Mogan v. CITY OF CHICAGO

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL MOGAN, )

)

Plaintiff, )

) No. 21 C 1846

v. )

) Judge Sara L. Ellis

CITY OF CHICAGO, a municipal )

corporation, and ROSCOE VILLAGE LOFTS )

CONDOMINIUM ASSOCIATION, a )

corporation, )

)

Defendants. )

OPINION AND ORDER

Plaintiff Michael Mogan brings this lawsuit because he wishes to list his condominium

unit, 1800 West Roscoe Street Unit #307 in Chicago, Illinois (the “Unit”), for rent on “home

sharing” websites like Airbnb. Mogan brings eleven claims against the City of Chicago (the

“City”) and one claim against the homeowners’ association of the Unit, Roscoe Village Lofts

Condominium Association (the “Roscoe HOA”). He first seeks a declaratory judgment against

the City and the Roscoe HOA regarding his ability to lease and license the Unit on home sharing

websites (Count I). He then brings ten claims against the City, challenging the constitutionality

of the City’s Shared Housing Ordinance (the “Ordinance”), which regulates the home sharing

industry. Mogan alleges that the Ordinance: constitutes an unconstitutional taking in violation of

the Fifth Amendment of the U.S. Constitution (Count II) and an inverse condemnation under

Illinois law (Count III); violates his rights to substantive due process (Count IV) and equal

protection (Count X); violates his First Amendment rights to free speech (Counts V through VII)

and assembly (Count XI); and constitutes an excessive fine under the Eighth Amendment (Count

VIII) and an unconstitutional license for revenue under the Illinois constitution (Count IX). The

Defendants now move to dismiss Mogan’s complaint.

Because Mogan seeks leave to amend his unconstitutional license for revenue claim in

response to the City’s motion, the Court dismisses it without prejudice. Mogan premises his

Eighth Amendment excessive fines claim on uncertain and contingent events and as a result, the

Court dismisses it without prejudice as unripe. Because Mogan fails to sufficiently allege all

three factors to support a regulatory takings claim, the Court dismisses his takings and inverse

condemnation claims without prejudice. The Court finds that the Ordinance does not implicate

the First Amendment because it regulates business activity, not expressive speech or conduct,

and therefore, the Court dismisses Mogan’s First Amendment claims with prejudice. Mogan has

pleaded himself out of court by alleging potential rational bases for the Ordinance’s differential

treatment between home sharing and hotels/bed-and-breakfasts and thus, the Court dismisses his

equal protection claim with prejudice. Because Mogan fails to sufficiently allege that the

Ordinance infringes on a fundamental liberty interest or that it is arbitrary and unreasonable, the

Court also dismisses his substantive due process claim with prejudice. No claims against the

City remain and therefore, no controversy exists between Mogan and the City. Thus, the Court

dismisses Mogan’s request for a declaratory judgment against the City without prejudice.

Finally, the Court declines to exercise supplemental jurisdiction over his declaratory judgment

request against the Roscoe HOA and dismisses it without prejudice.

BACKGROUND1

Home sharing, when homeowners allow guests to stay in their home, often for a fee, is a

long-standing American tradition that has recently increased in popularity due to home sharing

websites like Airbnb. Airbnb acts as an intermediary between hosts and guests by facilitating the

rental transaction through its website. Hosts create listings that contain information about their

homes, including the suggested price per night, and about themselves. Airbnb displays these

listings on its website for potential guests to browse. After guests choose a listing, they request

to rent the home and can make offers at or below the suggested rental price. Once the host and

guest agree on a price and rental period, Airbnb confirms the booking. To effectuate the

transaction, the guests pay Airbnb and Airbnb pays the host. Hosts can rent their homes on

Airbnb on a short-term or long-term basis.

I. The Ordinance

In response to the increased popularity of home sharing websites, the Chicago City

Council passed the Ordinance in June 2016 to regulate the home sharing industry. The

Ordinance took effect on or about December 19, 2016, and enforcement against non-compliant

hosts began on March 15, 2017. The Ordinance regulates both “vacation rentals” and “shared

housing units.” It defines “vacation rentals” as “a dwelling unit that contains 6 or fewer sleeping

rooms that are available for rent,” excluding bed-and-breakfasts, hotels, “a dwelling unit for

which a tenant has a month-to-month rental agreement and the rental payments are paid on a

monthly basis,” corporate housing, guest suites, and shared housing units. Municipal Code of

1 The Court takes the facts in the background section from Mogan’s first amended complaint (“FAC”) and

the exhibits attached thereto and presumes them to be true for the purpose of resolving Defendants’

motions to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011) (Rule 12(b)(6)); Ezekiel v.

Michel, 66 F.3d 894, 897 (7th Cir. 1995) (Rule 12(b)(1)). The Court “may also take judicial notice of

matters of public record.” Orgone Cap. III, LLC v. Daubenspeck, 912 F.3d 1039, 1043–44 (7th Cir.

2019).

Chicago (“MCC”) § 4-6-300(a). The Ordinance defines “shared housing unit” as “a dwelling

unit containing 6 or fewer sleeping rooms that is rented, or any portion therein is rented, for

transient occupancy by guests,” excluding “(1) single-room occupancy buildings; (2) hotels;

(3) corporate housing; (4) bed-and-breakfast establishments, (5) guest suites; and (6) vacation

rentals.” MCC § 4-14-010.

The Ordinance regulates both hosts and home sharing intermediaries like Airbnb. It

defines a “short term residential rental intermediary” as “any person who, for compensation or a

fee: (1) uses a platform to connect guests with a short term residential rental provider for the

purpose of renting a short term residential rental, and (2) primarily lists shared housing units on

its platform.” MCC § 4-13-100. The Ordinance requires hosts to obtain a license from the City

prior to renting and operating vacation rentals, MCC § 4-6-300(h)(2), (i), and requires

intermediaries to register the shared housing units listed on their platform with the City prior to

renting them, MCC §§ 4-13-230(a), 4-14-020(a). Intermediaries also must obtain a license from

the City to operate, MCC § 4-13-200, annually renew the license, MCC § 4-13-205, and pay a

fee annually, the amount of which depends on the number of rentals listed on the platform, MCC

§ 4-5-010(36).

The Ordinance allows a homeowners’ association to notify the City that “no licensed

vacation rentals or shared housing units are permitted to operate anywhere in such building.”

MCC § 4-13-260(a)(9). The City then deems units within these buildings as “ineligible for

listing by a provider on a licensee’s platform,” MCC § 4-13-260(a)(9), and the units cannot

receive licenses to operate as vacation rentals, MCC § 4-6-300(c)(7), be rented as vacation

rentals, MCC § 4-6-300(h)(4), register as shared housing units, MCC § 4-14-030(a), or be rented

as shared housing units, MCC § 4-14-050(i). The City must maintain a public prohibited

buildings list that identifies “the address(es) of all buildings whose owner(s), including any

applicable homeowners’ association or board of directors, have notified the commissioner,

pursuant to Section 4-13-260(a)(9), that no vacation rentals or shared housing units, in any

combination, are permitted to operate anywhere in such building.”2 MCC § 4-13-270(c).

Once the City adds a building to the prohibited buildings list, it must notify, in writing,

shared housing unit and vacation rental hosts within the building and intermediaries of the unit’s

ineligibility. MCC §§ 4-13-260(b), 4-14-030(b). The parties may then request a hearing before

the commissioner to contest the unit’s ineligibility, and, after such hearing, the parties can appeal

the final determination. MCC §§ 4-13-260(b), 4-14-030(b). If a host rents a unit that is on the

prohibited buildings list twenty-eight days after the City sent final notice of the unit’s

ineligibility, the host is subject to a $5,000 fine per day that the violation continues. MCC §§ 4-

6-300(h)(4), 4-14-050(i). If a host fails to remove an ineligible listing from a platform fifteen

days after receiving the final ineligibility determination from the City, the host is subject to a

$2,500 to $5,000 fine per day that the violation continues. MCC §§ 4-6-300(h)(11), 4-14-060(g).

On September 9, 2020, the Chicago City Council passed several amendments to the

Ordinance that added the following provisions: vacation rentals and shared housing units are

now subject to a minimum rental period of ten consecutive hours, MCC §§ 4-6-300(g)(l), 4-14-

050(e), which effectively bans single-night rentals, and the maximum occupancy of vacation

rentals and shared housing units is now “one person per 125 feet of floor area” of the unit, MCC

§§ 4-6-300(g)(5), 4-14-050(b). A host who violates either of these provisions is subject to a

$1,500 to $3,000 fine per day that the violation continues. MCC §§ 4-6-300(k)(1), 4-14-090(a).

The City “employs code-enforcement officers who are tasked with actively identifying and

2 The prohibited buildings list is available at: https://data.cityofchicago.org/Buildings/House-Share-

Prohibited-Buildings-List/7bzs-jsyj/data (last visited January 11, 2022).

punishing property owners who [unlawfully] rent their homes on a short-term basis.” Doc. 8

¶ 219. In the second half of 2018 alone, the City collected over $100,000 in penalties based on

violations of the Ordinance.

II. The Unit

Mogan bought the Unit in September 2004 and began leasing it to various tenants in

2009. He “expended thousands of dollars to furnish [the Unit] . . . to generate licensing and

leasing revenue,” id. ¶ 103, and his livelihood “depends in some way” on the home sharing

industry, id. ¶ 198. Mogan “has in the past or plans to in the future” list the Unit on home

sharing websites to license the Unit to guests “on a nightly, weekly, monthly or annual basis,” id.

¶ 104, and lease the Unit on a monthly and annual basis, id. ¶¶ 105–06. Before the City amended

the Ordinance in 2020, Mogan made the Unit available for lease or license to more than one

person per 125 square feet of floor area of the Unit and “plans to [do so] in the future.” Id.

¶¶ 107, 266. Mogan also “made [the Unit] available for single-night rentals” before the City

amended the Ordinance in 2020, and he would do so again if the Ordinance did not prohibit it.

Id. ¶ 255. Additionally, Mogan “has in the past or plans to in the future act as a Short Term

Residential Rental Intermediary.” Id. ¶ 136.

Property Solutions Chicago Inc. manages the building that houses the Unit, the Roscoe

Village Lofts (“Roscoe”). Pamela Chianelli is the secretary and shareholder of Property

Solutions Chicago Inc. According to the Roscoe HOA’s Declarations (the “Declarations”), the

Roscoe HOA exercises its authority through its board of directors. The Declarations state that

“no Unit shall be leased, subleased or assigned for transient or hotel purposes, which are hereby

defined as being for a period of less than thirty (30) days where hotel services normally furnished

by a hotel (such as room service and maid service) are furnished.” Id. ¶ 24. Mogan “has not in

the past nor intends to in the future offer licensees, lessees, sublessees or assignees” of the Unit

services normally furnished by a hotel. Id. ¶ 35. In August 2016, the Roscoe HOA board of

directors and Chianelli sought inclusion of Roscoe on the City’s prohibited buildings list and the

City added the building to the list that same month. The Roscoe HOA did not hold a vote of its

members prior to placing the building on the prohibited buildings list. Chianelli has accused

Mogan of placing the Unit on Airbnb in violation of the Declarations and has threatened him

with the possibility of the City fining him or the Roscoe HOA board taking adverse action

against him for listing the Unit on Airbnb. At no time prior to Chianelli’s threats did she or a

Roscoe HOA board member inform Mogan that Roscoe was on the prohibited buildings list.

Instead, “Chianelli and the 2016 [Roscoe] Board waited until after the Shared Housing

Ordinance took effect to notify [Mogan] that the Roscoe Village Lofts at 1800 W. Roscoe St. had

been added to the City of Chicago’s Prohibited Building List.” Id. ¶ 97.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(1) challenges the Court’s subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). The standard of review for a Rule 12(b)(1) motion to

dismiss depends on whether the defendant raises a facial or factual challenge. Silha v. ACT, Inc.,

807 F.3d 169, 173 (7th Cir. 2015). If, as here, a defendant challenges the sufficiency of the

allegations regarding subject matter jurisdiction—a facial challenge—the Court “must accept all

well-pleaded factual allegations as true and draw all reasonable inferences” in the plaintiff’s

favor. Id. “[W]hen evaluating a facial challenge to subject matter jurisdiction,” the Court

employs the Twombly–Iqbal “plausibility” standard, “which is the same standard used to

evaluate facial challenges to claims under Rule 12(b)(6).” Id. at 174.

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not

its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990). In considering a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in

the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s

favor. Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). To survive a Rule

12(b)(6) motion, the complaint must assert a facially plausible claim and provide fair notice to

the defendant of the claim’s basis. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Adams v. City of Indianapolis, 742 F.3d 720, 728–29 (7th

Cir. 2014). A claim is facially plausible “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

ANALYSIS

I. Valid Case or Controversy

Defendants first argue that Mogan fails to allege a valid case or controversy as required

by Article III of the Constitution and therefore, the Court must dismiss the FAC for lack of

subject matter jurisdiction. See White v. Ill. State Police, 15 F.4th 801, 807 (7th Cir. 2021)

(“Article III limits the jurisdiction of federal courts to ‘Cases’ or ‘Controversies.’” (citation

omitted)). Defendants both argue that Mogan does not have standing and the City also argues

that Mogan’s Eighth Amendment claim is unripe. The Court will address each Defendant’s

arguments in turn.

A. Standing

To satisfy the case or controversy requirement, Mogan “must have a ‘personal stake’ in

the case—in other words, standing.” TransUnion LLC v. Ramirez, --- U.S. ----, 141 S. Ct. 2190,

2203 (2021) (citation omitted). To establish standing, Mogan “must have (1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely

to be redressed by a favorable judicial decision.’” Wadsworth v. Kross, Liberman & Stone, Inc.,

12 F.4th 665, 667 (7th Cir. 2021) (citation omitted). “At the pleading stage, the standing inquiry

asks whether the complaint ‘clearly . . . allege[s] facts demonstrating each element’ in the

doctrinal test.” Larkin v. Fin. Sys. of Green Bay, Inc., 982 F.3d 1060, 1064 (7th Cir. 2020)

(citation omitted).

1. The City

a. Injury in Fact

The City argues that Mogan fails to allege a sufficient injury in every claim except for his

takings and inverse condemnation claims because the City has not enforced the Ordinance

against him. However, “[i]t is well-established that ‘pre-enforcement challenges . . . are within

Article III.’” Ezell v. City of Chi., 651 F.3d 684, 695 (7th Cir. 2011) (alteration in original)

(citation omitted). To fulfill the injury in fact requirement in a pre-enforcement challenge, the

plaintiff must allege “an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and there exists a credible threat of

prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014). The

City argues that no actual or imminent threat of prosecution exists, while Mogan argues that he

has sufficiently alleged a credible threat of prosecution. “[T]he potential for prosecution must be

likely; if a prosecution is unlikely or not even ‘remotely possible,’ then the dispute is not

‘susceptible to resolution by a federal court.’” E.F. Transit, Inc. v. Cook, 878 F.3d 606, 610 (7th

Cir. 2018) (citation omitted). Thus, the risk of threatened enforcement must be substantial, not

“conjectural or hypothetical.” Susan B. Anthony List, 573 U.S. at 158 (citation omitted).

Mogan alleges that the City “employs code-enforcement officers who are tasked with

actively identifying and punishing property owners” who violate the Ordinance and that in six

months alone, the City collected over $100,000 in fines for violations of the Ordinance. Doc. 8

¶ 219. The City has specifically prohibited Mogan from listing the Unit on home sharing

websites by placing Roscoe on the prohibited buildings list. Therefore, it is likely that the City

would enforce the Ordinance against Mogan if he listed the Unit for rent on a home sharing

website, particularly given that it has enforced the Ordinance against other violators in the past.

See Dixon v. Raoul, No. 18-cv-08369, 2020 WL 2836766, at *3 (N.D. Ill. May 31, 2020)

(finding plaintiff sufficiently alleged a credible threat of prosecution in part because “State’s

Attorneys Offices in Illinois do prosecute a large number of child pornography offenses every

year”); CBS Outdoor, Inc. v. Vill. of Plainfield, 38 F. Supp. 3d 896, 904 (N.D. Ill. 2014) (finding

plaintiff sufficiently alleged plausible threat of enforcement by alleging ordinance specifically

prohibited it from undertaking the allegedly constitutionally-protected conduct). Therefore,

Mogan has sufficiently alleged a substantial threat of prosecution sufficient to meet the injury in

fact requirement.

The City also argues that Mogan’s single assertion that he “has in the past or plans to in

the future act as a Short Term Residential Rental Intermediary for compensation” is too abstract

to clearly allege he has standing to bring an unconstitutional license for revenue claim related to

the operational fees for short term residential intermediaries. In response, Mogan seeks leave to

amend the claim because he “recently applied to the City seeking approval as an intermediary

license[e] under the new requirements and has to still submit most of the required documents

required with the application.” Doc. 29 at 14. Therefore, the Court will dismiss Mogan’s

unconstitutional license for revenue claim without prejudice. However, the Court encourages

Mogan to carefully consider each of the City’s arguments for dismissal of the claim and the

Court’s opinion in its entirety, particularly regarding the ripeness of his Eighth Amendment

claim, and to address any potential pleading deficiencies if he chooses to assert the

unconstitutional license claim in a second amended complaint.

b. Fairly Traceable to the City

To sufficiently plead an injury that is fairly traceable to the alleged conduct of the City,

Mogan “must allege facts showing a ‘causal connection between the injury and the conduct

complained of.’” J.B. v. Woodard, 997 F.3d 714, 720 (7th Cir. 2021) (citation omitted). The

City argues that the Roscoe HOA’s independent decision to add the building to the prohibited

buildings list is “the underlying causal reason for” Mogan’s inability to rent the Unit on home

sharing websites, not any alleged action by the City. Doc. 28 at 10. Mogan responds by arguing

that a sufficient causal connection exists because the FAC alleges that the City placed Roscoe on

the prohibited buildings list. The Court agrees. The Ordinance creates the prohibited buildings

list, provides the process by which a homeowners’ association may add a building to the list, and

dictates the consequences of being on the list. Moreover, Mogan alleges that but for the

Ordinance, he would rent the Unit on home sharing websites. See, e.g., Doc. 8 ¶ 73 (“But for the

City of Chicago’s prohibition on short-term rentals and extremely high fines, Plaintiff would

conduct short-term rentals at unit #307.”); id. ¶ 255 (“[Mogan] wishes to make Unit #307

available for single-night rentals again, and he would do so if the 2020 Amendments did not

prohibit it.”).

The City points to Keep Chicago Livable v. City of Chicago, 913 F.3d 618 (7th Cir. 2019),

for support. However, unlike the plaintiffs in that case, Mogan has sufficiently pleaded that “the

Ordinance (and not some other factor) is preventing or hampering” his home sharing abilities in

Chicago. Compare id. at 623 (finding plaintiffs who affirmatively alleged they no longer used

Airbnb in Chicago lacked standing to challenge the Ordinance), with Doc. 8 ¶ 104 (alleging Mogan

“has in the past or plans to in the future” list the Unit on home sharing websites); id. ¶ 255

(“[Mogan] wishes to make Unit #307 available for single-night rentals again, and he would do so

if the 2020 Amendments did not prohibit it.”). Accordingly, Mogan’s alleged injuries are “fairly

traceable” to the Ordinance and therefore to the City. See Six Star Holdings, LLC v. City of

Milwaukee, 821 F.3d 795, 803 (7th Cir. 2016) (finding constitutional claims against ordinances

were fairly traceable to the city where plaintiff alleged that “but for the ordinances, it would have

engaged in protected speech”).

c. Redressable by a Favorable Decision against the City

The City argues that a favorable decision by the Court against it would not redress

Mogan’s claims because even if the Court invalidated the Ordinance, the Declarations and the

Roscoe HOA’s decision to prohibit short term rentals in the building would still prohibit Mogan

from renting his Unit on home sharing websites. Mogan responds by arguing that the

Declarations allow him to rent the Unit on a short-term basis and it is instead the City’s actions

that prohibit him from doing so. “To determine whether an injury is redressable, a court will

consider the relationship between ‘the judicial relief requested’ and the ‘injury’ suffered.”

California v. Texas, --- U.S. ----, 141 S. Ct. 2104, 2115 (2021) (citation omitted).

Mogan requests various declaratory, injunctive, and compensatory relief as a result of his

inability to rent the Unit on home sharing websites, including declaratory judgments deeming the

Ordinance unconstitutional and prohibiting its enforcement. According to the FAC, the

Declarations prohibit leasing the Unit “for a period of less than thirty (30) days where hotel

services normally furnished by a hotel (such as room service and maid service) are furnished.”

Doc. 8 ¶ 24. However, Mogan alleges that he does not intend to offer services normally

furnished by a hotel in the Unit. Therefore, based on the allegations in the FAC, the Declarations

do not prohibit Mogan from renting the Unit on home sharing websites. To the contrary, the

FAC alleges that the Ordinance (through Roscoe’s presence on the prohibited buildings list)

prohibits him from doing so and thus, invalidating the Ordinance (which includes the prohibited

buildings list) and prohibiting its enforcement would redress Mogan’s alleged injuries. See, e.g.,

OpenPittsburgh.Org v. Voye, No. 16-cv-01075, 2021 WL 4429638, at *12 (W.D. Penn. Sept. 27,

2021) (finding complaint sufficiently alleged redressability because plaintiffs alleged that

statutes infringed on their rights and the requested injunctive and declaratory relief prohibiting

enforcement of the statutes would redress that injury). Because the Ordinance caused Mogan’s

injuries and the requested relief against the City would compensate those injuries, a favorable

decision by the Court against the City would redress Mogan’s claims.

2. The Roscoe HOA

The Roscoe HOA argues that Mogan fails to satisfy the case or controversy requirement

in his request for a declaratory judgment against it because his alleged injury is conjectural or

hypothetical. Mogan seeks a declaratory judgment that he is “entitled to” and that the Roscoe

HOA has a “duty to allow” him to rent the Unit on home sharing websites. Doc. 8 ¶ 146. To

establish injury in fact, Mogan must allege that he “suffered ‘an invasion of a legally protected

interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or

hypothetical.’” Prosser v. Becerra, 2 F.4th 708, 713 (7th Cir. 2021) (citation omitted).

Specifically, the Roscoe HOA argues that because Mogan does not sufficiently allege that it has

denied him the ability to rent the Unit or that Roscoe’s inclusion on the prohibited buildings list

has precluded him from renting the Unit, his injuries are conjectural or hypothetical. In

response, Mogan argues that the FAC alleges he has in the past or plans to in the future rent the

Unit on home sharing websites and because of Roscoe’s presence on the prohibited buildings

list, he is in immediate danger of sustaining a direct injury if he does so. Moreover, Mogan

argues that Chianelli has threatened him in the past with fines from the City and adverse action

from the Roscoe HOA board, so the harm is not hypothetical. The Court agrees.

Mogan alleges that he “has in the past or plans to in the future” rent the Unit on home

sharing websites, Doc. 8 ¶¶ 104–06, that the Roscoe HOA sought inclusion of Roscoe on the

prohibited buildings list, and that Chianelli has threatened him with adverse action from the

Roscoe HOA board for listing the Unit on Airbnb. Therefore, suffering consequences from

listing the Unit on home sharing websites is not merely conjectural or hypothetical. Mogan has

sufficiently alleged a concrete, actual, and imminent injury. See Cassell v. Snyders, 458 F. Supp.

3d 981, 992 (N.D. Ill. 2020) (finding plaintiffs had sufficiently alleged an injury in fact where

they alleged that the county public health department had threatened them with a closure order if

they did not follow the governor’s executive order). The Court thus denies the Roscoe HOA’s

motion to dismiss.3

B. Ripeness

The City also argues that Mogan’s Eighth Amendment excessive fines claim is unripe

because Mogan fails to allege that the City has imposed a fine or that a fine is immediately

impending and therefore, judicial review is not possible. In response, Mogan asserts that the

claim is ripe because “the City has taken a positive step to punish Plaintiff by placing Unit #307

3 The Roscoe HOA also argues that the FAC does not comply with Federal Rule of Civil Procedure

8(a)(2)’s requirement to “contain a short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2),

because “the FAC is replete with many allegations that relate, in no manner, to the declaratory judgment

being sought by Plaintiff,” Doc. 24-1 at 2. However, the FAC contains many allegations unrelated to the

declaratory judgment Mogan seeks because it brings multiple related constitutional claims against the

City. Therefore, the Court declines to dismiss the FAC under Rule 8(a)(2). See Harper v. Cent. Wire,

Inc., No. 19 C 50287, 2020 WL 11422783, at *3 (N.D. Ill. Sept. 17, 2020) (“While the complaint is

unduly long and contains numerous unnecessary allegations, it does state a claim and the case should

proceed on the merits.”).

on the prohibited buildings list.” Doc. 29 at 38. For a claim to be ripe, it cannot be “premised on

uncertain or contingent events.” Church of Our Lord & Savior Jesus Christ v. City of Markham,

913 F.3d 670, 676 (7th Cir. 2019); see Lehn v. Holmes, 364 F.3d 862, 867 (7th Cir. 2004)

(“Ripeness doctrine is based on the ‘central perception . . . that courts should not render

decisions absent a genuine need to resolve a real dispute.’” (alteration in original) (citation

omitted)). In evaluating a claim for ripeness, courts consider “both the fitness of the issues for

judicial decision and the hardship to the parties of withholding court consideration.” Sweeney v.

Raoul, 990 F.3d 555, 560 (7th Cir. 2021) (citation omitted). “Plain and simple, ripeness is

‘peculiarly a question of timing.’” Id. (citation omitted).

“[U]nder the Eighth Amendment, a punitive fine ‘must bear some relationship to the

gravity of the offense it is designed to punish.’ Thus, a fine ‘violates the Excessive Fines clause

if it is grossly disproportional to the gravity of a defendant’s offense.’” United States v. Davis,

859 F.3d 429, 435 (7th Cir. 2017) (citations omitted). To determine whether the fines imposed

by the Ordinance are excessive under the Eighth Amendment, the Court must consider: “(1) the

essence of the crime and its relation to other criminal activity; (2) whether the defendant fit into

the class of persons for whom the statute was principally designed; (3) the maximum sentence

and fine that could have been imposed; and (4) the nature of the harm caused by the defendant’s

conduct.” United States v. Malewicka, 664 F.3d 1099, 1104 (7th Cir. 2011).

Though a sufficient credible threat of enforcement exists to confer standing, the fine

Mogan faces if the City enforces the Ordinance against him is uncertain. Those who violate the

Ordinance are subject to varying fines per day that the violation continues. See MCC §§ 4-6-

300(h)(4), (11); 4-6-300(k)(1); 4-14-050(i); 4-14-060(g); 4-14-090(a). The Ordinance sets forth

different fines for different violations, some of which include a discretionary range. The

Ordinance also allows an offender to contest the violation and gives the offender two weeks to

cure the violation before the City begins imposing fines. Therefore, without a fine immediately

impending against Mogan, any decision that the Court could make at this time regarding the

constitutionality of fines the City could possibly impose on Mogan would be “premised on

uncertain or contingent events.” Church of Our Lord, 913 F.3d at 676. Accordingly, Mogan’s

excessive fines claim is not fit for judicial resolution at this time. See United States v. Blackman,

746 F.3d 137, 144 (4th Cir. 2014) (“Where no final forfeiture order or judgment has been

entered, ruling on [an excessive-fines challenge] would be premature.”); United States v. Paul

Revere Transp., LLC, 608 F. Supp. 2d 175, 177 (D. Mass. 2009) (“Without the facts of a

particular imposition or fine, the Court cannot decide whether a specific fine will be so excessive

as to violate the Eighth Amendment.”).

Mogan argues that he would face a substantial hardship if the Court found the claim

unripe because that would force him to choose between foregoing lawful activity and risking

substantial legal sanctions. However, given that the Ordinance allows an offender to contest and

cure violations after receiving notice of them and before it imposes fines, the Court does not find

that the risk of legal sanctions under the Ordinance constitutes a substantial hardship. See Ohio

Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 734 (1998) (finding that plaintiff “will have

ample opportunity later to bring its legal challenge at a time when harm is more imminent and

more certain” and therefore withholding consideration of the claim would not constitute

significant hardship); cf. Pittman v. Cole, 267 F.3d 1269, 1280 (11th Cir. 2001) (“[I]f a party is

to suffer an ‘immediate and direct impact’ from a challenged policy, a case is more likely to be

considered ripe.” (citation omitted)). Therefore, the Court dismisses Mogan’s Eighth

Amendment excessive fines claim without prejudice as unripe. See Cheffer v. Reno, 55 F.3d

1517, 1524 (11th Cir. 1995) (affirming dismissal of pre-enforcement Eighth Amendment

excessive fines claim as unripe because the challenged law provided courts discretion to

determine the amount of the fine and therefore the court could “only speculate as to whether the

future applications urged by appellants will come to pass”).

II. Statute of Limitations

The City next argues that the Court should dismiss Mogan’s takings, inverse

condemnation, substantive due process, and free speech claims as untimely under the relevant

statutes of limitations. In response, Mogan asserts that the City can only invoke the statute of

limitations as an affirmative defense under Federal Rule of Civil Procedure 12(c), not through a

Rule 12(b)(6) motion to dismiss. However, courts can dismiss time-barred claims under Rule

12(b)(6) where “the allegations of the complaint itself set forth everything necessary to satisfy

the affirmative defense, such as when a complaint reveals that an action is untimely under the

governing statute of limitations.” United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005); see

also Burns v. United States, 762 F. App’x 338, 339 (7th Cir. 2019) (“Although the statute of

limitations is ordinarily an affirmative defense . . . a district court may dismiss under Rule

12(b)(6) something that is indisputably time-barred.” (alteration in original) (citation omitted)).

A. Takings and Substantive Due Process Claims

1. Accrual of Claims

The parties agree that Mogan’s Fifth Amendment takings claim and Fourteenth

Amendment substantive due process claim are both subject to a two-year statute of limitations.4

4 The FAC does not mention § 1983 and instead, generally alleges constitutional violations against the

City. However, § 1983 precludes direct claims under the Constitution. See Brown v. City of Chi., No. 19

C 2411, 2020 WL 489522, at *3 (N.D. Ill. Jan. 30, 2020) (“Section 1983 . . . ‘provides a cause of action

against municipalities and municipal employees acting in their official capacities, and the availability of

this statutory remedy precludes direct claims under the Constitution.’” (citation omitted)). Further,

See Smith v. City of Chi., 3 F.4th 332, 335 (7th Cir. 2021) (explaining that § 1983 claims are

governed by the forum state’s statute of limitations for personal injury claims which in Illinois is

two years). However, the parties disagree as to whether the FAC reveals that these claims

accrued more than two years prior to when Mogan filed this suit on January 25, 2021. Federal

law determines when a § 1983 claim begins to accrue, or in other words, when the limitations

period begins. Id. In determining when a § 1983 claim accrued, the Court must first identify the

injury, then it “must determine the date on which the plaintiff could have sued for that injury,”

which is “the date that the plaintiff knew or should have known that his constitutional rights had

been violated.” Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006) (citation omitted).

The injury Mogan alleges is his inability to rent the Unit on home sharing websites in

violation of his constitutional rights. Specifically, Mogan’s takings claim alleges that the City,

through the Ordinance, effected an unlawful taking of his property by prohibiting him from

renting the Unit on home sharing websites, and his substantive due process claim alleges that the

City’s decision to impinge on his property rights in the Unit by prohibiting him from renting it

on home sharing websites was arbitrary and irrational. These injuries result from Roscoe’s

presence on the prohibited buildings list, which is, effectively, what prohibits Mogan from

renting the Unit on home sharing websites. The City argues that Mogan’s claims challenge the

Ordinance itself, not the addition of Roscoe to the prohibited buildings list, and therefore his

claims accrued when the City enacted the Ordinance (June 2016) or at the latest when the

Ordinance went into effect (December 2016). The City points to cases in which federal courts

Mogan seems to acknowledge in his responsive pleading that he brings his Fifth Amendment takings

claim and Fourteenth Amendment substantive due process claim under § 1983. See Doc. 29 at 15–16

(citing in support a § 1983 case alleging a Fifth Amendment taking and acknowledging that “[a]

deprivation of constitutional rights is litigated pursuant to 42 U.S.C. § 1983” in connection with his

substantive due process claim). Therefore, the Court will apply the statute of limitations for § 1983

claims to Mogan’s Fifth Amendment takings claim and Fourteenth Amendment substantive due process

claim.

have found that facial challenges to land-use ordinances accrue when the government enacts the

ordinance or the ordinance goes into effect. See, e.g., Asociación de Suscripción Conjunta del

Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659 F.3d 42, 50–51 (1st Cir. 2011)

(“[I]t is clear that a facial takings challenge accrues at the time the offending statute or regulation

is enacted or becomes effective.”); Action Apartment Ass’n, Inc. v. Santa Monica Rent Control

Bd., 509 F.3d 1020, 1027 (9th Cir. 2007) (holding that facial substantive due process claim

against rent-control ordinance accrued on the date the challenged ordinance was enacted).

However, Mogan does not allege a facial takings or substantive due process claim. See

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 494 (1987) (defining facial

takings claim as “a claim that the mere enactment of a statute constitutes a taking”); Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (defining facial challenges as

those that allege “that the law is unconstitutional in all of its applications”). Instead, he alleges

that as-applied to him, the Ordinance constitutes a taking and violates his substantive due process

rights. See Keystone, 480 U.S. at 494 (defining an as-applied takings claim as one that claims

“the particular impact of government action on a specific piece of property requires the payment

of just compensation”); Surita v. Hyde, 665 F.3d 860, 875 (7th Cir. 2011) (“An as-applied

challenge is one that charges an act is unconstitutional as applied to a plaintiff’s specific

activities even though it may be capable of valid application to others.”). Although Mogan’s

takings and substantive due process claims are not precise, the Court interprets these claims as

challenging the Ordinance’s specific impact on the Unit, not the Ordinance itself. See, e.g., Doc.

8 ¶ 155 (“The Shared Housing Ordinance takes from Plaintiff the ability to license or lease Unit

#307 on AIRBNB, HomeAway and other home sharing websites.”); id. ¶ 169 (“The decision by

the City of Chicago to impinge on Plaintiff’s use and enjoyment of his property rights in unit

#307 was arbitrary and irrationally reached.”). Another key indicator is that, in these claims,

Mogan seeks compensatory damages, not a declaratory judgment that the Ordinance is

unconstitutional. See Asociación, 659 F.3d at 48 (noting “[t]he relief sought is also relevant to

whether the claim is a facial claim” and finding that a claim seeking declaration that an entire

law is unconstitutional was a facial takings claim). Moreover, in his responsive briefing, Mogan

asserts that he “does not allege his property was taken instantly when the Ordinance was

enacted.” Doc. 29 at 16.

Though the claims do not specifically mention the prohibited buildings list, considering

the FAC in its entirety, it is clear that Mogan’s alleged takings and substantive due process

claims result from Roscoe’s presence on the list, not the enactment of the Ordinance. The City

itself admits that “the only provisions of the Ordinance [Mogan] mentions as preventing him

from being able to list his unit on Airbnb are those provisions related to the Prohibited Buildings

List.” Doc. 28 at 15 n.4. Moreover, when enacted in June 2016, the Ordinance did not prohibit

Mogan from listing the Unit on home sharing websites. It was not until August 2016 when the

City added Roscoe to the prohibited buildings list that the Ordinance prohibited him from doing

so. Therefore, Mogan could have sued for his alleged Fifth and Fourteenth Amendment

violations in August 2016. Cf. Paramount Media Grp., Inc. v. Vill. of Bellwood, 929 F.3d 914,

920 (7th Cir. 2019) (holding that substantive due process claim regarding plaintiff’s inability to

build billboard on its property accrued when village enacted the ordinance that effectively

prohibited plaintiff from building billboard); CBS Outdoor, Inc. v. Vill. of Plainfield, 959 F.

Supp. 2d 1054, 1062 (N.D. Ill. 2013) (holding that facial challenge to ordinance that required

plaintiff to remove a specific billboard accrued when the village enacted the ordinance).

2. Discovery Rule

However, Mogan argues that because the FAC does not allege when he became aware of

the Unit’s placement on the prohibited buildings list, the discovery rule prevents the Court from

dismissing these claims as time-barred at this stage. The discovery rule is an equitable doctrine

that delays the accrual of claims “until such time as [the plaintiff] reasonably could have

discovered the defendant’s wrongdoing.” United States v. Spectrum Brands, Inc., 924 F.3d 337,

350 (7th Cir. 2019). “This is a fact-intensive inquiry, in which both the surrounding

circumstances and the claims plaintiff herself is trying to raise are critical.” Hileman v. Maze,

367 F.3d 694, 697 (7th Cir. 2004). The FAC does not allege the date Mogan learned that Roscoe

was on the prohibited buildings list; instead, it merely alleges that after the Ordinance took effect

in December 2016, Chianelli and the Roscoe HOA board of directors notified Mogan that

Roscoe was on the prohibited buildings list. Doc. 8 ¶ 97.

The City first argues that the relevant accrual date for Mogan’s takings and substantive

due process claims is when the City enacted the Ordinance, regardless of when Mogan

discovered its enactment. Cf. Action Apartment, 509 F.3d at 1027 (finding that plaintiff bringing

a facial substantive due process claim against rent control ordinance “should have known of its

injury on the date of the ordinance’s enactment”). However, as previously discussed, the correct

accrual date for these claims is when the City added Roscoe to the prohibited buildings list. The

City next argues that because the prohibited buildings list is publicly available online, Mogan

reasonably could have discovered that Roscoe was on the list when the City added the building

to the list in 2016 and therefore, the discovery rule should not delay accrual of his claims.

Although this may be true, “[a]s long as there is a conceivable set of facts, consistent with

the complaint, that would defeat a statute-of-limitations defense, questions of timeliness are left

for summary judgment (or ultimately trial), at which point the district court may determine

compliance with the statute of limitations based on a more complete factual record.” Sidney

Hillman Health Ctr. of Rochester v. Abbott Lab’ys, Inc., 782 F.3d 922, 928 (7th Cir. 2015).

Details regarding the applicability of the discovery rule are missing from the FAC. The Court is

unaware when, how, or why Mogan became aware that Roscoe is on the prohibited buildings list,

which would be helpful in assessing when he reasonably could have discovered that fact.

Therefore, the Court cannot find that the FAC reveals all the facts necessary to conclude that the

statute of limitations bars Mogan’s takings and substantive due process claims, making dismissal

of the claims as untimely premature at this stage in the litigation. See, e.g., CBS Outdoor, 959 F.

Supp. 2d at 1063 (finding dismissal of § 1983 claims as time-barred premature where complaint

did not allege when plaintiff became aware of the ordinance and instead only alleged that the

ordinance was enacted without notice to plaintiff); Enenstein v. Eagle Ins. Agency, Inc., No. 06 C

627, 2006 WL 1594019, at *3 (N.D. Ill. June 7, 2006) (denying motion to dismiss because

plaintiff did “not allege specific facts that affirmatively showed when he had notice of

Defendants’ alleged violations”).

B. Inverse Condemnation Claim

The City argues that Illinois’ one-year statute of limitations for claims against public

entities bars Mogan’s inverse condemnation claim brought under Illinois law. See 745 Ill.

Comp. Stat. 10/8-101(a) (“No civil action . . . may be commenced in any court against a local

entity or any of its employees for any injury unless it is commenced within one year from the

date that the injury was received or the cause of action accrued.”). Mogan asserts that his inverse

condemnation claim is subject to the five-year statute of limitations applicable to actions seeking

“to recover the possession of personal property or damages for the detention or conversion

thereof.” 735 Ill. Comp. Stat. 5/13-205. However, the one-year statute of limitations within 745

Ill. Comp. Stat. 10/8-101 applies to inverse condemnation claims against a local entity like the

City. See Madison v. City of Chi., 2017 IL App (1st) 160195, ¶ 29 (affirming dismissal of

inverse condemnation claim against the City as time-barred under one-year statute of limitations

within 745 Ill. Comp. Stat. 10/8-101); see also Williams v. Lampe, 399 F.3d 867, 870 (7th Cir.

2005) (“While the two-year period still applies to § 1983 claims against [Illinois local

governmental entity] defendants, the one-year period applies to state-law claims that are joined

with a § 1983 claim.” (citations omitted)).

Next, the parties make the same arguments regarding whether the discovery rule prohibits

the Court from dismissing the inverse condemnation claim as time-barred at this stage. Under

Illinois law, the discovery rule also delays the accrual of claims until “the party seeking relief

knows or reasonably should know of an injury and that it was wrongfully caused.” Ericson v.

Conagra Foods, Inc., No. 20-cv-07065, 2021 WL 4133524, at *3 (N.D. Ill. Sept. 10, 2021)

(citing Feltmeier v. Feltmeier, 207 Ill. 2d 263, 285 (2003)); see also Super Mix of Wis., Inc. v.

Nat. Gas Pipeline Co. of Am., LLC, 2020 IL App (2d) 190034, ¶ 46 (“[A]ny inverse

condemnation claim accrued when the owner of the property knew or reasonably should have

known of the injury and that the injury was wrongfully caused.”). Mogan’s inverse

condemnation claim mirrors his Fifth Amendment takings claim. As explained above, because it

is unclear from the FAC when Mogan reasonably should have known that the City added Roscoe

to the prohibited buildings list, it is too early to make this determination. Therefore, the Court

will not dismiss Mogan’s inverse condemnation claim as untimely.

C. Free Speech Claims

Finally, the City argues that Mogan’s free speech claims are also untimely under the

applicable two-year statute of limitations for § 1983 claims. In response, Mogan argues that his

free speech claims are facial challenges5 to the Ordinance and therefore, they are not subject to a

statute of limitations defense. No federal circuit “has resolved the issue of whether the statute of

limitations for a § 1983 claim can bar a facial challenge to legislation brought under the First

Amendment.” Dean v. Town of Hempstead, 527 F. Supp. 3d 347, 441 (E.D.N.Y. 2021)

(collecting cases). However, the courts that have considered the issue have found that “the

statute of limitations for section 1983 claims does not apply to facial First Amendment

challenges” so long as the ordinance remains in effect. Id. at 442; see, e.g., Lavey v. City of Two

Rivers, 994 F. Supp. 1019, 1023 (E.D. Wis. 1998) (“[I]t is doubtful that an ordinance facially

offensive to the First Amendment can be insulated from challenge by a statutory limitations

period.” (citation omitted)). The City does not provide a persuasive reason for the Court to find

otherwise. Therefore, the Court will not dismiss Mogan’s facial challenges to the Ordinance on

free speech grounds as untimely. See Peterson v. Vill. of Downers Grove, 103 F. Supp. 3d 918,

924 (N.D. Ill. 2015) (finding that statute of limitations did not bar facial challenge to ordinance

on First Amendment grounds because the claim alleged an ongoing harm).

III. Takings (Count II) and Inverse Condemnation (Count III) Claims

Next, the City argues that the Court should dismiss Mogan’s takings and inverse

condemnation claims because he fails to sufficiently allege them. The Fifth Amendment’s

takings clause (applicable against the states through the Fourteenth Amendment) provides that

5 Although it is somewhat unclear whether Mogan’s free speech claims also allege as-applied challenges,

because Mogan classifies them as facial challenges, the Court will treat them as such. See Six Star

Holdings, 821 F.3d at 803 (“[A] court may construe a challenge as applied or facially, as appropriate.”).

private property shall not “be taken for public use, without just compensation.” U.S. Const.

amend. V. Similarly, the Illinois constitution provides that “[p]rivate property shall not be taken

or damaged for public use without just compensation as provided by law.” Ill. Const. 1970, art.

I, § 15 (emphasis added). “Pursuant to this provision [of the Illinois constitution], when a

governmental defendant takes or damages private property for public use without a

condemnation proceeding, the property owner may sue the defendant, in what is known as an

inverse condemnation suit, to recover just compensation for the property that has been taken or

damaged.” Berry v. City of Chi., 2020 IL 124999, ¶ 40 (emphasis added). Since Mogan alleges

a taking of his property, not damage to it, the claims follow the same analysis and thus, the Court

will consider the claims together as the parties did. See Hampton v. Metro. Water Reclamation

Dist. of Greater Chi., 2016 IL 119861, ¶¶ 13, 16 (holding that where a plaintiff alleges a taking

of his property under the Illinois constitution, as opposed to damage to his property, courts may

use the same framework as a Fifth Amendment takings claim to analyze the claim).

To state a takings claim, what the plaintiff alleges has been taken for public use must “be

considered property for the purposes of the Takings Clause of the Fifth Amendment.”

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984). According to the City, Mogan alleges

that the City took his ability to rent the Unit on home sharing websites and that such an ability is

not a protected property interest. However, the City’s view is too narrow. Considering the

claims in their entirety, Mogan alleges that the Ordinance restricts the use of his property or

prevents him from making a particular use of his property without just compensation, which can

constitute a regulatory takings claim. See Murr v. Wisconsin, --- U.S. ----, 137 S. Ct. 1933, 1943

(2017) (noting that “when a regulation impedes the use of property without depriving the owner

of all economically beneficial use, a taking still may be found”). At issue then, is whether

Mogan sufficiently alleges that the Ordinance constitutes a regulatory taking.6 A regulatory

taking is “a restriction on the use of property that [goes] ‘too far.’” Horne v. Dep’t of Agric., 576

U.S. 350, 360 (2015) (quoting Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). In

determining whether a regulatory taking has occurred, the Court considers “[1] the economic

impact of the regulation, [2] its interference with reasonable investment-backed expectations,

and [3] the character of the government action.” Id.

The City first argues that the FAC alleges that the Ordinance causes minimal economic

impact to the Unit because Mogan admittedly retains many economically viable uses of the Unit.

In examining this factor, the Court must “compare the value that has been taken from the

property with the value that remains in the property.” Murr, 137 S. Ct. at 1943. The FAC

alleges that the Ordinance “does not necessarily deprive [Mogan] of all economically viable use

of his unit (which can still be enjoyed as a residence, rented long-term or sold),” but it does take

away his ability to rent the Unit on home sharing websites. Doc. 8 ¶ 155. However, the FAC

fails to allege the impact that his inability to rent the Unit on home sharing websites has on the

overall value of the Unit. The FAC alleges that the Ordinance has “diminished the fair market

value” of the Unit, id. ¶ 153, but “mere diminution in the value of property, however serious, is

insufficient to demonstrate a taking.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers

Pension Tr. for S. Cal., 508 U.S. 602, 645 (1993). If anything, the FAC alleges that renting the

Unit on home sharing websites provides little value. See Doc. 8 ¶ 37 (alleging Mogan “makes a

little extra income” from home sharing).

6 Mogan asserts that his takings claim is a regulatory takings claim, see Doc. 29 at 19, expressly alleges

that the Ordinance does not deprive him of all economically beneficial use of the Unit, Doc. 8 ¶ 155, and

does not allege that the Ordinance imposes a permanent physical invasion of the Unit. Thus, the Court

need only analyze whether the Ordinance constitutes a regulatory taking.

Thus, based on the allegations in the FAC, the Court finds it implausible that the value

remaining in the Unit is substantially less than the value of renting the Unit on home sharing

websites. In other words, based on the allegations in the FAC, it is plausible that prohibiting

Mogan from renting the Unit on home sharing websites takes away only a small portion of the

value of the property, given that he can still rent the Unit through any other avenue, live in the

Unit, or sell it. Therefore, Mogan has not sufficiently alleged an economic impact substantial

enough to constitute a taking. See, e.g., Home Builders Ass’n of Greater Chi. v. City of Chi., 213

F. Supp. 3d 1019, 1029–30 (N.D. Ill. 2016) (finding plaintiff failed to allege a sufficient

economic impact of a regulation where it merely alleged that the regulation “will have some

impact on the property value”); Capodilupo v. S. Shore Vocational Tech. High Sch., No. 18-CV-

11080, 2018 WL 6199573, at *3 (D. Mass. Nov. 28, 2018) (“Because the alleged diminution in

value of Mr. Capodilupo’s property may not itself constitute a taking, Mr. Capodilupo has failed

to allege sufficient facts to plausibly plead a claim for relief.”).

The City next argues that Mogan’s allegations regarding the Ordinance’s interference

with his reasonable investment-backed expectations are conclusory. Mogan responds by

pointing to five paragraphs in the FAC that he claims sufficiently allege he is incapable of

producing a reasonable return on his investment in the Unit. See Doc. 8 ¶ 150–52, 163–64.

However, these five paragraphs do not plausibly allege that the Ordinance interfered with

Mogan’s investment expectations for renting the Unit on home sharing websites; instead, they

merely allege that Mogan “took specific steps toward the home sharing of his Unit #307,” id.

¶ 150, and the Ordinance “frustrated” his abilities to do so, id. ¶ 151. Elsewhere, the FAC

alleges that Mogan “expended thousands of dollars to furnish [the Unit] . . . to generate licensing

and leasing revenue and shift (or ‘share’) some of the burden of the cost of ownership of

Plaintiff’s Unit #307 to lessees and licensees.” See id. ¶ 103. However, this allegation is not

specific to renting the Unit on home sharing websites and as previously stated, the Ordinance

does not interfere with Mogan’s ability to lease or license the Unit through other avenues and

therefore does not significantly interfere with this investment. See Goodpaster v. City of

Indianapolis, 736 F.3d 1060, 1074 (7th Cir. 2013) (finding that “[w]hile the smoking ban may

interfere with some reasonable investment-based expectations, it does not do so to a degree

significant enough to find a taking”); Daugherty Speedway, Inc. v. Freeland, 520 F. Supp. 3d

1070, 1076–77 (N.D. Ind. 2021) (finding plaintiff failed to sufficiently allege regulatory taking

where the complaint failed to allege the profits lost as a result of the regulation and where the

complaint plausibly alleged “a minimal interference with distinct investment-backed

expectations”).

Finally, as to the character of the government action, the City contends that the Ordinance

is merely a regulation that “adjust[s] the benefits and burdens of economic life to promote the

common good.” Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978). The Court

agrees—the Ordinance does not physically invade property but instead merely regulates the

home sharing industry with an intent to promote “the health, safety, morals, or general welfare”

of the City’s residential neighborhoods. Id. at 125. “Such character weighs heavily against

finding a taking.” Goodpaster, 736 F.3d at 1074–75. Mogan argues that given the ad-hoc nature

of the claim, the Court should consider his regulatory takings claims at a later stage with more

developed facts. However, because Mogan has failed to sufficiently allege any of the three

factors required to bring a regulatory takings claim, the Court dismisses his Fifth Amendment

takings claim and Illinois inverse condemnation claim without prejudice. See Daugherty

Speedway, 520 F. Supp. 3d at 1078 (dismissing Fifth Amendment takings claim for failure to

state a claim where each factor “overwhelmingly supports Defendants”); Dyson v. City of

Calumet City, 306 F. Supp. 3d 1028, 1046 (N.D. Ill. 2018) (dismissing Fifth Amendment takings

claim for failure to state a claim where the complaint failed to “plead enough information to

evaluate” two of the factors).

IV. First Amendment Claims (Counts V, VI, VII, XI)

Mogan brings four claims alleging that the Ordinance violates the First Amendment:

three free speech claims and one freedom of assembly claim. Count V alleges that the Ordinance

is subject to strict scrutiny and is not narrowly tailored to serve any legitimate government

purpose; Count VI alleges it restricts speech on the internet without leaving open ample

alternative channels of communication; Count VII alleges it is a content-based restriction on

speech because it targets online home sharing activities; and Count XI alleges it restricts one’s

ability to peaceably assemble. The free speech claims seem to focus on the Ordinance’s

regulation of listings, or advertisements, on home sharing websites, while the freedom of

assembly claim focuses on the Ordinance’s maximum occupancy provisions. The City argues

that the Court should dismiss these claims as a matter of law because the Ordinance regulates

business activity and therefore does not implicate the rights of free speech or assembly protected

by the First Amendment.

“[R]estrictions on protected expression are distinct from restrictions on economic activity

or, more generally, on nonexpressive conduct.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567

(2011). “[T]he First Amendment does not prevent restrictions directed at commerce or conduct

from imposing incidental burdens on speech.” Id.; see also Rumsfeld v. F. for Acad. &

Institutional Rts., Inc., 547 U.S. 47, 60 (2006) (finding statute did not violate First Amendment

because it affected what law schools “must do . . . not what they may or may not say”). The First

Amendment protects speech and conduct but extends “only to conduct that is inherently

expressive.” Rumsfeld, 547 U.S. at 66; see also id. (“If combining speech and conduct were

enough to create expressive conduct, a regulated party could always transform conduct into

‘speech’ simply by talking about it.”).

The Ordinance prohibits vacation rentals and shared housing units that are ineligible for

registration/licensure with the City, including those on the prohibited buildings list, from

advertising on home sharing websites. MCC §§ 4-6-300(h)(1), (4); 4-13-230(a), (g); 4-14-

020(a); 4-14-030(a), (c). The maximum occupancy provisions of the Ordinance set the

maximum occupancy of vacation rentals and shared housing units to “one person per 125 feet of

floor area” of the unit. MCC §§ 4-6-300(g)(5), 4-14-050(b). Mogan alleges that the Ordinance

“is intended to regulate home sharing,” Doc. 8 ¶ 206, but “has the effect of targeting expressive

activity,” id. ¶ 188, seemingly because advertising on home sharing websites “permits the

intimate one-on-one communication” between hosts and guests, id. ¶ 192, and allows Mogan “to

convey the message that his brand of shared housing is superior to the product offered by the

hotel industry,” id. ¶ 201.7 However, regardless of whether the Ordinance incidentally burdens

expressive conduct, it is “directed at commerce or conduct,” Sorrell, 564 U.S. at 567, and does

not “singl[e] out those engaged in expressive activity,” Arcara v. Cloud Books, Inc., 478 U.S.

697, 707 (1986).

The Ordinance regulates the rental and advertisement of homes rented for “transient

occupancy by guests,” MCC §§ 4-6-300(a); 4-14-010, which is not inherently expressive conduct

or speech, see There to Care, Inc. v. Comm’r of Ind. Dep’t of Revenue, 19 F.3d 1165, 1167 (7th

Cir. 1994) (“[T]he business of leasing property is not speech and may be regulated by zoning

7 Mogan fails to make any allegations or arguments as to how renting a vacation rental or shared housing

unit to more than “one person per 125 feet of floor area” of the unit could constitute expressive conduct.

MCC §§ 4-6-300(g)(5), 4-14-050(b).

laws and the like, even if the lessee wants to put on a play or open a newsstand.”). Indeed, as

Mogan alleges, “[t]he whole idea of the [home] sharing economy can be described as

collaborative consumption – owners of property rent out something they are not using. The

obvious benefits are that a guest can find a place to stay in Chicago that may otherwise be

booked up – or may not have suitable accommodations at all – while the host like Plaintiff makes

a little extra income.” Doc. 8 ¶ 37. Therefore, because the Ordinance is directed at regulating

economic activity, it does not implicate the First Amendment. See Keep Chicago Livable v. City

of Chi., No. 16 C 10371, 2017 WL 955421, at *7 (N.D. Ill. Mar. 13, 2017) (finding the

Ordinance does not implicate the First Amendment because it “does not target speech but rather

the business practices associated with home sharing, only incidentally burdening speech if at

all”), vacated and remanded on other grounds, 913 F.3d 618 (7th Cir. 2019); King v. City of

Marion, No. 19-cv-00207, 2020 WL 534173, at *13 (E.D. Ark. Feb. 3, 2020) (finding the

conduct prohibited by an ordinance regulating short-term rentals “likely does not have a

significant expressive element as to draw First Amendment protection”).

Mogan also alleges that by only regulating internet-based home sharing, the Ordinance

“falls outside the purview of a pure business regulation because it targets specific speakers like

Plaintiff and . . . the idea and message expressed.” Doc. 8 ¶ 197. However, the Ordinance does

not place different restrictions on advertisements depending on the speaker (the host), see

Sorrell, 564 U.S. at 563–64 (invalidating statute that “disfavor[ed] specific speakers, namely

pharmaceutical manufacturers,” by restricting the “sale, disclosure, and use of prescriber-

identifying information”), or on their content, see Reed v. Town of Gilbert, 576 U.S. 155, 164

(2015) (invalidating municipal code that imposed different restrictions on outdoor signs based on

the message of the signs). Instead, the Ordinance merely regulates the internet-based home

sharing industry by prohibiting all units deemed ineligible for rental from advertising on home

sharing platforms. In other words, it targets inherently commercial activity (renting a home for a

fee) and prohibits the advertising of unlawful activity. See HomeAway.com, Inc. v. City of Santa

Monica, 918 F.3d 676, 685 (9th Cir. 2019) (finding ordinance prohibiting listing of unlicensed

short-term housing rentals regulated “nonspeech, nonexpressive conduct” and therefore did not

implicate the First Amendment); Airbnb, Inc. v. City & Cnty. of S.F., 217 F. Supp. 3d 1066, 1076

(N.D. Cal. 2016) (finding that home sharing ordinance regulated “business transaction[s] to

secure a rental, not conduct with a significant expressive element” and therefore did not

implicate First Amendment). As a result, the Court finds that the Ordinance does not implicate

the First Amendment and so dismisses Mogan’s First Amendment claims with prejudice.8 See,

e.g., Thinh Tran v. Dep’t of Plan. for Cnty. of Maui, No. 19-00654, 2020 WL 3146584, at *8–9

(D. Haw. June 12, 2020) (dismissing homeowner’s claim that short-term rental ordinance that

imposed restrictions on advertisements violated First Amendment because the ordinance

“regulates commercial conduct, not speech” and therefore did not implicate the First

Amendment).

V. Equal Protection Claim (Count X)

In order to sufficiently state a class of one equal protection claim, Mogan must allege that

the Ordinance intentionally treats him differently from a similarly situated individual and that no

rational basis exists for the differential treatment. Fares Pawn, LLC v. Ind. Dep’t of Fin. Insts.,

755 F.3d 839, 844–45 (7th Cir. 2014). The FAC alleges that the Ordinance arbitrarily treats

vacation rentals and shared housing units differently than hotels and bed-and-breakfasts by

8 In his response to the Roscoe HOA’s motion to dismiss, Mogan seeks leave to amend his First

Amendment claims to add the Roscoe HOA as a defendant on the grounds that they are state actors.

Because the Court dismisses these claims with prejudice, the Court denies this request.

prohibiting single-night rentals at vacation rentals and shared housing units but not at hotels and

bed-and-breakfasts. However, the City argues that Mogan’s equal protection claim fails because

rational bases exist for the differential treatment. In response, Mogan asserts that the differential

treatment is “the result solely of a vindictive campaign by the City,” Doc. 29 at 35, and therefore

it is “impossible [that it] relates to legitimate governmental objectives,” Esmail v. Macrane, 53

F.3d 176, 180 (7th Cir. 1995). However, the FAC cannot survive by merely alleging an

improper motive. Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir. 2015). At the

pleading stage, “[a]ll it takes to defeat [a class-of-one] claim is a conceivable rational basis for

the difference in treatment,” and plaintiffs may “plead themselves out of court if their complaint

reveals a potential rational basis for the actions.” Id. at 1121 (alterations in original) (citation

omitted).

That is precisely the case here. The FAC alleges that vacation rentals and shared housing

units operate in neighborhoods that hotels do not. See Doc. 8 ¶ 121 (home sharing websites

provide travelers “the chance to travel to Chicago neighborhoods they might have missed had

they stayed in a hotel”); id. ¶ 122 (home sharing websites “distribute economic impacts to

Chicago neighborhoods that have not traditionally benefitted from tourism spending”); id. (home

sharing websites allow visitors to “stay[] in and explor[e] new neighborhoods all around

Chicago”); id. ¶ 124 (home sharing websites “offer visitors a Chicago authentic, local

experiences in a home that hotels don’t have the power to replicate”); id. ¶ 127 (home sharing

websites allow travelers “to stay in neighborhoods all across Chicago many neighborhoods

which lack hotels”). Therefore, a potential rational basis for imposing a minimum stay on

vacation rentals and shared housing units is to protect the City’s “legitimate interest in local

neighborhood preservation, continuity, and stability.” Nordlinger v. Hahn, 505 U.S. 1, 12

(1992); see Murphy v. Walworth Cnty., 383 F. Supp. 3d 843, 851 (E.D. Wis. 2019) (finding a

short-term rental ordinance that imposed a minimum stay requirement passed rational basis

review because “[t]he Ordinance’s stated purpose—to protect the health, safety, and general

welfare of the public from seasonal over-occupancy—is an obvious and rational justification for

the requirements imposed”); Maum Meditation House of Truth v. Lake Cnty., 55 F. Supp. 3d

1081, 1089 (N.D. Ill. 2014) (“[Z]oning ordinances imposing restrictions on use and occupation

of private land, including distinguishing between residential and commercial and other uses,

satisfy the rational basis test.”).

Mogan argues that the City enacted the minimum stay provision of the Ordinance for

“improper purposes.” Doc. 29 at 37. But even if some animus toward Mogan or home sharing

motivated the City in part, his claim still fails because the Ordinance has a rational basis. See

Fares Pawn, 755 F.3d at 845 (“If we can come up with a rational basis for the challenged action,

that will be the end of the matter—animus or no.”). Therefore, because the FAC reveals a

potential rational basis for the Ordinance’s minimum stay provision, the Court dismisses

Mogan’s equal protection claim with prejudice.9 See D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d

681, 686 (7th Cir. 2013) (affirming dismissal of class-of-one claim where complaint revealed a

rational basis).

VI. Substantive Due Process Claim (Count IV)

Mogan brings a substantive due process claim alleging that the Ordinance arbitrarily and

irrationally impinges on his property rights in the Unit. The City argues that Mogan’s

substantive due process claim fails because several rational bases support the Ordinance. “[T]he

scope of substantive due process is very limited.” Campos v. Cook Cnty., 932 F.3d 972, 975 (7th

9 Because there is no conceivable basis for such a claim given that the Ordinance passes the rational basis

test, the Court dismisses Mogan’s equal protection claim with prejudice.

Cir. 2019) (alteration in original) (citation omitted). To claim that an ordinance that impacts the

use of one’s land interferes with his substantive rights, Mogan must “demonstrate either that the

ordinance infringes a fundamental liberty interest or that the ordinance is arbitrary and

unreasonable, having no substantial relation to the public health, safety, morals, or general

welfare.” Greater Chi. Combine & Ctr., Inc. v. City of Chi., 431 F. 3d 1065, 1071 (7th Cir.

2005) (citations omitted). “Substantive due process protects only the most egregious and

outrageous governmental action.” Campos, 932 F.3d at 975.

Initially, Mogan fails to allege that the Ordinance infringes on a fundamental right and

the Court cannot discern any fundamental right at stake. “‘[F]undamental’ in this setting is

reserved for deeply-rooted, sacrosanct rights such as ‘the right of a man and woman to marry,

and to bear and raise their children.’” Greater Chi. Combine, 431 F.3d at 1071 (citation

omitted). Mogan argues that the Ordinance infringes on his “fundamental property right to lease

and license Unit 307” because it deprives him of the right to exclusive use and enjoyment of the

Unit. Doc. 29 at 22. However, Mogan’s right to use and enjoy his property is not deeply-rooted

or sacrosanct. See United States v. 16.92 Acres of Land, 670 F.2d 1369, 1373 (7th Cir. 1982) (“It

is axiomatic that property rights are not absolute.”). Moreover, “[s]ubstantive due process is not

a blanket protection against unjustifiable interferences with property[,] [a]nd it does not confer

on federal courts a license to act as zoning boards of appeals.” Frey Corp. v. City of Peoria, 735

F.3d 505, 508 (7th Cir. 2013) (first alteration in original) (citation omitted). Therefore, Mogan’s

ability to rent the Unit on home sharing websites is not a fundamental right. See CBS Outdoor,

959 F. Supp. 2d at 1067 n.4 (denying argument that right “to maintain and enjoy [one’s]

property” is a fundamental right); Mann v. Calumet City, No. 08 CV 555, 2009 WL 395465, at

*6 (N.D. Ill. Feb. 17, 2009) (“The right to sell one’s property . . . is not a fundamental right for

purposes of the Fourteenth Amendment due process analysis.”).

Because Mogan has not sufficiently alleged that the Ordinance infringes on a

fundamental right, he must allege that the Ordinance is arbitrary and unreasonable to sustain his

claim, yet he fails to do this as well. As Mogan concedes, he “bears a very heavy burden” and

“is required to overcome a presumption that the [City’s] decision to prohibit short term rentals

was reasonable.” Doc. 29 at 23. “[G]overnmental action passes the rational basis test if a sound

reason may be hypothesized.” Greater Chi. Combine, 431 F.3d at 1071 (citation omitted).

Based on the allegations in the FAC, the Court can hypothesize many sound reasons as to why

the City chose to prohibit certain home sharing activities through the Ordinance—including

maintaining the quality of life in residential neighborhoods and mitigating the effects of home

sharing guests on full-time residents. See Nordlinger, 505 U.S. at 12 (noting “the State has a

legitimate interest in local neighborhood preservation, continuity, and stability”); Stone River

Lodge, LLC v. Vill. of N. Utica, No. 20 C 3590, 2020 WL 6717729, at *4 (N.D. Ill. Nov. 15,

2020) (finding ordinance regulating short-term rentals was rationally related to the village’s

interests in protecting “life-safety concerns, quality of neighborhood and related life concerns,

security concerns, fire safety concerns, and tax revenue concerns” and dismissing substantive

due process claim); Calvey v. Town Bd. of N. Elba, No. 20-cv-711, 2021 WL 1146283, at *12

(N.D.N.Y. Mar. 25, 2021) (finding complaint revealed that short-term rental ordinance “is

rationally related to the Defendants’ interest in planning how to use land in a way that balances

the interests of homeowners, renters, and short-term visitors” and dismissing substantive due

process claim); Nekrilov v. City of Jersey City, 528 F. Supp. 3d 252, 282 (D.N.J. 2021) (finding

ordinance that regulated home sharing and short-term rentals passed rational basis review

because “the City had legitimate interests in increasing the long-term housing supply and

reducing public nuisances”).

Mogan also argues that because “other provision[s] of the Constitution are at issue, and

there must be an inquiry as to the adequacy of state remedies,” the Court should not dismiss the

FAC at this stage. Doc. 29 at 23; see, e.g., LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d

937, 943 (7th Cir. 2010) (stating that substantive due process claims “involving only the

deprivation of a property interest are cognizable where the plaintiff shows ‘either the inadequacy

of state law remedies or an independent constitutional violation’” (citation omitted)). However,

regardless of whether other constitutional provisions are at issue or of the adequacy of the state

law remedies, because the Ordinance does not interfere with a fundamental right, it must only

“be rationally related to a legitimate government interest, or alternatively phrased . . . be neither

arbitrary nor irrational” to defeat a substantive due process challenge. See Lee v. City of Chi.,

330 F.3d 456, 467 (7th Cir. 2003).10 As explained, the FAC reveals that the Ordinance is

rationally related to “public health, safety, morals, or general welfare.” Greater Chi. Combine,

431 F.3d at 1071 (citation omitted). Therefore, the Court dismisses Mogan’s substantive due

10 Moreover, the Court has dismissed Mogan’s other alleged constitutional violations and the FAC

contains no allegations regarding the inadequacy of the state law remedies available for his alleged

substantive due process injuries. See Doc. 8 ¶ 229, 241 (stating in conclusory fashion that Mogan “has an

inadequate remedy at law” for his Eighth Amendment and license for revenue claims). Therefore, the

FAC also fails to sufficiently allege either an independent constitutional violation or that the state

remedies are inadequate. See LaBella Winnetka, 628 F.3d at 943 (affirming dismissal of substantive due

process claim alleging a deprivation of property interest where no other constitutional claims remained,

and the complaint contained only conclusory allegations regarding the adequacy of available state law

remedies); McCarthy v. Vill. of Barrington, No. 17 C 5594, 2018 WL 2305707, at *8 (N.D. Ill. May 21,

2018) (dismissing sua sponte substantive due process claim alleging that zoning ordinances

“‘substantially harmed’ the ‘use and enjoyment of [plaintiff’s] property’” on Rule 12(b)(6) motion

because the complaint “fail[ed] to allege any other independent constitutional violation on which to base

her substantive due process claim or any inadequacy of state remedies”).

process claim with prejudice.11 See, e.g., Mann, 2009 WL 395465, at *7 (dismissing substantive

due process claim regarding impact of ordinance on plaintiff’s ability to sell his property on

12(b)(6) motion because plaintiff failed to allege the ordinance implicated a fundamental right

and the ordinance “passe[d] the low threshold of rational basis review”); Jeron v. City of Chi.,

No. 15 C 8074, 2016 WL 1450073, at *5 (N.D. Ill. Apr. 13, 2016) (dismissing substantive due

process claim alleging ordinance deprived plaintiff of protected property interest where

complaint failed to allege the ordinance “was or is ‘arbitrary,’ ‘irrational,’ or not ‘rationally

related to a legitimate governmental interest’” (citation omitted)).

VII. Declaratory Judgment (Count I)

Finally, Count I of the FAC seeks a declaration that the City has a duty to allow Mogan

to rent the Unit on home sharing websites. The City argues that because all of Mogan’s

constitutional claims against the City fail, no remaining controversy between the parties exists

and therefore, the Court must dismiss Count I against the City. Mogan responds by asserting that

because the City added Roscoe to the prohibited buildings list, a controversy exists between

them. However, the Court has dismissed all of Mogan’s constitutional claims against the City,

including those alleging that the Ordinance arbitrarily and irrationally prohibits Mogan from

home sharing activities because of Roscoe’s presence on the prohibited buildings list.

Accordingly, no controversy remains between Mogan and the City. Thus, the Court lacks

jurisdiction over Count I against the City and dismisses it without prejudice. See White, 15 F.4th

at 807 (“Article III limits the jurisdiction of federal courts to ‘Cases’ or ‘Controversies.””

(citation omitted)); Deveraux v. City of Chi., 14 F.3d 328, 330 (7th Cir. 1994) (“[T]he

11 As with Mogan’s equal protection claim, any amendment would be futile because, given that the

Ordinance does not infringe on a fundamental right and does pass the rational basis test, no conceivable

basis exists for such a substantive due process claim.

Declaratory Judgment Act ‘expands the scope of available remedies’ and permits persons ‘to

seek a declaration of the constitutionality of the disputed government action.’ It is also true,

however, that courts may not exercise this discretionary power in the absence of an ‘actual

controversy’ between the parties.” (citations omitted)).

As for Mogan’s request for a declaratory judgment against the Roscoe HOA, the federal

Declaratory Judgment Act, 28 U.S.C. § 2201(a), does not provide the Court with an independent

basis of jurisdiction. Manley v. Law, 889 F.3d 885, 893 (7th Cir. 2018). And Mogan has not

alleged any such independent federal basis for his request for a declaratory judgment against the

Roscoe HOA, nor has he pleaded that diversity jurisdiction exists. Therefore, no basis for

original jurisdiction over the claim exists. And because the Court has dismissed all of Mogan’s

claims against the City, the Court finds it appropriate to decline to exercise supplemental

jurisdiction over the declaratory judgment claim against the Roscoe HOA. See 28 U.S.C.

§ 1367(c) (district court may decline to exercise supplemental jurisdiction over state law claims

when it has dismissed all claims over which it had original jurisdiction); Groce v. Eli Lilly & Co.,

193 F.3d 496, 501 (7th Cir. 1999) (“[I]t is the well-established law of this circuit that the usual

practice is to dismiss without prejudice state supplemental claims whenever all federal claims

have been dismissed prior to trial.”). Therefore, the Court also dismisses Count I against the

Roscoe HOA without prejudice for refiling in state court.

CONCLUSION

For the foregoing reasons, the Court grants the City’s [20] and the Roscoe HOA’s [24]

motions to dismiss. The Court dismisses without prejudice Mogan’s claim for a declaratory

judgment against the City and the Roscoe HOA (Count I), takings claim (Count II), inverse

condemnation claim (Count III), Eighth Amendment excessive fines claim (Count VIII), and

unconstitutional license for revenue claim (Count IX). The Court dismisses with prejudice

Mogan’s substantive due process claim (Count IV), First Amendment claims (Counts V, VI, VII,

and XI), and equal protection claim (Count X).

Dated: January 18, 2022 YR

SARA L. ELLIS

United States District Judge

40