Black Earth Meat Market, LLC et al v. Village Of Black Earth et al

Filing 127

Transmission of Notice of Appeal, Docketing Statement, Opinion and Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re: 124 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Opinion and Order, # 3 Judgment, # 4 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - BLACK EARTH MEAT MARKET, LLC and
KEMPER BARTLETT DURAND, JR.,

OPINION and ORDER
14-cv-674-bbc

Plaintiffs,
v.
VILLAGE OF BLACK EARTH, PATRICK
TROGE, PATRICK FREY, TED PRITCHETT,
THOMAS PARRELL, JAMES COYLE, BETH
MARTY and WALT MILLER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This case arises out of a dispute over the operation of a slaughterhouse in the Village
of Black Earth, Wisconsin. Plaintiffs Kemper Bartlett Durand, Jr. and Black Earth Meat
Market, LLC, contend that the way in which defendants Village of Black Earth, Patrick
Troge, Patrick Frey, Ted Pritchett, Thomas Parrell, James Coyle, Beth Marty and Walt
Miller regulated plaintiffs’ slaughterhouse operation violated plaintiffs’ rights under the
takings clause, the equal protection clause and the due process clause of the United States
Constitution. Specifically, plaintiffs contend that defendants effected a taking of their
business and violated their constitutional rights by directing plaintiffs to develop a plan for
relocating their slaughterhouse, enforcing municipal ordinances in an unfair manner and
threatening legal action to enjoin plaintiff’s slaughter operation. Plaintiffs also assert various
state law claims, including claims for inverse condemnation, violations of Wisconsin’s state

constitution, tortious interference, malicious prosecution and abuse of process.
Plaintiffs filed this lawsuit in state court, but defendants removed it to this court
pursuant to 28 U.S.C. § 1441 because plaintiffs’ takings, equal protection and due process
claims arise under federal law. The parties have since filed cross motions for summary
judgment, which are fully briefed. Plaintiffs have also filed a motion to strike certain
arguments from defendants’ reply brief, or alternatively, for leave to file a sur-reply;
defendants ask that I deny this motion, or alternatively, grant them leave to file a sur-surreply.
I will grant defendants’ motion for summary judgment on each of the three
constitutional claims plaintiffs have raised. First, plaintiffs have abandoned their federal
takings claim, which would not be ripe in any event because they have not sought
compensation through Wisconsin’s inverse condemnation proceedings. Second, plaintiffs’
“class of one” equal protection claim fails because they have not shown that they were
treated differently from others similarly situated. Third, plaintiffs’ due process claims fail
because plaintiffs have failed to present sufficient evidence to support a finding that
defendants deprived them of a protected interest.
Finally, I will deny plaintiffs’ motion to strike and will also deny their motion for
leave to file a sur-reply brief. Although defendants waited until filing their reply brief to
oppose plaintiffs’ arguments that defendants’ threat of litigation deprived plaintiffs of a
protected interest, their delay is attributable to plaintiffs’ failure to clearly identify in their
complaint (or in their own summary judgment briefing, for that matter) how defendants

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deprived them of due process. In light of this ruling, defendants’ request to file a sur-surreply is moot.
From the parties’ proposed facts, I find that the following are relevant and not
genuinely disputed.

UNDISPUTED FACTS
Plaintiff Black Earth Meat Market, LLC is a limited liability company organized
under Wisconsin law; plaintiff Kemper Bartlett Durand, Jr. is its managing member, investor
and registered agent. Defendant Village of Black Earth is a municipal corporation and
subdivision of the state of Wisconsin. At all relevant times Defendants Patrick Troge,
Patrick Frey, Ted Pritchett, Thomas Parrell, James Coyle, Beth Marty and Walt Miller have
constituted the Village’s board of trustees.
In 2001, Black Earth Meats purchased a parcel of land located at 1345 Mills Street
in the Village of Black Earth, Wisconsin. At the time of the purchase, the real estate had
been used for more than sixty years as a slaughterhouse and retail butcher shop, with the two
facilities operating side-by-side for the entire time. Under the zoning ordinance in place
when Black Earth Meats purchased the land, the parcel was zoned “B-1 General
Commercial.”

As a general rule, such zoning does not allow for the operation of a

slaughterhouse, but plaintiffs’ slaughterhouse operation qualified as a “legal nonconforming
use” because animals had been slaughtered at the facility before the applicable zoning
ordinance was adopted.

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Sometime after 2009, the volume and frequency of slaughter began to increase at the
Black Earth Meats facility. In approximately 2011, Village residents living near the facility
complained to the Village about the slaughterhouse operation. These complaints related to
increased truck traffic to and from the facility, delivery trucks blocking the road, noise from
livestock, foul odors, improper storage of animal parts, the presence of offal runoff and blood
and animal waste on the streets. Moreover, on three occasions between 2009 and 2012,
livestock escaped from the slaughterhouse and were found running through the Village. Each
time, the animals had to be tracked down and shot by law enforcement.
In light of the residents’ complaints, the Village retained a building inspection and
land use consulting firm, Vierbicher and Associates, to prepare a report on the slaughter
operation at Black Earth Meats and its nonconforming use status. The consultant’s
assessment was that Black Earth Meats could continue to slaughter animals, but could not
expand the slaughter facility or its footprint. The report also noted that in addition to the
zoning rules, Black Earth Meats may have violated certain local ordinances regulating
nuisances and health and sanitation. The Village’s trustees, law enforcement officers and
attorneys spoke with Black Earth Meats, wrote it letters, and issued the company a number
of warnings about these matters.
On July 10, 2013, the Village trustees met with the Village’s attorney regarding the
problems with Black Earth Meats and discussed both the ordinance violations and zoning
issues related to the slaughter operation. The trustees discussed drafting or amending
ordinances specifically for Black Earth Meats, but were concerned about taking such action

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with respect to one specific business. However, the trustees did decide that the Village
should do more to enforce certain ordinances that they suspected the company was violating.
This decision was communicated to the city’s law enforcement officials the following week
at a Village Police Committee meeting. As a result of the Village’s increased enforcement
efforts, Black Earth Meats received nine citations between October 1, 2013 and January 3,
2014. Three of these citations were for obstructing the street outside the facility and idling
unattended vehicles.

Despite the citations, citizens continued to complain about the

slaughter operation; the Village received forty calls for police service related to Black Earth
Meats in 2013 alone.
On December 10, 2013, the Village held a public meeting “regarding nuisance and
zoning violations associated with Black Earth Meats.” The meeting’s agenda allotted time
for comments regarding Black Earth Meats from law enforcement, the Village’s building
inspector, a Black Earth Meats representative and the public. The agenda also provided that
after the public meeting and comment period, the trustees would discuss and vote on the
“strategy to be adopted by the [Village] with respect to litigation in which it is or likely to
become involved regarding Black Earth Meats.” Notice of the meeting was published and
plaintiff Durand spoke on behalf of Black Earth Meats.
At the conclusion of the December 10, 2013 meeting, the Village trustees passed a
motion in which they agreed to give Black Earth Meats 120 days to present an acceptable
plan for relocating the slaughter operation, adding that if such a plan were not presented
within that time frame, the Village would “take legal action to remove the slaughter

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operation.” The following day, Village President Troge wrote to Black Earth Meats,
explaining that the slaughter operation had “increased to such a degree that it is now a much
more intensive commercial slaughtering operation” and had become a “nuisance.” Troge
directed Black Earth Meats to relocate within a reasonable period of time and warned it in
the letter that if a plan for relocating the slaughter operation were not presented within 120
days, the Village “intend[ed] to commence legal action to abate the nuisance and secure a
court order enjoining slaughter operations.”
Black Earth Meats responded to Troge’s letter by serving the Village a notice of claim
dated December 23, 2013, alleging that “as a direct result of the Village’s Complaints,
Citations, Resolutions and Statements,” the United States Department of Agriculture had
refused to guarantee a loan that the Bank of New Glarus intended to provide the company.
They added that, without the USDA guarantee, the Bank of New Glarus was “revisiting the
terms of the Loan, including whether to lend to [Black Earth] Meats at all, or to issue a loan
under stricter terms.” Despite plaintiffs’ notification that its actions might affect Black
Earth Meats’ financing, the Village denied the notice of claim on January 7, 2014.
Black Earth Meats was given an extension of time to present its plan for relocating
the slaughter operation. On June 26, 2014, a meeting was held for the purpose of hearing
the plan. Instead of offering a relocation plan, Black Earth Meats presented a report
prepared by a consultant that outlined four options for mitigating the problems caused by
the slaughter operation. Only one of these options was to relocate the slaughter operation
to a new facility. The Village board did not take any action at that meeting.

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One week later, the Village board held a regular meeting, at which plaintiff Durand
appeared and discussed Black Earth Meats’ financing problems resulting from the December
10, 2013 motion and the Village’s interference with its slaughter operation. Durand told
the board of his need for a loan in order to continue operating Black Earth Meats and
explained that without an affirmative motion from the Village trustees authorizing slaughter,
the loan would fall through. To address this issue and enable Black Earth Meats to obtain
the necessary financing, Durand asked the Village trustees to act immediately to approve the
motion he had previously submitted for consideration, which provided as follows:
Motion: Slaughter is permitted at the Black Earth Meats facility under current
zoning as a legal, non-conforming use. As such, the Board affirms that the
slaughter shall be permitted to continue and that normal operation of the
slaughter business is not a public nuisance.
Village President Troge told Durand that although he was not categorically against the
proposed motion, the Village board could not vote on it until after it was reviewed by the
Village’s legal counsel. That same day plaintiffs filed this lawsuit in the Circuit Court for
Dane County, Wisconsin.
The Village trustees reconvened the following week, held a public discussion regarding
Black Earth Meats and then entered into a closed session for another discussion of “strategy
to be adopted by the [Village] with respect to litigation in which it is or is likely to become
involved.” Durand was present at this meeting and given an opportunity to speak, but
declined to make any comments. After the closed session, rather than adopt Durand’s
proposed motion, the Village trustees passed a motion “to authorize and direct the Village
attorney to take necessary legal action to eliminate any public nuisance and complaints of
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Black Earth Meats.”
In light of this Village resolution, the Bank of New Glarus informed plaintiff Durand
on July 21, 2014 that it would not be able to extend the previously agreed upon financing.
The Bank of New Glarus did provide short term financing, but Black Earth Meats was
unable to continue its slaughter operations. As of August 4, 2015, Black Earth Meats closed
and the facility was listed for sale.

OPINION
In their third amended complaint, plaintiffs contend that defendants violated
plaintiffs’ constitutional rights under the takings clause, the equal protection clause and the
due process clause. I will take up each of these contentions in order.

A. Claims Against the Individual Defendants
Before turning to the merits of plaintiffs’ claims, I must address the capacity in which
the seven Village trustees are being sued. Although plaintiffs do not state explicitly in their
third amended complaint whether they are suing the trustees in their personal or their
official capacities, they make it clear in their briefs that they are proceeding against these
individuals only in their official capacities. Dkt. #105 at 4-5 (“Plaintiffs allege that the acts
of the individual Village Trustees were done under the authority of their positions, and, as
such, are being sued in their official capacity.”).
Section 1983 claims against individuals in their official capacities are viewed as

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nothing other than claims against the municipality. Kentucky v. Graham, 473 U.S. 159,
166 (1985) (“As long as the government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity.”) Therefore, I will dismiss plaintiffs’ § 1983 claims against the seven
trustees as redundant of plaintiffs’ § 1983 claim against the Village. Veatch v. Bartels
Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (“A suit against a government officer
in his official capacity is functionally equivalent to a suit against the employing
governmental entity. Thus, the court properly dismissed the claim against Leonard as
redundant of the claim against the City.”). The dismissal of all of plaintiffs’ claims against
the individual defendants moots defendants’ qualified and absolute immunity arguments.
Hernandez v. Sheahan, 455 F.3d 772, 776 (7th Cir. 2006) (“[U]nits of government are not
entitled to immunity in suits under Section 1983.”).

B. Takings
Plaintiffs’ third amended complaint includes a claim that defendants violated
plaintiffs’ Fifth Amendment right to “just compensation for [the] taking of [their] property.”
However, only defendants have moved for summary judgment on this claim. In their brief,
dkt. #105 at 21, plaintiffs say, “Notably, the Plaintiffs have not now moved the Court for
summary judgment on any of their previously pled takings claims, nor are they required to
continue the pursuit of these previously pled claims.” In other words, plaintiffs concede for
purposes of summary judgment that they cannot state a § 1983 claim based on an alleged

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violation of the takings clause. Id. at 23 (“As a result of all Wisconsin and federal takings
claims requiring a formal land-use regulation as the cause of the alleged harm, none of these
claims are available remedies for the Plaintiffs to pursue.”). Accordingly, I will dismiss
plaintiffs’ federal takings claim without prejudice.
Even if plaintiffs had not abandoned their takings claim, I would still enter summary
judgment in defendants’ favor on the grounds that plaintiffs’ takings claim is not ripe. As
defendants point out, under Williamson County Regional Planning Commission v. Hamilton
Bank, 473 U.S. 172 (1985), plaintiffs have not been denied “just compensation” until they
have asked for it by filing an inverse condemnation action, which plaintiffs have not done.
Id. at 194-95 (1985) (“If the government has provided adequate process for obtaining
compensation, and if resort to that process yields just compensation, then the property
owner has no claim against the Government for a taking.”).

C. Equal Protection
Next, plaintiffs allege that defendants violated their Fourteenth Amendment right to
equal protection. Plaintiffs do not argue that defendants discriminated against them because
they are a member of an identifiable group. Rather, plaintiffs are proceeding on a “class of
one” theory which requires them to establish at least two things: (1) defendants have treated
them differently from others similarly situated and have done so intentionally; and (2)
defendants had no rational basis for the difference in treatment. Fares Pawn, LLC v. Indiana
Department of Financial Institutions, 755 F.3d 839, 845 (7th Cir. 2014). It remains

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unclear whether plaintiffs must also prove that defendants had a hostile or illegitimate
motive for their conduct or decisions. Id. (“In Del Marcelle v. Brown County Corp., 680
F.3d 887 (7th Cir. 2012)(en banc), this court divided on [whether plaintiffs must prove
animus], leaving no controlling opinion.”). However, this issue is irrelevant here. Even
without such a requirement, plaintiffs have failed to show that the Village acted without a
reasonable basis. Id. at 845 (if reviewing court can conceive of “a rational basis for the
challenged action, that will be the end of the matter—animus or no.”).
Plaintiffs begin by setting forth a five-page narrative of the “countless facts, all of
which together depict the story of intentional mistreatment” by defendants. This narrative
may show that defendants attempted to regulate plaintiffs’ conduct, but it does not explain
how any of defendants’ acts qualify as the type of “mistreatment” that would allow this court
to find a violation of plaintiffs’ right to equal protection. Although plaintiffs are required
to show that they were singled out “for reasons wholly unrelated to any legitimate state
objective,” Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995), they have not provided any
evidence that defendants acted with “sheer vindictiveness” or “malignant animosity” or that
defendants’ actions were arbitrary or irrational. Id.; Fenje v. Feld, 398 F.3d 620, 628 (7th
Cir. 2005). Ultimately, as long as defendants acted for some legitimate governmental
purpose, they could not be held to have violated plaintiffs’ rights to equal protection. D.B.
ex rel. Kurtis B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013)(“The burden is on the
challenger to eliminate any reasonably conceivable state of facts that could provide a rational
basis for the classification.”) (citing Srail v. Village of Lisle, Ill., 588 F.3d 940, 946 (7th Cir.

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2009))).
Plaintiffs point to the fact that Black Earth Meats received three ordinance violations
for unattended and idling vehicles over a two-month period that another local business did
not receive. Specifically, plaintiffs allege that, like Black Earth Meats, David W. Heiney’s
Dining & Spirits also received early morning deliveries from semi-trucks that blocked part
of the roadway. This, however, proves next to nothing because plaintiffs have not shown
that Heiney’s was similarly situated to Black Earth Meats. To be similarly situated, a
comparator must be “identical or directly comparable” to the plaintiff “in all material
respects.” Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015) (citing LaBella
Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010)). The present
record contains no evidence that the Village received repeated complaints related to Heiney’s
deliveries, whereas it contains ample evidence that there were differences in the timing,
duration and manner of the two companies’ deliveries. For example, unlike deliveries to
Black Earth Meats, deliveries to Heiney’s did not result in the blocking of the entire street
outside the business. Finally, Heiney’s was not even in business at the time Black Earth
Meats received the traffic citations. Ultimately, the fact that one business did not receive
citations for allegedly violating the Village’s parking and idling ordinances and Black Earth
Meats received three, does not establish that defendants lacked a legitimate reason for citing
Black Earth Meats. Esmail, 53 F.3d at 179-80 (explaining why “simply failing to prosecute
all known lawbreakers” does not support an equal protection claim).
Finally, plaintiffs argue that the Village “deviated from the norm” with respect to the

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way it handled “nuisance-related” issues, but they have not established either that there was
a “norm” for handling such issues or that the Village’s deviation from this supposed norm
lacked a rational basis. Plaintiffs identify “The Shack” (a local bar) and an apartment
complex as comparators, because according to plaintiffs, they too were labeled nuisances, but
were not scrutinized in the same way as Black Earth Meats. It is clear, however, that the
nuisances associated with these two businesses were different from the nuisances associated
with Black Earth Meats. For example, The Shack had drunk bar patrons getting in street
fights; Black Earth Meats had escaped steers running through the Village trailed by armed
Black Earth Meats employees. The apartment complex may have left trash out, but Black
Earth Meats had animal waste, blood and offal spilling from trucks.

To the extent

defendants had a “norm” for dealing with nuisance-behavior, they had ample justification
for deviating from it to deal with the unique issues presented by Black Earth Meats.

D. Due Process
Finally, plaintiffs contend that defendants violated both their procedural and
substantive due process rights under the Fourteenth Amendment.

Substantive and

procedural due process claims address distinct issues. Bettendorf v. St. Croix County, 631
F.3d 421, 426 (7th Cir. 2011). Substantive due process is implicated where a municipality’s
adverse decision is “arbitrary, oppressive, or unreasonable.” Id. By contrast, procedural due
process claims focus on the “form of the procedures that the government must afford an
individual given the particularities of the situation.” Id. In other words, substantive due

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process claims attack the propriety of the decision itself; procedural due process claims attack
the manner in which a decision was made.

1. Exhaustion of Wisconsin’s inverse condemnation procedure
Before I consider the merits of plaintiffs’ due process claims, I will address defendants’
argument that summary judgment should be granted in their favor because plaintiffs have
failed to satisfy the finality and exhaustion requirements set forth in Williamson County
Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985). Defendants argue
that although Williamson County involved a takings claim, its holding applies to any
“constitutional claims [that] arise in the context of a land use challenge.” As a result,
defendants argue, plaintiffs’ due process claims are not ripe until they request relief under
Wisconsin’s inverse condemnation laws and are denied it.
Defendants have misinterpreted the Court of Appeals for the Seventh Circuit’s
opinions regarding the breadth of Williamson County’s application. On a number of
occasions, the court of appeals has held that “bona fide” equal protection claims based on
a distinct set of facts separate from purported takings claims are not subject to Williamson
County’s finality and exhaustion requirements. Forseth v. Village of Sussex, 199 F.3d 363,
371 (7th Cir. 2000)(“[T]his Circuit recognized in Hager v. City of Peoria [84 F.3d 865, 86970 (7th Cir. 1996)] that bona fide equal protection claims arising from land-use decisions can
be made independently from a takings claim and without being subject to Williamson
ripeness.”). This reasoning is equally applicable to bona fide due process claims regardless

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whether the claims arise in the “land use context.” Although there is language in Forseth and
Gamble v. Eau Claire County, 5 F.3d 285 (7th Cir. 1993), that could be read as supporting
defendants’ broader interpretation, when those cases are properly construed they merely
reiterate the common sense notion that labels are irrelevant, that is, Williamson County’s
finality and exhaustion requirements apply to all takings claims, regardless how such claims
are styled or labeled. Although plaintiffs’ due process and takings claims overlap in some
respects, the former is not merely the latter in disguise. Therefore, it is not necessary for
plaintiffs to exhaust their procedural and substantive due process claims and I may consider
their merits.

2. Procedural due process
Procedural due process claims require the plaintiff to establish both that (1) the
defendant has deprived the plaintiff of a protected liberty or property interest; and (2) the
defendant did not provide the plaintiff the process he was due. Pro’s Sports Bar & Grill v.
City of Country Club Hills, 589 F.3d 865, 870 (7th Cir. 2009).

a. Plaintiffs’ protected interests
The threshold question regarding plaintiffs’ due process claims is whether plaintiffs
were deprived of a protected “property” or “liberty” interest under the due process clause.
Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir. 1982)(“It is axiomatic that before due
process protections can apply, there must first exist a protectible liberty or property

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interest.”). Plaintiffs contend that they were deprived of five specific interests: (1) a liberty
interest in the occupation of slaughter; (2) a property interest in a nonconforming use of
their land; (3) an interest in the use of their property “for a slaughterhouse purpose”; (4) an
interest in their “consumer goodwill”; and (5) an interest in their financing agreement.
Defendants do not deny that plaintiffs have a protected liberty interest in their
occupation and a protected property interest in the preexisting nonconforming use of the
facility. Therefore, I will assume for purposes of their summary judgment motions that these
interests are protected.

However, defendants do argue that plaintiffs’ remaining

interests—their use of their property “for a slaughterhouse purpose,” their financing contract
with New Glarus Bank and their consumer goodwill—are not similarly protected. To
determine whether these interests are protected I must look to Wisconsin’s property laws.
General Auto Service Station v. City of Chicago, 526 F.3d 991, 1000 (7th Cir. 2008) (“For
purposes of a due process claim, property interests are created and defined by an
independent source, such as a contract or state law.”).
I agree that plaintiffs have a protected right to use their property for a
“slaughterhouse purpose.” The use of the property for a slaughterhouse purpose, or for any
other purpose, is a right that accompanies plaintiffs’ ownership of the property. Ownership
includes “the right of use—one of the bundle of rights attendant to ownership under the laws
of property in all states.” Polenz v. Parrott, 883 F.2d 551, 557 (7th Cir. 1989). Although
this particular use may be one of the thinner sticks in plaintiffs’ bundle, it is still protected.
Otherwise, “state officials could with impunity destroy property rights in detail.” Reed v.

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Village of Shorewood, 704 F.2d 943, 949 (7th Cir. 1983).
Plaintiffs’ contract with the Bank of New Glarus was also a form of property
protected by due process. The Court of Appeals for the Seventh Circuit has held that, “[i]f
a contract creates rights specific enough to be enforced in state court by awards of damages
or specific performance, then it creates a legitimate claim of entitlement; and if it creates
such a claim, it is ‘property.’” Mid-American Waste Systems, Inc. v. City of Gary, Ind., 49
F.3d 286, 290 (7th Cir. 1995). Although the parties disagree about what rights and
entitlements plaintiffs had under the financing contract, it is beyond dispute that the
contract itself was a form of property under Wisconsin law and the due process clause.
However, plaintiffs’ interest in their goodwill is not protected. The Supreme Court
has long held that harm to a party’s reputation is insufficient to trigger due process
protections. Paul v. Davis, 424 U.S. 693 (1976). As important as a business’s interest in
its reputation may be, it is not a recognized property right. A party can hope it is held in
high esteem by clients and colleagues, but it is not entitled to its lofty reputation.

b. Deprivation of plaintiffs’ rights
Having identified the protected rights at issue, I can now turn to whether defendants
have deprived plaintiffs of these rights. Plaintiffs’ § 1983 claim requires that they establish
“a direct causal link” between the Village’s conduct and the deprivation of their protected
rights. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S.
397, 404 (1997). Plaintiffs have identified four actions that allegedly deprived them of their

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protected interests without due process: (1) the December 10 motion; (2) the July 10
motion; (3) the December 11 letter; and (4) the failure to adopt plaintiff Durand’s motion.
Defendants deny that plaintiffs have established the requisite causal relationship between
these actions and plaintiffs’ loss of the aforementioned protected interests. I agree.
As an initial matter, none of the Village’s actions deprived plaintiffs directly of any of
the protected rights they identify. The December 10 motion and December 11 letter
informed plaintiff that the Village intended to take legal action to “abate the nuisance and
secure a court order enjoining the slaughter operations” if plaintiff did not present an
acceptable plan for voluntarily relocating. Similarly, the July 10 motion directed the Village
attorney to take necessary legal action to “eliminate any public nuisance and complaints of
Black Earth Meats.” Plaintiffs’ characterization of these motions as “orders to cease
slaughter” or “orders to relocate” is incorrect. The December 10 motion, the December 11
letter and the July 10 motion all made clear that if it became necessary to enjoin slaughter
at Black Earth Meats or force the company to relocate, the Village intended to do so through
the proper channel—the court system. The motions are actions by the Village trustees
authorizing the Village’s attorney to obtain orders to cease slaughter or relocate from a court.
The law recognizes no constitutionally protected right to operate a business free from the
threat of lawsuits by state officials. As the Court of Appeals for the Sixth Circuit has pointed
out, “To demand notice before an official can inform citizens that they are in violation of
the law would be to demand notice as a precondition of notice.”
Perrysburg, 617 F.3d 828, 832 (6th Cir. 2010).

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Hussein v. City of

Plaintiffs argue nevertheless that they can establish the requisite causal relationship.
They contend that under the “eggshell skull” rule, the Village is forced to take Black Earth
Meats as the Village found it—that is, in a precarious financial position and in need of a
loan. According to plaintiffs, the Village deprived them of the liberty and property interests
associated with Black Earth Meats’ slaughter operation because the Village prevented them
from obtaining the loan they needed to stay in business. In other words, by threatening to
take legal action, the Village undermined plaintiffs’ ability to obtain the financing they
needed to operate. Without financing, plaintiffs had no choice but to close the business. By
closing the business, they were deprived of their right to engage in slaughter, use their land
“for a slaughterhouse purpose” and benefit from Black Earth Meats’ goodwill.
Plaintiffs’ reliance on the “eggshell skull” rule is misguided and their “chain of
events” theory is far too attenuated to support a claim. The Village’s actions did not deprive
plaintiffs of their protected liberty and property interests; Black Earth Meats’ inability to
obtain financing did. The mere fact that a state action ultimately leads to loss of a plaintiff’s
protected interest is not enough to establish a deprivation by state action in the
constitutional sense. Martinez v. State of California, 444 U.S. 277, 284 (1980) (California
statute conferring immunity on officials responsible for parole decisions merely condoned
parole release that led directly to victim’s death; it did not deprive victim of life without due
process or of property even if cause of action for wrongful death could be considered form
of property protected by due process clause). The fact that plaintiffs may have lost certain
benefits or suffered certain harms as a result of the Village’s actions does not mean that the

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Village “deprived” plaintiffs of these rights.
Finally, plaintiffs cannot bridge the gap between the Village’s conduct and the alleged
loss of their liberty and property rights by invoking the eggshell skull rule. That rule allows
a plaintiff to recover damages for remote harms attributable to a tortfeasor’s wrongful acts,
but it does not bear on whether the tortfeasor’s acts were wrongful in the first place.
Plaintiffs must first establish that defendants deprived them of their rights without due
process, which requires them to establish a “direct causal link” between the Village’s acts and
the alleged deprivation. Board of County Commissioners of Bryan County, Oklahoma, 520
U.S. at 404. Only after they satisfy this threshold requirement are plaintiffs able to invoke
the eggshell skull rule to recover for the remote harms associated with that deprivation.
Restatement (Third) of Torts: Liability for Physical and Emotional Harms § 31 (2010) (“The
[eggshell skull rule], which addresses the scope of liability when the extent of harm is unusual
or greater than might be anticipated, must be distinguished from the requirement of factual
cause, which limits an actor’s liability to the injuries caused by the tortious conduct.”).

3. Substantive due process
Substantive due process rights are “very limited” in their scope. Tun v. Whitticker,
398 F.3d 899, 902 (7th Cir. 2005). For a municipality to violate substantive due process,
it must engage in conduct that “shocks the conscience,” id., or must make a decision that is
“random and irrational.” General Auto Service Station, 526 F.3d at 1000. Here, the Village
did neither. All it did was enforce its ordinances in a reasonable and rational manner,

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authorize its counsel to take legal action to abate conduct that it believed was a nuisance and
refuse to pass plaintiff Durand’s proposed motion. None of these actions can be construed
as “shocking”; all were rationally related to legitimate governmental interests.

E. Plaintiff’s State Law Claims
The general rule is that a district court should decline to exercise supplemental
jurisdiction over state law claims when it has dismissed before trial all the claims over which
it has original jurisdiction. Carr v. CIGNA Securities, Inc., 95 F.3d 544, 546 (7th Cir.
1996). Furthermore, although the district court can dismiss the supplemental state law
claims, the preferred approach is to remand the claims to state court. Payne for Hicks v.
Churchich, 161 F.3d 1030, 1043 (7th Cir. 1998) (“[T]he usual and preferred course is to
remand the state claims to the state court unless there are countervailing considerations.”).
Plaintiffs have suggested no reason to deviate from the general rule or from the preferred
approach in this instance. Accordingly, plaintiffs’ state law claims will be remanded to state
court.

ORDER
IT IS ORDERED that
1.

The motion for summary judgment filed by plaintiffs Kemper Bartlett Durand,

Jr. and Black Earth Meat Market, LLC, dkt. #74, is DENIED. The motion for summary
judgment filed by defendants Village of Black Earth, Patrick Troge, Patrick Frey, Ted

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Pritchett, Thomas Parrell, James Coyle, Beth Marty and Walt Miller, dkt. #73, is
GRANTED. Plaintiffs’ motion to strike, or in the alternative, for leave to file a sur-reply,
dkt. #117, is DENIED.
2.

Plaintiffs’ § 1983 claims based on defendants’ alleged violation of plaintiffs’

rights under the Fourteenth Amendment’s due process and equal protection clauses are
DISMISSED WITH PREJUDICE. Plaintiffs’ § 1983 claims based on defendants’ alleged
violation of plaintiffs’ rights under the Fifth Amendment’s takings clause are DISMISSED
WITHOUT PREJUDICE.
3.

Plaintiff’s state law claims are REMANDED to the Circuit Court for Dane

County, Wisconsin for any additional proceedings.
4.

The clerk of court is directed to enter judgment accordingly.

Entered this 18th day of November, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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