United States District Court, W.D. Wisconsin
D. PETERSON District Judge
an inverse condemnation case in which plaintiff Save More
Food Markets, Inc. alleges that defendant Wisconsin
Department of Transportation (DOT) has taken two driveways
that provided public access to Save More’s commercial
property. Save More sued in state court, seeking an order
requiring DOT to begin condemnation proceedings and pay Save
More just compensation for its property.
removed the case to this court on June 24, 2016. Dkt. 1.
According to DOT, Save More has alleged a Fifth and
Fourteenth Amendment Takings Clause claim, over which the
court would have subject matter jurisdiction pursuant to 28
U.S.C. § 1331. Dkt. 1, ¶¶ 2, 4. DOT also
contends that the court can exercise supplemental
jurisdiction over Save More’s state law claims pursuant
to 28 U.S.C. § 1367, because they are part of the same
case or controversy. Id. ¶¶ 2, 5.
preparing for an upcoming Preliminary Pretrial Conference,
the parties have submitted a joint pretrial report. Dkt. 5.
Among other things, the report includes a brief summary of
how the parties envision scheduling the case. Based on this
submission, the court will direct the parties to address
whether there is a basis from which to exercise subject
matter jurisdiction over this case.
parties propose a bifurcated case: phase one will address
whether a compensable taking has occurred for purposes of
state law; assuming that a taking has occurred, phase two
will address the compensation to which Save More is due. But
the parties disagree about where the federal takings claim
fits into this case. Save More contends that the claim is not
yet ripe because it has not yet exhausted its state remedies
(i.e., the state law inverse condemnation claims that it is
pursuing in this case). Id. at 2-3. Defendants
appear to disagree (although they do not come right out and
say so), contending that it would be proper to address the
federal takings claim during the first phase of the
litigation. Id. at 3.
courts have an independent obligation to ensure that they do
not exceed the scope of their jurisdiction, and therefore
they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428, 434 (2011). As the party invoking federal jurisdiction,
DOT bears the burden of establishing that jurisdiction is
present. Smart v. Local 702 Int’l Bhd. of Elec.
Workers, 562 F.3d 798, 803 (7th Cir. 2009).
claim that the application of government regulations effects
a taking of a property interest is not ripe until the
government entity charged with implementing the regulations
has reached a final decision regarding the application of the
regulations to the property at issue.” Williamson
Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 186 (1985). This means that
a federal takings claim is not ripe until “(1) the
regulatory agency has had an opportunity to make a considered
definitive decision, and (2) the property owner exhausts
available state remedies for compensation.” Forseth
v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000)
(citing Williamson, 473 U.S. at 193-94); see
also Greenfield Mills, Inc. v. Macklin, 361 F.3d 934,
958 (7th Cir. 2004) (“Takings involving physical
invasions . . . are subject to a more streamlined inquiry. We
have held that a physical invasion constitutes a ‘final
decision’ and thus satisfies Williamson
County’s first requirement. Therefore, this type
of takings claim is subject only to
Williamson’s exhaustion requirement.”
(citations and internal quotation marks omitted)). Because
federal courts have subject matter jurisdiction over takings
claims only when a plaintiff has satisfied
Williamson’s exhaustion requirements, the
court must address this issue at the outset of the case.
Patel v. City of Chicago, 383 F.3d 569, 573 (7th
point, the parties have presented the issue of ripeness only
indirectly, through their pretrial conference report. The
court will therefore direct the parties to brief whether Save
More’s federal takings claim is ripe for adjudication
and whether there is a basis from which the court can
exercise subject matter jurisdiction over this case. If the
parties determine that federal jurisdiction is not present,
then they should stipulate to remand this case to state
ORDERED that defendant Wisconsin Department of Transportation
may have until July 26, 2016, to file a brief addressing
whether the court can exercise subject matter jurisdiction
over this case. Plaintiff Save More Food Markets, Inc. ...