MEMORANDUM OPINION AND ORDER
Plаintiffs Satkar Hospitality, Inc. and its two principals have sued the Cook County Board of Review, three individuals who were the commissioners of the Board at the relevant time, the chief deputy commissioner, and two first assistant commissioners (collectively, the Board defendants); the Illinois Review and several affiliates (collectively, the Illinois Review defendants); and the local Fox Television station and several affiliates (collectively, the Fox defendants). The Board of Review considers appeals of real estate valuations made by the Cook County Assessor for property tax рurposes. Plaintiffs claim that the Board defendants revoked their property tax reduction without providing due process and in violation of other constitutional prohibitions and that the Illinois Review and Fox defendants defamed plaintiffs and placed them in a false light.
All of the defendants have moved to dismiss plaintiffs’ first amended complaint. In this decision, the Court considers the Board defendants’ and Illinois Review de
Background
Satkar owns a hotel in Schaumburg. Plaintiffs allege that Satkar appealed its 2007 tax assessment and that the Board lowered the assessment in a way that represented a $40,000 annual tax savings. In 2009, the news media ran reports that Paul Froehlich, a member of the Illinois General Assembly, was “engineering successful Board of Review appeals for his constituents in return for large campaign contributions.” Am. Compl. ¶ 27. Plaintiffs allege that the reports accused them of bribing Froehlich in return for his agreement to arrange a successful appeal. Id. ¶ 28. This, plaintiffs allege, was a false accusation. Id. ¶ 35.
Plaintiffs allege that in response to the media reports, “and for the appearance of clean hands,” the Board required them to appear in June 2009 “ostensibly ... to discuss the assessment appeal.” Id. ¶ 39. But rather than posing questions about the valuation of the hotel, plaintiffs allege, the Board defendants “asked repeated questions about the relationship between Plaintiffs and Rep. Froehlich.” Id. Following the hearing, plaintiffs contend, “the Board arbitrarily rescinded the reduction in property taxes that it itself granted close to one year prior ..., stating simply, “we can do anything we want.’ ” Id. ¶ 46. The chief deputy commissioner allegedly attributed the reduction directly to “the relаtionship between the people involved,” i.e., plaintiffs and Froehlich. Id. ¶ 47.
Plaintiffs allege that they were “arbitrarily selected” due to the fact that they had made contributions to Froehlich’s campaigns, “merely for their association with Rep. Froehlich” and contrary to their First Amendment right to contribute to political candidates without fear of retaliation. Id. ¶¶ 48-50. Plaintiffs allege that similarly situated property owners who had not contributed to Froehlich were not treated as plaintiffs were. Id. ¶ 51. They also allege that the revised assessment that the Board issued following the June 2009 hearing “did not accurately reflect the property’s actual value ....” Id. ¶ 52.
Plaintiffs allege that they have appealed the revised assessment to the Illinois Property Tax Appeal Board (PTAB) but that the “PTAB will not render any decision for an unconscionably long time, if ever” because the Board has “red-flagged” the appeal. Id. ¶ 53. They contend that there is a good chance that the appeal will take as long as seven or eight years to resolve and that in the meantime they are deprived of the use of the amounts they have been forced to pay in higher taxes. Id. ¶¶ 66-67.
Plaintiffs also allege that the Board erroneously denied their appeal of a later assessment. Id. ¶ 54. According to plaintiffs, Larry Rogers, one of the commissioners of the Board, “explained to counsel for Plaintiffs that the denial was as a result of Plaintiffs’ relationship with Rep. Froehlich, and not due to the merits of Plaintiffs’ appeal and that under no circumstances would the Board grant a reduction of the Plaintiffs’ property taxes.” Id. ¶ 56. Plaintiffs allege that this, too, was in retaliation for their association with Froehlich, contrary to the way the Board treated other similarly situated property owners, and not based on the mеrits of the assessment. Id. ¶ 57-58. Plaintiffs allege that the Board’s actions denied them due process because they did not have a real opportunity for a hearing on the merits. Id. ¶ 59.
Plaintiffs allege that under Illinois law, a property owner may appeal to the PTAB or to state circuit court (but not both) and
Plaintiffs assert claims under 42 U.S.C. § 1983 against the Board of Review and the individual Board defendants for violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment (Counts 1 and 2) and the First Amendment (Count 3). Plaintiffs assert state law defamation claims against the Illinois Review defendants. Defendants have moved to dismiss these claims on various grounds.
Discussion
On a motion to dismiss, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff.
Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7,
I. The Board defendants’ motion
The Board defendants have moved to dismiss plaintiffs’ first amended complaint on the basis of absolute immunity, qualified immunity, and the Rooker-Feldman doctrine. The Board defendants also contend that plaintiffs fail to state a claim for violation of their equal protection, due process, and First Amendment rights. Finally, the Board defendants ask this Court to dismiss all claims against the Board on the ground that plaintiffs fail to state claims against any individual Board defendants. The Court addresses each argument in turn.
A. Absolute and qualified immunity
A recent Seventh Circuit decision requires the dismissal of the claims against the members of the Board — Berrios, Rogers, and Houlihan—on the basis of absolute immunity. In
Heyde v. Pittenger,
The same immunity applies to Guetzow, Sullivan, and Jaconetty, who are deputy and assistant commissioners. The factual predicate for plaintiffs’ claims
Even a court clerk is entitled to absolute immunity for non-ministerial actions integral to the adjudicative process.
See, e.g., Kincaid v. Vail,
This leaves the claims against the Board itself. The Board does not contend that quasi-judiсial immunity extends to the Board itself, as opposed to its individual commissioners, deputy commissioners, and assistant commissioners.
See, e.g.,
Mem. in Support of Mot. to Dismiss (dkt. no. 35) at 8 (“Even had plaintiffs properly pled their claims against Berrios and Jaconetty, those claims would be barred by the defense of absolute immunity.”); Motion to Cite Add’l Authority (dkt. no. 61) ¶ 2 (“Berrios and Jaconetty have asserted the defense of absolutely [sic] immunity....”). Nor does qualified immunity apply to a judicial body like the Board; the doctrine protects only individual government officials and agents.
Hernandez v. Sheahan,
B. Rooker-Feldman doctrine
The Board argues that plaintiffs’ claims are barred by the so-called
Rooker-Feldman
doctrine, which bars federal “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
The first question is whether the
Rook-er-Feldman
doctrine even applies in view of the fact that plаintiffs litigated and lost not before a state court but before the
In support of a contrary proposition, defendants note that
“Feldman
itself involved a federal lawsuit seeking review of a decision made by a Committee of the District of Columbia Bar that denied one of the petitioners in that case admission to practice law.” Bd. of Review Defs.’ Reply at 16. That contention is a bit of a stretсh. It is true that the
Feldman
case, entitled
District of Columbia Court of Appeals v. Feldman,
The other cases that defendants cite for the proposition that
Rooker-Feldman
applies to the Board’s decision likewise do not support the weight that defendants seek to place on them. In
Edwards v. Illinois Bd. of Admissions to the Bar,
Defendants argue that, under state law, the Board of Review is a “quasi-judicial tribunal” rather than an administrative agency. Reply in Support of Mot. to Dismiss at 17. The authorities they cite, however, are distinguishable. First, in
Parker v. Kirkland,
Second, in
Goodfriend v. Bd. of Appeals of Cook County,
Nor does this Court’s earlier determination that the individual Board defendants are entitled to absolute quasi-judicial immunity dictate that the
Rooker-Feldman
doctrine applies in this case. In the immunity context, the Court applies “a functional approach” and considers whether the claims arise from an official’s performance of an adjudicative, as opposed to ministerial or administrative, function.
Heyde,
Contrary to defendants’ assertions, the
Rooker-Feldman
doctrine does not come into play merely because the Board of Review’s decision was subject to challenge and review in state court. Indeed, the Seventh Circuit held otherwise in
Hemmer.
In that case, a plaintiff obtained an adverse state administrative agency decision and then failed to get state court review due to his own error.
Hemmer,
C. Failure to state a claim
The Board defendants contend that plaintiffs fail to state a claim fоr violation of their equal protection, due process, and First Amendment rights. “A pleading that states a claim for relief must contain: ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a). Rule 8(a) imposes three requirements:
First, a plaintiff must provide notice to defendants of her claims. Second, courts must accept a plaintiffs factual allegations as true, but some factual allegations will be so sketchy or implausible that they fail to provide sufficient notice to defendants of the plaintiffs claim. Third, in considering the plaintiffs factual allеgations, courts should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.
The Court begins with plaintiffs’ equal protection claim. To state an equal protection claim under a “class of one” theory, the plaintiffs must allege that they have “ ‘been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ ”
Engquist v. Oregon Dep’t of Agric.,
The Supreme Court’s decision in
Engquist
does not compel a different result. In that case, the Court identified two exceptions to the class of one theory of equal protection.
See Engquist,
The Court turns next to plaintiffs’ due process claim. Plaintiffs assert that both their proсedural and substantive due process rights were violated. “To plead a procedural due-process claim, [plaintiffs] must allege a cognizable property interest, a deprivation of that interest, and a denial of due process.”
Palka v. Shelton,
The Board defendants contend that plaintiffs’ procedural due process claim fails because plaintiffs do not allege a cognizable property interest or the fundamental unfairness of the state procedures available to them. They argue that plaintiffs’ substantive due process claim fails because plaintiffs do not allege either the inadequacy of state law remedies or an independent constitutional violation.
The Court disagrees. First, plaintiffs squarely allege the deprivation without due process of their property interest in a correct property tax assessment. Second, plaintiffs adequately allege both the funda
To be sure, defendants counter that the PTAB will not give undue influence to the Board’s decision; PTAB procedures will not take a constitutionally inadequate amount of time; and plaintiffs will receive a fair adjudication in state court and can obtain recusal of any state court judge if appropriate. At the motion to dismiss stage, however, the Court accepts the allegations in the complaint as true and considers only whether plaintiffs’ allegations are plausible enough to provide sufficient notice to defendants of the plaintiffs’ claim.
Brooks,
Finally, the Court considers plaintiffs’ First Amendment retaliation claim. To prevail on such a claim, a plaintiff “must prove that (1) he engaged in constitutionally protected speech; (2) the defendants, as public officials, engaged in adverse conduct against him; and (3) the defendants were motivated, at least in part, by his protected speech.”
Bivens v. Trent,
D. Derivative liability
Defendants argue briefly that plaintiffs’ section 1983 claims against the Board are derivative in nature and must be dismissed absent an underlying constitutional violation by the individual defendants. Because plaintiffs have stated an underlying constitutional violation against at least some of the individual Board defendants, this argument fails, even though the individual defendants are immune from individual liability.
See Owen,
II. Illinois Review defendants’ motion
The Illinois Review defendants move to dismiss plaintiffs’ state law defamation and false light claims on the following grounds: (a) the Court lacks supplemental jurisdiction over the claims because they do not arise from a common nucleus of operative fact as the federal claims against the Board defendants; (b) the Court should decline to exercise supplemental jurisdiction over the state claims because they will require the Court to decide novel issues of state law; and (c) plaintiffs have failed to identify the particular statements they
A. Common nucleus of operative fact
The plaintiff has the burden of establishing federal jurisdiction.
Kontos v. United States Dept. of Labor,
In a previous decision in this case, the Court held that plaintiffs’ state law claims against the Fox defendants and plaintiffs’ federal claims arise from a common nucleus of operative fact.
See Satkar Hospitality Inc. v. Cook County Bd. of Review,
No. 10 C 6682,
Satkar alleges that the Board of Review acted in direct response to the stories reported by the media defendants. It is reasonably likely that the Board of Review defendants will cite the information reported by Fox as providing a legitimate basis to reopen the determination of Satkar’s assessment. The factual basis for the contentions regarding Satkar’s dealings with the state representative is likely to be at issue in the determination of both the constitutional claims against the Board of Review defendants and the claims against the media defendants. It is also likely that the discovery that the parties will conduct regarding Satkar’s claims against the Board of Review defendants will overlap significantly with the discovery they will conduct on the defamation and false light claims.
Id. at *2. The same analysis applies here. The Court concludes that supplemental jurisdiction exists over the state law claims against the Illinois Review defendants.
B. Novel issue of state law
A court may decline to exercise supplemental jurisdiction over a claim if, among other things, it “raises a novel or complex issue of State law.” 28 U.S.C. § 1367(c)(1). “But while a district court may relinquish its supplemental jurisdiction if one of the conditions of § 1367(c) is satisfied, it is not required to do so.”
Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp.,
Defendants contend that adjudication of their statute of limitations defense will require the Court to decide a novel issue of state law. Specifically, they contend that
The Court concludes that, on balance, the values of judicial economy and convenience weigh in favor of this Court retaining jurisdiction over plaintiffs’ state law claims. Because the state and federal claims arise from a common factual nucleus, judicial economy would best be served by deciding all of the claims in this Court. Moreover, the state claims are unlikely to require significantly more factual devеlopment than already will be required by the remaining federal claims.
Cf. De Asencio v. Tyson Foods, Inc.,
C. Sufficiency of plaintiffs’ allegations
The Illinois Review defendants contend briefly that the Court should dismiss plaintiffs’ state law claims pursuant to Rule 12(b)(6) for failure to identify the particular statements that plaintiffs claim were defamatory or placed them in a false light. In support, they incorporate the arguments raised in the Fox defendants’ motion to dismiss the first amended complaint. This Court rejected those arguments in a previous decision in this case.
See Satkar Hospitality Inc.,
D. Statute of limitations defense
In their reply brief, the Illinois Review defendants assert for the first time a statute of limitations defense to plaintiffs’ state law claims. In response, plaintiffs move to strike the defense on the basis of forfeiture.
The Court agrees with plaintiffs that defendants have forfeited the defensе for purposes of the motion to dismiss by failing to raise it in their opening brief. “Arguments raised for the first time in a reply brief are waived.”
James v. Sheahan,
Contrary to defendants’ contention, the statute of limitations defense asserted in defendants’ reply does not fairly respond to matters raised in the plaintiffs’ response. Nor are defendants entitled to assert the defense merely because plaintiffs attached four blog posts containing allegedly defamatory statements to their response brief. Defendants may, however, raise the defense in a motion for summary judgment at a later stage in the case.
Conclusion
For the reasons stated above, the Court grants the Board defendants’ motions to dismiss in part and denies them in part. Specifically, the Court dismisses plaintiffs’
Notes
. One fairly obvious exception to this concerns habeas corpus proceedings under 28 U.S.C. § 2254. Plaintiffs, however, have identified no exception that applies in the present context.