Save More Food Markets, Inc. v. Wisconsin Department of Transportation

Filing 11

ORDER: Pursuant to 28 U.S.C. § 1447(c), this case is REMANDED to the Wisconsin Circuit Court for Oneida County. Plaintiff Save More Food Markets, Inc.'s request for attorney fees, Dkt. 10 , is DENIED. Signed by District Judge James D. Peterson on 8/2/16. (jat)

IN THE UNITED STATES D ISTRICT COURT
FOR THE WESTERN DISTRICT OF W ISCONSIN

SAVE MORE FOOD MARKETS, INC.,
Plaintiff,
ORDER

V.

WISCONSIN DEPARTMENT OF
TRANSPORTATION,

16-cv-447-jdp

Defendant.

Plai ntiff Save More Food Markets, Inc. began th is case in state court in June 20 14,
all eging state law claims against defendant Wisconsin Department of Transportation (the
DOT). The parties' dispute arises out of the DOT's decision to install curbs and gutters
across two driveways that provided access to a highway from Save Mo re's property. Save
More initi ally asserted an inverse condemnation claim, pursuant to W is. Stat. § 32.10,
seeki ng a court order requiring the DOT to begin condemnation proceedings and pay Save
More for the alleged taking. In June 20 16, Save More amended its complaint to include a
takings claim under the W isconsin Constitution and a takings claim under the U.S.
Constitutio n. The DOT removed the case to this court, contending that Save More's
amended complaint raised a federa l question and established subject matter jurisdiction
und er 28 U.S.C. § 133 1.
Shortly after the DOT removed the case, the court sua sponte directed the parties to
add ress wheth er there is, in fac t, a basis for exercising subject matter jurisdiction . Dkt . 7. The
court observed that under Willin111so11 Cou11 fY Regional Planning Commission v. Hamilton Bank of
f olt11so11 CifY, "a cla im that the applica tion o f government regulations effects a taking of a

property interest is not ripe unti l the government entity charged with implementing the

regulatio ns has reached a final decision regarding the application of the regulations to the
property at issue." 4 73 U.S. l 72, 18 6 ( 1985). Because Save More had not exhausted its state
remedies (the state law claims that Save More alleges in thi s case are the state remedies), t he
court indicated that Save More's federa l takings claim did not appear to be ripe.
T he parties have responded to the court's order. Dkt. 9 and Dkt. 10. After reviewing
these responses, the court co ncludes that Save More's federal takings claim is no t ripe, and so
there is no basis from which to exercise subject matter jurisdiction over this case. Thus, the
court will remand the case to state court.
The DOT removed thi s case and therefo re bears the burden of proving that
jurisdiction is present. Snuut v. Local 702 Int'/ Bhd. of Elec. Workers, 562 F.3d 798, 803 (7th
Cir. 2009). According to the DOT, Williamson County refers on ly to prudential ripeness
co nsiderations, rather than to the "case or controversy" requirements that Article III imposes.
T he DOT argues that th e court therefore "has the discretion to exercise jurisdiction over the
case." Dkt. 9, at 2. Save More agrees with the DOT's analysis of W;//iamson County. Dkt. 10 ,
at 3-4. But "the parties' united front is irrelevant since the parties cannot confer subjectmatter jurisdiction by agreement. " Evergreen Square of Cudahy v. Wis. H aus. & Econ. D ev. Auth.,
776 F.3d 463, 465 (7th Ci r. 20 15).
T he Supreme Court has clarified that Williamso11 County creates "two independent
prudential hurdles to a regulatory takings claim brought again st a state enti ty in federal
court. " Suitum v. Tahoe Reg'! Pla11ni11g Agency, 520 U.S. 725 , 733-34 (1997). But the fact that
these hurdles are prudential , rath er than constitutional, does not mean that the court can
hea r this case. In fact, the Seventh Circuit has squarely held to the contrary, recogni zing that
"[t]he prudential character of the Williamson County requirements do not ... give the lower

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federal courts license to disregard t hem. " Peters v. Village of Clifton, 498 F.3d 727, 734 (7th
Cir. 2007); see also Green.field Mills, Inc. v. Macklin, 36 1 F.3d 934, 957-58 (7th Cir. 2004)
(" W e have subject matter jurisdiction over only those takings claims fo r which t he Williamson

County requirements are satisfi ed or other-wise excused ."). Other federa l district courts in
Wisconsin have reached this result as well. See, e.g. , D el-Prairie Stock Fann, Inc. v. County of

Wnlw01th , 572 F. Supp. 2d 1031, 1034 (E.O. Wis. 2008) ("[T] he Williamson County state
litigation req uirement is un avoidable, and because it has not been satisfied, I have no
jurisdiction over plaintiff's federal claims. Under these circumstances, the fairest course of
action is to remand the case to state court.").
Neither party disputes that Save More has not yet exh austed its state remedies. Thus,
pursuant to Williamson Cow1 91 and the other cases cited above, Save More's fede ral takings
claim is not ri pe fo r review. The court wi ll remand this case to the Wisconsin Circuit Court
for Oneida County .
Save More contends that if the court remands this case, then it should also award
Save Mo re the costs and fees that it incurred as a result of the OOT's removal, pursuant to
28 U.S.C. § l 447(c). The court has discretion to award fees, and "the sta ndard for awarding
fees should turn on the reaso nableness of the removal. Absent unusual circumsta nces, courts
may award attorney's fees under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeki ng removal. " Martin v. Fra11kli11 Capital Co1p. , 546 U.S .
132, 141 (2005). Here, the DOT had a reaso nable, although ultimately incorrect, basis for
removing the case: Save More's co mplaint expressly alleged a claim arising under federa l law.
And Save Mo re agreed with the OOT's analysis of the jurisdictional issue, wh ich fu rther

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suggests that the DOT's removal was reasonable. Under these circumstances, the court will
deny Save More's request for attorney fees.

ORDER
IT IS ORDERED that:
I. Pursuant to 28 U.S.C. § 1447(c), this case is REMANDED to the Wisconsin

Circuit Court for Oneida County.
2. Plaintiff Save More Food Markets, Inc.'s request for attorney fees, Dkt. 10, is
DENIED.
3. The clerk of court is directed to return the record of this case to the state court.
Entered August 2, 2016.
BY THE COURT:

Is/
JAMES D. PETERSON
District Judge

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