United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
T. MOODY JUDGE
matter is before the court on a motion for summary judgment
filed by the defendants. who are the Town of Chesterton and
two of its officials, Dave Novak and Emerson Delaney, in both
their official and individual capacities (for convenience,
collectively referred to as “Chesterton”).
Briefly, and merely to describe the dispute for contextual
purposes, not as a summary of disputed or undisputed facts,
the plaintiff, Bross Enterprises, Inc. (“Bross”),
is a corporation which operates a climate-controlled
self-storage business in a building near downtown Chesterton.
It alleges that Chesterton harassed it in a number of ways,
such as selective enforcement of town ordinances and delaying
issuance of building permits. Chesterton's possible
motive is not entirely clear, but the complaint and
Bross's argument suggests one reason is that defendant
Emerson Delaney is a “close personal friend” (DE
# 1 at 2, ¶ 6) of an adjacent business owner who wants
to buy Bross's property, at a low price.
complaint Bross pleads six counts based on Chesteron's
alleged harassment: 1) a Fifth Amendment violation for the
taking of its property; 2) an Equal Protection violation
because of discriminatory enforcement of town ordinances; 3)
tortious interference with business relationships; 4)
intentional infliction of emotional distress; 5) negligent
supervision; and 6) negligent training. Chesterton has moved
for summary judgment on all six claims/legal theories.
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). When
considering the motion, the court must construe all of the
evidence and the reasonable inferences to be drawn therefrom
in the light most favorable to the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986); Chaib v. Geo Group,
Inc., 819 F.3d 337, 340-41 (7th Cir. 2016). In a case
involving cross-motions for summary judgment, that means that
each party receives the benefit of all reasonable inferences
drawn from the record when considering the opposing
party's motion. See Tegtmeier v. Midwest Operating
Engineers Pension Trust Fund, 390 F.3d 1040, 1045 (7th
Cir. 2004); Hendricks-Robinson v. Excel Corp., 154
F.3d 685, 692 (7th Cir. 1998).
motion for summary judgment will be DENIED because genuine
issues of material fact remain for trial as to Count II,
alleging discriminatory enforcement of town ordinances.
Briefly, Chesterton argues that Bross is pursuing a
“class of one” equal protection claim which
requires a plaintiff to show that: 1) a state actor
intentionally treated it differently than others
similarly-situated; and 2) there is no rational basis for the
difference in treatment. Vill. of Willowbrook v.
Olech, 528 U.S. 652 (2000). Chesterton analogizes to
Reget v. City of LaCrosse, 595 F.3d 691 (7th Cir.
2010), in which the plaintiff alleged that the city had
selectively enforced its “junk-dealer” ordinance
against his auto-body shop business. The court held that the
plaintiff's claim failed because he had no evidence
showing that a similarly-situated ordinance violator was not
cited. Chesterton argues that Bross also has no evidence that
Chesterton ignored some similarly-situated ordinance
undisputed that Bross was cited on August 10, 2012, for
violating Section 15-1 of Chesterton's ordinances, for
creating a nuisance of standing water on an adjacent
property, caused by run-off from Bross's parking lot.
Ironically, the issue was caused by construction to improve
drainage in the parking lot, a project undertaken because a
business owner adjacent to Bross named Hopkins (who is the
adjacent owner whom Bross alleges is a personal friend of
defendant Delaney) had done work which (taking the facts in
the light most favorable to non-movant Bross) caused water to
flood Bross's property. Hopkins had raised the level of
drains in his parking area (to which Bross had access via an
easment) and because water wasn't draining as quickly as
before, it backed up into Bross's parking area. (DE #22-1
at 16-17.) Hopkins was not cited for creating a
nuisance. Bross argues that Chesterton's treatment of
Hopkins shows that a similarly-situated violator of the
ordinance was treated more favorably.
reply Chesterton argues that Hopkins was treated differently
because the town engineer, Mark O'Dell, concluded that
Hopkins's raising of the parking lot drains did not cause
the problem. The evidence cited for this “conclusion,
” however, is not compelling. It is one sentence in
O'Dell's deposition. Asked what the
“substance” was of his investigation of the
flooding on Bross's property, he answered “it
looked like a low spot in their [Bross's] parking
lot.” (DE # 21-4 at 3-4.) Compared to Bross's
version of the facts, that his parking lot had never flooded
before but did two days after Hopkins raised the drains (DE
#22-1 at 20-21), there is a question of fact as to whether or
not Hopkins caused Bross's standing-water problem. More
to the point, there is an issue of fact whether
O'Dell's purported conclusion was a rational reason
not to cite Hopkins or the true reason, which points
Chesterton has not addressed.
court does find that Bross's other five claims do not
present questions of fact that require submission to a jury.
Because this case is going forward and may be resolved with
or without a trial, the court gives a cursory explanation why
it believes that Chesterton's motion for summary judgment
on the other five claims is correct, removing those claims
from further consideration in this action.
as to Bross's Fifth Amendment taking claim, an
unconstitutional taking occurs when governmental regulations
are applied in such an onerous and burdensome way that an
owner is deprived of substantially all economically viable
use of his/her property. Lingle v. Chevron U.S.A.
Inc., 544 U.S. 528, 538-39 (2005). Whether such a
diminution in value amounts to a regulatory taking requires
consideration of the nature of the government action, the
economic impact of the regulation, and the degree of
interference with the owner's reasonable investment-based
expectations. Penn Central Transpt. Co. v. City of New
York, 438 U.S. 104 (1978); Bettendorf v. St. Croix
Cty., 631 F.3d 421, 430 (7th Cir. 2011).
contends that there is a question fo fact as to whether there
was a great economic impact on is business. It argues that
Chesterton “required” it to install a
“Hancor” drainage system at a cost of $50, 000,
but the evidence it cites shows only that Bross was told
“our only option . . . to get it done fast was to go
with a Hancor Underground Storage System, ” (DE # 22-11
at 37). Thus, it does not suggest that Chesterton
required Bross to install that system. Other than
that, Bross's evidence shows only that it suffered some
construction delays and may have lost a few prospective
customers. This is not enough of an economic impact to
present a jury question on the taking claim.
Bross's claim for tortious interference with business
relationships, an element of the tort is interference with an
existing relationship. Felsher v. Univ. of
Evansville, 755 N.E.2d 589, 598 n.21 (Ind. 2001).
Chesterton argues that Bross shows only that it may have lost
some prospective, not existing, customers. Bross's
response is: “Some jurisdictions . . . recognize claims
for tortious interference with a prospective business
relationship, ” and so it “requests that this
Court entertain an action for tortious interference of a
prospective business relationship.” (DE # 22 at 12-13.)
In its reply Chesterton states that Indiana does not
recognize the tort, and even if it did (but no authority is
cited for the point), Bross would have to identify a specific
prospective business relationship that was impacted, which it
has not done.
parties seem unaware that Indiana recognizes the tort of
interference with prospective advantage, which appears to be
essentially the same. Brazauskas v. Fort Wayne-S. Bend
Diocese, Inc., 796 N.E.2d 286, 289 n.2 (Ind. 2003);
Kiyose v. Trustees of Indiana Univ., 166 Ind.App.
34, 43, 333 N.E.2d 886, 891 (1975) (“The development of
the tort of interference with prospective advantage has been
parallel to that of interference with contractual
relations.”). However, even for this tort, the
plaintiff must show “that a valid business relationship
existed, of which the defendant knew” and intentionally
interfered with causing plaintiff damage. Flintridge
Station Assoc. v. Am. Fletcher Mortgage Co., 761 F.2d
434, 440 (7th Cir. 1985).
evidence Bross cites is that it knows it lost customers
because it had to turn away “people that would just
walk up to us and ask” to rent space. (DE # 22-1 at
24.) This is too speculative to be evidence of a “valid
business relationship.” There are numerous reasons why
the inquiries made by those persons might not have developed
into a business relationship, for example, they might have
thought the rate charged by Bross was too high, or the term
of the rental too long; they might have inspected the storage
space and found it unclean or odiferous. Because Bross's
evidence is so speculative, there is no issue for a jury to
IV of Bross's complaint, pled as intimidation, is
actually meant to be the tort of intentional infliction of
emotional distress, Bross asserts in its reponse and
Chesterton accepts in its reply. The parties focus their
argument on whether the conduct Bross identifies is
outrageous enough to establish the tort. In so doing they
miss a larger problem: the only plaintiff in this action is a
corporation, and a corporation cannot suffer mental anguish
and so cannot recover in tort for intentional infliction of
emotional distress. See Felsher, 755 N.E.2d at
594-95 (corporations cannot bring privacy claims because they
have no feelings which can be injured); see also F.D.I.C.
v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994)
(corporation has no emotions and so cannot bring claim for
intentional infliction of emotional distress); Cohlmia v.
Ardent Health Servs., LLC, 448 F.Supp.2d 1253, 1272
(N.D. Okla. 2006) (same); Wolf St. Supermarkets, Inc. v.