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Friday, December 05, 2008

Ind. Decisions - 7th Circuit issues 2 Indiana decisions today

In Flying J Inc. v. City of New Haven (ND Ind., Judge Miller), an 18-page opinion, Judge Flaum writes:

Flying J purchased 53.3 acres in New Haven, Indiana in the hopes of constructing a travel plaza and various other developments, including hotels and restaurants, on that land. Unfortunately, the New Haven Plan Commission was not as sanguine about the development plans, and after two adverse zoning decisions Flying J sued New Haven in Indiana state court. After losing in the trial court, Flying J prevailed on appeal, and the Indiana Supreme Court’s decision not to review the case made Flying J’s victory final. The victory proved to be short-lived, however. As the state court litigation was winding down, New Haven amended its zoning ordinance and limited all service stations (such as Flying J’s travel plaza) to two acres in size. Needless to say, Flying J’s proposed development was not permitted under the amended ordinance. Flying J then filed suit in federal court, alleging that New Haven’s actions violated their rights to equal protection and due process. New Haven then filed a motion to dismiss for lack of subject matter jurisdiction, charging that the case was not ripe, and a motion to dismiss for failure to state a claim. The district court found that the controversy was ripe and thus that it had subject matter jurisdiction over the case, but granted the motion to dismiss for failure to state a claim. * * *

[W]e affirm the district court’s determination that the ripeness requirements of Williamson County do not apply to the present case. * * *

The allegations in Flying J’s complaint are thus insuffi- cient to overcome the presumption of rationality that attaches to government actions in a class of one equal protection case, and the district court properly dismissed it for failing to state a claim under Rule 12(b)(6).

In U.S. v. Derrik Hagerman and Wabash Env. Tech. (SD Ind., Judge Hamilton), a 4 page opinion, Judge Posner writes:
The defendants, Wabash Environmental Technologies, LLC, and its president, Hagerman, were convicted of making false statements in violation of the Clean Water Act, and they appeal. We affirm the judgments in an unpublished order issued today, and limit this opinion to a threshold issue that happens to be the single point of novelty in the appeals.

In previous appeals by these parties in a related civil case, we ruled that a limited liability company (which Wabash is), like a corporation, cannot litigate in a federal court unless it is represented by a lawyer. * * * In the present case Wabash was represented by a lawyer both in the district court and in this court. The lawyer filed both an opening brief and a reply brief on behalf of the company. But then Hagerman fired the lawyer, who moved us for leave to withdraw from the case, which we granted. The question is whether, even though Wabash’s appeal has been fully briefed, we should dismiss it because Wabash is no longer represented and, not being a natural person, cannot litigate in federal court unless it is represented.

We cannot find a case that has addressed this issue. * * *

One way to treat a willful act by an appellant that constitutes a ground for dismissal is to treat the act as if it were a motion for a voluntary dismissal of the appeal, which the court can grant upon terms fixed by it, Fed. R. App. P. 42(b)—but doesn’t have to grant at all. * * * In this case, with the appeal fully briefed and the merits free from doubt, we would be mistaken to grant the (imputed) motion. For that would allow Wabash to argue in future regulatory proceedings that the merits of its defense had never been fully adjudi- cated. We have thought it best, therefore, to affirm the judgment of the district court in order to lay to rest any doubt about the company’s guilt. But it bears emphasis that at any point in a federal litigation at which a party that is not entitled to proceed pro se finds itself without a lawyer though given a reasonable opportunity to obtain one, the court is empowered to bar the party from further participation in the litigation.

Posted by Marcia Oddi on December 5, 2008 12:07 PM
Posted to Ind. App.Ct. Decisions