Kindra Lake Towing, L.P. et al v. Donat et al

Filing 32

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 2/15/2017:Civil case terminated. Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KINDRA LAKE TOWNING, L.P.,
and BLACK DIAMOND MARINE
EQUIPMENT, INC.,
Case No. 16 C 3916
Plaintiffs,
Judge Harry D. Leinenweber
v.
DONAT INSURANCE SERVICES,
LLC, and KEN DONAT,
Defendants.

MEMORANDUM OPINION AND ORDER
The

Defendants’

self-styled

Motion

Pleadings [ECF No. 23] is granted.
without

prejudice

with

permission

for

Judgment

on

the

The Complaint is dismissed
to

refile

if

and

when

the

dispute ripens.
I.

BACKGROUND

The facts of this case, which involved the sinking of a
haunted house on a dark and stormy night, were discussed at
length in the Court’s last memorandum opinion.

See, Kindra Lake

Towing, L.P. v. Donat Ins. Servs., LLC, No. 16 C 3916, 2016 U.S.
Dist. LEXIS 129803, at *1-6 (N.D. Ill. Sep. 20, 2016).
it

to

recount

that

Plaintiffs

Kindra

Lake

Towing

Suffice

and

Black

Diamond Marine Equipment (“Plaintiffs”) had chartered a barge to

non-party Foundation Theatre Group (“Foundation”).
contractually

required

Foundation

to

carry

Plaintiffs

insurance

for

the

vessel, and Foundation turned to the Defendants, Donat Insurance
Services, LLC, and its owner, Ken Donat (the “Defendants”), for
insurance

brokerage

Foundation

a

Corporation.

services.

policy

Defendants

underwritten

by

procured

Capitol

for

Indemnity

The policy named both Foundation and Plaintiffs as

insureds.
The barge, carrying Foundation’s staged haunted house, was
then docked at Navy Pier.
barge.

On

its

heel

On Halloween 2014, a storm sunk the

followed

three

federal

lawsuits.

The

interactions of these lawsuits, the last of which is the case
before

this

Court,

motion at hand.

are

important

for

the

resolution

of

the

The Court thus delves into them in some detail.

The first lawsuit, filed before District Judge Thomas M.
Durkin, is a declaratory judgment action brought by Plaintiffs.
See, In re Kindra Lake Towing, L.P., No. 15 C 03174 (filed
Apr. 4, 2015).

In this lawsuit (“the Durkin suit”), Plaintiffs

seek to have the court declare that Plaintiffs are not liable to
any party for any losses that arose out of the sinking of the
barge.
Pier

See, id., ECF No. 1 ¶¶ 13-15, 24.
both

Nos. 38-39.

counterclaim

against

Foundation and Navy

Plaintiffs.

See,

id.,

ECF

Foundation seeks damages for its lost haunted house
- 2 -

and lost profits in the amount of $375,000.00, while Navy Pier
claims $600,000.00 in damages to its dock.

See, id., ECF No. 38

at pp. 13-21 (Foundation’s Countercl.); ECF No. 39 ¶¶ 13, 21,
29, 35 (Navy Pier’s Countercl.).
Importantly, Plaintiffs (and their insurers) also bring a
claim for money damages against Foundation as part of the Durkin
suit.

See, id., ECF No. 24 (“Plaintiffs’ Counterclaims against

Foundation”).

The

damages

that

Plaintiffs

seek

in

that

complaint are precisely those that they seek against Defendants
in the case before this Court.
that:

In particular, Plaintiffs allege

“As a result of said breaches of contract by Foundation

Theatre,

the

Claimants

[Plaintiffs

and

their

insurers]

have

suffered damages well in excess of $1,500,000 arising out of the
damages suffered by [the barge] TMS 200, the salvage of said
barge

and

the

containers

from

the

bottom

of

Lake

Michigan,

transportation fees, surveyor fees, loss of use, storage fees,
prejudgment interest, and legal fees.”

Id. ¶ 19.

Wherefore,

Plaintiffs pray for damages “well in excess of $1,500,000.”

Id.

¶¶ 21, 26.
The

second

lawsuit,

pending

before

Judge

John

Robert

Blakey, is a declaratory action brought by Capitol Indemnity
Corporation.

See, Capitol Indemnity Corporation v. Foundation

Theatre Group, No. 15 C 09735 (filed Oct. 30, 2015) (“the Blakey
- 3 -

suit”).

Capitol, the underwriter behind the insurance policy

Defendants

procured,

requests

a

judgment

declaring

that

its

policy does not provide “coverage, either defense or indemnity
. . . for FTG [Foundation Theatre Group], Navy Pier, Kindra, and
Black Diamond for . . . the damages alleged in th[e] [Durkin]
Action.”
the

Id., ECF No. 1 ¶ 41.

basis

insurance

of

various

policy,

Capitol prays for this relief on

exclusionary

including

a

clauses

clause

written

the

coverage

excluding

into

for

“watercraft” (Exclusion G) and one excluding “property damage”
coverage

for

“property

[that]

you

own,

rent

or

occupy,”

“property loaned to you,” and “personal property in the care,
custody or control of the insured” (Exclusion J).

Id. ¶ 32.

In short, Capitol seeks a declaration that it is not liable
for any damage awards that may flow from the Durkin lawsuit.
That lawsuit, as will be recalled, includes the claim for $1.5
million

that

Foundation

Plaintiffs
and

brought

Plaintiffs

against

are

Foundation.

contesting

and

counterclaims against Capitol in the Blakey action.

Both
making

See, id.,

ECF Nos. 28 and 37.
Finally, the third and latest filed suit is the one before
this Court.

In this case, Plaintiffs are suing the Defendant

insurance

brokers

on

Plaintiffs

harm

failing

by

the

theory
“to

place

- 4 -

that
the

Defendants
proper

and

caused
correct

insurance [as] requested by Foundation.”
L.P.

v.

Donat

(Compl.) ¶ 30.

Ins.

Servs.,

LLC,

No.

Kindra Lake Towing,

16

C

03916,

ECF

No.

1

Plaintiffs allege that their “damages and losses

. . . are still being calculated, but will be in excess of
$1,500,000.00, including damage sustained to the barge TMS-200
(‘the Vessel’), salvage costs, loss of use, attorneys’ fees,
pre-judgment

interest,

and

other

expenses.”

Id.

¶¶

31,

52.

Elsewhere in their filings before the Court, Plaintiffs clarify
that the damages they seek include both “1) property damage for
the loss of their vessel and the associated costs relating to
salvage and cleanup, and 2) liability exposure for the cost of
defending

themselves

against

lawsuits

Foundation and potential damage awards.”

from

Navy

Pier

and

See, ECF No. 28 (Pl.’s

Resp. to Defs.’ Mot.) at 5.
The

Defendants

now

move

for

the

Court

to

dismiss

the

Complaint on the grounds that Plaintiffs will suffer injuries
only

if

the

Durkin

and

Blakey

lawsuits

are

resolved

against

them.

As such, either Plaintiffs lack standing to sue or their

claims

are

not

yet

ripe

for

adjudication.

For

the

reasons

stated herein, the Court finds that dismissal is appropriate at
this stage.

- 5 -

II. ANALYSIS
In

addition

to

arguing

for

standing

and

ripeness,

Plaintiffs urge that the Court deny the Motion because it is
untimely.

The Court thus addresses this procedural argument

before reviewing the merits of Defendants’ Motion.
A.
Plaintiffs

complain

Timeliness

that

Defendants’

Motion

either too soon or, alternatively, too late.
that

as

a

Rule

12(c)

Motion

for

Judgment

is

brought

The Court agrees
on

the

Pleadings,

Defendants’ Motion is premature because the pleadings have not
closed.
Under Rule 12(c), “a party may move for judgment on the
pleadings” only “[a]fter the pleadings are closed.”
P. 12(c).

The

pleadings

have

not

closed

FED. R. CIV.

in

because Defendants have not answered the Complaint.

this

case

See, FED. R.

CIV. P. 7(a) (specifying that pleadings include a complaint and
an answer to a complaint); Perez v. Wells Fargo N.A., 774 F.3d
1329,

1336-37

(11th

Cir.

2014)

(“When

a

defendant

fails

to

answer, Rule 12(c) precludes a judgment on the pleadings because
the pleadings have not yet closed, and competing pleadings do
not exist.”); N. Ind. Gun & Outdoor Shows v. City of S. Bend,
163 F.3d 449, 452 (7th Cir. 1998) (“Rule 12(c) permits a party
to move for judgment after the parties have filed the complaint
- 6 -

and answer.”) (emphasis added).

Defendants’ Motion thus cannot

be considered a Motion for Judgment on the Pleadings.
Nonetheless,
construed

as

a

the
Rule

Court

finds

12(b)(1)

subject-matter jurisdiction.

that

Motion

to

the

Motion

Dismiss

may
lack

for

be
of

Cf., Wouk v. Mondi Packaging USA

Inc., No. 13 C 1932, 2014 U.S. Dist. LEXIS 7848, at *1-2 n.2
(N.D. Ill. Jan. 22, 2014) (“Because Mondi has not yet filed an
answer to Wouk’s retaliatory discharge claim, the Court will
consider

Mondi’s

motion

under

Federal

Procedure 12(b)(6) and not Rule 12(c).”).

Rule

of

Civil

Defendants in their

Motion challenge both Plaintiffs’ standing and the ripeness of
their

claims,

both

(arguably)

jurisdictional

matters.

See,

e.g., Smith v. Wis. Dep't of Agric., 23 F.3d 1134, 1142 (7th
Cir.

1994)

(“Standing

prerequisites.”).

The

and

ripeness

Court

thus

are

treats

jurisdictional

the

Motion

as

a

Rule 12(b)(1) motion.
Plaintiffs raise a second timeliness argument, this time
contending

that

Rule 12(g),
their

they

arguments

Defendants’
assert
by

Motion

that

failing

is

too

Defendants

to

bring

have

them

previous Rule 12(b)(6) motion to dismiss.”
Resp.

to

Defs.’

Mot.)

at

2-3.

- 7 -

It

is

late.

as

Citing

“waived
part

of

all

to
of

their

ECF No. 28 (Pl.’s

true

that

Defendants

previously have filed a 12(b)(6) motion.

See, ECF No. 11.

At

first glance then, Rule 12(g)(2) looks relevant.
Rule

12(g)(2)

states

that:

“Except

as

provided

in

Rule 12(h)(2) or (3), a party that makes a motion under this
rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted
from its earlier motion.”

Relying on the rule, some courts have

precluded litigants from making arguments that they failed to
raise in previously filed motions.

See, e.g., Makor Issues &

Rights, Ltd. v. Tellabs, Inc., No. 02 C 4356, 2008 U.S. Dist.
LEXIS 41539, at *8 (N.D. Ill. May 23, 2008); 766347 Ontario,
Ltd. v. Zurich Capital Mkts., Inc., 274 F.Supp.2d 926, 930 (N.D.
Ill. 2003).
C

0691,

But see, Donnelli v. Peters Secs. Co., L.P., No. 02

2002

U.S.

Dist.

LEXIS

16305,

at

*10-12

(N.D.

Ill.

Aug. 28, 2002) (allowing a second pre-answer motion because the
“defendants’ motion was not filed for the purpose of delay and
th[e] adjudication of the instant motion will narrow the scope
of this matter, greatly expediting resolution of the case”).
However, because the current Motion raises jurisdictional
issues,

Rule

12(g)

is

no

barrier

to

its

consideration.

Rule 12(g) exempts from its proscription those motions that fall
within the scope of Rule 12(h)(2) or (3).
turn, speaks to subject-matter jurisdiction.
- 8 -

Rule 12(h)(3), in
It requires the

Court to dismiss the case if “at any time,” the Court finds that
it lacks such jurisdiction.
to

inquire

raised.

into

the

Accordingly, the Court is obligated

subject-matter

arguments

that

Defendants

Their arguments are not waived for the simple reason

that subject-matter jurisdiction cannot be waived.

See, e.g.,

Hawxhurst v. Pettibone Corp., 40 F.3d 175, 179 (7th Cir. 1994)
(“Subject

matter

jurisdiction

cannot

be

waived

and

may

be

challenged by a party or raised sua sponte by the court at any
point in the proceedings.”).
B.

Standing

Defendants assert that Plaintiffs do not have standing to
bring

the

current

suit

because

“Plaintiffs’

Complaint

only

alleges the potential for future damages, and such damages do
not constitute an immediate injury for purposes of standing.”
ECF No. 24 at 4.

As Defendants explain, “a series of events

must occur” before Plaintiffs incur any actual damages:
Blakey

must

rule

for

Capitol

and

against

Judge

Plaintiffs

by

determining that the insurance issued to Foundation indeed does
not provide coverage for the sinking of the barge and related
damages, and Judge Durkin must find that Plaintiffs are liable
for the losses related to the barge sinking.
The

Court

is

of

the

view

that

Id. at 4-5.

Defendants’

contentions

should be properly seen as an argument that Plaintiffs’ claims
- 9 -

have

not

ripened

rather

standing to bring them.

than

that

Plaintiffs

do

not

have

Defendants’ labeling of their arguments

as falling under both doctrines is understandable given that
“[a]lthough the doctrines of standing and ripeness ostensibly
require different inquiries, they are closely related, and in
cases . . . perhaps overlap entirely.”
F.3d 606, 610 (7th Cir. 1995).

Sierra Club v. Marita, 46

At bottom, however, Defendants’

argument is that Plaintiffs’ claimed injuries hinge on future
events.
will

Whether Plaintiffs have been injured, say Defendants,

only

be

known

after

Judges

Durkin

and

Blakey

rule.

Plaintiffs’ injuries thus are contingent on the unfolding of the
parallel litigation, and such contingencies raise concerns of
ripeness.

See, e.g., Wis. Right to Life State PAC v. Barland,

664 F.3d 139, 148 (7th Cir. 2011) (“Ripeness concerns may arise
when a case involves uncertain or contingent events that may not
occur as anticipated, or not occur at all.”); Marusic Liquors v.
Daley, 55 F.3d 258, 260 (7th Cir. 1995) (“A claim is unripe when
critical elements are contingent or unknown.”).
Put differently, how Judges Durkin and Blakey will rule
cannot be known at this point in time, but the judges certainly
will rule (presumably within the near future, as both cases are
now over a year old) and their rulings will settle the question
of

Plaintiffs’

injuries.

Therefore,
- 10 -

the

concern

is

one

of

timing – this Court must decide whether to address Plaintiffs’
claims

now

or

later

ripeness principles.

–

a

classic

issue

to

be

addressed

by

See, e.g., Reg’l Rail Reorganization Act

Cases, 419 U.S. 102, 140 (1974) (“[R]ipeness is peculiarly a
question of timing . . .”); Amundson v. Wis. Dep't of Health
Servs., 721 F.3d 871, 874 (7th Cir. 2013) (“Ripeness is a matter
of

timing

. .

.”);

Anders

v.

Fort

Wayne

Cmty.

Schs.,

124

F.Supp.2d 618, 630 (N.D. Ind. 2000) (“[Ripeness] is a question
of

timing.”)

Corporations,

(citing
419

Blanchette

U.S.

102,

v.
143

Connecticut
(1974);

General

Public

Associates, Inc. v. Rickover, 369 U.S. 111, (1962)).

Ins.

Affairs
The Court

thus analyzes this Motion under the rubrics of that doctrine.
C.

Ripeness

To determine whether a claim is ripe, a court considers
“both the fitness of the issues for judicial decision and the
hardship

to

the

parties

of

withholding

court

consideration.”

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732-33 (1998)
(internal quotation marks omitted).
The issue before the Court – whether Defendants failed to
obtain the proper insurance – is not fit for judicial review.
Whether the insurance is proper is a question pending before
Judge Blakey.

Recall that in that lawsuit, Capitol is seeking a

declaratory judgment that the insurance Defendants obtained from
- 11 -

Capitol does not cover the damages resulting from the sinking of
the

barge.

The

opposing

parties,

including

requesting the opposite declaration.

Plaintiffs,

are

Thus, if Plaintiffs win,

then Capitol’s insurance policy will cover Plaintiffs’ losses.
In that eventuality, Plaintiffs cannot say that the policy was
improper or that Defendants have failed to procure the proper
insurance.

Put differently, if the Court were to proceed with

this litigation, then a favorable decision for Plaintiffs may be
inconsistent with what Judge Blakey finds.
To

rescue

lawsuit

does

their
not

case,

concern

Plaintiffs
the

losses

argue

that

Plaintiffs

the

Blakey

seek

here.

Plaintiffs say that in this case they are looking to recover the
value of their barge and their out-of-pocket salvage costs.
contrast,

the

Blakey

lawsuit

is

about

whether

Capitol

In
must

defend and indemnify them for the claims that other parties are
bringing against them – that is, the $375,000.00 demanded by
Foundation and $600,000.00 by Navy Pier.
Plaintiffs’
contradicts
Complaint,
entered

in

what

attempt
they

Plaintiffs
the

to

distinguish

pleaded
alleged

declaratory

in

their

that,

judgment

the

two

Complaint.

“[s]hould
action

in

a

lawsuits
In

judgment
favor

of

the
be
Cap

Specialty, it will be because Donat did not procure the correct
insurance coverage requested by Foundation.”
- 12 -

ECF No. 1 (Compl.)

¶ 22.

Plaintiffs thus blame Defendants for the injuries being

litigated in the Blakey lawsuit.

Yet they now say that they are

not

Defendants

seeking

issue

in

to

that

reconcile.

recover

against

suit.

The

two

assertions

for

the

at

difficult

are

claims

to

The more sensible conclusion is that Plaintiffs are

looking to recover for the same (or overlapping) injuries in the
two lawsuits and these injuries include Foundation’s and Navy
Pier’s near $1 million demands.
Such a conclusion is bolstered by Plaintiffs’ briefing on
this Motion.

As Plaintiffs stated in their brief:

“The instant

suit seeks damages from Defendants, as insurance brokers, for
exposing Plaintiffs directly with respect to the losses alleged
in its complaint; namely 1) property damage for the loss of
their vessel and the associated costs relating to salvage and
cleanup, and 2) liability exposure for the cost of defending
themselves against lawsuits from Navy Pier and Foundation and
potential damage awards.”
Mot.) at 5.

ECF No. 28 (Pl.’s Resp. to Defs.’

The second category of damages that Plaintiffs are

seeking in this lawsuit is exactly what they say is at issue in
the Blakey lawsuit:

the defense and indemnification of Navy

Pier and Foundation’s claims against them.
Moreover, it is not so clear to the Court that Plaintiffs
in

the

Blakey

lawsuit

are

not

seeking

- 13 -

relief

for

the

first

category

of

damages

alleged

in

this

suit,

namely

“property

damage for the loss of their vessel and the associated costs
relating
parties

to

exclusion

in

salvage
that

case

concerning

insured owns.

and

cleanup.”

are

Among

fighting

“property

about

damage”

to

other

things,

Exclusion
property

the

J,

the

that

an

The Court can see only two pieces of property

that fit that description:

the barge that Plaintiffs owned and

lost, and the haunted house that Foundation owned and Plaintiffs
salvaged.

The fact that Exclusion J is in dispute in the Blakey

lawsuit suggests that Plaintiffs in that case may be looking to
recover for more than just Navy Pier’s and Foundation’s claims.
Finally, even if the Court takes Plaintiffs at their word
that the Blakey lawsuit concerns only the underlying claims that
the parties have against one another and this lawsuit does not
seek

compensation

for

those

inextricably intertwined.

claims,

still

the

cases

are

This is because one of the underlying

claims is the claim Plaintiffs made against Foundation, asking
for the same $1.5 million in damages that Plaintiffs are here
seeking against Defendants.
Not only is Plaintiffs’ lawsuit against Defendants unfit
for judicial review because of the parallel litigation and the
potential for inconsistent judgments, but Plaintiffs also are
unlikely

to

suffer

hardships

should

- 14 -

the

Court

defer

review.

Plaintiffs’

only

losses

are

money

damages.

The

time

that

Plaintiffs may have to wait to recoup that money may be made up
for by awarding pre-judgment interest, a relief that Plaintiffs
have requested in this case.
waiting

that

waiting.

is

not

Plaintiffs’

fully

As such, there is no harm from
compensable

claims

are

and

unripe

no

under

hardship
both

from

factors

examined in the Ohio Forestry ripeness analysis.
The

case

law

supports

claims are premature.

the

conclusion

that

Plaintiffs’

The facts of Plaintiffs’ case are similar

to those found in KDI Corp. v. Alexander & Alexander Servs.,
Inc., No. 88 C 10363, 1990 U.S. Dist. LEXIS 11177 (N.D. Ill.
Aug. 23, 1990).

In KDI, plaintiffs KDI and their affiliates

were insured under a policy procured by the defendant insurance
brokers.
MFMI,

Id. at *1.

had

entered

The underwriter to the insurance policy,

rehabilitation

and

“refused

to

honor

the

obligations . . . under its policies to defend plaintiffs and to
pay claims against them.”

Id. at *2-3.

As a result of MFMI’s

refusal to pay, the plaintiffs had to pay claims made against
them.

Id. at *3.

declaratory

They then sued their insurance brokers in a

judgment

action,

bringing

the

Plaintiffs here assert against Defendants.

same

causes

that

Id. (stating that

KDI alleged a breach of contract and a “negligence/malpractice

- 15 -

as

plaintiffs’

agent”

claim

against

the

insurance

brokers)

(internal quotation marks omitted).
The court dismissed KDI’s lawsuit for being unripe.
Corp., 1990 U.S. Dist. LEXIS 11177 at *7.

KDI

It reasoned that KDI

“might recover all monies owed to them by MFMI during the course
of the rehabilitation proceedings.”

Id. at *6.

“If that future

contingency occurs,” continued the court, “plaintiffs will have
no claims against defendants because they will have suffered no
cognizable damages.”

Id.

The court found irrelevant the fact

that KDI had already paid for covered claims against them since
“[t]hese out-of-pocket losses may be recovered by plaintiffs,
along with any other monies to which they are entitled, in the
rehabilitation proceedings.”

Id. at *7.

Only “if plaintiffs do

not realize such a recovery,” can they “then reassert the claims
which they attempt to assert here.”
Plaintiffs’

case

is

much

Id.

like

that

rejected

in

KDI.

Plaintiffs are suing their insurance brokers when they may still
recover any “out-of-pocket losses” and “all monies” against the
insurer Capitol (or Foundation).

If the Court were to rule for

Plaintiffs and find Defendants liable, still Plaintiffs will not
know for how much Defendants are liable until the underlying
claims are resolved.

More still, it may it that Defendants own

Plaintiffs nothing once those claims are resolved.
- 16 -

Given such

unknown contingencies, the Court follows persuasive case law and
finds that it should dismiss Plaintiffs’ suit.

See, Lane v.

Stephenson, Case No. 96 C 5565, 1996 U.S. Dist. LEXIS 18346, at
*9

(N.D.

Ill.

Dec.

4,

1996)

(dismissing

a

case

on

ripeness

grounds when “the existence of the plaintiffs’ claimed injuries
is

contingent

on

the

scope

of

the

[ongoing]

state

court

proceedings”); Hartford Cas. Ins. Co. v. Borg-Warner Corp., 913
F.2d

419,

424

(7th

“Hartford’s

complaint

amount

existence

Cir.

and

1990)

raises
of

(stating

ripeness

Hartford’s

in

problems

damages

dictum

that

[since]

depend[]

the

on

the

outcome of the state rehabilitation proceedings”).
Cases that Plaintiffs cite do not persuade the Court to the
contrary.

Plaintiffs rely entirely on out-of-district cases,

the most relevant of which is Great Lakes Reinsurance (UK) PLC
v. Roca, No. 07-23322-CIV-MORE, 2008 U.S. Dist. LEXIS 125388
(S.D. Fla. Dec. 11, 2008).

In Great Lakes, a district court

from

of

the

analysis

Southern
using

ultimately

the

rejected

District
test
the

Florida

formulated
defendants’

in

performed
Ohio

ripeness

a

ripeness

Forestry.
argument

It

because

dismissing some, but not all, of the claims from the case would
complicate the litigation.

As the court explained, dismissal

“would surely cause hardship to the Rocas as it would force them
to

maintain

two

separate

lawsuits,”
- 17 -

whereas

“allowing

these

claims

to

proceed

will

[]

benefit

judicial

economy

consolidating factually related claims in one action.”

by

Id. at

*5.
Here, we have the opposite situation:

there are now three

lawsuits outstanding and dismissing Plaintiffs’ case would cut
that

number,

lawsuits”

not

where

force
there

Plaintiffs
only

was

to

“maintain

one

two

previously.

separate
Moreover,

allowing Plaintiffs’ claims to proceed will result in judicial
diseconomy due to the potential for inconsistent judgments.

The

factors considered in Great Lakes thus favor dismissal in this
case.
One last issue must be addressed.
jurisdictional
circuit.

issue

is

matter

of

Whether ripeness is a

some

disagreement

in

this

Compare, Cent. States v. Am. Int'l Grp., Inc., 840

F.3d 448, 451 n.2 (7th Cir. 2016) (“The Supreme Court has held
that

ripeness

is

a

jurisdictional

question.”),

with

Medline

Indus. v. Ram Med., Inc., 892 F.Supp.2d 957, 963 n.4 (N.D. Ill.
2012)

(“The

Seventh

Circuit,

however,

has

made

clear

that

ripeness concerns the ‘appropriate exercise of discretion rather
than the limits of judicial power’ and that when a suit is not
ripe

it

should

discretion

be

rather

dismissed
than

for

in

the

lack

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of

exercise

of

the

jurisdiction.”)

court’s
(quoting

Brandt v. Vill. of Winnetka, 612 F.3d 647, 649-51 (7th Cir.
2010)).
In this Court’s judgment, the disagreement is not more than
superficial.

It is true that Judge Easterbrook held in Brandt

that the dismissal for lack of ripeness was an exercise of the
district court’s discretion rather than a requisite demanded by
Article III.

See, Brandt, 612 F.3d at 649-51.

However, as

Judge Easterbrook explained elsewhere, ripeness, in some cases,
does

implicate

Article III
matter.

and

the
so

is

case-or-controversy
properly

treated

as

requirement
a

of

jurisdictional

See, Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536,

538 (7th Cir. 2006) (stating that “a plaintiff’s asserted injury
may depend on so many future events that a judicial opinion
would be advice about remote contingencies – and this aspect of
ripeness is part of the case-or-controversy requirement”).

As

far as the Court can tell then, Judge Easterbrook’s stand is
that ripeness is not categorically a jurisdictional issue, not
that it is never a question of jurisdiction.
In either event, the distinction does not make much of a
difference for a district court.
ripeness

is

a

matter

of

Whether dismissing for lack of

discretion

or

a

constitutional

requirement matters for the standard of review, but it does not
change what the district court should do when it is convinced
- 19 -

that the case is unripe:

it should dismiss.

Accordingly, the

Court dismisses Plaintiffs’ Complaint in its entirety.
III.

CONCLUSION

For the reasons stated herein, the Defendants’ Motion [ECF
No.

23]

prejudice

is

granted.

with

permission

The

Complaint

to

is

refile

and

if

dismissed
when

the

without
dispute

ripens.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: February 15, 2017

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