Case: 1:18-cv-04289 Document #: 43 Filed: 10/15/18 Page 1 of 16 PageID #:517

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ELAINE JACOBSON, PAUL PITALIS, )

ROBERT QUANE, GEORGIA NUT COMPANY, )
and VILLAGE OF SKOKIE, an Illinois Municipal )
Corporation, )
)
Plaintiffs, )
)
vs. ) Case No. 18 cv 04289
)
CITY OF EVANSTON, an Illinois Municipal )
Corporation, STEPHEN HAGERTY, Individually, )
and as Mayor of Evanston, JUDY FISKE, )
Individually, PETER BRAITHWAITE, )
Individually, MELISSA WYNNE, Individually, )
DONALD WILSON, Individually, ROBIN RUE )
SIMMONS, Individually, THOMAS SUFFREDIN, )
Individually, ELEANOR REVELLE, Individually, )
ANN RAINEY, Individually, and CICELY )
FLEMING, Individually, )
)
Defendants. )

Defendants’ Reply in Support of Their Rule 12(b)(6) Motion to Dismiss Plaintiffs’

Amended Complaint

Skokie is not thirsty. Skokie’s citizens can, today, as they have for years, drink delicious

Lake Michigan water supplied by the City of Evanston. Skokie’s citizens can also bathe, flush

their lavatories, and wash their hands as Evanston continues to pump water to all three water

system locations demanded by Skokie -- even though Skokie won’t pay for those services. What

Skokie and its citizens cannot do is make out a claim concerning the deprivation of any

fundamental right or other federal claim. This dispute over the rate Skokie is to pay Evanston for

the water services provided by Evanston should be sent exactly where the State of Illinois

intended when it granted Skokie the statutory right to obtain Lake Michigan water from

Evanston: The Circuit Court of Cook County.

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Introduction

The Plaintiffs’ Response confirms that the major premise in Plaintiffs’ argument is that the

Plaintiffs have a fundamental right to water from the City of Evanston independent of the Illinois

statute granting that right and governing the relationship between supplier (Evanston) and

customer (Skokie) (it bears repeating that only Skokie is a possible customer of Evanston, not

any of the individual plaintiffs). However, Skokie does not (because it cannot) allege that

Evanston has shut-off its water supply. Nor does Skokie allege that Evanston has attempted to

extort them with ridiculous rates (as Skokie’s rate would still be 33% less than Evanston

residents pay for water). So, the constitutional right that Skokie is asserting is actually a right to

receive water from Evanston at a rate of Skokie’s choosing. Not one of the cases that Plaintiffs

cite suggest that such a constitutionally protected right exists.

Indeed, the appellate cases all hold there is no independent constitutionally protected right to

municipal water service (irrespective of the rate). So, in order for any of these claims to survive,

this Court would have to reject that precedent and recognize the existence of a new, positive,

constitutionally protected right in which Skokie not only gets to pick its water supplier (as

alternative sources like the City of Chicago exist), but also then gets to set the rate at which its

chosen water supplier must supply that water. This Court should not open those flood gates.

Even if this Court were willing to entertain the existence of such a right for hypothetical

purposes, it would not save the Amended Complaint because the Plaintiffs have not shown how

they have standing to bring these claims. They likewise failed to demonstrate why the individual

Defendants are not entitled to qualified immunity, and why this Court should not abstain from

ruling on a matter that: a) raises significant issues of state law and statutory construction; and b)

does so when there is previously-filed litigation over the same issues pending in state court.

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Argument

I. There is No Fundamental Right to Water Service From a Preferred Provider at

Preferred Rates.

Plaintiffs’ Response (Resp. Br. pp. 10-12) never distinguishes nor otherwise overcomes the

case law cited by the Defendants demonstrating that there is no fundamental constitutionally

protected right to municipal water service. As the Seventh Circuit made clear, the Constitution

does not create positive rights to municipal services. See Srail v. Vill. of Lisle, Ill., 588 F.3d 940

(7th Cir. 2009).

Instead, the Plaintiffs attempt to extrapolate from a prisoner case. Atkins v. City of Chi., 631

F.3d 823 (7th Cir. 2011). But neither that case nor any of the other cases discussing the right to

water (or utilities) are on point or involve one municipality contracting for service from another

municipality. Rather, Skokie’s cases all involve situations where an individual person is totally

cut off from a service, with no alternative access to it. This is what happened in Atkins, as well as

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978), Davis v. Weir, 328 F. Supp. 317

(N.D. Ga. 1971), and Lamb v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972).

Skokie most heavily relies upon Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1

(1978). But that case is fatal to the Amended Complaint! In Craft, the Supreme Court focused

on the deprivation of due process related to the termination of the utility service. Here, Evanston

never terminated the water service to Skokie (nor, thereby, Skokie’s customers) and, with respect

to the existing rate dispute, Evanston brought the suit in the Circuit Court of Cook County—

precisely the process due to Skokie under the Illinois statute establishing and regulating the

relationship between Evanston and Skokie as supplier and customer.

Again, there is no allegation that Plaintiffs are cut-off from water (nor could there be as

Skokie continues to receive water from Evanston today and—despite paying a reduced rate of its

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own choosing to Evanston—supplies and charges its own customers like the individual plaintiffs

at the same full price as before Skokie took a discount). Likewise, there is – and can be -- no

allegation that Evanston is capable of imposing some sort of H2O blockade. Nevertheless,

Skokie repeatedly implies that Evanston alone controls its entire access to water. Possible

alternative water sources for Skokie include the City of Chicago and at least one water agency,

both of which sell Lake Michigan water. And then there are wells. Thus, after all the chafe is

removed, Skokie is left with alleging that Evanston, its historical provider, is depriving Skokie of

a rate that Skokie likes. But if having a preferred water provider is not a constitutionally

protected right (Srail, supra), then neither is having a preferred water provider supply water at

preferred rates. Thus, not one plaintiff has been deprived of any recognized fundamental right.

Skokie’s right to receive water from Evanston is wholly a creature of Illinois statute and that

same statute allows Evanston to charge Skokie for the water and provides that the Circuit Court

of Cook County shall referee any dispute over the rate. With no constitutional violation, and with

a rational basis for the passage of Ordinance 95-0-17 (to receive adequate compensation for the

price of supplying water to Skokie), the Amended Complaint lacks any basis for being before

this Court and the parties should be sent back to the Circuit Court to hammer out the rate

dispute—all as Illinois intended.

II. Plaintiffs Have Failed to Show That They Have Standing.

A. Plaintiffs Have Not Shown that They Have Suffered Any Injury-in-Fact.

To establish standing, a plaintiff 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.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Plaintiffs

failed to show in their response brief where the Amended Complaint alleges that they suffered

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any injury-in-fact. Nowhere does their Complaint say that they have actually been harmed by

Ordinance 95-0-17. They do make this allegation in their response brief, stating “Evanston’s

imposition of the rate increase will be immediately passed onto the Skokie Individual Plaintiffs,”

and “Skokie has received calls from businesses seeking verification of the water rate increase as

they consider renewing expiring licenses.” Resp. Br. p. 10. But this Court cannot consider these

allegations made outside of the Complaint or its exhibits. See Fed. R. Civ. P. 12 (in a 12(b)(6)

motion a court may only consider allegations in the complaint or exhibits).

Without any allegations that they have been forced to pay a higher water rate, or suffered

any concrete injury, they have not alleged that they suffered an injury-in-fact, and do not have

standing to bring the claims in their Amended Complaint. See Spokeo, 136 S. Ct. at 1548

(“To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a

legally protected interest” that is ‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical’…. For an injury to be ‘particularized,’ it ‘must affect the plaintiff in

a personal and individual way.’”).

B. The Individual Plaintiffs Are Attempting to Assert Rights Belonging to Skokie.

The individual Plaintiffs do not have standing to bring their claims because they have

suffered no injury that is fairly traceable to Defendants. The individual Plaintiffs are customers

of Skokie, which sets the price that they pay for water. Any increase in this price is due to

Skokie’s decision to raise water rates, not Evanston’s.

In its response brief, Skokie claims that there is a close connection between the price that

Evanston charges for water and the amount that the individual Plaintiffs pay, noting that any

price increase will immediately be passed onto consumers. See Rsp. Br. p. 10. Nowhere in the

Amended Complaint is this close connection discussed, so this Court again cannot consider it.

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The individual Plaintiffs have not shown that they have been actually harmed by

Defendants. They are in fact attempting to assert rights belonging to Skokie, who is the party

who the Ordinance requires to pay more for water and therefore the only party who has any

plausible claim that it suffered harm. As such, they stand in violation of Federal Rule of Civil

Procedure 17, which requires all causes of action to be brought by the real party interest, i.e. the

party who holds the rights that are being enforced. See Fed. R. Civ. P. 17 (“An action must be

prosecuted in the name of the real party in interest.”); Rawoof v. Texor Petroleum Co., 521 F.3d

750, 757 (7th Cir. 2008) (the complaint must “be brought in the name of the party to whom that

claim ‘belongs’ or the party who ‘according to the governing substantive law, is entitled to

enforce the right.’”).

Granting the individual Plaintiffs standing to sue would enormously expand the standing

doctrine, providing anyone whom the government charges more for some service or benefit with

standing to allege a civil rights violation. Consumers in Niles or Morton Grove could, for

example, presumably sue Skokie if Skokie is charging Niles and Morton Grove more for their

easements than Skokie charged any other unit of government seeking But Rule 17 and the

standing doctrine exist to avoid absurd results like this, and this Court should maintain the

integrity of these doctrines and find that neither Skokie nor the individual plaintiffs have

standing.

III. The Absence of a Fundamental Right and the Presence of a Rational Basis for
Ord. 95-0-17 Requires Dismissal of the Amended Complaint.

As demonstrated above, Evanston has not deprived a single plaintiff of any fundamental

constitutionally protected right. This truth, coupled with the rational basis for Evanston’s

decision to pass Ord. 95-0-17, defeats Plaintiffs’ arguments that Defendants violated their

constitutional rights. Exhibit A to Defendants’ Memorandum, Ord. 95-0-17, shows that there was

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a rational basis for its passage. After reviewing the American Water Works Association Manual

of Water Supply Practices, along with the water rates paid by neighboring communities,

Defendants determined that the rate Skokie paid for water was artificially low. See Ex. A, pp. 2-

3. Even raising the rate to the level set in the ordinance would still provide Skokie with water at a

rate 33% less than Evanston’s own residents pay. See Ex. A, p. 3. No rational basis will only be

found when the government’s “actions are sufficiently unrelated to any combination of

legitimate purposes, or the relationship between them is sufficiently attenuated as to render the

disparity arbitrary.” Donnell C. v. Illinois State Bd. of Educ., 829 F. Supp. 1016, 1019 (N.D. Ill.

1993). Evanston clearly had a legitimate purpose for passing Ord. 95-0-17, belying the

Complaint’s allegations that Ord. 95-0-17 was an arbitrary, vindictive piece of legislation aimed

at settling the score with Skokie for its years of ripping off Evanston. See Am. Cmplt., ¶¶ 93-96,

99-104, 106-111. And where an exhibit conflicts with the allegations of the complaint, as it does

here, the exhibit controls. Centers v. Centennial Mortg., Inc., 398 F.3d 930, 933 (7th Cir. 2005).

So, for purposes of this Motion, there was a rational basis for Ord. 95-0-17.

A. The Equal Protection Claim Fails Because of the Rational Basis for the
Ordinance and Because There is No Similarly-Situated Comparator.

The individual Plaintiffs also claim that Evanston is discriminating against long-standing

customers like them (even though they are not actually customers of Evanston), who have

allegedly paid below market rates for many years, in favor of new customers (actual customers

of Evanston that is) “who lack such stigma.” Rsp. Br. p. 18. It is not clear whether the individual

Plaintiffs are trying to argue that these customers are similarly-situated to them, but if they are

trying to make this argument, it fails. All of Evanston’s municipal customers are customers

because of the Illinois statute that requires Evanston to sell them. Skokie cannot assert any equal

protection claim so the individual plaintiffs attempt to do it. But obviously the individual

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plaintiffs—not being customers of Evanston at all—are not the same in all material respects as

the municipal customers who are. Evanston does not even set the individual plaintiffs rates, bill

them, nor have the ability to collect from them. Because the non-customer individual plaintiffs

and Evanston’s actual new municipal customers are not similarly-situated in any relevant

respect, this count should be dismissed. See Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 945 (7th Cir.

2009) (“To be similarly situated, ‘comparators must be ‘prima facie identical in all relevant

respects.’”).

Not that it matters (as Skokie can bring no equal protection claim), but Skokie is not

similarly-situated to the other two new municipal customers either. As demonstrated by Exhibit

A to the Defendants’ Memorandum, Skokie receives a premium service, with Evanston

supplying Skokie pressurized water at three separate locations. See Ex. A, p. 1. There are no

allegations in the Complaint that Evanston supplies any of the new customers with this premium

level of service. At most, there is an argument in the response brief that Skokie is willing to give

up this premium level of service to make it similarly situated; yet there is no allegation in the

Amended Complaint that they are actually prepared to do so.

We do not believe that the citations to Sterling v. Vill. of Maywood, 579 F.2d 1350 (7th Cir.

1978) or O'Neal v. City of Seattle, 66 F.3d 1064 (9th Cir. 1995) are relevant to this argument

because there have been no allegations that Evanston is classifying anyone on the basis of an

unpaid debt or refusing water service on the basis of an unpaid debt of a former tenant. See Rsp.

Br. p. 17. Again, Evanston is supplying Skokie even though Skokie does not pay its whole bill.

B. Plaintiffs Have No Liberty or Property Interest in Purchasing Lake Michigan

Water from Evanston, So Their Procedural Due Process Claims Fail.

Plaintiffs allege that they have a cognizable property interest that Defendants have violated.

In support of their argument, Plaintiffs claim that Memphis Light, Gas & Water Div. v. Craft,

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436 U.S. 1, 11 (1978) recognized that an individual has a property interest in continued utility

service from the only service provider and that the utility failed to provide due process of law—

as defined by Tennessee law—before terminating that service, thereby infringing on the property

interest. Id. at 16. In this case, by contrast, the customer is a municipality not an individual,

Evanston is not the only possible source of the utility service, the service is not being terminated,

the dispute is about rates, and the process as defined by Illinois law for handling the rate dispute

is to present the dispute to the Circuit Court of Cook County. Craft actually supports dismissal of

the Amended Complaint.

Plaintiffs also note that in Koger v. Guarino, 412 F. Supp. 1375, 1386 (E.D. Pa. 1976) the

Third Circuit recognized a property interest in water service even though there was no express

contractual privity between the user and the utility provider. Koger is likely not even good law

anymore, as Ransom v. Marrazzo, 848 F.2d 398 (3d Cir. 1988) disagreed with the holding in

Koger, finding no constitutional violations under a similar set of facts. See id. at 411-14. Even if

Koger were still good law, it would not apply here, because the court in Koger held that

individual residents who had their water shut off without a hearing held a protected property

interest. Koger, 412 F. Supp. at 1379. It did not recognize that a municipality had a protected

property interest in receiving water service at the price the customer wants.

Ultimately, with no protectable property interests, Plaintiffs’ procedural due process claims

fail. See Isby v. Brown, 856 F.3d 508, 524 (7th Cir. 2017) (holding that to allege a procedural due

process violation, a plaintiff must show (1) it was deprived of a constitutionally protected

interest, and (2) it was not afforded adequate process due under the circumstances). Plaintiffs

also fail to explain how they were not afforded notice and an opportunity to be heard. They fail

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to explain how filing a civil action to determine the proper rate to pay for water, in compliance

with 70 ILCS 2605/26, did not provide them with proper notice and an opportunity to be heard.

C. Defendants Did Not Engage in Conscience-Shocking Behavior, So There Is No

Substantive Due Process Violation.

Even with their rhetorical flourishes, Plaintiffs are still unable to demonstrate that

Defendants engaged in the type of conscience-shocking behavior necessary to constitute a

substantive due process violation. “Both the Supreme Court and [the Seventh Circuit] have

emphasized how limited the scope of the substantive due process doctrine is.” Lee v. City of Chi.,

330 F.3d 456, 467 (7th Cir. 2003). “There are two types of substantive due process violations.

The first occurs when the state actor's conduct is such that it ‘shocks the conscience.’” T.E. v.

Grindle, 599 F.3d 583, 589 (7th Cir. 2010). “The second occurs when the state actor violates an

identified liberty or property interest protected by the Due Process Clause.” Id.

As noted above, Defendants did not violate a liberty or property interest protected by the

Due Process Clause, so the only claim that Plaintiffs can make is that Defendants have engaged

in conscience-shocking conduct. This conduct requires the arbitrary exercise of state power

“without reasonable justification.” Bettendorf v. St. Croix Cty., 631 F.3d 421, 426 (7th Cir.

2011). As noted above, Defendants’ exercise of state power was not arbitrary or without

reasonable justification—they raised Skokie’s water rates so that they were not artificially low

and so that Evanston could actually receive adequate compensation for the cost of providing

water. See Ex. A, pp. 2-3. This does not fall into the limited field of arbitrary and irrational

actions that substantive due process is meant to protect against.

There have been no cases we have found holding that raising the price that a municipality

pays for water constitutes conscience-shocking conduct. Neither Craft nor Collins v. City of

Harker Heights, Tex., 503 U.S. 115 (1992), the two cases cited by Plaintiffs in support of their

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substantive due process argument, hold as such. See Rsp. Br. p. 18. And as noted in our initial

brief, Magnuson v. City of Hickory Hills, 933 F.2d 562 (7th Cir. 1991) suggests that such a right

does not exist. See id. (City’s threat of water service termination bore rational relationship to

legitimate public health and safety goal of insuring success of sewer rehabilitation program, and

thus, threat did not violate homeowners' substantive due process rights).

Plaintiffs’ substantive due process violation claims also fail because Ord. 95-0-17 was

rationally related to a legitimate governmental interest. Plaintiffs allege that Evanston violated 70

ILCS 2605/26 by failing to sell Lake Michigan water at a reasonable and non-discriminatory

rate. Am. Cmplt. ¶¶ 125-29. We disagree with this argument, but even if it were true, this would

only be a statutory violation, not the conscience-shocking conduct required to allege a

substantive due process violation.

D. Because There Are No Constitutional Violations, Plaintiffs’ § 1983 Claims Fail.

In order to have a cognizable claim under 42 U.S.C. § 1983, a plaintiff must show that a

government official deprived his or her constitutional rights under color of law. As noted above,

there has been no showing that Defendants have deprived Plaintiffs of their constitutional rights,

so Plaintiffs’ § 1983 claims fail.

IV. Because Plaintiffs Have Failed to Allege a Substantive Claim, Counts XIII and
XIV Fail.

This Court does not have supplemental jurisdiction over Counts XIII and XIV because there

are no federal claims that have been properly pled to support this supplemental jurisdiction. The

jurisdiction provided by 28 U.S.C. § 1367(a) only exists “in any civil action of which the district

courts have original jurisdiction.” Id. The district court here does not have original jurisdiction

over any claims in the Amended Complaint. The only basis that Plaintiffs even assert for this

Court’s jurisdiction over Counts XIII and XIV, which are clearly state law claims as they are

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brought under an Illinois statute and Illinois common law, is supplemental jurisdiction. See Rsp.

Br. pp. 19-21. Without any properly pled federal claims to give this Court supplemental

jurisdiction over Counts XIII and XIV, this Court has no jurisdiction to hear those Counts.

V. Qualified Immunity Can Be Asserted As a Defense In a Rule 12(b)(6) Motion.

Contrary to Plaintiffs’ assertions, qualified immunity can be asserted as a defense in a Rule

12(b)(6) Motion, and it is an appropriate defense here because nothing in the Amended

Complaint demonstrates that the individual Defendants understood that their passage of the

Ordinance would violate somebody’s clearly established constitutional rights.

“Although dismissal on a Rule 12(b)(6) motion on qualified immunity grounds is often

premature, qualified immunity issues should be resolved as soon as possible, which is sometimes

at the pleadings stage.” Serrano v. Guevara, 315 F. Supp. 3d 1026, 1034 (N.D. Ill. 2018). “When

qualified immunity is asserted at this stage in the litigation, however, the Court considers ‘only

the facts alleged in the complaint, which [it] must accept as true.’” Townsel v. Jamerson, 240 F.

Supp. 3d 894, 905 (N.D. Ill. 2017) (citation omitted). There have been many cases in which

qualified immunity has been used as the grounds on which a Rule 12(b)(6) motion is granted.

See, e.g., Doe v. Vill. of Arlington Heights, 782 F.3d 911 (7th Cir. 2015); Chasensky v.

Walker, 740 F.3d 1088 (7th Cir.2014); Steidl v. Fermon, 494 F.3d 623 (7th Cir.2007).

Qualified immunity for a government actor applies when: (1) the allegations make out a

claim that a constitutional right has been violated, but (2) this right was not clearly established at

the time of the official’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 200-01 (2001).

With respect to the second element, the relevant dispositive inquiry is whether it would be clear

to a reasonable government actor that his or her particular conduct was unlawful in the specific

situation he or she confronted and, if it were not thus, then qualified immunity applies.

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Here, as demonstrated repeatedly, no constitutional right has been violated. However, even

if one assumes hypothetically a right to purchase water from a preferred provider is a

constitutional right, then it was still not clear to the individual Defendants that passing an

Ordinance in an open meeting (which the minutes attached as an exhibit to the Amended

Complaint prove was an open meeting) to set rates within statutory limits (i.e., a rate less than

Evanston charged its own large users) was unlawful. Accordingly, each of the individual

defendants would be entitled to qualified immunity—if the court went so far as to find a

fundamental right in the first place. See Bakalis v. Golembeski, 35 F.3d 318, 323 (7th Cir. 1994)

(in order for there to be a violation of a clearly established right, it “must be sufficiently clear

such that a reasonable official would understand that what he is doing violates that right.”).

VI. A State Court Should Decide A Dispute that Implicates Important State
Interests.

Plaintiffs’ Response fails to explain why a federal court should rule on an issue of such local

importance like the provision of water from one municipality to another under the state’s

statutory framework. It likewise fails to explain why the Illinois legislature would have set up a

comprehensive scheme for municipalities to deal with the very dispute that Skokie and Evanston

face here if there was not an important state interest involved. All of the other issues raised in

Plaintiffs’ response are ancillary to the central issue here: whether Evanston has overcharged

Skokie for the price of water. A state court should decide this issue.

It may be true that Younger abstention should only be applied in exceptional circumstances,

but those exceptional circumstances exist here. “Proceedings necessary for the vindication of

important state policies or for the functioning of the state judicial system also evidence the state's

substantial interest in the litigation.” Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n,

457 U.S. 423, 432 (1982). The resolution of disputes between one municipality and another over

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the rate charged for water is an important state policy, evidenced by the statutory scheme that

was created to resolve them. See 70 ILCS 2605/26. Similar disputes will inevitably arise for

other municipalities, and they will undoubtedly look at this case for guidance. For the sake of

comity and federalism, this Court should allow an Illinois court to create this precedent.

Plaintiffs claim that Colorado River abstention does not apply because substantially the

same parties are not litigating substantially the same issues in state and federal court. Rsp. Br. p.

23. That is not true, because the crux of the dispute between the parties is the rate for water that

Evanston has charged Skokie. All of the other claims, which do not even have a sound basis in

law, stem from and are ancillary to this dispute. And the new parties added in the federal lawsuit,

the individuals on the governing bodies of the municipalities, are just extensions of the

municipalities themselves, and hence substantially the same parties litigating in state court.

The facts of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)

are also similar to those here in important ways. In Colorado River, the Court found that the

exceptional circumstances necessary for abstention existed because of a clear federal policy

against piecemeal adjudication of water rights, the existence of an elaborate state scheme for

resolution of such claims, and the absence of any proceedings in the district court, other than the

filing of the complaint, prior to the motion to dismiss. Id. at 819. All of those same factors are

present here.

Finally, the Brillhart-Wilton abstention doctrine gives this Court discretion as to whether it

will hear Plaintiffs’ declaratory judgment claims. Plaintiffs made no effort to defend the viability

of these claims in their response brief. In fact, they are not even mentioned, presumably because

Plaintiffs realize that these claims are not viable. In addition to dismissing those claims because

they fail to state a cause of action, the issues raised in those counts “can better be settled in the

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proceeding pending in the state court” for the reasons explained above, which is why Brillhart-

Wilton abstention should be exercised here. Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995).

Conclusion

This is a simple statutory rate dispute that Skokie masquerades as a constitutional outrage in

hopes of obtaining some political advantage. It is as unworthy of federal jurisdiction as is an

annulment case. Skokie has not demonstrated that Evanston has infringed upon any of the

plaintiffs’ fundamental rights. The lack of merit in the major premise of the Amended

Complaint, plus the absence of standing for any of the would-be plaintiffs for any of these

“claims,” plus the qualified immunity enjoyed by each of the individual Defendants, plus the

application of the abstention doctrines, all lead to the inexorable conclusion that this Court

should dismiss the Amended Complaint and send this matter back to state court where it belongs.

WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiffs’ Amended

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and order such other and further

relief that this Court finds to be just in response to the tactics used.

Respectfully submitted,

_/s/ Derke J. Price ____________________

Derke J. Price, Attorney for Defendants

Derke J. Price (ARDC # 6198737)

Stewart H. Diamond (ARDC #0629650
Matthew T. DiCianni (ARDC # 6312661)
ANCEL GLINK, P.C.
140 S. Dearborn St. Suite 600
Chicago, IL 60603
312.782.7606
312.782.0943 Fax

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CERTIFICATE OF SERVICE

I hereby certify that on October 15, 2018, I electronically filed the foregoing

Memorandum of Law in Support of Defendants’ Rule 12(b)(6) Motion to Dismiss

Plaintiffs’ Complaint with the Clerk of the Court using the CM/ECF system, which will send

notification of such filing to:

Michael M. Lorge
James Gillan McCarthy
5127 Oakton
Skokie, IL 60077
mml@skokie.org
James.mccarthy@skokie.org

William J. McKenna, Jr.

Foley & Larder LLP
321 N Clark St., Ste. 2800
Chicago, IL 60654
WMcKenna@foley.com

/s/ Derke J. Price

DERKE J. PRICE /ARDC # 6198737
One of the attorneys for Defendants
ANCEL, GLINK, DIAMOND, BUSH,
DICIANNI & KRAFTHEFER, P.C.
140 South Dearborn Street, Sixth Floor
Chicago, Illinois 60603
Telephone: (312) 782-7606
Facsimile: (312) 782-0943
E-Mail: dprice@ancelglink.com

4818-3488-4984, v. 1

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