384 F.3d 307 | 6th Cir. | 2004
Before: SILER, MOORE, and COLE, Circuit Judges.
copyright infringement, seeking to enjoin any further development or use of Gateway Oaks, and asking for
1 No. 03-1126 Chirco, et al. v. Gateway Oaks, et al. 3 4 Chirco, et al. v. Gateway Oaks, et al. No. 03-1126 impoundment and destruction of the architectural plans and Under Article III, § 2, of the Constitution, we may only condominiums. adjudicate actual ongoing cases or controversies. Generally,
“a case is moot when the issues presented are no longer ‘live’ Simultaneously with the complaint, Chirco filed a “Notice or the parties lack a legally cognizable interest in the of Lis Pendens” (i.e., a notice of an action pending against the outcome.” Powell v. McCormack , 395 U.S. 486, 496 (1969). condominiums). Michigan law authorizes the filing of a An actual live controversy “must be extant at all stages of notice of pendency of a lawsuit, or lis pendens, to render review.” Arizonans for Official English v. Arizona , 520 U.S. constructive notice of the suit to purchasers of real property. 43, 67 (1997). The Supreme Court has carved out a mootness Mich. Comp. Laws § 600.2701. The Michigan lis pendens exception for issues “capable of repetition, yet evading statute “applies to suits affecting title to real property in the review.” Southern Pac. Terminal Co. v. ICC , 219 U.S. 498, federal courts.” Mich. Comp. Laws § 600.2735(1) (emphasis 515 (1911). In Weinstein v. Bradford, 423 U.S. 147 (1975), added); see also 28 U.S.C. § 1964 (providing that lis pendens it limited the “capable of repetition, yet evading review” filed in federal court must comply with state law filing
doctrine to situations where: “(1) the challenged action was in requirements). The district court canceled the lis pendens, its duration too short to be fully litigated prior to its cessation finding that the copyright suit, asking for impoundment and or expiration; and (2) there was a reasonable expectation that destruction of the buildings, did not affect the title to the the same complaining party would be subjected to the same Gateway Oaks condominiums. action again.” Id. at 148. Chirco fails on the second element.
Chirco appeals this order canceling the lis pendens. He Arguably, Chirco has a reasonable expectation that he will argues, as he did to the district court, that the lis pendens be subjected to having a notice of lis pendens canceled again statute extends to suits not only challenging title, but also to in the future. This suit marks the third time a district court suits which may affect “the possession, use or enjoyment of has canceled Chirco’s notice of lis pendens regarding real property.” See Mich. Comp. Laws § 600.2711 (providing copyright infringement of the plans, and apparently he has “[w]here a defendant sets up in his answer a counterclaim,
two other suits pending (although he has not sought a lis upon which he demands an affirmative judgment affecting the pendens in these cases). Regardless, he concedes that a future title to, or the possession, use or enjoyment of real property , notice of lis pendens against Gateway Oaks is unlikely. he may file for record a like notice ”) (emphasis added). We express no opinion on the merits of Chirco’s argument Normally, parties raise the “capable of repetition, yet because we find that the selling of all the Gateway Oaks evading review” doctrine against the government, hence the condominiums renders the lis pendens issue moot. second element’s language that the same complaining party
would be subjected to the same action again. See Lee v. After Chirco filed this appeal, Gateway Oaks filed a motion Schmidt-Wenzel , 766 F.2d 1387, 1390 (9th Cir. 1985). When to dismiss the appeal as moot because it already finished the suit involves two private parties, however, the constructing the condominiums and sold all of them to third
complaining party must show a reasonable expectation that he parties. Chirco concedes that any decision by this court would again be subjected to the same action by the same would have no impact on the instant case against Gateway defendant . Pharmachemie B.V. v. Barr Laboratories, Inc. , Oaks. Nonetheless, Chirco asks us to rule on the correctness 276 F.3d 627, 633 (D.C. Cir. 2002) (second element of the district court’s order canceling his lis pendens because “requires that the same parties will engage in litigation over the issue is capable of repetition, yet evades review. the same issues in the future”); Cruz v. Farquharson , 252 No. 03-1126 Chirco, et al. v. Gateway Oaks, et al. 5 6 Chirco, et al. v. Gateway Oaks, et al. No. 03-1126 F.3d 530, 534 (1st Cir. 2001) (“exception pertains only if of repetition, yet evading review” argument fails and we there is some demonstrated probability that the same dismiss his appeal as moot. controversy, involving the same parties, will reoccur”); Video APPEAL DISMISSED. Tutorial Services, Inc. v. MCI Telecomms. Corp. , 79 F.3d 3, 6 (2d Cir. 1996) (exception applies only if “these same parties are reasonably likely to find themselves again in dispute over the issues raised” in the appeal); Lee , 766 F.2d at 1390 (“In order to apply the ‘capable of repetition’ doctrine to private parties, there must be a reason to expect that there will be future litigation of the same issue between a present complaining party and a present defending party.”); Cent. Soya Co., Inc. v. Consol. Rail Corp. , 614 F.2d 684, 689 (7th Cir. 1980) (need “likelihood that this issue will be the basis of a continuing controversy between these two parties ”); see also Norman v. Reed, 502 U.S. 279, 288 (1992); Burlington N. R.R. v. Bhd. of Maint. of Way Employes , 481 U.S. 429, 436 n.4 (1987). [1] Because Chirco concedes that a future notice of lis pendens against Gateway Oaks is unlikely, his “capable
NOTES
[1] Arguably, the Supreme Court has relaxed the same party requirement in certain cases. In Honig v. Doe , 484 U.S. 305 (1988), Justice Scalia pointed out in his dissent that Roe v. Wade , 410 U.S. 113 (1973), and so me election law decisions, e.g., Rosario v. Rockefeller , 410 U.S. 752 (197 3), differed from the C ourt’s normal m ootness jurisprudence by “disp ensing with the same-party requirement entirely.” 484 U.S. at 335 (Scalia, J., dissenting). Justice Sca lia went o n to state that subsequent cases arguab ly have narrowed these ca ses to “the ir facts, or to the narrow areas of abortion and election rights.” Id . at 336 ; see also Cruz , 252 F.3d at 534 n.4 (noting that the Roe Court failed to inquire whether Roe herself was likely to become pregnant again, but finding it unnecessary to “speculate o n how strictly the Sup reme Court will enforce the ‘same p arties’ req uirement in future cases” ); McPherson v. Mich. High Sch. Athletic Ass’n , 119 F.3d 453 , 465 n.3 (6th Cir. 1997) (Moo re, J., dissenting) (noting that Justice Scalia’s suggestion in Ho nig that the Supreme Court has not always limited the exception to situations involving the same parties has never been accepted by a majority of the Supreme Court). Because this case falls under neither the abortion nor election law heading and the Sup reme Court has not issued a concrete command relaxing the sam e party requirement, we decline to relax the requirement in this case .
