IN THE UNITED STATES DISTRICT COURT FOR ... - Chicago Journal by wangnianwu


									       Case 1:07-cv-04245        Document 131   Filed 07/27/2009   Page 1 of 27


CONVENTION CENTER,                                 )
                Plaintiff,                         )      No. 07 C 4245
       v.                                          )      Judge Guzman
OF CHICAGO,                                        )
                Defendants.                        )

                              DEFENDANTS’ POST TRIAL BRIEF

Karen M. Dorff
Andrew W. Worseck
City of Chicago Dept. of Law
30 North LaSalle Street, Suite 1230
Chicago, IL 60602

July 27, 2009
          Case 1:07-cv-04245                  Document 131                 Filed 07/27/2009               Page 2 of 27

                                                       Table of Contents

I. FACTS ADDUCED AT TRIAL..............................................................................................1

II. ARGUMENT............................................................................................................................4

          A.         Plaintiff Failed To Prove That It Was Harmed By A City Policy.....................4

          B.         The Failure To Grant Plaintiff’s Café Applications
                     Is Not Preempted Under Machinists Because Plaintiff
                     Did Not Prove Harm To Its Bargaining Position..............................................13

          C.         Plaintiff Has Not Met the High Burden
                     Required to Prove A “Class of One” Claim......................................................19

          D.         Plaintiff Failed To Prove Damages.....................................................................22


         Case 1:07-cv-04245                Document 131              Filed 07/27/2009             Page 3 of 27

                                                     Table of Cases

Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d 1406 (9th Cir. 1996)..................15, 16, 17

Alcantara v. Allied Properties, LLC, 334 F. Supp.2d 336 (E.D.N.Y. 2004)...........................13, 14

Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992).......................................................................5, 12

Baskin v. City of Des Plaines, 138 F.3d 701 (7th Cir. 1998)...........................................................6

Bell v. Duperrault, 367 F.3d 703 (7th Cir. 2004)....................................................................18, 20

Building and Constr. Trades Council of the Metropolitan Dist. v. Associated Builders
and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218 (1993)................................13

Campbell v. Rainbow City, 434 F.3d 1306 (11th Cir. 2006)...............................................6, 11, 12

Campion, Barrow & Associates, Inc. v. City of Springfield, 559 F.3d 765 (7th Cir. 2009)............7

Chamber of Commerce of the United States of America v. Brown, 128 S.Ct. 2408 (2008)....14, 15

Colfax Corp. v. Illinois State Toll Highway Authority, 79 F.3d 631 (7th Cir. 1996)................... 15

City of St. Louis v. Praprotnik, 485 U.S. 112 (1988).................................................................6, 12

Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003)...................6

Dima Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999)........................................................11

Dye v. Wargo, 253 F.3d 296 (7th Cir. 2001)...................................................................................4

Felton v. Board of Commissioners of the County of Greene, 5 F.3d 198 (7th Cir. 1993).............11

Fisher Scientific Co. v. City of New York, 812 F. Supp. 22 (S.D.N.Y. 1993)...............................16

Gernetzke v. Kenosha Unified School Dist. No. 1, 274 F.3d 464 (7th Cir. 2001)...........................5

Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986).................................8, 17

Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004)...................................................................5, 12

Lodge 76, International Assoc. Of Machinists and Aerospace Workers, AFL-CIO v.
Wisconsin Employment Relations Comm’n., 427 U.S. 132 (1976)..............................13, 14, 16, 18

          Case 1:07-cv-04245                  Document 131                Filed 07/27/2009               Page 4 of 27

Matthews v. Columbia County, 294 F.3d 1294 (11th Cir. 2002).....................................5, 7, 10, 11

McDonald v. Village of Winnetka, 371 F.3d 992 (7th Cir. 2004)..................................................18

Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985)...............................13, 18

Monell v. Department of Social Services, 436 U.S. 658 (1978)......................................................4

Northern Illinois Chapter of Associated Builders and Contractors, Inc. v. Lavin,
431 F.3d 1004 (7th Cir. 2005).................................................................................................14, 15

Purze v. Village of Winthrop Harbor, 286 F. 3d 452 (7th Cir. 2002)............................................18

Rasche v. Village of Beecher, 336 F.3d 588 (7th Cir. 2003).......................................................5, 7

Roach v. City of Evansville, 111 F.3d 544 (7th Cir. 1997)..............................................................4

Rondout Electric Co. v. NYS Department of Labor, 335 F.3d 162 (2nd Cir. 2003)......................13

Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n,
824 F.2d 672 (8th Cir. 1987).........................................................................................................14

Taylor v. Carmouche, 214 F.3d 788 (7th Cir. 2000).....................................................................12

United States v. Mitra, 405 F.3d 492 (7th Cir. 2005)....................................................................12

United States v. Moore, 543 F.3d 891 (7th Cir. 2008)...................................................................18

520 South Michigan Ave. Associates, Ltd. v. Shannon, 549 F.3d 1119 (7th Cir. 2008)..........14, 15

       Case 1:07-cv-04245            Document 131          Filed 07/27/2009     Page 5 of 27

       Defendants Alderman Robert Fioretti, sued herein solely in his official capacity, and the

City of Chicago (collectively, “the City”) file this brief following the trial of July 8-13, 2009.

                                 I. FACTS ADDUCED AT TRIAL

2006 Sidewalk Café Permit Application

       Under the Municipal Code of the City of Chicago (“MCC”), Section 10-28-820,1 permit

applications that comply with the requirements of the City Code and Regulations regarding cafes

that use the public sidewalk are directed by the City’s Department of Consumer Protection and

Licensing (formerly the Department of Business Affairs and Licensing or “DBAL”) to the

alderman of the affected ward, along with a recommendation for introducing an ordinance

approving the application; the alderman’s approval shall not be unreasonably withheld. Final

Pretrial Order, Statement A (“FPTO”), ¶ 9. During 2006 and until or about May 18, 2007, the

Alderman of the Second Ward of the City of Chicago was Madeleine L. Haithcock. FPTO, ¶ 8.

At the City Council meeting of June 28, 2006, Alderman Haithcock introduced the proposed

ordinance which would have granted Plaintiff a sidewalk café permit for 2006. Plft. Ex. 26.

       The proposed ordinance was referred to the Committee on Transportation and Public

Way (“Transportation Committee”). Exhibit B hereto, Transcript of Trial Proceedings (“Tr.”), at

506. On July 27, 2006, a temporary or “pending passage” sidewalk café permit was issued to

Plaintiff. Pltf. Ex. 14; FPTO, ¶10. The temporary permit issued to Plaintiff stated that it was

“revocable by the Director of Business Affairs and Licensing at any time.” Id. Permits “pending

passage” can be issued to allow applicants to operate seasonal cafés while their ordinances

proceed through Committee and back to Council for enactment or “passage.” Tr. at 36. Plaintiff

operated the sidewalk café for a period of only a few days. Tr. at 419, 442. Alderman

           Sections of the MCC cited herein are attached hereto as Exhibit A.

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Haithcock’s office began to receive “plenty of” complaints about the conditions and service at

the Hotel and café, including roaches and dirt; these complaints were communicated to the

Alderman, who decided that the café permit should be deferred while Plaintiff cleaned up or

corrected the problems, at which point she would be willing to support it again. Tr. at 24, 37-38,

43. Haithcock wrote to the chair of the Transportation Committee, Alderman Thomas Allen,

requesting such deferral, Pltf. Ex. 13, and the ordinance was deferred at the July 2006 Committee

meeting. Pltf. Ex. 26.

       City personnel at DBAL informed Daniel Graham, an attorney representing the Congress

Hotel with respect to the application, that the temporary or “pending passage”permit was revoked

because of the deferral. Tr. at 508-09; see Pltf. Ex. 15. After Graham’s efforts to get the

proposed ordinance back on the Transportation Committee’s agenda, it was considered at the

October 3, 2006, meeting of that Committee, which voted Do Not Pass. FPTO, ¶12. At that

meeting, the Committee members were informed by the Chair that Alderman Haithcock did not

support the ordinance. Id. ¶13. Alderman Haithcock was not a member of the Committee. Tr.

at 35. She was present for part of the October 3, 2006 meeting, but denies telling Graham that

she withdrew her support of the sidewalk café ordinance because she needed union support to be

re-elected in 2007. Tr. at 29-30. She knew she had already been “blackballed” by the unions, Tr.

at 45, and according to the president of UNITE HERE Local 1, the union on strike at the

Congress Hotel, the union opposed Haithcock’s re-election even before it decided which other

candidate for Second Ward Alderman to support. Tr. at 294-95. In October 2006 Haithcock

“knew [she] wasn’t going to get the union votes,” Tr. at 30. Haithcock did not at any time think

that withdrawing her support for Plaintiff’s 2006 sidewalk café application would in any way

help her win the political support of organized labor in her re-election campaign. Tr. at 40-41.

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Henry Tamarin, the President of Local 1, agreed that his union’s opposition to Haithcock was

“right from the get-go” and the union never changed its mind. Tr. at 295.

2007 and 2008

       Although Ariel Adkins claimed at trial that he left a copy of Plaintiff’s application for a

sidewalk café for the 2007 season with Alderman Fioretti before or at a meeting on July 9, 2007,

no such application is in the materials that he said he delivered, Pltf. Ex. 155, and Shlomo

Nahmias, the Hotel’s President, admitted under oath that the Hotel in fact never submitted an

application for the 2007 season. Tr. at 546-47. Plaintiff submitted two different applications for

the 2008 season, Pltf. Ex. 156-9 (for 104 seats) in November 2007, and Pltf. Ex. 72 (for 80

seats) in December 2007, neither of which was signed by Alderman Fioretti.


       Plaintiff submitted a sidewalk café application for the 2009 season in January, 2009.

Pltf. Ex. 87. At the May 13, 2009 meeting of the City Council, a proposed ordinance, PO 2009-

4122 (“PO”), was introduced which, if enacted, would have granted Plaintiff a permit for a

sidewalk café for the 2009 season. Alderman Fioretti did not sign Plaintiff’s application or

introduce the PO. FPTO, ¶ 26D. Rather, the PO was introduced by the Commissioner of the

Department of Consumer Protection and Licensing. Tr. at 129. Upon introduction, the PO was

referred to the Council’s Transportation Committee. FPTO, ¶ 24. At the June 1, 2009 meeting

of that Committee, the PO was deferred. Id. ¶ 25. The PO was then considered at the

Committee’s next meeting, which took place on June 25, 2009. Id. ¶ 26A. Representatives of

Plaintiff, Peter Andjelkovich and Shlomo Nahmias, were requested by the Committee staff to be

present at that meeting, and they responded to questions from the Committee Chair, Alderman

Thomas Allen, and Committee members. At this meeting, the PO was unanimously voted Do

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Not Pass. No reasons for this vote were stated. Id. ¶ 26C. On June 26, 2009, Plaintiff submitted

another application, for a 52-seat sidewalk café, Pltf. Ex. 191. No evidence was adduced at trial

of any action taken by the City on this application to date.

       In 2008 and 2009, Robert Fioretti signed the applications, and introduced ordinances, for

11 other permits issued to Plaintiff for various uses of the public way, all of which were enacted

by the City Council, and permits issued accordingly. FPTO, ¶ 32; Defts. Group Ex. 1.

                                         II. ARGUMENT

A.     Plaintiff Failed To Prove That It Was Harmed By A City Policy.

       Whatever Plaintiff may argue that it has proven regarding Alderman Haithcock or

Alderman Fioretti’s actions or motives, it has not proven that it was harmed by a City policy.

Monell v. Department of Social Services, 436 U.S. 658 (1978) holds that a § 1983 plaintiff

cannot rely on a theory of respondeat superior to hold a municipality liable for its employee’s or

agent’s conduct; rather, the plaintiff must show that the employee’s actions resulted from City

policy. Id. at 691-95 (emphasis added). “In litigation under § 1983 a municipality is not

vicariously liable for the constitutional torts of its employees;” rather, it “is answerable only for

the consequences of its policies.” Dye v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001). A plaintiff

can demonstrate the requisite municipal policy in one of three ways – by showing “(1) an express

policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that,

although not authorized by written law or express municipal policy, is so permanent and well

settled as to constitute a custom or usage with the force of law; or (3) an allegation that the

constitutional injury was caused by a person with final policymaking authority.” Roach v. City of

Evansville, 111 F.3d 544, 548 (7th Cir. 1997).

       Plaintiff does not challenge the City’s sidewalk café ordinance itself, nor does Plaintiff

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challenge the City Council’s legislative discretion under the ordinance to deny a permit. Rather,

Plaintiff’s federal theories hinge on a single alderman conditioning a permit on a particular

reason – namely, settlement of the strike – that is purportedly preempted by federal law. But an

individual alderman does not possess final policymaking authority. Such authority exists only

where an official possesses the “responsibility for making law or setting policy, that is, authority

to adopt rules for the conduct of government.” Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir.

2004). State and local law determines who holds final policymaking authority in a municipality.

Id. In Chicago, no single alderman possesses the authority to make laws or establish policies for

the City; rather, that authority is possessed and exercised by the City Council as a whole. See

Rasche v. Village of Beecher, 336 F.3d 588, 601 (7th Cir. 2003); Auriemma v. Rice, 957 F.2d 397

(7th Cir. 1992). And the City Council has set the City’s policy on sidewalk café permits by

establishing (via ordinance) the application policies and procedures for those permits. MCC §§

10-28-800 et seq. Moreover, each café permit is ultimately granted by a separate legislative act,

an ordinance, voted on by the City Council as a whole. Id. § 10-28-820. It was the City Council,

through its Transportation Committee, that made the final decision whether a sidewalk café

permit would issue to Plaintiff in 2006 (when Haithcock was in office) and in 2009 (when

Fioretti was). See Gernetzke v. Kenosha Unified School Dist. No. 1, 274 F.3d 464, 469 (7th Cir.

2001) (person is final policymaker where his authority “is final in the special sense that there is

no higher authority”). Because the City Council makes the final decision, it has not delegated to

the local alderman final policymaking authority as to café permits issued in his or her respective

ward. See, e.g., Gernetzke, 274 F.3d at 468-69; Matthews v. Columbia County, 294 F.3d 1294,

1297 (11th Cir. 2002).

       Thus, all that is left to Plaintiff is the “custom and practice” basis for municipal liability.

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The custom and practice alleged is “aldermanic prerogative” – i.e., that with respect to permit

applications that affect a single ward, the final policymaker (City Council) invariably adopts the

position of that ward’s alderman (either in favor or against). In effect, Plaintiff argues that the

City Council ratified Alderman Fioretti’s motivation. But the trial evidence comes nowhere near

proving ratification that rises to the level of a Monell custom or practice.

       “[I]t is well settled that a plaintiff seeking to establish a § 1983 claim against a

municipality based on a ‘ratification’ theory must allege that a municipal official with final

policymaking authority approved the subordinate’s decision and the basis for it.” Baskin v. City

of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998) (emphasis added). In Civil Liberties for Urban

Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003), the plaintiffs alleged that a Chicago

alderman improperly thwarted their ability to build a church when he initiated efforts to re-zone a

parcel; the City Council voted in accord with the alderman’s wishes and passed an ordinance

rezoning the property. Id. at 757-58. But even though the alderman’s reasons for supporting the

rezoning may have been “egregious” and “dishonorable,” id. at 759, the court upheld the

ordinance because there was no evidence that the City Council adopted the alderman’s reasons:

       Here, the possibility that Alderman Huels’ motives for wanting to have the property
       rezoned were illicit in no way demonstrates that the City Council and the Mayor, who
       have final authority under state law to enact City ordinances . . . endorsed any such
       motives. Absent some evidence that the policy-making body, in this case the City
       Council, approved both the rezoning and the illicit motivation therefor . . . Chicago
       cannot be held liable for Alderman Huels’ actions.

Id. at 764 (emphasis in original). See also, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112,

127 (1988) (plurality opinion) (municipality liable where “the authorized policymakers approve a

subordinate’s decision and the basis for it”) (emphasis added); Campion, Barrow & Associates,

Inc. v. City of Springfield, 559 F.3d 765, 772 (7th Cir. 2009) (City not liable where, even though

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particular alderman may have had unconstitutional basis for opposing plaintiff, plaintiff “failed to

introduce anything affirmatively indicating that the authorized decisionmaker – the City Council

– was retaliating against him” for unconstitutional reason); Rasche, 336 F.3d at 598 (fact that a

single legislator “was upset about losing the golf course does not demonstrate that the entire

board of Trustees was motivated to retaliate unconstitutionally”); Campbell v. Rainbow City, 434

F.3d 1306, 1313 (11th Cir. 2006) (“the final policymaker must ratify not only the decision of its

member with an unconstitutional motive, but also the unconstitutional basis itself”); Matthews,

294 F.3d at 1297 (“[a]n unconstitutional motive on the part of one member of a three-member

majority is insufficient to impute an unconstitutional motive to the Commission as a whole”).

        Plaintiff introduced no evidence of the individual motives of any of the Transportation

Committee members who voted against its sidewalk café applications, let alone any evidence that

any one or more of the Committee members ratified, or even knew of, any purportedly improper

motive of Alderman Haithcock in 2006 or Alderman Fioretti in 2009.2 Plaintiff did not call any

of those members to testify about their motives, nor did Plaintiff introduce the recordings of the

Committee meetings at which Plaintiff’s applications were voted on, though copies were

produced to Plaintiff and listed by Plaintiff as possible exhibits in the Final Pre-Trial Order.3 In

          Plaintiff concedes that it never submitted an application for the 2007 season. Tr. at 546-47; Pltf.
Ex. 155. Plaintiff’s applications for the 2008 season (Pltf. Ex. 72 and 156-9) were submitted in
December 2007. For nearly the entire 2008 sidewalk café season, the City had pending a motion to
dismiss the complaint for failure to state a claim. That motion was granted in part in November 2008.
Shortly after the City filed its answer, the Court ordered a settlement conference, which took place on
January 8, 2009. The 2009 application was submitted shortly thereafter. Pltf. Ex. 87. By early April
2009 settlement efforts had failed and the case was set for trial. A defendant in litigation and/or
settlement discussions is not legally obligated to take some action plaintiff wants, while mounting a non-
frivolous challenge to the validity of plaintiff’s legal entitlement to that action.
          See Final Pre-Trial Order, Statement C, Plaintiff’s Trial Exhibits and Defendants’ Objections,
which lists the tapes of both the October 3, 2006 and June 25, 2009 meetings of the Transportation
Committee as Ex. 164 and 165, respectively. The City listed “no objection” to their admission in
evidence. Id.

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fact, Plaintiff stipulated that at the June 25, 2009 Transportation Committee meeting, no reasons

were stated for the Don Not Pass vote. FPTO, ¶ 26C.

       The crucial difference between Plaintiff’s case and Golden State Transit Corp. v. City of

Los Angeles, 475 U.S. 608 (1986) is that “it was undisputed” that the strike was “the sole basis

for refusing” to extend the franchise of the taxicab company. Id. at 611. The official policy of

the City of Los Angeles was unmistakably manifested “by objective factors such as what the city

– through the [City] Council and the Assistant City Attorney – told the parties,” and what

numerous Council members – including the Council President – stated on the floor during

Council meetings on the subject. Id. at 611, 615 n.6. Here, however, the record is completely

devoid of any evidence showing that a single Transportation Committee member, much less

those constituting a majority voting against the applications, voted based on any particular

reason, much less the pre-empted motive alleged.

       The theory of aldermanic prerogative cannot substitute for such evidence, for at least two

reasons. First, the evidence does not support a finding that the practice was the cause of

Plaintiff’s harm. Plaintiff’s evidence shows that aldermanic prerogative, or at least some level of

deference to an alderman’s knowledge of his own ward’s local conditions and concerns, is – at

most – a general idea; every witness who testified about the issue explained that it is not always

followed. Tr. at 326, 357, 360 (Citron); at 182 (Jubeh); at 234-35 (Tabing); at 297, 299

(Tamarin); at 124-26 (Fioretti). Indeed, it is not always followed even as to Plaintiff; it is

stipulated that Plaintiff’s application for the Rooftop Renovations were approved by the Plan

Commission in June 2009 even though Alderman Fioretti opposed it on the record. FPTO, ¶ 24.

And the union still felt it necessary to lobby the Transportation Committee to vote against the

sidewalk café application. Tr. at 299-300. That would have been unnecessary if Alderman

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Fioretti’s lack of support were all it took to torpedo the applications.

        Even more telling, Plaintiff’s own expert did not opine that the practice was responsible

for, or even influenced, the votes taken on Plaintiff’s sidewalk applications; he offered no

opinion on any conduct taken toward the Plaintiff at all. Nor did his pre-trial report contain any

such opinion. Tr. at 353-54. Indeed, each City Council vote is unique, and Mr. Citron readily

acknowledged that the reasons for any particular vote cannot be presumed or inferred. Despite

his purported wealth of experience dealing with municipal approvals both as a City attorney and

in private practice, Mr. Citron admitted that, unless an alderman writes a letter stating in black

and white why he or she voted the way he or she did, “[I] don’t know why a particular member of

the City council or commission voted the way he or she did,” and that “[I] don’t know what’s in

the mind of the other aldermen or commission members who might vote on the Congress Hotel

application.” Tr. at 354-55. Mr. Citron also did not review Plaintiff’s sidewalk applications or

any of the facts surrounding their treatment by the City, nor was he provided any documents to

review by Plaintiff’s counsel. Tr. at 340, 355-56. Plaintiff’s counsel did not even ask Mr. Citron

if he had an opinion – whatever it might be, and to whatever degree of certainty – on that issue.4

If aldermanic prerogative really is the virtual “veto power” that Plaintiff makes it out to be, why

didn’t Mr. Citron offer any opinion that this policy resulted in the Committee votes against the

legislation Plaintiff desired? That leap is so unsupported and speculative that Plaintiff’s own

          Mr. Citron’s trial testimony, in its entirety, confirmed that his opinion does not address the
issues of the case, is not the product of reliable methodology, and is hopelessly biased. The City set forth
these grounds in its June 17, 2009 Motion In Limine to Bar Report and Testimony of Mr. Citron [Docket
No. 108], and hereby incorporates the arguments made therein. Accordingly, Mr. Citron’s trial testimony
should be stricken, or, at the least, given very little weight.

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attorney and “expert” refused to make it. This Court should not do it for him.5

        And Mr. Citron certainly did not opine, and Plaintiff offered no evidence, that the City

Council would blindly follow aldermanic prerogative even where, as here, the local alderman’s

reasons for opposing an application are alleged to violate federal law and are the subject of a

federal lawsuit. Indeed, the City Council’s policy on this matter – as set forth in MCC § 10-28-

820 – states that the local alderman’s opposition shall not be “unreasonable,” which is another

way of saying that the Council does not countenance opposition that would be unlawful.

        Second, even if the evidence is stretched to allow for the possibility that aldermanic

prerogative was at work in this case, it would be entirely beside the point because, as noted

above, aldermanic prerogative says nothing about whether City Council members share the local

alderman’s underlying motivation. It merely presumes that members vote for a particular

outcome for no other reason than the local alderman wishes it. Put another way, aldermanic

prerogative would show – at most – that the Council votes the same way as the local alderman,

but it hardly shows they vote for the same reasons as the local alderman. Therefore, relying on

the theory of aldermanic prerogative does not supply the requisite proof that the Transportation

Committee shared any allegedly pre-empted motivation for opposing Plaintiff’s applications.

        In Matthews, three members of a five-member commission voted to eliminate the

plaintiff’s job. 294 F.3d at 1295. The jury found that one of the three commissioners (Reynolds)

voting to eliminate the job was illegally motivated by the plaintiff’s protected free speech

          Ms. Jubeh’s testimony also does not advance Plaintiff’s cause. Her testimony did not address
aldermanic practices during the period that Plaintiff’s applications were submitted and voted upon, as she
was not employed by the City after 2005. Tr. at 179, 207. And, even during the period that she was a
City employee (while working as an assistant to another alderman) her limited experience with
applications did not expose her to how or whether such a practice operated in the City, Tr. at 203-206, let
alone whether it actually influenced the votes on Plaintiff’s applications in later years.

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activity. Id. at 1296. The plaintiff’s theory was that the other two commissioners voting to

eliminate her job had been influenced in their vote by Reynolds, and that the three commissioners

often voted as a bloc. Id. at 1296-1297. Nonetheless, the Eleventh Circuit held that it was

reversible error to hold the County liable for the vote. The plaintiff had to show more than that

the other commissioners adopted the result favored by Reynolds, that they “often voted the same

way” as Reynolds, and that they “may have known about” Reynolds’ unconstitutional

motivation. Id. at 1298 & n.2. She had to prove that they adopted, in the particular vote at issue,

“the unconstitutional basis” held by Reynolds. Id. at 1297.6 The court explained:

        Lawmakers’ support for legislation can come from a variety of sources; one
        commissioner may support a particular piece of legislation for a blatantly unconstitutional
        reason, while another may support the same legislation for perfectly legitimate reasons.
        A well-intentioned lawmaker who votes for the legislation – even when he votes in the
        knowledge that others are voting for it for an unconstitutional reason and even when his
        unconstitutionally motivated colleague influences his vote – does not automatically ratify
        or endorse the unconstitutional motive. If we adopt the rule suggested by Plaintiff, the
        well-intentioned lawmaker in this hypothetical would be forced either to vote against his
        own view of what is best for his county or to subject his county to Section 1983 liability.
        We think the law compels no such outcome.7

Id. at 1298. Similarly, in Campbell, the court addressed the failure of a nine-member planning

commission to approve plaintiff’s development. The plaintiff argued that the mayor had an

improper basis for opposing the development, and introduced testimony from a city employee

           In Felton v. Board of Commissioners of the County of Greene, 5 F.3d 198 (7th Cir. 1993), the
plaintiff prevailed by showing that the vote of a majority of a three-member County Board was based on
an impermissible consideration of his political affiliation. The record contained evidence that the County
had a custom and practice of taking political affiliation into account. But the Court of Appeals
emphasized that such evidence was “not the basis of liability,” id. at 204, instead relying on evidence in
the record that two of the three individual board members specifically harbored the improper political
animus toward plaintiff when taking the specific vote at issue. Id. at 203.
           See also Dima Corp. v. Town of Hallie, 185 F.3d 823, 828 (7th Cir. 1999) (“It is a familiar
principle of constitutional law that this Court will not strike down an otherwise constitutional statute on
the basis of an alleged illicit legislative motive.”)

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that the mayor “influenced and controlled the Planning Commission.” 434 F.3d at 1313.

However, the court found that there “[was] not a scintilla of evidence that the Commission knew

of and ratified an unconstitutional motive in its decision to repeatedly table Plaintiffs’ request for

tentative approval of their project.” Id. The court ruled that the defendant was entitled to

judgment as a matter of law at the close of plaintiff’s case because there was no evidence

“showing that a majority of the members of the final policymaker, the Planning Commission,

acted with an unconstitutional motive.” Id.

        Here, there is no evidence that any Transportation Committee member voted against

Plaintiff’s applications for, or even with knowledge of, any preempted reason, and no such

motive can be assigned to the City’s final policymaker, the City Council. A public body is a

“‘they’ not an ‘it’; a committee lacks a brain (or, rather, has so many brains with so many

different objectives that it is almost facetious to impute a joint goal or purpose to the

collectivity).” United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005). The City cannot be

liable for either a Machinists claim, or for an equal protection claim, because the requirements of

Monell are not met.8

          The alderman’s signature line on the sidewalk café application form used by DBAL does not
establish City liability. DBAL chose the content of its application forms, presumably for its
administrative convenience, and City Executive Departments like DBAL do not create City policy under
Monell. See Taylor v. Carmouche, 214 F.3d 788, 791 (7th Cir. 2000); Auriemma, 957 F.2d at 399-400.
Moreover, “[w]hen an official’s discretionary decisions are constrained by policies not of that official’s
making, those policies, rather than the subordinate’s departures from them, are the act of the
municipality.” Praprotnik, 458 U.S. at 127. See also Killinger, 389 F.3d at 772 (“If the mayor violated
[the procedures set forth by statute] he was acting contrary to – not setting – the policy of the State.”).
Section 10-28-820(A) of the Municipal Code states that the local alderman’s approval “shall not be
unreasonably withheld.” Plaintiff introduced no evidence showing that the City’s policymaker, the City
Council, or any ordinance, requires the signature line on this application form. Indeed, Plaintiff’s expert
admitted that no ordinance requires aldermanic signature or approval. Tr. 333-34.

      Case 1:07-cv-04245         Document 131          Filed 07/27/2009       Page 17 of 27

B.     The Failure To Grant Plaintiff’s Café Applications Is Not Preempted Under
       Machinists Because Plaintiff Did Not Prove Harm To Its Bargaining Position.

       Plaintiff’s conception of federal preemption under Lodge 76, International Assoc. Of

Machinists and Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Comm’n.,

427 U.S. 132 (1976) (“Machinists”) suffers from two fundamental flaws. First, Plaintiff takes

far too broad a view of what Machinists preempts. Preemption doctrine starts from the premise

that “Congress did not intend to displace state law,” and courts are “reluctant to infer

preemption.” Building and Constr. Trades Council of the Metropolitan Dist. v. Associated

Builders and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 224 (1993). Thus,

Machinists preemption results only where a state or local action “prevents” accomplishment of

the purposes of federal labor law – that is, where it actually intrudes upon or detrimentally

impacts the free play of economic forces in bargaining process. Metropolitan Life Insurance Co.

v. Massachusetts, 471 U.S. 724, 756 (1985). See also Alcantara v. Allied Properties, LLC, 334

F. Supp.2d 336, 341 (E.D.N.Y. 2004) (noting that courts have generally held that Machinists

preemption protects against the “unsettling” of the balance of interests established in the NLRA).

       Absent this kind of intrusion, displacement of state or local action is not justified. Laws

that “neither encourage nor discourage the collective-bargaining processes that are the subject of

the NLRA” nor have “any but the most indirect effect” on a party’s bargaining strength or

position do not impair the federal goal of free economic interplay between the parties, and

therefore are not preempted. Metropolitan Life, 471 U.S. at 755. See also, e.g., Machinists, 427

U.S. at 156 (Powell, J., concurring) (Machinists does not cover “laws that are not directed toward

altering the bargaining positions of employers or unions but which may have an incidental effect

on relative bargaining strength”); Rondout Electric Co. v. NYS Department of Labor, 335 F.3d

162, 169-70 (2nd Cir. 2003) (state law that imposed additional cost on employers not preempted,

       Case 1:07-cv-04245           Document 131           Filed 07/27/2009         Page 18 of 27

even though it may have an indirect economic impact on the bidding process, because “[n]othing

in the regulation imposes a specific choice on either the employer and employee,” and plaintiff

“fail[ed] to establish” how the regulation “would affect the bargaining process itself”);

Southwestern Bell Telephone Co. v. Arkansas Public Service Comm’n, 824 F.2d 672, 675-76 (8th

Cir. 1987) (state order preventing plaintiff utility company from recovering all of its claimed

expenses through a rate increase not preempted where it had at most an “indirect effect” on labor

relations, did not “add to or detract from the rights, practices, and procedures that together

constitute our collective bargaining system,” did not “encroach[] upon either party’s ability to use

economic pressure in future negotiations to gain concessions from the other,” and left plaintiff

“free to resist the union’s demands”); Alcantara, 334 F. Supp.2d at 344-45 (no preemption where

law “operates completely independently of collective bargaining in the exercise of municipal

police powers” and “does not conflict with or inhibit” the bargaining or dispute resolution

process established by the NLRA).9

        Second, while Plaintiff centers its case on statements by two individual Aldermen about

the strike, “[f]ederal preemption doctrine evaluates what legislation does, not why legislators

voted for it or what political coalitions led to its enactment.” 520 South Michigan Ave.

Associates, Ltd. v. Shannon, 549 F.3d 1119, 1133 n.10 (7th Cir. 2008) (emphasis in original);

Northern Illinois Chapter of Associated Builders and Contractors, Inc. v. Lavin, 431 F.3d 1004,

1007 (7th Cir. 2005) (same). “Pre-emption analysis turns on the actual content of the State’s

          In contrast, Machinists found preemption because it was “clear beyond question” that the
challenged law “entered into the substantive aspects of the bargaining process to an extent Congress has
not countenanced.” 427 U.S. at 149. And Chamber of Commerce of the United States of America v.
Brown, 128 S. Ct. 2408 (2008) found preemption because the challenged law’s purpose was “furtherance
of a labor policy,” id. at 2415, and it imposed “compliance costs and litigation risks that are calculated to
make union-related advocacy prohibitively expensive” for certain employers. Id. at 2416.

       Case 1:07-cv-04245         Document 131           Filed 07/27/2009       Page 19 of 27

policy and its real effect on federal rights.” Chamber of Commerce of the United States of

America v. Brown, 128 S. Ct. 2408, 2414 (2008). Thus, even where “state officials want to assist

organized labor,” that is “neither a surprise nor a reason for invalidity” so long as the law “does

not affect” one’s bargaining rights. Lavin, 431 F.3d at 1007. See also Colfax Corp. v. Illinois

State Toll Highway Authority, 79 F.3d 631, 635 (7th Cir. 1996) (where action does not intrude

into realm protected by federal labor law, “we will not go behind the contract to determine

whether the Authority’s real, but secret, motive was to regulate labor”). It is therefore not

enough for Plaintiff to show that either Alderman (or, for that matter, the City, though, as

explained supra, there is no evidence of municipal action) conditioned the permits on settlement

of the strike; Plaintiff needed to prove that lack of permits actually impacted its bargaining

position,10 and it did not offer any evidence of that.

        In Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d 1406 (9th Cir. 1996), the city

passed resolutions announcing support for, and authorizing the city’s participation in, a workers’

boycott of the plaintiff newspaper company. The resolutions accused the plaintiff of “a course of

anti-labor conduct,” “[r]efusing after six years at the bargaining table to settle a first contract with

[labor],” and “[i]ssuing a falsified government document.” Id. at 1410. Further, the city “urg[ed]

all citizens of Oakland to stop purchasing and advertising in the [newspapers] until the labor

dispute is successfully concluded.” Id. The city directly supported the boycott by cancelling its

own subscriptions to the newspaper and the $40,000 in annual advertising that it paid to the

paper. Id. at 1410-11. Even though these actions clearly evidenced the city’s support for the

           That is why Shannon found preemption: The law at issue – which on its face addressed labor
relations – “discourag[ed] collective bargaining.” 549 F.3d at 1133 n.10. Among other things, the law in
its operation “reward[ed] (or punish[ed]) union activity,” id. at 1133, and “impos[ed] confining
requirements on one occupation, in one industry, in one county.” Id. at 1134.

       Case 1:07-cv-04245         Document 131          Filed 07/27/2009       Page 20 of 27

workers and opposition to the employer during a labor dispute, the court nonetheless concluded

that the actions were not preempted because they did “not have some real effect” or “practical

economic impact” on the employer, id. at 1416, and “did not interfere” with the “ordinary course

of the collective bargaining process.” Id. at 1418. See also id. at 1417 (plaintiff did not “offer a

whit of evidence” that city’s actions had “more than a minuscule or de minimis” economic

impact on company). The court found that the plaintiff made “no showing that the City’s actions

could have had any significant impact or effect,” and therefore “did not even rise to the level of a

thumb on the scale” of employer-employee bargaining. Id. at 1416 n.15.

       In the absence of that showing, the court found nothing improper with a city exercising its

democratic right to “communicate with the citizenry” and “mak[e] pronouncements about labor

disputes of concern to their communities” and “advising their constituents of their positions on

such matters.” Id. at 1415. See also Machinists, 427 U.S. at 136 (federal labor policy does not

“preclude the States from regulating aspects of labor relations that involve conduct touching

interests so deeply rooted in local feeling and responsibility”); Fisher Scientific Co. v. City of

New York, 812 F. Supp. 22, 26 (S.D.N.Y. 1993) (Sotomayor, J.) (refusing to preliminarily enjoin

city resolution criticizing plaintiff’s negotiations with union where plaintiff “has not shown that

the City Defendants are forcing it to lose business or to capitulate to the Union”).

       The City recognizes that, unlike this case, Alameda County did not involve the enactment

(or failure to enact) legislation conferring a municipal license upon a party. But the point of that

case is that municipal action, whatever its form, and however pro-union it might be, is not

preempted where it has not been demonstrated to cause tangible and meaningful harm to a

party’s bargaining position within the free play of economic forces.

       Thus, it is clear that Plaintiff’s heavy reliance on Golden State is entirely misplaced. To

       Case 1:07-cv-04245          Document 131           Filed 07/27/2009        Page 21 of 27

be sure, the Court there found that Los Angeles was preempted from conditioning renewal of

Golden State’s taxi franchise on the settlement of a strike. But that case was replete with the

evidence of significant bargaining harm and coercion that is so utterly lacking here. First, it

“was undisputed” that Los Angeles’ action “denied the company an essential weapon of

economic strength – the ability to wait out a strike.” 475 U.S. at 611. That is, the question of

whether Los Angeles’ action impermissibly intruded upon the free play of economic forces was

simply presumed and not at issue.11 Here, however, the City vigorously disputes that Plaintiff

has proven any harm. Second, Los Angeles imposed a “positive durational limit” – i.e., a date

certain, and a very short one at that – by which Golden State had to resolve the strike. Id. at 615.

The strike began on February 11, and Los Angeles demanded it be settled by March 31. Id. at

610, 615. Here, however, there is no evidence that Plaintiff was instructed to settle the strike by

any certain date. Compare Tr. 198. Third, Los Angeles’ action was – on its face – far more

coercive than anything at issue here, because it implicated Golden State’s very existence. If its

taxi franchise were not renewed, Golden State would have lacked authority to operate as a going

concern.12 Los Angeles clearly placed a heavy hand on – it “destroyed” – the balance of power

contemplated by Congress. 475 U.S. at 619.

        None of the evidence in this case, however, shows even a minimal impact on, much less

an intrusion into or destruction of, Plaintiff’s bargaining position. Indeed, Plaintiff introduced no

            The question at issue in Golden State was whether, regardless of the undisputed intrusion into
the bargaining process, a municipality is “immune from labor preemption” when it is merely “exercising
a traditional municipal function.” 475 U.S. at 617-18.
           See Alameda Newspapers, 95 F.3d at 1420 (“[t]he intrusion in Golden State Transit stemmed
from the fact that the City held life or death power over the taxi company” and City’s failure to renew
franchise “effectively coerced the company, and intruded significantly into the collective bargaining

       Case 1:07-cv-04245         Document 131          Filed 07/27/2009       Page 22 of 27

evidence suggesting that it has been affected in its ability to continue to wait out this strike –

currently six years old – or to demand any terms or concessions during negotiations with the

union. Nor did Plaintiff present any evidence of the economic standing of its competitor hotels,

much less how its comparative standing has suffered. And Plaintiff certainly introduced no

evidence that its continued existence or operations are threatened by lack of a sidewalk café.

Indeed, Plaintiff has been able to offer its various rooms and amenities, including for instance its

“very popular sports bar,” throughout the duration of the strike. Tr. at 408, 537.

Nor did Plaintiff offer any proof of how losing the $20,000 in annual sidewalk café profit that it

claims – even if true (and we explain in Section II.D, infra, that this speculative claim was not

proven) – impacts its bargaining position. The amount is clearly de minimis when compared to

the $11 million in gross annual revenues Plaintiff has been making, Pltf. Ex. 143, CONG 607, or

when one considers that Plaintiff has been financially healthy enough to spend $30 million on

renovations over the past 10 years. Tr. at 535-36.

       The best that Plaintiff could offer was the testimony of its President that he “think[s]” the

Hotel’s competitive standing has been impacted by not having a sidewalk café. Tr. at 522. His

testimony is unsupported by any documents or data concerning the economic health or profits of

either the Plaintiff or its competitors. This is far too weak a reed to displace the City’s right to

regulate use of the public way on an extremely prominent and crowded sidewalk. Indeed, federal

labor law was developed “within the larger body of state law promoting public health and safety.

The States traditionally have had great latitude under their police powers to legislate as to the

protection of the lives, limbs, health, comfort, and quiet of all persons.” Metropolitan Life, 471

U.S. at 756. See also Machinists, 427 U.S. at 136 n.2 (even under federal labor preemption, “a

State may still exercise historic powers over such traditionally local matters as public safety and

       Case 1:07-cv-04245           Document 131           Filed 07/27/2009        Page 23 of 27

order and the use of streets and highways”). Accordingly, Plaintiff has failed to prove a

Machinists claim.

C.      Plaintiff Has Not Met The High Burden Required To Prove a “Class of One” Claim.

        Plaintiff does not assert a typical equal protection case involving “charges of singling out

members of a vulnerable group for unequal treatment or charges that a law or policy makes

irrational distinctions between groups of people.” See Bell v. Duperrault, 367 F.3d 703, 707 (7th

Cir. 2004). Plaintiff’s equal protection case rests on a “class of one” theory (even though the

words do not appear in the Amended Complaint), and it is extremely difficult to succeed with

such a claim. McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004).

        Initially, Plaintiff bears a high burden in establishing someone who is similarly situated,

who must be “very similar indeed.” Id. at 1002-03. The similarly situated person(s), called the

“comparators,” must be “prima facie identical in all relevant respects or directly comparable in

all material respects.” United States v. Moore, 543 F.3d 891, 896 (7th Cir. 2008). See also

Purze v. Village of Winthrop Harbor, 286 F. 3d 452, 455 (7th Cir. 2002); Bell, 367 F.3d at 707

(Posner, J., concurring) (“similarly situated” in essence means “identically situated”). Plaintiff’s

theory is that every restaurant, coffee bar, sandwich shop and doughnut store that has been

granted a sidewalk café in the Second Ward, with the legislative support of Alderman Fioretti, is

a valid comparator.13 But if the scope of “class of one” claims were that wide, the federal courts

           Plaintiff did not refute Alderman Fioretti’s testimony that he has refused to support other
applications for sidewalk cafes, Tr. at 89, 103, 129. Those applicants, and Plaintiff for that matter, could
have submitted an ordinance for a café permit directly to the City Council. Citizens can submit proposed
ordinances to the City Council. Tr. at 140, 317-18; see also MCC, § 2-12-010 (City Clerk shall “[d]eliver
without delay to the officers of the city, and to all committees of the city council, all resolutions and
communications referred to such officers or committees by that body”). Obviously, if applicants lacking
local aldermanic support did not pursue the matter by introducing their own ordinances to the City
Council, no ordinances on these applications would ever appear on the Transportation Committee’s
agenda; that does not disprove Alderman Fioretti’s testimony. Plaintiff chose instead to focus on permits

       Case 1:07-cv-04245          Document 131          Filed 07/27/2009        Page 24 of 27

would be swamped, see Bell, 367 F.3d at 712 (Posner, J., concurring). And even if the class of

potential comparators is limited to hotels, many things about the Congress Hotel, a landmark

dating back to 189314 that sits at a gateway location, make it unique, as its own officers testified.

Plaintiff’s controller, James Stuerebaut, stated “we really have no competition at all on our entire

block” and noted the Hotel’s unique proximity to Grant Park, with its many summer festivals,

Millenium Park, and the Art Institute, and that it is on a “very busy corner” with “a lot of foot

traffic.” Tr. at 398. The Hotel’s general manager, Shakeel Siddiqui, agreed about the Hotel’s

“very unique location,” located on a “major intersection” right across from Buckingham Fountain

and Grant Park, and the “enormous” amount of foot traffic; as he put it, “as you’re coming off

Grant Park or Buckingham Fountain, you see nothing but us.” Tr. at 451. The president of the

Hotel agreed with this testimony. Tr. at 543. Moreover, in addition to Plaintiff’s landmark status,

block-long size, and gateway location on Michigan Avenue, the only real comparator for this

case would need to have, at the least, some very public activity going on for six years on the

sidewalk outside the building – if not labor picketing, perhaps some other sort of frequently

repeated demonstration. Plaintiff introduced no evidence of such a comparator, much less that

the comparator has been treated more favorably than Plaintiff.

        And with respect to legitimacy of the City not issuing sidewalk permits to Plaintiff,

Alderman Fioretti testified that although the strike was “a factor” in his decision not to sign the

granted with aldermanic support, but that does not negate the existence of aldermanic non-support on
multiple applications, other than Plaintiff’s, that never obtained permits. And Plaintiff submitted
photographs of other sidewalk cafes purportedly in the Second Ward, Pltf. Ex. 194 and 125, which
actually included locations that are not even in the Second Ward, such as the Hard Rock Hotel on North
Michigan Avenue.
          Plaintiff is also within the boundaries of the City’s Lakefront Protection Ordinance, which
was discussed in, and attached to, the City’s motion to dismiss herein [Docket Nos. 12 & 13].

       Case 1:07-cv-04245          Document 131           Filed 07/27/2009        Page 25 of 27

Hotel’s sidewalk café application, there were “a number of factors” involved, including concern

about the proximity of the picketing strikers to the café patrons if both groups were to share the

City sidewalk, and the impact that could have on the health of a “good business environment”

and café patrons “trying to enjoy the outdoor living.” Tr. at 143-44. Alderman Fioretti’s former

assistant, Hannah Jubeh, testified to complaints received at the Second Ward office about the

Congress Hotel. Tr. at 200-01.15 Nor is it irrational for Alderman Fioretti (or the City for that

matter) to want to avoid a café that his constituents oppose and that may disturb the public peace

and aesthetics at a unique gateway location heavily frequented by citizens and tourists alike – one

lying on the cusp of Chicago’s “front yard” (Grant Park) and many other prominent downtown

parks and landmarks. Part and parcel with owning a unique showplace property at such a

location come the constraints and regulations (such as, but not limited to, the Landmark and

Lakefront Protection laws) that preserve the attractiveness and enjoyment of those locations for

the greater citizenry.

        Plaintiff insists that Alderman Fioretti was solely motivated by an intention to help the

strikers, but Plaintiff offers no case law that, for a class of one claim, pro-labor political support –

even if that were the sole motivation, which was not proven here – is an invidious and actionable

motive under the equal protection clause, at least where the legislation in question is facially

neutral. Indeed, to the extent that federal constitutional law is concerned with such a motivation,

it is Machinists pre-emption that would address it. But as shown supra in Section II.B, such

             Plaintiff demands to know why everyone who complained about the Congress Hotel, about
anything, to any City official, was not investigated, or at least cross-examined, about their possible (or
hidden) union connections. This ignores, or at least fundamentally misperceives, the City’s police
power to protect the public health, safety and welfare. Obviously callers to the City’s 911 (emergency)
and 311 (non-emergency) lines cannot be asked whether they belong to Local 1 or some other union and,
if so, their information ignored. The same applies to those complaints to the local alderman’s office.

       Case 1:07-cv-04245           Document 131           Filed 07/27/2009        Page 26 of 27

motivation is not actionable unless it actually harms a party’s bargaining position. Accordingly,

Plaintiff failed its burden of proving any of the elements of a class of one claim.

D.      Plaintiff Failed To Prove Damages.

        Finally, Plaintiff came nowhere close to proving lost sidewalk café profits by a

preponderance of the evidence. Plaintiff is not entitled to a presumption that the café would have

been profitable at all, as Plaintiff’s decision to seek the café was not based on any projections

that the cafe would earn a profit, and Plaintiff admitted that it might choose to operate a café at a

loss. Tr. at 461-62. And Plaintiff’s evidence – which it threw together on the eve of trial and

revised multiple times – does not support any lost profits. Tr. at 423-25.16 Plaintiff did not

bother to take into account data from when the café was actually operating in 2006, even though

it would have taken Plaintiff less than a week to base a damages estimate upon them. Tr. at 433,

442. Nor did Plaintiff attempt to base its estimates on statistics concerning occupancy and

income of other cafes in the neighborhood. Tr. at 443, 460. The key figure of percentage

occupancy is simply a “projection” that is “not based on any data” or statistics, and does not take

into account weather conditions. Tr. at 429, 431-32, 460. And the figures used for other key

inputs were similarly erroneous.17 Finally, Mr. Steurebaut hypothesized a five-fold jump in

profits from 2008 to 2009, notwithstanding 2009's dour economic climate. Tr. at 415-417.

          In fact, while on the stand at trial, Mr. Steurebaut continued to revise his damages calculation,
removing a $22,000 attorney fees figure that, prior to prompting from his trial counsel, he believed
constituted damages. Tr. at 420-22, 425.
          For instance, as to the number of seats, Mr. Steurebaut settled on 80 seats for the years prior to
2009 only after being shown the Hotel’s prior application in his deposition, Tr. at 425-27, and he
continued to assume 80 seats even though Plaintiff has only purchased furniture to operate a 40 seat café
and says that it does not need to purchase any more. Tr. at 428, 520. And the number of days in
operation for 2006 was based on the assumption that the hotel was prevented from having a café for all
183 days of the café season, even though Plaintiff received a temporary permit that year and did not have
any problems with the City preceding its issuance. Tr. at 432-33, 461.

       Case 1:07-cv-04245          Document 131           Filed 07/27/2009        Page 27 of 27


        If Plaintiff believed that a local alderman’s actions, or the City’s, violated the local

ordinance governing sidewalk café permits, it could have sought relief in the state courts, as it

did successfully with respect to the Rooftop Renovations. Instead, it split its claim and attempted

to federalize a matter of uniquely local concern. And rather than offer evidence supporting its

federal theories, Plaintiff offered two of its own, clearly biased attorneys as witnesses and a lot of

irrelevant resentment of the union’s lobbying efforts. Whatever Plaintiff’s evidence about any

individual alderman proves, it did not prove Plaintiff’s federal claims: It did not establish a City

policy under Monell, it did not show the effect on collective bargaining that Golden State and

Shannon speak of, and it did not prove the existence of a substantially identical comparator, or

that Plaintiff’s treatment lacks a rational basis or results from animus, as required for a class of

one claim. Judgment should be entered for the City, Plaintiff to take nothing by its remaining


Dated: July 27, 2009                                     Respectfully submitted,

Karen M. Dorff
Andrew W. Worseck                                        MARA S. GEORGES, Corporation Counsel
City of Chicago Dept. of Law                             for the City of Chicago
30 North LaSalle Street, Suite 1230
Chicago, IL 60602                                        By:      /s/   Andrew Worseck

          The Court should also reject any request by Plaintiff for relief concerning building permits for
the Rooftop Renovations. Plaintiff has not applied for, and the City has not denied, any applications for
such permits, and no evidence on the topic was adduced at trial, as the Court dismissed the mandamus
claim. Moreover, Plaintiff’s expert admitted that aldermanic approval is not required for building
permits, and that their issuance is within the purview of the Department of Buildings. Tr. at 323-24, 328.
To the extent that the Buildings Department issues forms calling for acknowledgment from the local
alderman that he does not object a building permit, the purpose of that acknowledgment is merely to
waive the 10-day hold on the issuance of permits required by the Municipal Code. See MCC § 13-32-
030. See also Tr. 123, 148-49.


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