 F. App’x 831, 833-34 (6th Cir. 2002) (citable pursuant to 6th Cir. L. R. 32.1)
(holding that a class-of-one claim cannot underlie a § 1985(3) claim); Grimes v. Smith, 585 F.
Supp. 1084, 1089-90 (N.D. Ind. 1984) (Posner, J.) (rejecting a § 1985(3) claim because “there is
no racial or similar hostility behind the conspiracy in the present case that would take it out of
the category of purely political conspiracies”), aff’d, 776 F.2d 1359 (7th Cir. 1985); Snyder v.
Smith, 7 F. Supp. 3d 842, 850 (S.D. Ind. 2014) (“Neither the Supreme Court nor the Seventh
Circuit has credited a ‘class of one’ conspiracy claim under Section 1985(3), and such a broad
interpretation would be inconsistent with the Supreme Court’s command that the statute be
construed in a limited manner.”); Gross v. Town of Cicero, 2006 WL 288262, at *12 (N.D. Ill.
Feb. 1, 2006) (“a ‘class of one’ theory does not support a claim under Section 1985(3)”), aff’d in
part, rev’d in part on other grounds, 619 F.3d 697 (7th Cir. 2010); McCleester v. Dep’t of Labor
& Indus., 2007 WL 2071616, at *15 (W.D. Pa. July 16, 2007) (compiling cases). Accordingly,
Thorncreek’s victory on its class-of-one claim does not provide the indispensable predicate for
its § 1985(3) claim, which means that Thorncreek’s verdict on the § 1985(3) claim cannot stand.
Because the jury found against Kerestes only on Thorncreek’s § 1985(3) claim, and
because that particular finding cannot stand, the court grants Rule 50(b) relief to Kerestes and

5

vacates the judgment against him. The judgment against Mick will not be disturbed, however,
because he also was found liable on the class-of-one claim, which he has not challenged.
II.

Thorncreek’s Rule 59(a) Motion for a New Trial on Damages
Thorncreek has moved under Rule 59(a)(1)(A) for a new trial on damages. Doc. 382. “A

new trial is appropriate if the jury’s verdict is against the manifest weight of the evidence or if
the trial was in some way unfair to the moving party.” Venson v. Altamirano, 749 F.3d 641, 656
(7th Cir. 2014). Thorncreek advances three grounds for a new trial on damages, but all fail to
persuade.
A.

The Village Counsel’s References to David Clapper’s Wealth

Before trial, Thorncreek moved in limine to bar, among other things, any references to or
evidence regarding the wealth and personal financial status of David Clapper, Thorncreek’s
principal owner. Doc. 258. (Clapper apparently is a wealthy man. See Kaya Morgan, David
Clapper – Success Runs Deep, http://www.islandconnections.com/edit/clapper.htm (last visited
May 17, 2015), which appears to be a puff piece about Clapper authored by a publicist, which
refers to Clapper as a “Michigan business tycoon,” which shows photographs of Clapper with,
among others, the first President Bush, Pope John Paul II, and Kevin Nealon, and which was not
offered or admitted into evidence at trial.) The Village did not oppose the exclusion of such
evidence, Doc. 272, and the court granted the motion in relevant part, Doc. 377.
Thorncreek seeks a new trial on damages on the ground that the Village’s counsel
referenced and elicited testimony regarding Clapper’s wealth and assets—which, according to
Thorncreek, led the jury to award it less money than it should and otherwise would have. Doc.
383 at 11-13. As initially presented, Thorncreek’s argument suffered from the fact that its Rule
59(a)(1)(A) motion did not attach copies of the relevant transcripts. See Bankston v. State of Ill.,

6

1994 WL 11614, at *2 (N.D. Ill. Jan. 3, 1994) (“The defendants do not cite to exact passages in
the record nor do they attach excerpts of the transcript.… Accordingly, it is impossible to
conclude that the jury could not reasonably have found that the five elements of the FLSA
exemption were not satisfied.”). After filing its reply brief, Thorncreek cured the problem with a
supplemental brief—whose filing the court allowed, Doc. 422, over the Village’s objection, Doc.
421—that did quote and attach relevant transcripts. Doc. 423. So the court will consider
Thorncreek’s contentions on the merits, though its consideration will be limited to the matters set
forth in Thorncreek’s supplemental brief, as Thorncreek itself represented that the supplemental
brief gives the court the “specific references to the trial transcripts and the statements made on
the record by witnesses and the Defendants’ counsel that Plaintiffs reference in their Motion and
Brief and Reply Brief.” Id. at 2. Before concluding its supplemental brief, Thorncreek said that
it might provide the court with additional transcripts: “As the Plaintiffs receive the last of the
requested transcripts, Plaintiffs will seek leave to the extent necessary to further provide the
Court with examples of the testimony and conduct of Defendants’ counsel that should result in
Plaintiffs receiving a new trial on the issue of damages only.” Id. at 4. The court gave
Thorncreek months to provide additional transcripts showing improper conduct by the Village’s
attorneys, but none were filed.
First, Thorncreek notes that when the Village’s counsel was examining a business
associate of Clapper’s about a telephone conversation with Clapper, counsel asked the witness
where he (the witness) was during the call. The witness answered, “Evanston or some other spot
in metropolitan Chicago,” and counsel then asked where Clapper was during the call, and the
witness answered: “Mr. Clapper was either one of two places. He was either in his offices in
Michigan, or he was on his boat in the Mediterranean.” Doc. 423-1 at 3. Thorncreek’s counsel

7

objected and moved to strike, but only on speculation grounds, and the court overruled that
objection. Ibid. Thorncreek did not object on relevance or any other grounds, so the court had
no occasion to rule on any such objection.
As the court explained at the next break, outside the jury’s presence:
There was an objection to the question and answer regarding where Mr.
Clapper was during the phone call. It was either in Michigan or on a boat in
the Mediterranean. There was only one objection to that, and that objection
was “speculation.” It’s not speculative for one party of a conversation to
testify as to where the other person was[,] because those kinds of things are
generally discussed on the phone. There might have been other objections to
that question and to that testimony. Those objections were not made.
Therefore, I didn’t rule on them.
Doc. 433 at 3. When Thorncreek’s counsel responded that the testimony violated the court’s in
limine ruling regarding Clapper’s wealth, the court explained that such an objection had not been
made:
[T]here were 26 or 27 motions in limine, so – and with some prior objections,
the objection said, “ruling on the motion in limine,” and that prompts me to
think about the motion in limine. That objection was not made to … the
answer about the boat in the Mediterranean.
If you want to rely on … a ruling on a motion in limine in making an
objection, you’ve got to tell me …. [I]f we had one or two or three motions in
limine, it would be different, but we had 26 or 27. And you said
“Speculation,” and I understood that was the only basis for the objection. And
if you had said “Speculation and motion in limine,” then we could have gone
there.
I don’t know how the objection based on the motion in limine ruling would
have come out; but it wasn’t presented, and, therefore, I didn’t rule on it.
*

*

*

[I]f a lawyer intentionally arranges to ask a question where … the lawyer
knows that the answer is going to violate the motion in limine, that’s not a
good thing, and I’m not applauding that. And if it happens, there will be very
serious consequences.
But as to the point [Thorncreek’s counsel] was making, the fact that … it was,
“Objection, speculation,” and the fact that only a speculation objection was

8

being made, the necessary implication of that is that an objection based on the
motion in limine was not being made. There was no way for me to know that
you actually thought that it violated the motion in limine, because if you had,
you would have said so. So, I did not understand you to be making an
objection based on the motion in limine ruling. You did not make an
objection based on the motion in limine ruling.
And so in the future, if you do want – both sides, if you want to rely on a
motion in limine ruling in making an objection, just say, “motion in limine
ruling.” Obviously don’t get into the details of the motion in limine, because
again, that would defeat the point of having the motion in limine.
Id. at 6, 8-9.
The court time and again during trial told the parties that it was their obligation not only
to make objections, but to make specific objections. That warning accorded with settled
precedent holding that, to preserve an evidentiary objection for a Rule 59(a) motion or for
appeal, a party must make that specific objection on the record:
To preserve an issue for appellate review, a party must make a proper
objection at trial that alerts the court and opposing party to the specific
grounds for the objection. An objection is proper when a timely objection or
motion to strike appears of record, stating the specific ground of objection, if
the specific ground was not apparent from the context …. Neither a general
objection to the evidence nor a specific objection on other grounds will
preserve the issue for review. When a defendant does not object to the
admission of evidence during the trial, the objection is waived and cannot be
raised for the first time in a motion for new trial or on appeal.
Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006) (ellipses in the original,
citations and internal quotation marks omitted, emphasis added); see also Christmas v. City of
Chicago, 682 F.3d 632, 640 (7th Cir. 2012) (“Plaintiffs did not object to the officer’s specific
testimony at trial, but instead asked the district judge to admonish the witness to adhere to the
court’s rulings. By failing to object, Plaintiffs may not raise the issue for the first time in a
motion for a new trial or on appeal.”). “A motion for a new trial is not the appropriate place to
raise for the first time arguments that could have been brought earlier in the proceedings.” Prod.
Specialties Grp., Inc. v. Minsor Sys., Inc., 513 F.3d 695, 699 (7th Cir. 2008). By failing to object

9

to the witness’s answer on the ground that it improperly referenced Clapper’s wealth in violation
of the ruling on the motion in limine, Thorncreek forfeited the objection.
In any event, Thorncreek contends that the court later “instructed the Jury to disregard the
testimony” regarding Clapper’s whereabouts during the call. Doc. 383 at 11. If Thorncreek is
correct—it does not cite the relevant portions of the transcript—then any possible harm would
have been cured. See Soltys v. Costello, 520 F.3d 737, 744 (7th Cir. 2008) (“We presume that
juries follow the instructions given them by the court.”); Turner v. Miller, 301 F.3d 599, 604 (7th
Cir. 2002) (“absent an overwhelming probability that the jury will be unable to disregard
inadmissible evidence and a strong likelihood of a devastating effect from the evidence, we will
presume that a jury will follow a curative instruction”).
Second, Thorncreek contends that the Village’s counsel made “inflammatory, prejudicial
and improper statements … during closing arguments.” Doc. 423 at 3. However, in the portion
of the closing argument attached to Thorncreek’s supplemental brief, Thorncreek’s counsel did
not once object to the supposedly objectionable arguments. Doc. 423-2 at 2-6. Any objections
to those arguments accordingly are forfeited. See Venson, 749 F.3d at 657 (holding that the
losing party at trial “waived” an argument that the prevailing party’s lawyer violated a motion in
limine ruling during closing argument “by not making an objection at the time”); Howard v.
Terry, 527 F. App’x 507, 511 (7th Cir. 2013) (same); Pickett v. Sheridan Health Care Ctr., 610
F.3d 434, 445 (7th Cir. 2010) (same, noting that the forfeiture resulted from the fact that “the
appellant did not contemporaneously object to the statements”); Houskins v. Sheahan, 549 F.3d
480, 495 (7th Cir. 2008) (same); Soltys, 520 F.3d at 745 (same).
Third, Thorncreek contends that the Village’s attorney “elicited testimony from their
expert Pakter that suggested to the Jury that Mr. Clapper had already received too much money

10

from the property by suggesting he had taken millions from same even though there was no
evidence presented to the Jury in support of the assertion.” Doc. 423 at 4. The portion of the
transcript attached to Thorncreek’s supplemental brief shows that Thorncreek’s counsel objected
to the form of the question on the ground that the question “assumes facts not in evidence.” Doc.
423-3 at 3. The court overruled the objection, stating: “I’m going to overrule the objection. As
the jury knows, what counsel says is not evidence. Counsel is putting numbers in front of the
witness and asking the witness to do something with the numbers. It's up to you to decide the
weight of the testimony that is being given based upon all the evidence that was presented in the
case.” Ibid. Thorncreek does not argue, let alone show, that its objection was resolved in an
incorrect manner.
B.

Manifest Weight of the Evidence

Next, Thorncreek argues the jury’s award of nominal damages to Thorncreek I (Area F)
and Thorncreek III (Area H) was against the manifest weight of the evidence given that the jury
awarded $2,014,00.00 in damages to Thorncreek II (Area G). Doc. 383 at 13-15. The governing
standard is this:
The Supreme Court has long recognized that a district court can grant a
motion for a new trial if the verdict was against the weight of the evidence. In
passing on a motion for a new trial, the district court has the power to get a
general sense of the weight of the evidence, assessing the credibility of the
witnesses and the comparative strength of the facts put forth at trial. If, after
evaluating the evidence, the district court is of the opinion that the verdict is
against the manifest weight of the evidence, a new trial is appropriate.
Mejia v. Cook Cnty., 650 F.3d 631, 633 (7th Cir. 2011) (citations omitted). A Rule 59(a) motion
seeking a new trial on damages should be denied “as long as there is a reasonable basis in the
record to support” the jury’s assessment of damages. Frizzell v. Szabo, 647 F.3d 698, 702 (7th
Cir. 2011); see also Pickett, 610 F.3d at 440 (“We uphold a jury verdict on appeal as long as a
reasonable basis exists in the record to support this verdict.”).
11

Thorncreek’s principal argument is that because “Area H presented the exact same type
of data that Area G presented[,] … if the Jury was able to find that Area G proved its damages, it
necessarily had to find Area H proved its damages using the same method to calculate.” Doc.
383 at 14-15. The Village offers several explanations as to how the jury reasonably could have
awarded damages for Area G but not for Area H. Doc. 406 at 12-14. Among the more plausible
explanations is that the Village electrical upgrade ordinance—which, according to Thorncreek,
was enacted for the purpose of discriminating against Clapper—affected only Area G and not
Area H. Id. at 13. Based on the evidence presented at trial, the jury reasonably could have
determined that the Village’s enacting and enforcing the ordinance was the only conduct that
actually harmed Thorncreek, and that Area H was not harmed because it had already received the
required upgrades. Tellingly, although the Village set forth this explanation in its response brief,
Thorncreek ignored it in its reply, thus implicitly conceding that the jury reasonably could have
distinguished Areas G and H on this ground.
Thorncreek’s manifest weight argument focuses almost exclusively on Area H; indeed,
its initial and reply brief both state that the jury’s nominal damage award “to Area F and in
particular Area H” was against the manifest weight of the evidence. Doc. 383 at 15 (emphasis
added); Doc. 414 at 5 (same). The only attention Thorncreek pays to Area F specifically is to
contend: “As to Area F, there was no evidence presented to rebut the damage calculation of
[Thorncreek expert] Mr. Frazee.” Doc. 383 at 15. This contention is so thin as to constitute a
forfeiture.
Even putting aside forfeiture, there was plenty of evidence that could have led the jury to
find that while compensatory damages were warranted for Area G, none were appropriate for
Area F. As with Area H, the jury could have concluded that the only Village action that caused

12

damage was the electrical ordinance and that the ordinance did not harm Area F. Or, the jury
could have found that Thorncreek’s return on investment from selling Area F was so substantial
as to render harmless any class-of-one violation by the Village. Both sides agree that the jury
calculated its damage award for Area G by taking the value of Area G and subtracting the
mortgage debt on the property. Doc. 383 at 15; Doc. 406 at 14. As for Area F, the jury heard
evidence that Thorncreek made a handsome profit when it sold Area F for $16 million; from that
evidence, the jury could reasonably have concluded that Area F was not harmed financially by
the constitutional violation committed by the Village.
C.

The Village’s Use of Pre-2005 Documents

Finally, Thorncreek contends that the Village’s pre-2005 exhibits should have been
excluded at trial. Doc. 383 at 15-17. Those exhibits were largely, if not exclusively, Thorncreek
financial documents (e.g., mortgage papers, refinancing agreements), and the Village used those
documents largely, if not exclusively, to rebut Thorncreek’s submission that it suffered financial
harm from the Village’s actions. (The court says “largely, if not exclusively” rather than
“exclusively” because Thorncreek’s motion does not identify by exhibit number the exhibits
about which it is complaining, so the court is not completely sure about the scope of
Thorncreek’s complaint.) The Village did not obtain those documents from Thorncreek;
Thorncreek contends that the Village’s written discovery requests did not call for the production
of those documents, and the court will assume for the sake of argument that Thorncreek is right
on that point. Rather, the Village obtained those documents from governmental entities such as
the Cook County Recorder of Deeds and the Michigan Department of Licensing and Regulatory
Affairs. Even though the documents were Thorncreek business records, the Village produced
them to Thorncreek approximately five months before trial. The Village later noted that its

13

damages expert would rely on those documents and offered to submit the expert for another
deposition, but Thorncreek never took up the Village on that offer.
The court addressed Thorncreek’s arguments at a February 4, 2014 hearing in denying
Thorncreek’s motion to strike the Village’s supplemental disclosure, Docs. 219, 227, and again
in denying Thorncreek’s first motion in limine at the pretrial conference on April 1 and 6, 2014,
Docs. 255, 344-345, 377. Incorporating those rulings by reference, the court again rejects
Thorncreek’s arguments regarding the pre-2005 documents.
That said, the court will briefly address Thorncreek’s contention that allowing the Village
to use pre-2005 Thorncreek documents was inconsistent with the Magistrate Judge’s ruling early
in the case on Thorncreek’s motion to compel that some, but not all, of Thorncreek’s written
discovery requests to the Village would be limited to the time period after January 1, 2005.
Docs. 43, 50. As an initial matter, the Magistrate Judge did not hold that all pre-2005 documents
were irrelevant; rather, he allowed discovery into some pre-2005 matters, and Thorncreek does
not attach the relevant transcript, leaving the court unclear as to the basis of his ruling on the
other pre-2005 matters. Perhaps the Magistrate Judge concluded that the burden on the Village
of searching for pre-2005 documents outweighed the value of such discovery; that ruling would
turn not on Rule 26(b)(1) relevance, but on Rule 26(b)(2)(C) balancing. Moreover, that some
pre-2005 Village documents might have been deemed irrelevant says nothing about whether pre2005 Thorncreek financial documents are also irrelevant. Finally, the first three documents on
Thorncreek’s exhibit list were from August 1999, January 2003, and May 2003, Doc. 326-1 at 2,
so it lies poorly in Thorncreek’s mouth to argue that the Magistrate Judge somehow made all
pre-2005 documents categorically irrelevant. In sum, Thorncreek gives no basis for concluding

14

that the Magistrate Judge’s ruling speaks in any conceivable way to Thorncreek’s pre-2005
financial documents or provides any conceivable basis for excluding those documents.
III.

Thorncreek’s Rule 59(e) Motion to Amend the Judgment to Include Prejudgment
Interest
Thorncreek has moved under Rule 59(e) to amend the judgment to include an award of

prejudgment interest. Doc. 379; see Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989)
(“a postjudgment motion for discretionary prejudgment interest constitutes a motion to alter or
amend the judgment under Rule 59(e)”). Specifically, Thorncreek seeks $501,032.88 in
prejudgment interest for the Area G compensatory damage award. Doc. 380 at 7. In response,
the Village argues that no prejudgment interest should be awarded. Doc. 405. The Village does
not take issue with Thorncreek’s calculation of the prejudgment interest that would be owed if
prejudgment interest was appropriate, thus forfeiting any such argument. (Thorncreek also seeks
and $1.20 in prejudgment interest for each of the Area F and Area H nominal damage awards,
but it provides no basis for its calculation and fails to explain why prejudgment interest is
appropriate on a nominal damage award.)
Whether to award prejudgment interest is a matter committed to the district court’s
discretion. See RK Co. v. See, 622 F.3d 846, 853 (7th Cir. 2010). That said, over twenty-five
years ago, the Seventh Circuit adopted a presumption in favor of awarding prejudgment interest:
“[T]he time has come … to generalize, and to announce a rule that prejudgment interest should
be presumptively available to victims of federal law violations. Without it, compensation is
incomplete and the defendant has an incentive to delay.’” Gorenstein Enters., Inc. v. Quality
Care-USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989); see also McRoberts Software, Inc. v. Media
100, Inc., 329 F.3d 557, 572 (7th Cir. 2003) (“The rule we articulated in Gorenstein was broad
and we have consistently applied the presumption in favor of prejudgment interest for willful

15

violations of federal law in the years since.”); United States v. Bd. of Educ. of Consol. High Sch.
Dist. 320, 983 F.2d 790, 799 (7th Cir. 1993) (same); Lorenzen v. Emps. Ret. Plan of the Sperry &
Hutchinson Co., 896 F.2d 228, 236 (7th Cir. 1990) (“Whether to award prejudgment interest in
suits under federal statutes is a question of federal law, and, with growing awareness of the time
value of money, the trend is running in favor of such awards.”). This presumption “limit[s]” the
discretion otherwise provided to the district court. Consol. High Sch., 983 F.2d at 799.
The presumption favoring prejudgment interest applies to this case, as Thorncreek would
not be made whole absent such an award. As evidenced by its verdict, the jury concluded that
the Village impaired Area G’s value by approximately $2 million, thereby causing Thorncreek to
realize $2 million less on the property than it otherwise would have. Thorncreek’s recovery of
that $2 million was delayed, and Thorncreek deserves to be compensated for the time-value of
money lost through the date of judgment. See First Nat’l Bank of Chi. v. Standard Bank & Trust,
172 F.3d 472, 480 (7th Cir. 1999) (holding that it is “clear that prejudgment interest must make
the victim whole”); Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 274 (7th Cir.
1993) (“Money has a time value, and prejudgment interest is therefore necessary in the ordinary
case to compensate a plaintiff fully for a loss suffered at time t and not compensated until t + 1,
2, 3 … n.… Because of litigation delay, Partington lost the use of money that was rightfully his.
If he would have neither paid interest with the money nor invested it, this just shows that he
would have derived even greater value (by his lights) from the money by using it for additional
current consumption—perhaps by eating better, or driving a fancier car. He was deprived of that
value.”); Consol. High Sch., 983 F.2d at 799 (“Without [prejudgment interest], compensation is
incomplete and the defendant has an incentive to delay.”); Lorenzen, 896 F.2d at 236 (holding
that prejudgment interest “is a salutary trend—without it there is incomplete compensation to

16

victims of wrongdoing and there are added incentives to resist and delay the bringing of the
wrongdoer to book”); Gorenstein, 874 F.2d at 436 (same).
The Village offers four reasons why Thorncreek should not receive a prejudgment
interest award. Doc. 405. Each lacks merit.
A.

Ascertainability

The Village first argues that because prejudgment interest may be awarded only if “the
amount of the Plaintiffs’ damages [were] easily ascertainable prior to trial” and not where
damages “are the subject of a good faith dispute,” id. at 2-3, such interest should not be awarded
here because Thorncreek’s damages were not readily ascertainable before trial, id. at 5-6. Most
of the Seventh Circuit decisions on which the Village relies for this proposition, however,
interpret state statutes governing prejudgment interest and/or were issued before Gorenstein
announced that prejudgment interest should be presumptively available. See Wickens v. Shell Oil
Co., 620 F.3d 747, 757-58 (7th Cir. 2010) (Indiana law); Ameritech Info. Sys., Inc. v. Bar Code
Res., Inc., 331 F.3d 571, 575 (7th Cir. 2003) (Illinois law); Donnelly v. Yellow Freight Sys., Inc.,
874 F.2d 402, 411 (7th Cir. 1989) (federal law, pre-Gorenstein); Williamson v. Handy Button
Mach. Co., 817 F.2d 1290, 1298 (7th Cir. 1987) (federal law, pre-Gorenstein); Pub. Serv. Co. of
Ind., Inc. v. Bath Iron Works Corp., 773 F.2d 783, 796 (7th Cir. 1985) (Indiana law);
Moutsopoulos v. Am. Mut. Ins. Co. of Boston, 607 F.2d 1185, 1190 (7th Cir. 1979) (Wisconsin
law); Taylor v. Phillips Indus., Inc., 593 F.2d 783, 787 (7th Cir. 1979) (federal law, preGorenstein). “Whether to award prejudgment interest in suits under federal statutes is a question
of federal law,” Lorenzen, 896 F.2d at 236, and so the decisions applying state law are
inapposite; the pre-Gorenstein decisions have been superseded.

17

The Village cites one post-Gorenstein Seventh Circuit decision addressing prejudgment
interest for federal claims, Daniels v. Pipefitters’ Ass’n Loc. Union No. 597, 945 F.2d 906, 924
(7th Cir. 1991), that does say the following: “In cases involving violations of the federal civil
rights laws, prejudgment interest is available as a matter of course on an award of backpay, so
long as this amount is readily determinable.” Id. at 924 (internal quotation marks and citations
omitted). But by “readily determinable,” Daniels did not mean what the Village supposes it
meant—that the damages must have been readily calculable before trial. The Title VII plaintiff
in Daniels sought prejudgment interest where the jury returned a general verdict making a single
compensatory damage award for his backpay and emotional distress claims, yet prejudgment
interest was available only for the former and not the latter. Id. at 924-25. In holding that the
plaintiff could not obtain prejudgment interest because his backpay award was not readily
determinable or ascertainable, Daniels meant that the jury’s general verdict made it impossible to
determine how much money had been awarded for backpay, on which prejudgment interest
could be awarded, and how much for emotional distress, for which no prejudgment interest was
possible: “[W]hen a plaintiff presents a district judge with a claim for prejudgment interest, he
must have some basis on which to conclude that backpay accounts for some minimum amount of
the compensatory damage award. Because the district judge has no means to parse the elements
of the general verdict, prejudgment interest must be denied.” Id. at 925. This case presents no
such ambiguity or problem.
In the end, the appropriate standard is set forth in Gorenstein—which, as noted above,
held that prejudgment interest is presumptively available for successful federal claims—and
Hutchinson v. Amateur Elec. Supply, Inc., 42 F.3d 1037 (7th Cir. 1994). After characterizing the
reference to “easily ascertainable” damages in Donnelly v. Yellow Freight System, Inc., supra, as

18

“dicta,” Hutchinson held that prejudgment interest could be awarded because “the amount of
back pay on which interest is to be awarded in this case is not uncertain—the jury awarded
$80,000,” adding that “[t]he fact that the jury had to make implicit calculations to reach that
amount does not defeat the presumption in favor of prejudgment interest.” Id. at 1047.
Likewise, the damages awarded by the jury here is definite, not uncertain, satisfying whatever
ascertainability standard remains in the Seventh Circuit.
B.

Compatibility with Punitive Damages

The Village next argues that because “the Seventh Circuit will not award prejudgment
interest if punitive damages are awarded,” and because the jury here awarded $6,000 in punitive
damages (since reduced to $5,000), Thorncreek cannot recover prejudgment interest. Doc. 405
at 7. The Village’s premise is incorrect; while prejudgment interest cannot be awarded on
punitive damages, the general rule holds that prejudgment interest on compensatory damages are
not incompatible with a punitive damage award. See Fine v. Ryan Int’l Airlines, 305 F.3d 746,
757 (7th Cir. 2002) (“Ryan … argues that prejudgment interest is not appropriate at all because
punitive damages make up almost half the award and this court has held in other contexts that
prejudgment interest should not be awarded on punitive damages. But Fine seeks interest only
on her award of backpay, not on her punitive damages ….”); DeRance, Inc. v. PaineWebber Inc.,
872 F.2d 1312, 1330 (7th Cir. 1989) (“The district court did not abuse its discretion in awarding
prejudgment interest on the compensatory award, which compensates for time value of money,
even with the substantial punitive damages awarded.”).
The Village cites some decisions holding that prejudgment interest is incompatible with
punitive damages under certain particular circumstances, but those decisions are distinguishable.
In Fortino v. Quasar Co., 950 F.2d 389 (7th Cir. 1991), for example, the Seventh Circuit held

19

that prejudgment interest could not be awarded in a suit under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 626(b), where, due to the violation being found willful,
the compensatory damage award was doubled by statute—resulting in a liquidated/punitive
damage award equal to the compensatory damage award. Id. at 397. The court explained: “We
agree both that the purpose of prejudgment interest is to make sure that an award of
compensatory damages is fully compensatory and that it is a salutary purpose—as a matter of
fact we have held that such interest is presumptively available in cases under federal law. But
when such interest is added to an award that is half punitive, as the plaintiffs would have us do, it
ceases to have a compensatory function and becomes an unauthorized form of punitive
damages.” Id. at 397-98 (citing Gorenstein, 874 F.2d at 436). To that explanation, the court
added that “there is a risk that an award of prejudgment interest in a case in which punitive
damages have been awarded will overcompensate the plaintiff and perhaps overdeter potential
wrongdoers.” Id. at 398. And as the Seventh Circuit later noted, “ADEA liquidated damages
replace prejudgment interest.” Downey v. C.I.R., 33 F.3d 836, 840 (7th Cir. 1994); see also
EEOC v. O’Grady, 857 F.2d 383, 391 & n.13 (7th Cir. 1988) (same, where double/liquidated
damages were awarded under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.).
Here, by contrast, the punitive damage award did not come in the form of statutory
liquidated damages that matched the compensatory damage award and served the purpose of
replacing prejudgment interest. Rather, the modest punitive damage award is about 0.25% of the
compensatory damage award. Under these circumstances, and in accord with decisions such as
Fine and DeRance, the presence of a punitive damage award does not foreclose a prejudgment
interest award.

20

C.

Thorncreek Asked the Jury for Prejudgment Interest

The Village next argues that Thorncreek should not receive prejudgment interest because
Thorncreek asked the jury to award prejudgment interest and presented damage figures to the
jury that incorporated such interest. Doc. 405 at 8-12. In support, Thorncreek cites Raybestos
Products Co. v. Younger, 54 F.3d 1234 (7th Cir. 1995), where the district judge awarded
Raybestos, the plaintiff, prejudgment interest of $495,695 on top of the jury’s compensatory
damage award of $2 million. Id. at 1246. Younger, the defendant, appealed, arguing that
“because Raybestos presented damage figures to the jury calculated both with and without
interest, the jury’s compensatory damage award may have included interest.” Ibid. The Seventh
Circuit agreed, holding: “Plaintiff cannot recover prejudgment interest twice. Because
Raybestos provided the jury with damage figures that included interest estimates, we will
presume that the jury’s award included an interest augmentation. Accordingly, the subsequent
award of prejudgment interest constituted an unauthorized doubling of damages and thus the
district court’s amended judgment as to the prejudgment interest must be vacated.” Id. at 1247
(footnote omitted, emphasis added). In a footnote, and citing Gorenstein, the court added that
“[a]dopting this presumption in no way conflicts with this circuit’s well-established principle that
prejudgment interest is presumptively available to victims of federal law violations,” but that
“[i]n balancing the equities, we believe that the plaintiff should not benefit from the confusion
arising from its damage submission.” Id. at 1247 n.18 (emphasis added).
As the emphasized text makes clear, Raybestos Products established a presumption
against prejudgment interest, not an absolute prohibition, where the plaintiff asks the jury to
include prejudgment interest in its verdict. Cf. Sackett v. EPA, 132 S. Ct. 1367, 1373 (2012) (“as
with most presumptions, this one [the presumption favoring judicial review of an administrative

21

action] may be overcome by inferences of intent drawn from the statutory scheme as a whole”).
The presumption applies here, as Thorncreek asked the jury for prejudgment interest, so the
question becomes whether the presumption has been overcome. The answer is “yes.” As noted
in Section II, supra, both parties have recognized that the jury reached its compensatory damage
award for Area G not by adopting Thorncreek’s damage and prejudgment interest calculations,
but simply by subtracting the value of Area G by the mortgage debt on the property—a figure
that, resulting from simple subtraction, did not include prejudgment interest. Doc. 383 at 15;
Doc. 406 at 14. Accordingly, in this particular instance, the Raybestos Products presumption
against prejudgment interest where the plaintiff seeks prejudgment interest from the jury has
been overcome, leaving in place the Gorenstein presumption in favor of prejudgment interest.
D.

Waiver

Finally, the Village contends that because Thorncreek’s current prejudgment interest
methodology and calculation differs from the methodology and calculation that it (through its
expert) presented to the jury, Thorncreek waived its right to prejudgment interest. Doc. 405 at
12-13. The Village cites no legal authority for its argument, thereby forfeiting the point. See
G&S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly
held that a party waives an argument by failing to make it before the district court.”); Judge v.
Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (“perfunctory and undeveloped arguments, and
arguments that are unsupported by pertinent authority, are waived”). In any event, the Village
does not challenge the correctness of Thorncreek’s current methodology or calculation, so in
essence it is complaining that the Village finally got it right. And the Village appears to have
gotten it right, using the prime rate and compounding monthly. Doc. 380 at 5-7; Doc. 380-3; see
First Nat’l Bank, 172 F.3d at 480 (“Our practice has been to use the prime rate as the benchmark

22

for prejudgment interest unless either there is a statutorily defined rate or the district court
engages in ‘refined rate-setting’ directed at determining a more accurate market rate for interest.
We hold today that to set aside this practice and award something other than the prime rate is an
abuse of discretion, unless the district court engages in such a refined calculation.”) (citation
omitted); Gorenstein, 874 F.2d at 436. If anything, the Village sold itself short, seeking interest
from the month this litigation began rather than from the date of its injury. See Am. Nat’l Fire
Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 935
(7th Cir. 2003) (“Consequently, prejudgment interest typically accrues from the date of the loss
or from the date on which the claim accrued.”).
Conclusion
For the foregoing reasons, Kerestes’ Rule 50(b) motion is granted, Mick’s Rule 50(b)
motion is denied, Thorncreek’s Rule 59(a)(1) motion for a new trial on damages is denied, and
Thorncreek’s Rule 59(e) motion to amend the judgment to include prejudgment interest is
granted in part (as to interest on the compensatory damage award) and denied in part (as to
interest on the nominal damage awards). The judgment against Kerestes, including the $1,000
punitive damage award against him personally, is vacated. The judgment in favor of Thorncreek
II and against the Village and Mick is amended to add $501,032.88 in prejudgment interest.

May 20, 2015
United States District Judge

23