American Sunset Living, LLC v. Russell

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

AMERICAN SUNSET LIVING, L.L.C., )

)

Plaintiff, )

)

vs. )

) Case No. 3:22-cv-00764-GCS

WAYNE RUSSELL, CANDY SMITH1, )

CHRYSTAL REISNER, VILLAGE OF )

WILLOW HILL, ILLINOIS, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff, American Sunset Living, L.L.C., brings claims against Defendants Wayne

Russell (“Russell”), Candy Smith (“Smith”), Chrystal Reisner (“Reisner”), and the Village

of Willow Hill, Illinois (“Willow Hill”)2 for alleged violations of the Fifth and Fourteenth

Amendments to the United States Constitution, as well as 42 U.S.C. §§ 1983 and 1988, the

Illinois Constitution, the Illinois Civil Rights Act of 2006, 740 ILL. COMP. STAT. § 24/5(b),

and the Common Law of Illinois. (Doc. 1, p. 1). Particularly, Plaintiff alleges that

Defendants deprived him of his due process rights and property located at 200 South

Cumberland Street in Willow Hill, Illinois, by contracting for a ditch to be built directly

1 In Defendants’ Motion to Dismiss, Defendants point out that Defendant Candy Smith is incorrectly

identified as Cindy Smith in the docket. (Doc. 27, p. 1). The Court will refer to Smith by her correct name.

2 Defendant Willow Hill, is a Municipal Corporation which operates through a municipal board and

Village President, including at relevant times Defendants Russell, Smith, and Reisner. Defendants Russell,

Smith, and Reisner are sued in their individual capacities. (Doc. 1, p. 2).

through the property without notice or compensation.3 (Doc. 1, p. 2). Now pending before

the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). (Doc. 27). For the reasons delineated below, the Court

DENIES the Motion to Dismiss.

BACKGROUND

Plaintiff, American Sunset Living, L.L.C., has owned the real estate located at 200

South Cumberland Street in Willow Hill, Illinois, along with an abutting parcel since

2009. (Doc. 1, p. 1). By way of public notice posted at three locations, the Village of Willow

Hill informed the public that a special meeting would be held on March 11, 2020, to

discuss Proposed Ordinance No. 2020-0-001 titled “An Ordinance Vacating Certain

Portion of Right-of-Way (Baltimore Street South of Sycamore Street).” Id. at p. 3. Plaintiff’s

property is adjacent to the property subject to Ordinance No. 2020-0-001, but Plaintiff did

not receive actual notice of the meeting.4 Id.

On March 11, 2020, the Board of the Village of Willow Hill convened the meeting

as advertised. Id. At the meeting, the Board Members voted on Proposed Ordinance No.

2020-0-001. Four board members voted “aye” and two board members elected to abstain.

Id. This was sufficient to pass the ordinance as drafted. Id. In addition to noting that

corporate authorities of the municipality “may vacate streets, alleys, avenues, sidewalks,

3 Plaintiff also claims that the lot adjoining the property at 200 South Cumberland Street in Willow

Hills, Illinois, was impacted. (Doc. 1, p. 2).

4 Plaintiff received declaratory relief in Jasper County, Cause No. 2020CH4. The Court found that

Plaintiff, American Sunset Living, “is an abutting landowner whose land abuts the vacated right of way at

issue. Accordingly, Plaintiff has a lawful interest in the vacated easement because its property abuts said

vacated easement.” (Doc. 1, Exh. B, p. 2).

wharves, parks and public grounds” pursuant to Section 11-61-2 of the Illinois Municipal

Code (65 ILL. COMP. STAT. § 5/11-61-2), the Ordinance identified Keith Postlewait as “the

owner of all the land abutting a certain portion of unimproved north-south right-of-way

located south of Sycamore Street and west of Cumberland.” (Doc. 1, Exh. A, p. 2)

(emphasis added). Further, Ordinance 2020-0-001 noted Postlewait had petitioned

Willow Hill to vacate the right-of-way and that he paid the village $3,000 as compensation

for the property acquired. Id. Plaintiff believes no other offers were solicited or reviewed

by Willow Hill to “fraudulently circumvent and conceal the properties’ true fair market

value.” (Doc. 1, p. 4).

In Plaintiff’s Response to Defendants’ Motion to Dismiss, Plaintiff supplied

additional information about events pertaining to the enactment of Ordinance 2020-0-

001. (Doc. 30). Plaintiff noted that Defendants held two additional Board of Trustees

Meetings on March 10, 2022, and April 20, 2022, to further discuss vacating property on

Baltimore Street. (Doc. 30, Exh. B, p. 2); (Doc. 30, Exh. C, p. 2). Plaintiff claims he did not

receive actual notice that either meeting was taking place. (Doc. 30, p. 1). Additionally,

Plaintiff indicated that the Village of Willow Hill officially issued the Ordinance for the

transfer of property to Keith Postlewait on April 20, 2022. (Doc. 30, Exh. A, p. 4).

Following the transfer, Postlewait allegedly erected an enclosed structure and laid

a gravel path on the property. (Doc. 1, p. 4). Plaintiff asserts that the construction on the

property destroyed the watershed, which caused the property to experience flooding that

obstructs Plaintiff’s agents’ navigable use. (Doc. 1, p. 3). Further, Plaintiff asserts that

surface restructuring, including the removal of trees, soil, and root structures of the

existing landscape, took place as a ditch was built directly through Plaintiff’s property

without notice or compensation. (Doc. 1, p. 2-3).

LEGAL STANDARDS

When considering a motion to dismiss under Rule 12(b)(6), this Court determines

whether a complaint includes enough factual content to give the opposing party notice

of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009). In order to

satisfy this standard, the factual allegations within a complaint must “raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 554-555. For the purposes of

evaluating a motion to dismiss, the Court will assume the complaint’s allegations are

true, even if factually dubious. Id. See also Warth v. Seldin, 422 U.S. 490, 501 (1975)(noting

that trial courts are to construe the complaint in favor of the complaining party).

Although courts are to evaluate the complaint in the light most favorable to the

non-moving party, courts “need not accept as true legal conclusions or threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements.”

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Rule 8 of the Federal Rules of Civil

Procedure requires that a complaint provide a “short and plain statement of the claim

showing that the pleader is entitled to relief” in a manner that provides the defendant

with “fair notice” of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93

(2007)(citing Twombly, 550 U.S. at 555; quoting FED. R. CIV. PROC. 8(a)(2)). Therefore, in

ruling on a motion to dismiss for failure to state a claim, a court must “examine whether

the allegations in the complaint state a ‘plausible’ claim for relief.” Arnett v. Webster,

658 F.3d 742, 751 (7th Cir. 2011)(citing Iqbal, 556 U.S. at 677-678). A complaint “must

contain sufficient factual matter, to state a claim to relief that is plausible on its face,”

rather than providing allegations that do not rise above the speculative level. Id.

Nevertheless, at the pleading stage, general factual allegations of an injury arising from

the defendant’s conduct may be sufficient; the Court presumes that general allegations

“embrace those specific facts that are necessary to support the claim.” Lujan v. National

Wildlife Fed., 497 U.S. 871, 889 (1990).

DISCUSSION

Defendants assert that Plaintiff’s complaint under §1983 should be dismissed

because Plaintiff did not file his complaint within the applicable statute of limitations

period. (Doc. 27, p. 2). The applicable statute of limitations for Plaintiff’s federal claims is

two years. See Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002). Defendants believe

“the actions for which the Plaintiff complains occurred on March 11, 2020.” Id. As such,

they ask the Court to find Plaintiff’s complaint, which was filed on April 20, 2022 (more

than two years after the “alleged event”), to be outside the statute of limitations period.

Id. At first glance, it appears that Plaintiff’s complaint is untimely.

In Plaintiff’s Response to Defendants’ Motion to Dismiss, Plaintiff indicates that

subsequent public hearings were held on March 10, 2022, and April 20, 2022, by the Board

of Trustees of the Village of Willow Hill pertaining to the “Petition to Vacate Baltimore

Street.” (Doc. 30, Exh. B, p. 2); (Doc. 30, Exh. C, p. 2). Plaintiff alleges that it did not receive

proper notice of these hearings, on top of the March 11, 2020, hearing where Ordinance

No. 2020-0-001 was initially enacted. (Doc. 30, p. 1). Plaintiff contends that “Defendants’

subsequent attempts to enforce said seizure constitute new actions for the purposes of

the statute of limitations for § 1983 claims, which does not begin to run until the date of

last injury or when the tortious acts cease.” Id. at p. 2. This information, however, was not

part of Plaintiff’s original complaint. As such, the Court is not willing to consider this

material as it would effectively convert the instant motion into one for summary

judgment. See, e.g., Thompson v. Illinois Dept. of Professional Regulation, 300 F.3d 750, 754

(7th Cir. 2002)(noting that plaintiff could not convert motion to dismiss into one for

summary judgment where it was the plaintiff and not defendant that introduced the

extrinsic materials outside the pleadings).

In any event, dismissal is not appropriate. A Plaintiff “need not anticipate and

attempt to plead around affirmative defenses,” including those pertaining to the statute

of limitations. Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016). However,

“the statute of limitations may be raised in a motion to dismiss ‘if the allegations of the

complaint itself set forth everything necessary to satisfy the affirmative defense.’” Brooks,

578 F.3d at 579 (quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). In other

words, the Plaintiff must “affirmatively plead himself out of court” for the Court to

consider an affirmative defense in a motion to dismiss. Hyson, 821 F.3d at 939 (citations

omitted). Here, the Court finds that the Plaintiff did not affirmatively plead himself out

of court as there still exists the possibility of a set of facts that could establish a defense to

the statute of limitations.

In the complaint, the Plaintiff clearly alleges that the enactment of the ordinance

at the March 11, 2020, meeting impacted its rights to the property. However, the Plaintiff

also alleges that it did not receive notice of that meeting as an interested and abutting

landowner. The Plaintiff further alleges that it was damaged when the Defendants

contracted to have a ditch built which “went directly through Plaintiff’s property.” (Doc.

1, ¶ 10). The Plaintiff further alleges several detrimental effects that the construction of

the ditch caused to Plaintiff’s property, such as the removal of “topsoil” and the

destruction of a “previously existing watershed.” (Doc. 1, ¶¶ 12-13). The implication of

these allegations is that the Plaintiff did not discover the trespass until it occurred, which

could conceivably be within the statute of limitations period.

The Seventh Circuit’s decision in Clark v. City of Braidwood, 318 F.3d 764 (7th Cir.

2003) is instructive. In Clark, the plaintiff claimed that the City of Braidwood violated his

due process and equal protection rights when it authorized a competing developer to

install sewer and water pipes on the land. Id. at 765. As a result, the plaintiff could not

install pipes of his own, which rendered the development of the land impossible. Id. The

district court dismissed the plaintiff’s complaint because on its face it did not comply

with the applicable statute of limitations period. Id.

The Seventh Circuit, however, reversed holding that the plaintiff did not

affirmatively plead himself out of court because there was a possible set of facts that could

defend against the statute of limitations if proven. See Clark, 318 F.3d at 767-768.

Specifically, the Seventh Circuit reasoned that dismissal was inappropriate because the

discovery rule was potentially applicable. The Seventh Circuit noted that the complaint

was “silent as to the date of discovery.” Id. at 767. But, despite that failing, the Seventh

Circuit noted that the statute of limitations issue was more appropriate for summary

judgment with a fully developed factual record as a defense could conceivably be

established. The same holds true in the instant case as the construction of the ditch could

have taken place after April 20, 2020, at which time the Plaintiff would clearly be on notice

of the trespass to its land. It is also possible that the Plaintiff should have discovered the

injury sooner, which could still subject the complaint to the statute of limitations period,

but again that is a matter for further factual development. AII that needs to be determined

at this stage is if any set of facts could be proven to defeat the statute of limitations bar.

See Clark, 318 F.3d at 768. See also Early v. Bankers Life and Cas. Co., 959 F.2d 75, 80 (7* Cir.

1992)(noting that with respect to a motion to dismiss, “the question is not what are the

facts, but is there a set of facts that if proved would show that the case had merit[.]”).

Here, the Court finds that such a set of facts could exist, and as such, dismissal is

inappropriate.

CONCLUSION

For the foregoing reasons, the Court DENIES the Motion to Dismiss for Failure to

State a Claim (Doc. 27).

IT IS SO ORDERED.

DATED: February 14, 2023. ldedoon by

Get. Dusee Date: 2023.02.14

12:55:15 -06'00'

GILBERTC.SISON

United States Magistrate Judge

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