In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3297
L AB ELLA W INNETKA, INC.,
Plaintiff-Appellant,
v.
T HE V ILLAGE OF W INNETKA and
D OUGLAS W ILLIAMS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 6633—Virginia M. Kendall, Judge.
A RGUED O CTOBER 26, 2010—D ECIDED D ECEMBER 29, 2010
Before P OSNER, F LAUM, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. On February 28, 2007, a roof fire
broke out at the Italian restaurant operated by LaBella
Winnetka, Inc. in the Village of Winnetka, Illinois. The
restaurant’s doors have remained closed since that
date. LaBella blames the Village and its manager, Douglas
Williams, for preventing it from reopening the restau-
rant. LaBella appeals the district court’s dismissal of its
equal protection, substantive due process, procedural
2 No. 09-3297
due process, and state law claims against the Village
and Williams.
For the following reasons, we affirm the district
court’s judgment.
I. Background
LaBella opened its restaurant in the Village in 1993. The
restaurant was located in a space LaBella leased from
a private party (“the Landlord”). The lease was ex-
tended from time to time, with the last extension
running through July 31, 2008. Also in 1993, LaBella
applied for and received a Retail Liquor License from
the Village. Each year between 1993 and 2007, the Village
sent LaBella a liquor license renewal form, and renewed
LaBella’s license after LaBella submitted the completed
form.
In February 2007, the Landlord hired roofers to do
construction work on the roof above LaBella’s restau-
rant. The Village and Williams (collectively “defendants”)
did not require the Landlord to obtain a building permit
to perform the work. On February 28, 2007, LaBella in-
formed defendants that the roofing contractor was
using flammable materials to repair the roof, which
might cause damage to the roof or building. Neither
the Village nor Williams responded to LaBella’s com-
plaint. Later that day, the roof work caused a fire that
damaged the roof over LaBella’s main dining room,
forcing LaBella to close. LaBella’s kitchen, bar, and out-
door patio sustained no damaged from the fire.
No. 09-3297 3
LaBella applied for permits to repair the fire damage
to its restaurant’s interior, but defendants refused to issue
any permits until the Landlord replaced the roof. Defen-
dants also refused to allow LaBella to partition off the
portion of the restaurant in need of repair and to reopen
in the undamaged bar and outdoor patio areas.
Another restaurant—Corner Cooks—operated out of
the same building as LaBella. Corner Cooks was
permitted by defendants to reopen immediately after the
fire. While LaBella was closed, defendants approved
permits and designs for Corner Cooks to open Jerry’s
Restaurant in portions of the building that were still
leased to LaBella, including the bar area in which defen-
dants had refused to allow LaBella to reopen. LaBella
contends that Corner Cooks and Jerry’s Restaurant re-
ceived special treatment because they were what Village
employees referred to as “Friends of Doug,” meaning
businesses favored by Village Manager Williams. LaBella
was not a Friend of Doug.
Another Friend of Doug is O’Neil’s Restaurant. Between
March 18, 2008 and June 16, 2009, defendants allowed
O’Neil’s Restaurant to remain open for business while
a portion of its restaurant was partitioned-off for building
repairs.
As noted above, LaBella held a Retail Liquor License
issued by the Village; that license was set to expire on
March 31, 2008. LaBella alleged that the Village and
Williams “terminate[d]” LaBella’s liquor license by not
sending the annual renewal form to LaBella, as they
routinely had done the previous fourteen years. Amended
Cmplt. at ¶ 51B. The Village and Williams also allegedly
4 No. 09-3297
approved “the issuance of a Class A-1 liquor license to
Corner Cooks and Jerry’s Restaurant at the same
address as LaBella, and after doing so, . . . cancelled
LaBella’s Retail Liquor License—without cause, notice
or a hearing.” Id.
LaBella filed suit against the Village and Williams on
November 26, 2007. In an amended complaint filed on
April 3, 2008, LaBella asserted four claims against defen-
dants: (1) a claim for violation of its equal protection
rights under 42 U.S.C. § 1983 and the Fourteenth Amend-
ment; (2) a claim for violation of its substantive due
process rights under 42 U.S.C. § 1983 and the Fourteenth
Amendment for deprivation of its property interest in
its lease and restaurant business; (3) a claim for violation
of its due process rights under 42 U.S.C. § 1983 and the
Fourteenth Amendment for deprivation of its food and
liquor licenses; and (4) a claim for intentional interfer-
ence with its lease and its prospective business expectancy.
Defendants filed a motion to dismiss the amended
complaint, which the district court granted on March 18,
2009. LaBella filed a Rule 59(e) motion to alter or amend
the judgment, which the district court denied. This
timely appeal followed.
II. Discussion
We review the district court’s grant of defendants’ Rule
12(b)(6) motion to dismiss de novo, construing the
amended complaint in the light most favorable to LaBella,
accepting as true all well-pleaded facts alleged, and
No. 09-3297 5
drawing all possible inferences in its favor. Justice v. Town
of Cicero, 577 F.3d 768, 771 (7th Cir. 2009).1
A. Class-of-One Equal Protection Claim
Count I of the amended complaint asserts a class-of-one
equal protection claim, alleging that defendants discrimi-
nated against LaBella, while favoring “Friends of Doug”
restaurants, by selectively enforcing Village ordinances
and building codes. In support of that claim, LaBella
points to defendants’ decision to allow Corner Cooks
to reopen immediately, while forcing LaBella to remain
closed. LaBella also notes that defendants allowed
Corner Cooks and Jerry’s Restaurant to operate out of
LaBella’s undamaged bar area after the fire, instead of
authorizing LaBella to do so. Finally, LaBella relies on
defendants’ refusal to let LaBella partition off portions of
its restaurant while it repaired the damage from the fire,
as it later permitted O’Neil’s Restaurant to do while
undergoing renovations.
The Equal Protection Clause of the Fourteenth Amend-
ment provides that “no State shall . . . deny to any persons
1
LaBella also appeals the district court’s denial of its
Rule 59(e) motion, in which it argued that the district court’s
opinion dismissing the amended complaint was premised on
manifest errors of law and fact. Generally, we review denials
of motions to alter or amend a judgment pursuant to
Federal Rule of Civil Procedure 59(e) for abuse of discretion.
Sosebee v. Astrue, 494 F.3d 583, 589-90 (7th Cir. 2007). However,
because we are reviewing the dismissal de novo, we need not
separately consider the denial of the Rule 59(e) motion.
6 No. 09-3297
within its jurisdiction the equal protection of laws.” U.S.
C ONST. amend. XIV, § 1. Traditionally, the Equal Protec-
tion Clause is understood as protecting members of
vulnerable groups from unequal treatment attributable
to the state. See Bell v. Duperrault, 367 F.3d 703, 707 (7th
Cir. 2004). But it also proscribes state action that irratio-
nally singles out and targets an individual for discrim-
inatory treatment as a so-called “class-of-one.” Reget v.
City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010); see also
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
All equal protection claims, regardless of the size of
the disadvantaged class, are based on the principle that,
under “like circumstances and conditions,” people must
be treated alike, unless there is a rational reason for
treating them differently. See Engquist v. Oregon Dep’t
of Agric., 553 U.S. 591, 601-02 (2008) (quoting Hayes v.
Missouri, 120 U.S. 68, 71-72 (1887)). Thus, a plaintiff
states a class-of-one equal protection claim by alleging
that he “has been intentionally treated differently from
others similarly situated and that there is no rational
basis for the difference in treatment.” Olech, 528 U.S. at
564. Because we conclude that LaBella’s claim does not
satisfy the first element of that inquiry, we affirm the
district court’s dismissal.
To be considered “similarly situated,” a plaintiff and his
comparators (those alleged to have been treated more
favorably) must be identical or directly comparable in
all material respects. Reget, 595 F.3d at 695. The “similarly
situated” analysis is not a “precise formula,” but we
have stated repeatedly that what is “clear [is] that
similarly situated individuals must be very similar in-
No. 09-3297 7
deed.” McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th
Cir. 2004). Whether a comparator is similarly situated
is usually a question for the fact-finder. Id. Here, how-
ever, dismissal at the pleading stage was appropriate
because LaBella failed to allege facts tending to show that
it was similarly situated to any of the comparators.
See Stachowski v. Town of Cicero, 425 F.3d 1075, 1078 (7th
Cir. 2005) (affirming dismissal of class-of-one equal
protection claim where complaint failed to identify simi-
larly situated individuals). Rather, the pleadings show
that LaBella and the Friends of Doug restaurants were
different in certain material respects.
We begin with the allegations regarding O’Neil’s Restau-
rant. The amended complaint alleges that LaBella needed
to undergo repairs for “major [fire] damage to the roof,”
while O’Neil’s Restaurant underwent unspecified renova-
tions. There is no allegation that the renovations to
O’Neil’s Restaurant were comparable to the replacement
of a fire-damaged roof. The extent of the work to be
done behind a partition certainly is material to the deter-
mination of whether such a partition is feasible. Therefore,
LaBella failed to allege that it was similarly situated to
O’Neil’s Restaurant.
With respect to Corner Cooks and Jerry’s Restaurant,
the pleadings demonstrate that neither of those restau-
rants was prima facie identical to LaBella in all material
respects.2 The amended complaint alleges that Corner
2
For purposes of a Rule 12(b)(6) motion, the pleadings
include the complaint, any exhibits attached thereto, and the
(continued...)
8 No. 09-3297
Cooks and LaBella faced “the same risks” after the fire
because the two were located immediately adjacent to one
another on the same floor of the same building. That
allegation may have been sufficient to survive a motion to
dismiss. However, in its briefing here and before the
district court, LaBella made clear that the roof over the
building housing Corner Cooks and portions of LaBella
was not damaged by the fire. The only damage was to
the roof over LaBella’s main dining room, which was
located in an addition to the building that La Bella and
Corner Cooks shared, and was “under an entirely dif-
ferent roof.” Because LaBella concedes that there is a
key difference between itself and Corner Cooks and
Jerry’s Restaurant—namely, that a portion of LaBella’s
roof, and only LaBella’s roof, incurred major fire dam-
age—it failed to adequately allege the existence of a
similarly situated restaurant.
Perhaps it would have been a better policy for the
Village to allow LaBella to remain open in the undam-
aged portions of its restaurant, thereby possibly pro-
tecting it from going out of business. On the other
hand, perhaps the more cautious approach taken here
was more advisable. In any event, the equal protection
clause has no application where a “plaintiff is asking
for a revision of policy rather than for a restoration of
equality.” Ind. State Teachers Ass’n v. Bd. of School Comm’rs
of the City of Indianapolis, 101 F.3d 1179, 1182 (7th Cir.
(...continued)
supporting briefs. Thompson v. Ill. Dep’t of Prof’l Regulation,
300 F.3d 750, 753 (7th Cir. 2002).
No. 09-3297 9
1996). Because LaBella has failed to plead facts suggesting
that it was treated differently from similarly situated
restaurants, it has failed to make out a prima facie case of
denial of equal protection.
B. Substantive Due Process Claim
LaBella’s second claim alleged that defendants deprived
it of its property interests in its lease and its restaurant
business, thereby violating its right to substantive due
process. Substantive due process challenges 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.”
Lee v. City of Chicago, 330 F.3d 456, 467 (7th Cir. 2003).
In light of our conclusion that LaBella failed to state a
class-of-one claim, it has no independent constitutional
violation on which to base its substantive due process
claim. In its reply brief, LaBella argues that its amended
complaint sufficiently alleged that its state law remedies
are inadequate. However, LaBella did not raise this
ground in its opening brief, despite the fact that the
district court based its dismissal of Count II in part on
its determination that LaBella had not properly alleged
a lack of adequate state law remedies. Consequently,
LaBella has waived the issue. Doherty v. City of Chicago,
75 F.3d 318, 323 (7th Cir. 1996) (plaintiff waived adequacy
of state law remedies point where her opening brief
on appeal contained “no substantive discussion of [the]
requirement,” and she did “not take issue with the
district court’s determination that she has not alleged—
10 No. 09-3297
and cannot allege—that the remedies provided by the
state of Illinois are inadequate”).
Our finding of waiver is buttressed by the fact that
LaBella also failed to argue that the state law remedies
are inadequate in opposing defendants’ motion to
dismiss in the district court. See Everroad v. Scott Truck
Sys., Inc., 604 F.3d 471, 480 (7th Cir. 2010) (arguments
raised for the first time on appeal are waived). That
omission is particularly glaring because the district
court had dismissed the substantive due process claim
in LaBella’s original complaint on the ground that it
did not plead the inadequacy of state law remedies, and
defendants’ motion to dismiss argued that the amended
complaint suffered from the same defect. Moreover,
LaBella did not address the alleged inadequacy of state
law remedies with respect to Count II in its Rule 59(e)
motion.
Even assuming LaBella had preserved the issue, we
nevertheless would affirm the dismissal of its substan-
tive due process claim. The amended complaint alleges
only that “LaBella has no adequate state law remedy
available to it to address this unlawful conduct by the
Village and Williams.” We have held that “such a
conclusory allegation is insufficient.” Doherty, 75 F.3d
at 324.
C. Procedural Due Process Claim
The amended complaint also sets forth a procedural
due process claim based on defendants’ failure to send
No. 09-3297 11
LaBella the annual liquor license renewal form, and de-
fendants’ alleged cancellation of LaBella’s liquor license.
To state a Fourteenth Amendment claim for the dep-
rivation of a property interest without due process, a
plaintiff must demonstrate that (1) he had a constitu-
tionally protected property interest, (2) he suffered a loss
of that interest amounting to a deprivation, and (3) the
deprivation occurred without due process of law. Moss
v. Martin, 473 F.3d 694 (7th Cir. 2007). There is no ques-
tion that LaBella had a constitutionally protected
property interest in its liquor license. See Reed v. Vill. of
Shorewood, 704 F. 2d 943, 948 (7th Cir. 1983). The parties
dispute only the second and third elements, both of
which, the district court found, LaBella failed to
properly allege.
To the extent that LaBella bases its claim on defen-
dants’ failure to mail it the license renewal forms, we
agree with the district court that the procedural due
process claim fails. That defendants did not send the
renewal forms to LaBella did not deprive LaBella of
its property interest in its liquor license. Indeed, defen-
dants’ failure to extend that courtesy to LaBella had
no impact on the value of its license or its business. Id.
at 949 (recognizing that a defendant can deprive a plain-
tiff of its property right in a license without actually
revoking it if defendant’s actions destroy the value
of the plaintiff’s licensed business forcing plaintiff
to give up the license). And there is no allegation that
defendants prevented LaBella from obtaining or sub-
mitting renewal forms, which are available on the
12 No. 09-3297
Village’s website.3 In sum, the mere failure to send
renewal forms did not effect a deprivation of constitu-
tional magnitude.
Apart from the renewal form allegations, LaBella
also alleged that defendants “cancelled” its liquor
license “without cause, notice or a hearing.” LaBella
contends that that allegation—which the district court
appears to have overlooked or read in conjunction with
the renewal form allegations—is sufficient to allege a
deprivation of its property interest in its liquor license.
We disagree. The amended complaint contains no al-
legations regarding when or how defendants revoked
the license. As such, it does not contain sufficient facts
to put defendants on notice of the basis for LaBella’s
procedural due process claim. Therefore, LaBella failed
to satisfy even the lenient notice-pleading requirement
of Federal Rule of Civil Procedure 8(a). See Bissessur v.
Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir.
2009); Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th
Cir. 2008).
LaBella’s procedural due process claim fails for the
additional reason that the amended complaint does not
properly allege that LaBella was denied the process
3
Available at http://www.villageofwinnetka.org/pdf/forms/
administrations/Liquor%20License%20 Renewal%20Application.
pdf (last visited Dec. 15, 2010). We may take judicial notice of
the contents of the Village’s website. See Denius v. Dunlap, 330
F.3d 919, 926 (7th Cir. 2003); Laborers’ Pension Fund v. Blackmore
Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir. 2002).
No. 09-3297 13
it was due. The district court found—and LaBella
does not dispute—that the complained-of actions were
“random and unauthorized acts.” Therefore, under
Parratt v. Taylor, 451 U.S. 527 (1981), Hudson v. Palmer, 468
U.S. 517 (1984), and their progeny, LaBella was entitled
only to a meaningful post-deprivation remedy. Pro’s
Sports Bar & Grill, Inc. v. City of Country Club Hills, 589
F.3d 865, 872 (7th Cir. 2009). LaBella alleges neither that
it availed itself of state post-deprivation remedies, nor
that the available remedies are inadequate, as it is re-
quired to do. Leavell v. Illinois Dep’t of Natural Res., 600
F.3d 798, 805-06 (7th Cir. 2010). That failure is fatal to its
procedural due process claim. Doherty, 75 F.3d at 323-24.
Furthermore, LaBella did not address the adequacy
of Illinois state law remedies in the district court, raising
it for the first time in its opening brief on appeal. There-
fore, it waived the point. Everroad, 604 F.3d at 480.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s dismissal of LaBella’s federal claims and its dis-
missal of the supplemental state law claim without preju-
dice. See Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th
Cir. 1999) (“it 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”).
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