In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2464 & 09-1381
P ATRICIA A. M USCARELLO ,
Plaintiff-Appellant, Cross-Appellee,
v.
O GLE C OUNTY B OARD OF C OMMISSIONERS, et al.,
Defendants-Appellees,
and
B AILEYVILLE W IND F ARMS, LLC, et al.,
Defendants-Appellees, Cross-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 C 50017—Frederick J. Kapala, Judge.
A RGUED O CTOBER 6, 2009—D ECIDED JUNE 24, 2010
Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Ogle County joined the alterna-
tive energy bandwagon in 2003 when it adopted an
2 Nos. 08-2464 & 09-1381
amendment to its zoning ordinances to allow special
use permits for the construction of windmills used to
generate power. In 2005, Baileyville Wind Farms, LLC
(“Baileyville”) took the county up on its offer by ap-
plying for and receiving a special use permit to con-
struct 40 windmills.
Patricia Muscarello evidently did not share the
county’s enthusiasm for wind energy. Muscarello owns
land adjacent to the proposed site of the Baileyville
wind farm. She voiced her opposition through the
political process and, when that failed, she repaired to
federal court. At that point, this garden variety zoning
dispute morphed into a federal case against 42 defen-
dants, including Baileyville, its corporate parents, and
the various Ogle County political actors involved in the
decision to grant the permit. Muscarello’s complaint
invoked twelve theories of recovery, based on the U.S.
Constitution, the Illinois Constitution, Illinois statutes,
and the common law. In addition to objecting to the
process that the county had followed, she attacked every-
thing in the outcome (or anticipated outcome) from the
loss of kinetic energy, to what she calls “shadow flicker,”
to the risk of a blade being hurled onto her property.
The district court concluded that it could not reach the
merits of her suit. Instead, it held that the federal court
was not the proper forum in which her claims could be
resolved. We agree. Baileyville and its corporate parents
have cross-appealed from the district court’s refusal to
impose a stay of administrative proceedings (that might
or might not have been commenced at the time the
Nos. 08-2464 & 09-1381 3
court ruled) in Ogle County. Finding no abuse of discre-
tion in that ruling, we affirm it also.
I
We rely primarily on Muscarello’s first and second
amended complaints for this account of the pertinent
facts, although we have added some undisputed material
from the remainder of the record where necessary.
In late 2003, after a public hearing held by the Zoning
Board of Appeals (the “ZBA”), the Ogle County Board
of Commissioners (the “Board”) adopted an amendment
to the county zoning ordinances providing that special
use permits would be available for systems that use
wind energy and thereby reduce dependence on fossil
fuels (the “Windmill Text Amendment”).
In September 2005, Baileyville applied for a special use
permit to build a wind-energy system on land in Ogle
County adjacent to Patricia Muscarello’s property. (Two
other Muscarellos are involved in this case: Patricia
Muscarello was represented by her son, Charles
Muscarello, and she sued, among others, her husband,
Marco Muscarello. For simplicity we refer to Patricia
Muscarello as “Muscarello” and, where necessary, we
refer to her husband as “Marco Muscarello.”) Baileyville
intended to construct 40 windmills, each of which was
to be approximately 400 feet in height to the tip of the
blade and 285 feet in diameter. The application specified
the locations of the windmills on the property.
Some time between November 7 and December 13,
2005, the ZBA held public hearings on Baileyville’s ap-
4 Nos. 08-2464 & 09-1381
plication. On December 13, the ZBA issued its Findings
of Fact in support of the application. On December 20,
the Board issued the special use permit and adopted a
Home Sellers Property Value Protection Plan (the “Pro-
tection Plan”) to provide a mechanism for residential
property owners to recover any diminution of value
that resulted from the windmills if and when they
decided to sell their homes. Nonresidential property
owners were not eligible to take advantage of this proce-
dure.
Muscarello objects to every stage of the process. On
January 19, 2006, she filed her original complaint, in
which she objected to the findings of fact for the Windmill
Text Amendment, the Baileyville permit application,
the notice for the public hearing, the public hearing
itself, Baileyville’s evidence at the hearing, the findings
of fact for the special use permit, the decision to issue
the permit, and the authorization of the Protection Plan.
At the core of her substantive allegations is an assertion
that the county has condoned an impermissible taking
of her property. Muscarello presented a laundry list of
charges in her first amended complaint; as she describes
it, the issuance alone of the permit will harm her in numer-
ous ways:
(i) she will be deprived of the full extent of the kinetic
energy of the wind and air as it enters her property.
(ii) she will be deprived of the full extent of the Acces-
sory Use under Division 5, Section 5.01(N) of the
Zoning Ordinance.
Nos. 08-2464 & 09-1381 5
(iii) her property will be subject to “shadow flicker”
and reduction of light caused by the Wind Energy
Conservation System.
(iv) she will have to endure severe noise caused by
the Wind Energy Conservation System.
(v) ice may be physically thrown onto her property
by the rotating blades.
[vi] there is risk of what she calls “blade throw,”
meaning that she fears that the rotor blades may
come loose and be thrown onto her property.
[vii] the windmills will cause radar interference on
her property.
[viii] the windmills will interfere with the reception
on her cell phone network.
[ix] the windmills will disturb her GPS service.
[x] her property will be subject to wireless communica-
tion interference.
[xi] the system will interfere with her television signals.
[xii] the existence of the windmills will enhance
her risk of sustaining damage from lightening.
[xiii] she will be exposed to higher levels of electro-
magnetic radiation.
[xiv] she will suffer injury from stray voltage; and
[xv] the windmills will prevent her from conducting
crop-dusting operations on her fields.
We glean from all this, taking it in the light most
favorable to Muscarello, that she believes that the pre-
6 Nos. 08-2464 & 09-1381
scribed process was not followed and that the construc-
tion of windmills will have uncompensated adverse
consequences for her and her fellow nonresidential prop-
erty owners. Muscarello sued to stop the construction
of the windmills and to require the Board to revoke
the permit. To date, as far as the record before us
reflects, no windmills have been constructed.
II
Muscarello’s complaint includes 12 counts based on
the U.S. Constitution, the Illinois Constitution, Illinois
statutes, and Illinois common-law rights; as we noted
earlier, it names 42 defendants. For purposes of this
appeal, we can group the defendants as follows: various
entities and individuals acting on behalf of Ogle County
(“Ogle County”); the parties of record in the administra-
tive proceeding, including Marco Muscarello, plaintiff’s
husband; Baileyville, the permit-holder; Navitas Energy,
Inc., sole shareholder, member, and owner of Baileyville;
and Gamesa Corporacion Tecnologia, S.A., the corporate
parent of Navitas. Baileyville, Navitas, and Gamesa
have cross-appealed.
We divide our analysis of Muscarello’s claims into
three categories based on the type of jurisdiction pleaded:
(1) section 1331 claims; (2) section 1332 claims; and
(3) section 1367 claims. We discuss the applicable juris-
dictional bases for each theory of recovery along with
our discussion of the merits below. Here, we briefly
summarize Muscarello’s claims and the district court’s
disposition of them.
Nos. 08-2464 & 09-1381 7
1. Section 1331 Claims. Muscarello alleges three viola-
tions of the Fourteenth Amendment of the U.S. Constitu-
tion: Count IV alleges a taking without just compensation;
Count VI alleges a denial of due process; and Count VIII
alleges a denial of equal protection. These counts stem
from Ogle County’s grant of the special use permit to
Baileyville and the adoption of the Protection Plan that
provides compensation only to residential property
owners. Although the permit does not directly affect
Muscarello’s land, she asserts that it represents an unrea-
sonable and illegal taking of her property, that the
process by which it was awarded was defective, and that
the Protection Plan unlawfully discriminates against
nonresidential property owners. The district court dis-
missed her takings and equal protection claims as unripe,
and it rejected her due process claim for failure to state
a claim upon which relief could be granted.
2. Section 1332 Claims. Two more of Muscarello’s claims
are based on state common law (trespass, in Count X, and
nuisance, in Count XI); for them, she has invoked
diversity jurisdiction under 28 U.S.C. § 1332. In fact, she
appears to be relying on alienage jurisdiction rather
than diversity of citizenship, as one of the parties (Gamesa)
is a Spanish corporation. We discuss the jurisdictional
basis for these claims in greater detail below. On the
merits, although Muscarello concedes that the windmills
have yet to be constructed, she takes the position that
she can recover under trespass and nuisance theories
based solely on the county’s decision to grant the
permit for the future windmills. The district court twice
dismissed these claims because Muscarello did not prop-
8 Nos. 08-2464 & 09-1381
erly plead citizenship. On the third try, without finding
jurisdiction, the district court rejected these speculative
theories of trespass and nuisance as unripe.
3. Section 1367 Claims. Finally, Muscarello included
seven counts asserting violations of Illinois law for which
she relies on supplemental jurisdiction: Count I seeks a
declaratory judgment under Illinois law for violations
of local and state law; Count II seeks administrative
review under the Illinois Administrative Review Act, 735
ILCS 5/3-101, et seq.; Count III requests a writ of certiorari
under Illinois law; Count V claims an unlawful taking
in violation of the Illinois Constitution; Count VII alleges
a violation of due process under the Illinois Constitu-
tion; Count IX alleges a violation of equal protection
under the Illinois Constitution; and Count XII seeks
injunctive relief. The district court, after it dismissed
the other counts for which Muscarello pleaded original
jurisdiction, dismissed these claims under 28 U.S.C.
§ 1367(c)(3).
Muscarello appeals the dismissal of her twelve claims.
In addition, cross-appellants appeal the district court’s
decision to deny their motion to stay administrative
proceedings. We address the cross-appeal after we
review Muscarello’s arguments.
III
We look first at the claims that allegedly arise under
the federal Constitution’s provisions relating to takings,
due process, and equal protection. The district court
Nos. 08-2464 & 09-1381 9
dismissed the takings and equal protection claims as
unripe and the due process claim for failure to state a
claim. Our review is de novo for all three of these
rulings; we accept all of the well-pleaded, plausible
factual allegations in the plaintiff’s complaint as true and
draw all reasonable inferences in favor of the plaintiff.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Patel v. City
of Chicago, 383 F.3d 569, 572 (7th Cir. 2004); McCullah
v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003).
A
The core of Muscarello’s claims is an allegation that
Ogle County violated the Fourteenth Amendment of the
U.S. Constitution through a violation of the Fifth Amend-
ment’s Takings Clause. The Takings Clause provides: “nor
shall private property be taken for public use, without
just compensation.” U.S. C ONST. amend. V. Muscarello
asserts that Ogle County’s decision to grant a permit to
Baileyville constituted a taking without just compensation.
In order to invoke the protections of the Takings
Clause, Muscarello must allege a taking of private prop-
erty. Her complaint fails to meet that requirement.
Muscarello does not allege any physical invasion of her
property, a quintessential taking. See Loretto v. Tele-
prompter Manhattan CATV Corp., 458 U.S. 419, 427 (1982)
(“When faced with a constitutional challenge to a perma-
nent physical occupation of real property, this Court
has invariably found a taking.”). Instead, she relies on the
more elusive concept of the regulatory taking. See Lucas
10 Nos. 08-2464 & 09-1381
v. S.C. Coastal Council, 505 U.S. 1003 (1992) (finding a
regulatory taking only where “all economically beneficial
or productive use of land” is denied). But here, the
alleged economic effects are a far cry from the denial of
all economically beneficial or productive use of the land.
The Lucas Court was careful not to create the impres-
sion that all zoning decisions that may diminish an
owner’s potential uses of her property, or compel a less
valuable use, are takings. See Covington Court v. Vill.
of Oak Brook, 77 F.3d 177, 179 (7th Cir. 1996) (“We fre-
quently have reminded litigants that federal courts
are not boards of zoning appeals.”). In order to qualify as
a regulatory taking, the measure must place such
onerous restrictions on land as to render it useless.
Muscarello would have us turn land-use law on its head
by accepting the proposition that a regulatory taking
occurs whenever a governmental entity lifts a restriction
on someone’s use of land. We see no warrant for such
a step. See Gagliardi v. Vill. of Pawling, 18 F.3d 188,
191-93 (2d Cir. 1994) (holding that residential land-
owners had no property interest in the enforcement of
zoning laws on adjacent property).
Even if we thought that Ogle County might have “taken”
Muscarello’s property when it issued the permit to
Baileyville, Muscarello could not seek recovery in the
way she has proceeded here. As we have observed in the
past, in Williamson County Regional Planning Commission
v. Hamilton Bank, 473 U.S. 172 (1985):
the Supreme Court articulated a special ripeness
doctrine for constitutional property rights claims
Nos. 08-2464 & 09-1381 11
which precludes federal courts from adjudicating
land use disputes until: (1) the regulatory agency has
had an opportunity to make a considered definitive
decision, and (2) the property owner exhausts avail-
able state remedies for compensation.
Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).
Muscarello concedes that she did not satisfy the exhaus-
tion requirement. Therefore, her takings claim is unripe
unless she is excused from that requirement. The
district court found that Muscarello should not be
excused, and we agree.
Muscarello attempts to save this part of her case
through two exceptions to the exhaustion requirement:
one for pre-enforcement facial challenges and one for
situations in which relief is not available in state court.
We conclude, however, that neither applies to this case. It
is true that pre-enforcement facial challenges to the
constitutionality of a law under the Takings Clause
are not subject to the exhaustion requirement. See San
Remo Hotel, L.P. v. City & County of San Francisco,
545 U.S. 323, 345-46 (2005) (citing Yee v. Escondido, 503
U.S. 519, 534 (1992)). But Muscarello’s claim is not a
pre-enforcement facial challenge. She has focused on
the economic deprivation that she herself will suffer if
and when the taking occurs—the characteristic “as ap-
plied” challenge. Although almost in passing she sug-
gests that the alleged taking was not for a public purpose,
this point is too undeveloped to require comment.
Second, plaintiffs are excused from the exhaustion
requirement if state law does not provide relief. Daniels v.
12 Nos. 08-2464 & 09-1381
Area Plan Comm’n, 306 F.3d 445, 455-56 (7th Cir. 2002).
That rule does not fit Muscarello’s case either, because
Illinois provides ample process for a person seeking
just compensation. See Peters v. Clifton, 498 F.3d 727,
733-34 (7th Cir. 2007). See also 735 ILCS 30/10-5-5 (pro-
viding a statutory basis for inverse condemnation
actions under Illinois law); Inn of Lamplighter, Inc. v.
Kramer, 470 N.E.2d 1205 (Ill. App. Ct. 1984) (noting that
plaintiffs properly sought a writ of mandamus to compel
an eminent domain action to compensate them for their
alleged loss). Since Illinois law provides a remedy
for Muscarello, her claims are not excused from the
exhaustion requirement.
B
Muscarello also invokes federal-question jurisdiction
for her claims that Ogle County violated the Equal Pro-
tection and Due Process Clauses. The district court dis-
missed Muscarello’s equal protection claim for lack
of ripeness, and the due process claim for lack of a
protectable property interest. We consider these in turn.
The district court found that the equal protection
claim was a takings claim in disguise, and thus that it
too had to satisfy Williamson County. See River Park v.
City of Highland Park, 23 F.3d 164, 167 (7th Cir. 1994)
(“Labels do not matter. A person contending that state
or local regulation of the use of land has gone over-
board must repair to state court.”). The district court was
correct. Any equal protection claim based on a taking
would be unripe and subject to all of the objections that
Nos. 08-2464 & 09-1381 13
we have just reviewed in connection with the takings
claim.
Even if we assumed that Muscarello has pleaded an
equal protection claim that is distinct from her takings
theory, this would shift the focus of attention to the
disparate treatment under the ordinance of residents
and nonresidents. But that raises a pure question of law—
whether the county was entitled to draw such a line—and
that kind of classification is subject to the deferential
rational basis test. A plan to encourage alternative
energy production by freeing land from existing restric-
tions while providing in advance for the compensation
of homeowners reflects both legitimate ends and
rational means. Nonresidential owners still have all
remedies that Illinois law puts at their disposal, and so
they are far from left out. Muscarello therefore has not
stated an equal protection claim upon which relief can
be granted.
Her due process theory is similarly deficient. A party
must have a protectable property interest in order to
state a claim for a violation of due process based on a
regulatory taking. See Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 9 (1978). The district court held that
Muscarello does not have a property interest in the
lifting of zoning restrictions on another’s property. We
agree. Muscarello is unable to describe a property
interest that is not speculative (e.g. dependent on Bailey-
ville’s future trespass) or a disguised taking (e.g. diminu-
tion of investment-backed expectations). This is enough
to find that she cannot state a due process claim. More-
14 Nos. 08-2464 & 09-1381
over, even if she did have a protectable property
interest, the process due in a zoning case is minimal and
normally must be pursued in state courts. See River Park,
23 F.3d at 167.
IV
Muscarello also alleges two state common-law claims,
which she apparently thinks fall outside the constitu-
tional “case” she has presented under her federal
theories (or otherwise she would be asserting supple-
mental jurisdiction, see 28 U.S.C. § 1367(a)), but for
which she thinks jurisdiction is available under 28 U.S.C.
§ 1332. Count X alleges trespass and Count XI alleges
nuisance. The district court dismissed these claims as
unripe, because the windmills, which ostensibly would
cause the nuisance or trespass, have not been built and
it is thus impossible to know how they might trespass
upon her property. The district court expressly declined
to determine whether it had § 1332 jurisdiction,
since Article III’s case-or-controversy requirement is an
alternative jurisdictional prerequisite. For the sake of
completeness, however, we consider whether jurisdic-
tion under § 1332 is secure, as this would supply an
independent ground for dismissal if it is not. We then
turn to the issue of ripeness.
A
Muscarello’s trespass and nuisance claims were
brought against Baileyville, a limited liability company;
Nos. 08-2464 & 09-1381 15
Navitas Energy, its sole shareholder and owner; Gamesa,
the corporate parent of Navitas; the Board; and the
ZBA. She failed to plead citizenship properly in her
original complaint, but the district court granted her
leave to file an amended complaint to remedy those
errors. Unfortunately, her amended complaint also fell
short, and so the district court granted her a third bite
at the apple. As pleaded in her final amended complaint,
Muscarello has alleged that she is a citizen of Arizona
and that none of the defendants is a citizen of that state.
When the facts that determine federal jurisdiction
are contested, the plaintiff must establish those facts by
a preponderance of the evidence. Ill. Bell Tel. Co. v. Global
Naps Ill., Inc., 551 F.3d 587, 590 (7th Cir. 2008). Since the
district court did not make a finding on complete
diversity, this court must approach the question de novo.
We must begin, however, with Muscarello’s own citizen-
ship, because the defendants contest her allegation
of Arizona citizenship and assert that she, like her
defendant-husband, is a citizen of Illinois. (It seems
that Muscarello’s decision to include her husband as a
defendant was based on an erroneous reading of § 5/3-107
of the Administrative Review Act of Illinois, but her
reasons are of no concern to this appeal.) The record
contains enough evidence to support a finding that
Patricia Muscarello is domiciled in Arizona. She sub-
mitted an affidavit that swears to the following facts: in
2001 she moved her state of permanent residence from
Illinois to Arizona; she has intended to remain domiciled
there ever since; and she spends more than seven
16 Nos. 08-2464 & 09-1381
months per year in Arizona. She is registered to vote in
Arizona, has a driver’s license in Arizona, listed her
Arizona address with Medicare and Social Security,
listed her Arizona address on various property tax bills
for Illinois properties, and even received notices from
Ogle County regarding Baileyville’s Special Use Permit
in Arizona. The evidence with which the defendants
countered her affidavit is easily dismissed. They point
to her husband’s uncontested Illinois citizenship, an
Illinois driver’s license for Patricia that expired before
the complaint was filed, her ownership of property in
Illinois, and her statement that she lived in Illinois
full-time until at least 2001. Defendants also offer some
tax bills that list an Illinois address, including one that
claims a homestead exemption for Illinois. Although the
last item might give one pause, on balance we find that
Muscarello sufficiently established her Arizona domicile.
Next, we turn to the defendants. In order to support
jurisdiction under § 1332, Muscarello must establish
complete diversity with the defendants. We begin with
the institutional Ogle County defendants: the Board and
the ZBA. Both entities are citizens of Illinois. See Illinois v.
City of Milwaukee, 406 U.S. 91, 97 (1972) (“It is well settled
that for purposes of diversity of citizenship, political
subdivisions are citizens of their respective States.”).
Baileyville is next. It is a limited liability corporation,
and thus we must look to the citizenship of each of its
members to determine its citizenship for diversity pur-
poses. Wise v. Wachovia Sec., LLC, 450 F.3d 265, 267 (7th
Cir. 2006). (Muscarello missed this point, but the record
Nos. 08-2464 & 09-1381 17
contains the necessary information.) The record indicates
that Navitas, which is a Minnesota corporation with its
principal place of business in that state, is the sole share-
holder, member, and owner of Baileyville.
Finally, we look at Gamesa, Navitas’s parent corpora-
tion since 2003. Gamesa is a publicly traded Spanish
company with its seat in Spain. It therefore is classified
as an alien. Under 28 U.S.C. § 1332(a)(3), the federal
courts have original jurisdiction over civil actions
between “citizens of different States and in which
citizens or subjects of a foreign state are additional par-
ties.” Thus, from the point of view of citizenship, diversity
of citizenship (or alienage) is satisfied.
That leaves the amount-in-controversy requirement of
§ 1332, under which Muscarello had to allege that more
than $75,000 is in controversy. She has so alleged, and in
the absence of any challenge from the defendants, we
see no reason why this should not be the case, especially
since this circuit follows the “either viewpoint” rule. See
In re Brand Name Prescription Drugs Antitrust Litig., 123
F.3d 599, 609 (7th Cir. 1997) (citing McCarty v. Amoco
Pipeline Co., 595 F.2d 389, 393-95 (7th Cir. 1979)).
B
If Muscarello’s trespass and nuisance claims were ripe,
we would be able to consider them. But we conclude, as
did the district court, that they are not. This provides
an independent ground for dismissal.
The windmills have not been built yet, and so it is
difficult to see how they might either be causing a
18 Nos. 08-2464 & 09-1381
trespass on Muscarello’s land or creating a nuisance.
Muscarello tries to argue that the permit itself
creates an “interference with her property and her
property rights,” but this is too metaphysical for us. We
cannot see how the permit, unexercised, causes a
trespass or nuisance as Illinois law conceptualizes
those causes of action. In re Chicago Flood Litigation, 680
N.E.2d 265, 277-78 (Ill. 1997), provides that nuisance and
trespass both require an invasion. Nuisance requires
only a perceptible invasion, but the permit did not even
lead to this minor effect. Trespass is even tougher; it is
usually defined by a “crass physical invasion.” Id. at 205.
Obviously the permit did not march onto Muscarello’s
land, nor, as far as this record shows, did any of the
defendants in the effort to start building their wind
facility. Limiting her claims to the permit, as she must,
Muscarello cannot succeed at this time under either
a nuisance or trespass theory.
V
We next turn to the seven claims for which Muscarello
pleaded supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367. The district court elected to dismiss these claims,
as authorized by § 1367(c)(3). We see no abuse of discre-
tion in that action, as far as it goes. The only question is
whether, since diversity might provide an alternative
basis of subject-matter jurisdiction, the court should
have retained them on that basis. Muscarello never asked
it to do so, however, and so the question is even
narrower: should the court have investigated other poten-
tial grounds for its jurisdiction that were not asserted?
Nos. 08-2464 & 09-1381 19
It is well established that the burden of establishing
proper federal subject-matter jurisdiction rests on the
party asserting it—here, the plaintiff. See Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Merrell
Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 809 n.6 (“Juris-
diction may not be sustained on a theory that the
plaintiff has not advanced.”). That said, the rule in this
circuit has been that the “court’s discretion to dismiss
for lack of subject matter jurisdiction when the plaintiff
could have pleaded the existence of jurisdiction and
when in fact such jurisdiction exists, should be exer-
cised sparingly.” Hoefferle Truck Sales, Inc. v. Divco-Wayne
Corp., 523 F.2d 543, 549 (7th Cir. 1975) (citing Littleton v.
Berbling, 468 F.2d 389, 394 (7th Cir. 1972), rev’d on other
grounds sub nom., O’Shea v. Littleton, 414 U.S. 488 (1974)).
But to say that dismissals under these circumstances
should be rare does not mean that this step is never
appropriate. See, e.g., Morongo Band of Mission Indians v.
Cal. State Bd. of Equalization, 849 F.2d 1197 (9th Cir. 1988)
(remanding the case with instructions to dismiss for lack
of jurisdiction, and expressly declining to determine
whether jurisdiction existed under § 1332 because the
parties did not plead it). In Littleton, supra, immediately
after acknowledging the principle that a court usually
should not dismiss a case just because the plaintiff failed
to articulate a basis for jurisdiction that was evidently
proper, we cautioned that “the ultimate duty of pleading
his case rests upon the party and not upon the district
court to divine what is not reasonably there.” 468 F.2d
at 394.
Here, as we have already pointed out, the district court
gave Muscarello at least three opportunities to come up
20 Nos. 08-2464 & 09-1381
with proper jurisdictional allegations. We followed up
at oral argument with the question why she had not
pleaded alienage or diversity of citizenship for these
seven counts, and then essentially walked her through
the application of § 1332 to these claims. (As we
implied earlier, it is at least theoretically possible that
some or all of these theories do not “form part of the
same case or controversy under Article III of the
United States Constitution,” as required by § 1367(a), and
thus could be pursued only if diversity or alienage juris-
diction is present. For anything that fell outside the
supplemental jurisdiction, dismissal was required, not
discretionary, unless Muscarello could point to an inde-
pendent basis of jurisdiction.) Parties may correct
defective allegations of jurisdiction even during trial or
appeal, 28 U.S.C. § 1653, yet Muscarello has not availed
herself of that opportunity for her seven supplemental
counts.
We are not inclined in this case to make Muscarello’s
jurisdictional arguments for her. As matters stand, she is
free to proceed on these seven counts in state court, if
she so chooses, and so she is not seriously prejudiced by
the district court’s action. “[T]he plaintiff is absolute
master of what jurisdiction he will appeal to.” Healy v. Sea
Gull Specialty Co., 237 U.S. 479, 480 (1915). We find that
this plaintiff also is the absolute master of what juris-
diction she will eschew.
VI
Finally, we address Baileyville’s motion to stay ad-
ministrative proceedings. An Ogle County ordinance
Nos. 08-2464 & 09-1381 21
provides that special use permits expire after one year
unless construction or use has commenced. On July 28,
2008, Baileyville filed a motion seeking a stay of any
administrative proceeding to enforce this time period
against it before this litigation is complete. The district
court denied this motion, and Baileyville has cross-ap-
pealed to this court.
Section 5/3-111(a) of the Illinois Administrative
Review Act provides that the Illinois Circuit Court has
the power “to stay the decision of the administrative
agency in whole or in part pending the final disposition
of the case.” 735 ILCS 5/3-111(a)(1). In Gold v. Kamin, 524
N.E.2d 625 (Ill. App. Ct. 1988), the Illinois Court of
Appeals held that land-use litigation does not excuse a
party from the expiration of a permit if the party did not
request an administrative stay during the litigation. Id. at
627-28. See Homeowners Organized to Protect the Env’t, Inc. v.
First Nat’l Bank of Barrington, 521 N.E.2d 1202, 1206 (Ill.
App. Ct. 1988) (affirming the trial court’s decision to stay
the expiration of a permit during litigation). Fearing a
repeat of Gold, Baileyville requested that the district
court—which it viewed as the equivalent of the Illinois
Circuit Court—issue a stay of any administrative pro-
ceedings to terminate the permit, even though no such
proceedings have begun and Baileyville has no reason
to believe that Ogle County will commence them.
The district court dismissed Baileyville’s request for a
stay, finding that it lacked jurisdiction over the case as
a whole and that the statute was inapplicable since
Baileyville could not identify a particular administra-
22 Nos. 08-2464 & 09-1381
tive action it wanted the court to stay. The district court
also cited federalism concerns in “direct[ing] the Ogle
County Board how to enforce its zoning ordinances.”
Illinois courts review the decision to grant administra-
tive stays for an abuse of discretion, and we too would
treat such a decision deferentially. See Douglas Transit, Inc.
v. Ill. Commerce Comm’n, 495 N.E.2d 620, 623 (Ill. App. Ct.
1986). We find no abuse of discretion on these facts. Ogle
County and Baileyville have worked together to get
this project off the ground, and apparently the ZBA has
represented in another action that it believes that
Baileyville has satisfied the permit’s “commencement
of use” requirement. The district court reasonably could
have found that there was no need for judicial action
under those circumstances.
* * *
We hold that Muscarello’s federal takings, equal pro-
tection, and due process theories failed to state a claim
upon which relief could be granted. Her state-law
trespass and nuisance theories are not ripe for consider-
ation. Finally, she failed to avail herself of the oppor-
tunity to allege and support an independent basis of
federal subject-matter jurisdiction over the other seven
claims. The district court was thus entitled to dismiss
those claims without prejudice under § 1367(c)(3). With
respect to Baileyville’s cross-appeal, we hold that the
district court did not abuse its discretion in denying the
motion for an administrative stay. We therefore A FFIRM
the judgments of the district court.
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