No.

_______

IN THE
Supreme Court of the United States
PAMELA J. ANTOSH AND
NED E. LASHLEY,
Petitioners,
v.
VILLAGE OF MOUNT PLEASANT,
DAVID DE GROOT, AND
VILLAGE OF MOUNT PLEASANT COMMUNITY
DEVELOPMENT AUTHORITY,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ERIK S. OLSEN
Counsel of Record
EMINENT DOMAIN SERVICES, LLC
6515 Grand Teton Plaza, Suite 241
Madison, WI 53719
[email protected]
608-535-6109
Attorney for Pamela J. Antosh
and Ned E. Lashley
 i
QUESTION PRESENTED

Whether the court of appeals erred in affirming

the district court, when the Village of Mount
Pleasant admitted that it had used eminent domain
to take private property for a private purpose (the
Foxconn Project), and the district court applied the
Colorado River doctrine sua sponte even though the
state proceedings were not parallel because the state
proceedings were statutorily barred from addressing
the Petitioners’ Fifth Amendment public-use claim
as well as other constitutional issues.
 ii
PARTIES TO THE PROCEEDING

Petitioners in this Court and appellants in the

court of appeals are Pamela J. Antosh and Ned E.
Lashley. Respondents in this Court and appellees in
the court of appeals are Village of Mount Pleasant,
David De Groot, and Village of Mount Pleasant
Community Development Authority.
 iii
DIRECTLY RELATED PROCEEDINGS

United States District Court

Pamela J. Antosh, et al. v. Village of Mount

Pleasant, et al., 2023 WL 2465920 (E.D. Wis.
Mar. 10, 2023) (Case No. 22-cv-00117-bhl)

United States Court of Appeals

Pamela J. Antosh, et al. v. Village of Mount

Pleasant, et al., 99 F.4th 989 (7th Cir. April 25,
2024) (Case No. 23-1678)
 iv
TABLE OF CONTENTS
PAGE

PETITION FOR A WRIT OF CERTIORARI .......... 1

OPINIONS BELOW .............................................. 2
JURISDICTION .................................................... 2
CONSTITUTIONAL PROVISIONS
AND STATUTES .................................................. 3
INTRODUCTION ................................................. 7
STATEMENT ........................................................ 9
A. Legal Background ................................... 9
B. Factual and
Procedural Background ........................ 13
REASONS FOR GRANTING
THE PETITION .................................................. 20
A. The Courts of Appeals are Divided in
their Application of the Colorado
River Doctrine, and the Seventh
Circuit’s Broad Application Stands
Apart ......................................................... 20
I. First Circuit ......................................... 20
II. Second Circuit ..................................... 21
III. Third Circuit ........................................ 22
IV. Fourth Circuit ..................................... 23
V. Fifth Circuit ......................................... 24
VI. Sixth Circuit ........................................ 24
VII. Seventh Circuit ................................... 25
VIII. Eighth Circuit ..................................... 27
 v
IX. Ninth Circuit ....................................... 28
X. Tenth Circuit ....................................... 29
XI. Eleventh Circuit .................................. 30
XII. D.C. Circuit ......................................... 31
B. This Case Presents an Important
Fifth Amendment Issue ........................... 32
C. The Decision of the Court of Appeals
is Incorrect................................................ 34
I. The Court of Appeals Erred in
Concluding that the State and
Federal Proceedings were Parallel ..... 34
II. The Court of Appeals also Erred in
its Application of the Exceptional
Circumstances Factors ........................ 37
CONCLUSION .................................................... 42
Appendix A: Opinion of the United States
Court of Appeals for the Seventh Circuit
(April 25, 2024)………………………………………..1a

Appendix B: Opinion of the United States

District Court for the Eastern District of
Wisconsin (March 10, 2023)…………………….…16a
 vi
TABLE OF AUTHORITIES

PAGE(S)
Statutes

28 U.S.C. § 1254(1) ................................................... 2

28 U.S.C. § 1331 ...................................................... 18
28 U.S.C. § 1343(3) ................................................. 18
28 U.S.C. § 2201 ...................................................... 18
28 U.S.C. § 2202 ...................................................... 18
42 U.S.C. § 1983 ............................ 3, 8, 12, 17, 18, 32
Wis. Stat. § 32.05 .................................... 9, 11, 13, 36
Wis. Stat. § 32.05(11) .............. 5, 8, 11, 26, 34, 36, 39
Wis. Stat. § 32.05(5) .. 4, 10, 12, 13, 17, 19, 36, 39, 40
Wis. Stat. § 32.06 ................................................ 9, 11
Wis. Stat. § 32.06(10) ........................................ 10, 11
Wis. Stat. § 32.06(5) ................................................ 10
Wis. Stat. § 32.09(5)(b) ..................................... 14, 15

Cases

Adkins v. VIM Recycling, Inc.,

644 F.3d 483 (7th Cir. 2011) ......................... 25, 27
African Methodist Episcopal Church v. Lucien,
756 F.3d 788 (5th Cir. 2014) ............................... 24
Allegheny Defense Project v. Fed. Energy Reg.
Comm’n,
932 F.3d 940 (D.C. Cir. 2019) ....................... 32, 39
Ambrosia Coal & Constr. Co. v. Pagés Morales,
368 F.3d 1320 (11th Cir. 2004) ............... 31, 32, 39
Baskin v. Bath Township Bd. of Zoning Appeals,
15 F.3d 569 (6th Cir. 1994) ........................... 24, 27
 vii
Black Sea Inv., Ltd. v. United Heritage Corp.,
204 F.3d 647 (5th Cir. 2000) ............................... 24
Burnett v. Grattan,
468 U.S. 42 (1984) ......................................... 13, 39
Calvert Fire Ins. Co. v. American Mutual
Reinsurance Co.,
600 F.2d 1228 (7th Cir. 1979) ............................. 25
Chase Brexton Health Services, Inc. v. Maryland,
411 F.3d 457 (4th Cir. 2005) ............................... 23
Colorado River Cons. Dist. v. United States,
424 U.S. 800 (1976) ................... 8, 9, 21, 22, 27, 30
Crawley v. Hamilton County Comm’rs,
744 F.2d 28 (6th Cir. 1984) ................................. 30
Depuy Synthes Sales, Inc. v. OrthoLA, Inc.,
953 F.3d 469 (7th Cir. 2020) ............................... 40
DeVillier v. Texas,
601 U.S. 285 (2024) ............................................. 40
Edge Inv., LLC v. District of Columbia,
927 F.3d 549 (D.C. Cir. 2019) ....................... 31, 32
Exxon Corp. v. St. Paul Fire & Marine Ins. Co.,
129 F.3d 781 (5th Cir. 1997) ............................... 24
Falkner v. N. States Power Co.,
75 Wis. 2d 116, 248 N.W.2d 885 (1977) ............. 12
Federated Rural Elec. Ins. Corp. v. Ark. Elec. Coop.,
Inc.,
48 F.3d 294 (8th Cir. 1995) ................................. 27
Fox v. Maulding,
16 F.3d 1079 (10th Cir. 1994) ....................... 29, 30
Freed v. JP Morgan Chase Bank, N.A.,
756 F.3d 1013 (7th Cir. 2014) ............................. 25
Fru-Con Const. Corp. v. Controlled Air, Inc.,
574 F.3d 527 (8th Cir. 2009) ............................... 27
Glassie v. Doucette,
55 F.4th 58 (1st Cir. 2022) .................................. 21
 viii
Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271 (1988) ............................................. 29
Heitmanis v. Austin,
899 F.2d 521 (6th Cir. 1990) ............................... 24
Holder v. Holder,
305 F.3d 854 (9th Cir. 2002) ............................... 28
Huon v. Johnson & Bell, Ltd.,
657 F.3d 641 (7th Cir. 2011) ......................... 26, 35
Intel Corp. v. Advanced Micro Devices, Inc.,
12 F.3d 908 (9th Cir. 1993) ........................... 28, 29
Interstate Material Corp. v. City of Chicago,
847 F.2d 1285 (7th Cir. 1988) ............................. 25
Jackson-Platts v. Gen. Electric Capital Corp.,
727 F.3d 1127 (11th Cir. 2013) ........................... 31
Jiménez v. Rodríguez-Pagán,
597 F.3d 18 (1st Cir. 2010) ................................. 20
Kelly v. City of Chicago,
4 F.3d 509 (7th Cir. 1993) ................................... 18
Kelo v. City of New London,
545 U.S. 469 (2005) ............................................. 33
Knick v. Township of Scott,
588 U.S. 180 (2019) ....................... 8, 12, 32, 39, 41
Maldonado-Cabrera v. Anglero-Alfaro,
26 F.4th 523 (1st Cir. 2022) ................................ 20
McClellan v. Carland,
217 U.S. 268 (1910) ............................................. 23
McLaughlin v. United Va. Bank,
955 F.2d 930 (4th Cir. 1992) ......................... 23, 30
Miofsky v. Superior Ct. of Cal.,
703 F.2d 332 (9th Cir. 1983) ............................... 29
Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978) ............................................. 12
 ix
Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp.,
460 U.S. 1 (1983) ............... 9, 21, 22, 23, 29, 30, 31
Mountain Pure, LLC v. Turner Holdings, LLC,
439 F.3d 920 (8th Cir. 2006) ............................... 28
Nakash v. Marciano,
882 F.2d 1411 (9th Cir. 1989) ............................. 28
Nat’l Union Fire Ins. Co. v. Karp,
108 F.3d 17 (2d Cir. 1997) .................................. 21
Nationwide Mut. Fire Ins. Co. v. George V.
Hamilton Inc.,
571 F.3d 299 (3d Cir. 2009) .......................... 22, 23
Nazario-Lugo v. Caribevisión Holdings, Inc.,
670 F.3d 109 (1st Cir. 2012) ............................... 20
New Beckley Mining Corp. v. Int'l Union, UMWA,
946 F.2d 1072 (4th Cir. 1991) ....................... 23, 30
Niagara Mohawk Power Corp. v. Hudson River-
Black,
673 F.3d 84 (2d Cir. 2012) .................................. 22
Potrero Hills Landfill, Inc. v. Cty. of Solano,
657 F.3d 876 (9th Cir. 2011) ............................... 29
Pulliam v. Allen,
466 U.S. 522 (1984) ............................................. 12
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996) ............................................. 22
R.R. St. & Co., Inc. v. Trans. Ins. Co.,
656 F.3d 966 (9th Cir. 2011) ............................... 28
Republicbank Dallas, N.A. v. McIntosh,
828 F.2d 1120 (5th Cir. 1987) (per curiam) ....... 24
Rio Grande Community Health Ctr., Inc. v. Rullan,
397 F.3d 56 (1st Cir. 2005) ................................. 21
Romine v. Compuserve Corporation,
160 F.3d 337 (6th Cir. 1998) ............................... 25
 x
Rosser v. Chrysler Corp.,
864 F.2d 1299 (7th Cir. 1988) ....................... 26, 36
SKS & Associates v. Dart,
619 F.3d 674 (7th Cir. 2010) ............................... 37
Telesco v. Telesco Fuel & Masons’ Materials, Inc.,
765 F.2d 356 (2d Cir. 1985) .......................... 22, 26
Travelers Indem. Co. v. Madonna,
914 F.2d 1364 (10th Cir. 1990) ........................... 30
TruServ Corp. v. Flegles, Inc.,
419 F.3d 584 (7th Cir. 2005) ............................... 27
Tyrer v. City of South Beloit,
456 F.3d 744 (7th Cir. 2006) ............................... 25
United States v. City of Las Cruces,
289 F.3d 1170 (10th Cir. 2002) ........................... 30
United States v. State Water Resources Control Bd.,
988 F.3d 1194 (9th Cir. 2021) ............................. 28
US Dominion, Inc. v. Herring Networks, Inc.,
639 F. Supp. 3d 143 (D.D.C. 2022) ..................... 31
Villa Marina Yacht Sales, Inc. v. Hatteras Yachts,
947 F.2d 529 (1st Cir. 1991) ............................... 21
Wakaya Perfection, LLC v. Youngevity Int’l, Inc.,
910 F.3d 1118 (10th Cir. 2018) ........................... 30
Waller v. American Transmission Co.,
2013 WI 77, 350 Wis. 2d 242,
833 N.W.2d 764 ............................................. 11, 12
Wilson v. Geisen,
956 F.2d 738 (7th Cir. 1992) ............................... 18
Woodford v. Cmty. Action Agency of Greene County,
239 F.3d 517 (2d Cir. 2001) ................................ 21
Yang v. Tsui,
416 F.3d 199 (3d Cir. 2005) ................................ 23
 xi

Other Authorities

Note, Owen W. Gallogly, Colorado River

Abstention: A Practical Reassessment,
106 Va. L. Rev. 199 (2020) .................................. 27
United States Constitution,
Fifth Amendment ............................................ 3, 37
United States Constitution,
Fifth and Fourteenth Amendments ................... 18
43
 IN THE
Supreme Court of the United States
No. _____

PAMELA J. ANTOSH AND

NED E. LASHLEY,

Petitioners,
v.
VILLAGE OF MOUNT PLEASANT,
DAVID DE GROOT, AND
VILLAGE OF MOUNT PLEASANT COMMUNITY
DEVELOPMENT AUTHORITY,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of

certiorari to review the judgment of the United
States Court of Appeals for the Seventh Circuit in
this case.
 2
OPINIONS BELOW

The opinion of the court of appeals is reported at

99 F.4th 989 and reprinted in the Appendix to this
Petition at App. 1a-15a. The opinion of the district
court is reported at 2023 WL 2465920 and reprinted
in the Appendix to this Petition at App. 16a-35a.

JURISDICTION

The court of appeals entered its judgment on

April 25, 2024. App. 1a. This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1).
 3
CONSTITUTIONAL PROVISIONS
AND STATUTES

United States Constitution, Fifth Amendment

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public
danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.

42 U.S.C. § 1983 Civil action for deprivation of

rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a
judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated
or declaratory relief was unavailable. For the
 4
purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of
Columbia.

Wis. Stat. § 32.05(5) Court action to contest

right of condemnation. If an owner desires to
contest the right of the condemnor to condemn the
property described in the jurisdictional offer, for any
reason other than that the amount of compensation
offered is inadequate, the owner may within 40 days
from the date of personal service of the jurisdictional
offer or within 40 days from the date of postmark of
the certified mail letter transmitting such offer, or
within 40 days after date of publication of the
jurisdictional offer as to persons for whom such
publication was necessary and was made, commence
an action in the circuit court of the county wherein
the property is located, naming the condemnor as
defendant. Such action shall be the only manner in
which any issue other than the amount of just
compensation, or other than proceedings to perfect
title under ss. 32.11 and 32.12, may be raised
pertaining to the condemnation of the property
described in the jurisdictional offer. The trial of the
issues raised by the pleadings in such action shall be
given precedence over all other actions in said court
then not on trial. If the action is not commenced
within the time limited the owner or other person
having any interest in the property shall be barred
from raising any such objection in any other manner.
Nothing in this section shall be construed to limit in
any respect the right to determine the necessity of
taking as conferred by s. 32.07 nor to prevent the
condemnor from proceeding with condemnation
 5
during the pendency of the action to contest the right
to condemn.

Wis. Stat. § 32.05(11) Waiver of hearing before

commission; appeal to circuit court and
jury. The owner of any interest in the property
condemned named in the basic award may elect to
waive the appeal procedure specified in sub. (9) and
instead, within 2 years after the date of taking,
appeal to the circuit court of the county wherein the
property is located. The notice of appeal shall be
served as provided in sub. (9) (a). Filing of the notice
of appeal shall constitute such waiver. The clerk
shall thereupon enter the appeal as an action
pending in said court with the condemnee as
plaintiff and the condemnor as defendant. It shall
proceed as an action in said court subject to all the
provisions of law relating to actions originally
brought therein and shall have precedence over all
other actions not then on trial. The sole issues to be
tried shall be questions of title, if any, under ss.
32.11 and 32.12 and the amount of just
compensation to be paid by condemnor. It shall be
tried by jury unless waived by both plaintiff and
defendant. The amount of the jurisdictional offer or
basic award shall not be disclosed to the jury during
such trial. Where one party in interest has appealed
from the award, no other party in interest who has
been served with notice of such appeal may take a
separate appeal but may join in the appeal by
serving notice upon the condemnor and the
appellant of that party’s election to do so. Such
notice shall be given by certified mail or personal
service within 10 days after receipt of notice of the
appeal and shall be filed with the clerk of court.
 6
Upon failure to give such notice such parties shall be
deemed not to have appealed. The appeal shall not
affect parties who have not joined in the appeal as
herein provided. In cases involving more than one
party in interest with a right to appeal, the first of
such parties filing an appeal under sub. (9) or under
this subsection shall determine whether such appeal
shall be under sub. (9) or directly to the circuit court
as here provided. No party in interest may file an
appeal under this subsection if another party in
interest in the same lands has filed a prior appeal
complying with the requirements of sub. (9). In cases
involving multiple ownership or interests in lands
taken the provisions of sub. (9) (a) 1., 2. and 3. shall
govern.
 7
INTRODUCTION

The district court declined to exercise jurisdiction

over this case under the Colorado River doctrine,
and the court of appeals agreed. The result of these
decisions bars the landowners in this case from
litigating the constitutional question of whether
their property was impermissibly taken for a private
purpose. Contrary to the rulings of the lower courts,
this federal action was not parallel to the state
proceedings. If this Court does not grant certiorari,
the landowners will have been denied a federal
forum to vindicate their federal constitutional right
that property shall be taken only for a public
purpose.

The Seventh Circuit Court of Appeals’

particularly broad approach to the Colorado River
doctrine stands out among the circuits. In the case
at hand, the court of appeals expanded the doctrine
even further by effectively overruling the
requirement of parallel proceedings. It was clear
legally that the state and federal proceedings were
not parallel, yet the district court still dismissed the
case. In reviewing the district court’s decision, the
Seventh Circuit admitted that the two cases
presented different issues and that regardless of
how the state case was decided, the public use claim
would go unanswered, however, the Seventh Circuit
still concluded that the two cases were “parallel.”

Granting this petition would clarify the divergent

applications of the Colorado River doctrine among
the circuits, and rein in the overly broad approach
applied by the district court and court of appeals in
 8
this case. Although the Colorado River doctrine has
commendable goals, it cannot act as a complete bar
to the courthouse door in light of the “virtually
unflagging obligation of the federal courts to
exercise the jurisdiction given them.” Colorado River
Cons. Dist. v. United States, 424 U.S. 800, 817-18
(1976) (citations omitted).

The court of appeals’ decision also has the severe

consequence of imposing a barrier to plaintiffs with
a takings claim, which had been conclusively
removed by the recent Knick decision. However, the
lower courts in this case held that challenging the
constitutionality of the taking in a federal forum was
not available to the Petitioners due to the fact that
they had first filed an appeal of compensation under
Wis. Stat. § 32.05(11) in state court. This was in
spite of the fact that it is impossible to raise
constitutional challenges to a taking in a Wis. Stat.
§ 32.05(11) action, as in that action, “[t]he sole issues
to be tried shall be questions of title, if any, under
ss. 32.11 and 32.12 and the amount of just
compensation to be paid by condemnor.” Wis. Stat. §
32.05(11). Nevertheless, the lower courts held that
the state proceeding under Wis. Stat. § 32.05(11)
and the federal proceeding bringing constitutional
challenges to the taking under 42 U.S.C. § 1983 were
parallel, and dismissed the federal case. The lower
courts’ decisions effectively placed the takings
plaintiffs in this case back into a pre-Knick
landscape, so that once again, “the guarantee of a
federal forum rings hollow.” Knick v. Township of
Scott, 588 U.S. 180, 185 (2019).
 9
STATEMENT

A. Legal Background

The Colorado River abstention doctrine revolves

around the “exceptional-circumstances test”
announced by the Supreme Court in Colorado River
Water Cons. Dist. v. United States, 424 U.S. 800,
817-21 (1976). The Colorado River doctrine is only
applied if the concurrent state and federal actions
are parallel. Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 13, 28 (1983). The
following discussion of Wisconsin and federal law is
necessary in order to answer the question of whether
the state and federal proceedings in this matter were
actually parallel.

Under Wisconsin’s statutory framework, there

are two distinct types of eminent domain lawsuits;
one type, a “compensation” lawsuit, deals only with
the amount of just compensation and issues of title.
The other type of lawsuit, a “right-to-take” lawsuit,
can address any and all non-compensation issues
including constitutional issues. The compensation
and right-to-take lawsuits are required to proceed
separately and may proceed simultaneously.

There are two procedures under which

condemning authorities may exercise eminent
domain depending on the purpose for the taking.
The procedure set forth in Wis. Stat. § 32.05 is for
transportation facilities and sewers, while the
procedure set forth in Wis. Stat. § 32.06 is a catch all
for all other types of takings. Both the Section 32.05
and the Section 32.06 procedures provide for both
 10
“compensation” lawsuits and “right-to-take”
lawsuits.

The two different types of eminent domain

lawsuits under Wisconsin state law must proceed in
court separately, but may proceed simultaneously.
The first type of lawsuit is an action to contest the
right of condemnation. Wis. Stat. § 32.05(5), Wis.
Stat. § 32.06(5). The statutes explain that this type
of action must be filed “[i]f an owner desires to
contest the right of the condemnor to condemn the
property ... for any reason other than that the
amount of compensation offered is inadequate ....”
Wis. Stat. § 32.05(5); see Wis. Stat. § 32.06(5). The
statutes further explain that the aggrieved
landowner may “commence an action in the circuit
court of the county wherein the property is located”
and that “[s]uch action shall be the only manner in
which any issue other than the amount of just
compensation or ... to perfect title ... may be raised
pertaining to the condemnation of the property
described in the jurisdictional offer.” Id. Actions
under this statute are colloquially known among
eminent domain practitioners as “right-to-take”
actions. A plaintiff has 40 days from the service of a
jurisdictional offer to commence a right-to-take
action under Wis. Stat. §§ 32.05(5) or 32.06(5).

The second type of action that is specified under

Wisconsin law in relation to eminent domain takings
is what practitioners call a “compensation
proceeding” because it is a proceeding to determine
the amount of just compensation which must be paid
for the taking. Wisconsin law specifies that
compensation proceedings involving sewers and
 11
transportation facilities follow a different procedural
path from takings for all other purposes.

Under Wisconsin law, takings for sewers and

transportation facilities are governed by Wis. Stat. §
32.05 (“Condemnation for sewers and transportation
facilities.”) Takings for sewers and transportation
facilities are allowed to use a “quick take” procedure.
Waller v. American Transmission Co., 2013 WI 77, ¶
57, 350 Wis. 2d 242, 833 N.W.2d 764 (“Condemnors
use Wis. Stat. § 32.05, known as the ‘quick-take’
statute, for condemning property related to sewer
and transportation projects.”) Takings for purposes
other than transportation facilities and sewers
proceed under a different section of the Wisconsin
Statutes using a “slow-take” procedure. Waller, 2013
WI 77, ¶ 57 (“Other condemnors utilize Wis. Stat. §
32.06, the ‘slow-take’ statute, which is the ‘catch-all’
for condemnations not covered by § 32.05.”) This
section of the statutes specifies a procedure where
the condemning authority generally must initiate
condemnation proceedings prior to taking title. Wis.
Stat. § 32.06 (“Condemnation procedure in other
than transportation matters”). Condemnation for
the entire gamut of public uses including such
classic public uses as airports, schools, power lines,
pipelines, and parks all must be accomplished under
Wis. Stat. § 32.06.

In both compensation proceedings under Section

32.05 and compensation proceedings under Section
32.06, “the sole issues to be tried shall be questions
of title, if any ... and the amount of just
compensation to be paid by condemnor.” Wis. Stat. §
32.05(11); see Wis. Stat. § 32.06(10).
 12
In Wisconsin, right-to-take cases and
compensation cases proceed separately, and often
simultaneously, with separate case numbers and
often with different judges. The statutes explicitly
state that the compensation proceedings may
continue while the right-to-take litigation is
pending: “Nothing in this section shall be construed
... to prevent the condemnor from proceeding with
condemnation during the pendency of the action to
contest the right to condemn.” Wis. Stat. §
32.05(5). This view that the statutes envision
simultaneously litigated “right-to-take” and
“compensation” cases was confirmed by the
Wisconsin Supreme Court in the Waller case: “It is
apparent that the legislature intended to create two
independent proceedings relating to ...
condemnation, an owner’s action in circuit court
under sec. 32.06(5), Stats., and the condemnation
proceeding before a judge under sec. 32.06(7). From
sec. 32.06(5), it is clear that the two proceedings may
go on simultaneously.” Waller, 2013 WI 77, ¶ 58
(citing Falkner v. N. States Power Co., 75 Wis. 2d
116, 120, 248 N.W.2d 885 (1977)).

A Wisconsin plaintiff subjected to eminent

domain who has a Fifth Amendment takings claim
(or other constitutional claims) also has the option of
filing a case in federal court under 42 U.S.C. § 1983.
This is because “Congress intended § 1983 to be an
independent protection for federal rights.” Pulliam
v. Allen, 466 U.S. 522, 541 (1984). See generally
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 665-89
(1978). The right to proceed directly to federal court
with Fifth Amendment and Fourteenth Amendment
claims was confirmed in the recent Knick case. Knick
v. Township of Scott, 588 U.S. 180, 191 (2019). While
 13
Section 1983 claims borrow the applicable state
statute of limitations, applying the short 40-day
time period would be inconsistent with the purpose
of section 1983. See Burnett v. Grattan, 468 U.S. 42,
48-55 (1984) (six month statute of limitations
borrowed from state administrative law was not
appropriate for federal civil rights claims).

B. Factual and Procedural Background

In 2017, the Village of Mount Pleasant (“Village”)

entered into a development agreement to facilitate
the development of manufacturing facilities for
Foxconn Technology Group. D. Ct. Doc. 23, First Am.
Compl. ¶ 2. In 2019, the Village condemned property
from the Petitioners for the stated purpose of a
highway (Highway KR), using Wis. Stat. § 32.05, the
procedure for transportation facilities and sewers.
D. Ct. Doc. 23, First Am. Compl. ¶ 8. The Petitioners’
property was located in Racine County, within an
area that the Village had designated as Area III of
the Foxconn Project Area. D. Ct. Doc. 23-1. However,
all of the documents that the Village used to
accomplish the taking referenced the transportation
facility and sewer statute, sec. 32.05. D. Ct. Doc. 23,
First Am. Compl. ¶¶ 8-20. The Village sent a
Jurisdictional Offer for the property that stated the
“Public Purpose for Property” was “[h]ighway or
other transportation related purposes.” D. Ct. Doc.
23, First Am. Compl. ¶ 11; D. Ct. Doc. 23-2.

Therefore, the Petitioners did not believe that

they needed to file a right-to-take challenge under
Wis. Stat. § 32.05(5) to challenge the legality of the
taking. Under Wisconsin’s statutory framework for
eminent domain law, the Petitioners could have filed
 14
a right-to-take case in either state or federal court in
2019 if they had known that the taking was really
for Foxconn, but they did not do this at that time
because the documents from the Village gave no
indication that a public purpose issue existed: the
taking appeared to be for a highway. D. Ct. Doc. 23,
First Am. Compl. ¶¶ 11- 20.

The Petitioners did file a compensation case in

state court under Wis. Stat. § 32.05(11) (as Ned E.
Lashley, et al. v. Village of Mount Pleasant, Racine
County Circuit Court Case No. 19-CV-1782) but did
not file a right-to-take case challenging the public
purpose of the taking at that time. D. Ct. Doc. 23,
First Am. Compl. ¶¶ 21-24. Constitutional issues are
not allowed to be raised in the state court
compensation case. Wis. Stat. § 32.05(11).

The state compensation case proceeded to pre-

trial motion practice in late 2021. D. Ct. Doc. 23,
First Am. Compl. ¶¶ 26-41. During this pre-trial
motion practice, the posture of the case suddenly
changed when the Village convinced the Racine
County Circuit Court to interpret “the public
improvement for which such property is acquired” to
include the entire Foxconn Project. D. Ct. Doc. 23,
First Am. Compl. ¶ 26. The Village had tactical
reasons for taking this position. The Village wanted
to exclude evidence of the impact of “the project” on
the value of the Petitioners’ property. D. Ct. Doc. 23,
First Am. Compl. ¶ 31. According to Wisconsin’s
project influence rule set forth in Wis. Stat. §
32.09(5)(b):
 15
Any increase or decrease in the fair market
value of real property prior to the date of
evaluation caused by the public improvement
for which such property is acquired, or by the
likelihood that the property would be
acquired for such improvement, other than
that due to physical deterioration within the
reasonable control of the owner, may not be
taken into account in determining the just
compensation for the property.

Wis. Stat. § 32.09(5)(b) (emphasis added).

The Village’s project influence motion filed in the

compensation case began describing the “public
improvement” not as a road project, but as the entire
Foxconn Project including the Tax Incremental
District and zoning changes. D. Ct. Doc. 23, First
Am. Compl. ¶¶ 27-34. Despite the clear documents
initiating the taking that only referenced the
Highway KR road project, in its motion in limine
before the state circuit court, the Village argued that
the taking was for “The Foxconn Project.” D. Ct. Doc.
23, First Am. Compl. ¶¶ 27-34. The Village described
the entire scope of “The Foxconn Project,” including
the Agreement between the State and Foxconn,
state level legislation, the creation of special Tax
Incremental Financing District rules, the rezoning
of the entire Project area to Business Park, and the
formal Development Agreement between Mount
Pleasant and Foxconn. Id. The Village argued that
the “public improvement” included the entire Tax
Incremental Financing District (“TID”) Plan, which
was created to enable the Foxconn Project. D. Ct.
Doc. 23, First Am. Compl. ¶¶ 33-34.
 16
The Village included a summary of the TID Plan
that explicitly identified Foxconn as the “Developer”
who would construct a facility “expected to result in
up to a $10 billion private investment.” D. Ct. Doc.
23, First Am. Compl. ¶ 34. The TID Plan summary
explains that the acres in the TID area were to be
developed by what are obviously private entities:
“the Developer” (Foxconn), “supply chain vendors,”
and “other businesses.” Id.

On January 5, 2022, the Racine County Circuit

Court held a final pretrial in which the court ruled
on the Village’s motion in limine. D. Ct. Doc. 23,
First Am. Compl. ¶ 35. Based on the submitted
briefing and the arguments of counsel at the
hearing, the court found that, “[t]he public
improvement involved in this case is more than
improvement of County Highway KR.” D. Ct. Doc.
23, First Am. Compl. ¶ 36. The court further
explained that, “A more realistic view is that the
public improvement quote, ‘is all of the public
infrastructure, including requiring zoning
modifications implemented to better support the
development’, end quote. This view is bolstered by
review of the Tax Increment District No. 5 Plan
language.” D. Ct. Doc. 23, First Am. Compl. ¶ 37.

Based on the Village’s admissions and assertions

that the public improvement was the entire
multifaceted Foxconn Project, including the TID No.
5 Plan, the rezoning, and the Development
Agreement with Foxconn, the circuit court ruled
that the public improvement was “the entire scope of
the public infrastructure required by the TID plan
which included rezoning modifications, including
the plaintiff's property in this case, to support the
 17
development.” D. Ct. Doc. 23-7, First Am. Compl. Ex.
G, Tr. 17:7-11. The “development” supported by the
TID Plan was private development by Foxconn and
other private businesses. D. Ct. Doc. 23, First Am.
Compl. ¶ 34. Because of this ruling, the circuit court
held that the rezoning of property in the TID was
part of the public improvement, and therefore the
Business Park zoning of the Petitioners’ property
could not be admitted at trial. D. Ct. Doc. 23, First
Am. Compl. ¶¶ 40-41.

When the Village succeeded in convincing the

state court in the compensation case that the taking
was really part of the Foxconn Project, the
Petitioners had a public use claim because of the
application of judicial estoppel. This occurred on
January 5th of 2022 when the state circuit court
ruled that the taking was actually for the Foxconn
Project. D. Ct. Doc. 23, First Am. Compl. ¶¶ 35-41.

The Village’s strategy was this: the Village could

not openly take the Petitioners’ property for the
private purpose of the private Foxconn development
project, so the Village styled all the eminent domain
documents as being a taking for highway purposes.
This allowed the Village to avoid a constitutional
right-to-take challenge under Wis. Stat. § 32.05(5) in
state court or under 42 U.S.C. § 1983 in federal
court. But if the taking was really for a highway,
then the Village faced the disadvantage of not being
able to exclude evidence of the rezoning for the
purposes of determining compensation because the
project influence rule would only exclude the impact
of the Highway KR improvement project. The project
influence rule would not exclude evidence of the
other changes related to the entire Foxconn Project
 18
development such as the rezoning. So the Village
changed its position and argued to the state court in
the compensation case that the public improvement
for which the property was taken was not just
Highway KR, rather, it was the entire Foxconn
Project including the TID and zoning changes. The
Village convinced the state court in the
compensation case of this position.

Accordingly, on January 28th of 2022, Petitioners

filed this federal lawsuit in the Eastern District of
Wisconsin under 42 U.S.C. § 1983, as Case No. 22-
cv-117, alleging that the Village took the Petitioners’
property for the private Foxconn Project under the
guise of a highway taking as evidenced by the
Village’s arguments before the Racine County
Circuit Court and ratified by the subsequent
decision of the Racine County Circuit Court. D. Ct.
Doc. 1, Compl.; D. Ct. Doc. 23, First Am. Compl. ¶
38. The district court had jurisdiction pursuant to 28
U.S.C. § 1331 and 28 U.S.C. § 1343(3) in that the
controversy arose under the United States
Constitution and under 42 U.S.C. § 1983 and 28
U.S.C. § 2201 and 28 U.S.C. § 2202. The case was a
42 U.S.C. § 1983 suit alleging violations of the
Petitioners’ federal constitutional rights under the
United States Constitution, Fifth and Fourteenth
Amendments. “Section 1983 claims ‘accrue when the
plaintiff knows or should know that his or her
constitutional rights have been violated.’” Kelly v.
City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993)
(quoting Wilson v. Geisen, 956 F.2d 738, 740 (7th
Cir. 1992)).
 19
The Petitioners’ lawsuit in federal court was
analogous to a Wis. Stat. § 32.05(5) right-to-take
lawsuit (which had not filed by the Petitioners)
because it raised constitutional issues, rather than
an appeal of compensation. The complaint alleged a
variety of claims, one of which was a public use claim
and one of which was an equal protection claim. D.
Ct. Doc. 23, First Am. Compl. ¶¶ 24-55. The
Petitioners claimed that the Village had used
eminent domain to take their property for a private
use in violation of the Fifth Amendment’s guarantee
that private property may only be taken for public
uses and had violated the 14th Amendment as well.
D. Ct. Doc. 23, First Am. Compl. ¶¶ 1, 37-40.

The Village moved to dismiss the federal

complaint. D. Ct. Doc. 8. The Petitioners then
amended their complaint. D. Ct. Doc. 23. The Village
again moved to dismiss. D. Ct. Doc. 24. The Village’s
motions did not raise the Colorado River doctrine,
and the parties did not argue Colorado River in the
briefs or at oral argument. On March 10th, 2023, the
district court granted the Village’s Motion to
Dismiss on the basis of Colorado River abstention.
D. Ct. Doc. 42, App. 16a-35a. The district court then
entered judgment in favor of the Village and
terminated the case. D. Ct. Doc. 43. The Petitioners
timely appealed by filing their notice of appeal on
April 7, 2023. D. Ct. Doc. 44. The Seventh Circuit
affirmed the district court in a decision dated April
25, 2024, again on the basis of Colorado River
abstention. App. 1a-15a. This Petition ensued.
 20
REASONS FOR GRANTING THE PETITION

A. The Courts of Appeals are Divided in

their Application of the Colorado River
Doctrine, and the Seventh Circuit’s
Broad Application Stands Apart

This Court has had limited opportunity to

develop the Colorado River doctrine since its
inception in 1976. In the absence of guidance from
this Court, the circuits have developed divergent
applications of the doctrine. The Seventh Circuit
stands apart with a particularly broad approach
that denies jurisdiction to a far greater extent than
was originally envisioned in this Court’s Colorado
River and Moses H. Cone Memorial Hospital cases.
This Court is urged to grant this petition for the
purpose of clarifying the doctrine and unifying the
circuits. The following discussion summarizes the
circuits’ approaches for the purpose of illustrating
the outlier nature of the Seventh Circuit’s approach.

I. First Circuit

The First Circuit recognizes a “presumption in

favor of assuming jurisdiction….” Jiménez v.
Rodríguez-Pagán, 597 F.3d 18, 28 (1st Cir. 2010).
For Colorado River abstention to apply, the movant
must demonstrate the “clearest of justifications
displayed by exceptional circumstances.”
Maldonado-Cabrera v. Anglero-Alfaro, 26 F.4th 523,
528 (1st Cir. 2022) (quoting Nazario-Lugo v.
Caribevisión Holdings, Inc., 670 F.3d 109, 116 (1st
Cir. 2012)).
 21
In the First Circuit, “some duplication alone is
not enough to justify a stay of [a] federal action....”
Glassie v. Doucette, 55 F.4th 58, 64 (1st Cir. 2022)
“‘[I]t would be a serious abuse of discretion to grant
[a] stay or dismissal at all’ ‘[i]f there is any
substantial doubt’ ‘that the parallel state-court
litigation will be an adequate vehicle for the
complete and prompt resolution of the issues
between the parties.’” Glassie, 55 F.4th at 64
(quoting Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 28 (1983)). To be
“sufficiently parallel,” the state case “must resolve
all of the claims in the federal case.” Id. at 64
(quoting Villa Marina Yacht Sales, Inc. v. Hatteras
Yachts, 947 F.2d 529, 533 (1st Cir. 1991)).

If cases are found to be parallel, the First Circuit

applies a (non-exclusive) eight factor test for
exceptional circumstances. Rio Grande Community
Health Ctr., Inc. v. Rullan, 397 F.3d 56, 71-72 (1st
Cir. 2005).

II. Second Circuit

In the Second Circuit, similar to the First Circuit,

cases are considered parallel when “the resolution of
existing concurrent state-court litigation could
result in ‘comprehensive disposition of litigation.’”
Woodford v. Cmty. Action Agency of Greene County,
239 F.3d 517, 522 (2d Cir. 2001) (quoting Colorado
River, 424 U.S. at 817). There must be both an
identity of parties, an identity of issues, and an
identity of relief sought. Nat’l Union Fire Ins. Co. v.
Karp, 108 F.3d 17, 22 (2d Cir. 1997).
 22
For the purpose of determining parallelism, the
Second Circuit appears to be the only circuit other
than the Seventh Circuit willing to consider how the
state court action could be amended as opposed to
how it actually was pled. Telesco v. Telesco Fuel &
Masons’ Materials, Inc., 765 F.2d 356, 359 (2d Cir.
1985).

If suits are found to be parallel, then Second

Circuit courts consider six factors, “with the balance
heavily weighted in favor of the exercise of
jurisdiction....” Niagara Mohawk Power Corp. v.
Hudson River-Black, 673 F.3d 84, 100 (2d Cir. 2012)
(quoting Moses H. Cone, 460 U.S. at 16). “[A]
carefully considered judgment taking into account
both the obligation to exercise jurisdiction and the
combination of factors counselling against that
exercise is required. Only the clearest of
justifications will warrant dismissal.” Id. at 101
(quoting Colorado River, 424 U.S. at 818-19).

III. Third Circuit

The Third Circuit also disfavors Colorado River

abstention. “The doctrine is to be narrowly applied
in light of the general principle that ‘federal courts
have a strict duty to exercise the jurisdiction that is
conferred upon them by Congress.’” Nationwide
Mut. Fire Ins. Co. v. George V. Hamilton Inc., 571
F.3d 299, 307 (3d Cir. 2009) (quoting Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)).

Parallel cases involve the same parties and

“substantially identical claims [and] nearly identical
allegations and issues.” Nationwide, 571 F.3d at 307
 23
(quoting Yang v. Tsui, 416 F.3d 199, 204 n.5 (3d Cir.
2005)). If the cases are found to be parallel, then the
Third Circuit applies the six factor test. Nationwide,
571 F.3d at 308.

IV. Fourth Circuit

The Fourth Circuit recognizes that as a general

rule, parties are allowed to pursue parallel actions
in state and federal court “until one becomes
preclusive of the other.” Chase Brexton Health
Services, Inc. v. Maryland, 411 F.3d 457, 462 (4th
Cir. 2005). “‘Despite what may appear to result in a
duplication of judicial resources, ‘[t]he rule is well
recognized that the pendency of an action in the
state [system] is no bar to proceedings concerning
the same matter in the Federal court having
jurisdiction.’” Id. (quoting McLaughlin v. United Va.
Bank, 955 F.2d 930, 934 (4th Cir. 1992)) (quoting
McClellan v. Carland, 217 U.S. 268, 282 (1910)).

In order to find that cases are parallel in the

Fourth Circuit, the court must determine that “‘the
parallel state-court litigation will be an adequate
vehicle for the complete and prompt resolution of the
issues between the parties.’” Id. at 464 (citing Moses
H. Cone, 460 U.S. at 28). If the parties, issues raised,
and remedies sought are not the same, the cases are
not parallel. Id. at 464-65 (citing New Beckley
Mining Corp. v. Int’l Union, UMWA, 946 F.2d 1072,
1073-74 (4th Cir. 1991)).

If parallelism is found, then a district court must

carefully balance the six factors. Id. at 463-64 (citing
Moses H. Cone, 460 U.S. at 16).
 24
V. Fifth Circuit

In the Fifth Circuit, in order to be parallel, the

cases must involve the same parties and the same
issues. Exxon Corp. v. St. Paul Fire & Marine Ins.
Co., 129 F.3d 781, 785 (5th Cir. 1997) (citations
omitted). A “mincing insistence on precise identity”
of parties and issues is not required, but the same
“general subject matter” is not enough.
Republicbank Dallas, N.A. v. McIntosh, 828 F.2d
1120, 1121 (5th Cir. 1987) (per curiam). Courts are
to look “to the named parties and to the substance of
the claims asserted in each proceeding.” African
Methodist Episcopal Church v. Lucien, 756 F.3d 788,
797 (5th Cir. 2014).

If cases are found to be parallel, the Fifth Circuit

uses the six factor test for exceptional
circumstances. Black Sea Inv., Ltd. v. United
Heritage Corp., 204 F.3d 647, 650 (5th Cir. 2000).

VI. Sixth Circuit

In the Sixth Circuit, parallel cases must have the

same parties and issues, not just the same “basic
facts.” Baskin v. Bath Township Bd. of Zoning
Appeals, 15 F.3d 569, 572 (6th Cir. 1994). In
performing the parallelism analysis, the court “must
compare the issues in the federal action to the issues
actually raised in the state court action, not those
that might have been raised.” Baskin, 15 F.3d at
572. Parallelism requires availability of complete
relief in the state proceedings. Heitmanis v. Austin,
899 F.2d 521, 527 (6th Cir. 1990).
 25
If cases are parallel, Sixth Circuit courts apply
an eight factor exceptional circumstances test,
adding “the relative progress of the state and federal
proceedings” and “the presence or absence of
concurrent jurisdiction” to the usual six factors.
Romine v. Compuserve Corporation, 160 F.3d 337,
341 (6th Cir. 1998).

VII. Seventh Circuit

Prior to the case at bar, the Seventh Circuit’s

view of parallelism was already by far the most
relaxed, and in the case at bar, the Seventh Circuit
essentially did away with the parallelism
requirement.

To be parallel, the court considers whether

“substantially the same parties are
contemporaneously litigating substantially the
same issues in another forum.” Freed v. JP Morgan
Chase Bank, N.A., 756 F.3d 1013, 1019 (7th Cir.
2014) (quoting Interstate Material Corp. v. City of
Chicago, 847 F.2d 1285, 1288 (7th Cir. 1988))
(quoting Calvert Fire Ins. Co. v. American Mutual
Reinsurance Co., 600 F.2d 1228, 1229 n. 1 (7th Cir.
1979)). Seventh Circuit courts also “examine
whether the cases raise the same legal allegations or
arise from the same set of facts.” Id., at 1019 (citing
Tyrer v. City of South Beloit, 456 F.3d 744, 752 (7th
Cir. 2006)). “Precisely formal symmetry is
unnecessary” to find parallelism. Adkins v. VIM
Recycling, Inc., 644 F.3d 483, 499 (7th Cir. 2011).

In the case at bar, the Seventh Circuit still

recited the standard that there must be “a
substantial likelihood that the state litigation will
 26
dispose of all claims presented in the federal case.”
App. 7a (quoting Huon v. Johnson & Bell, Ltd., 657
F.3d 641, 646 (7th Cir. 2011)). However, the Seventh
Circuit then effectively erased that requirement
(along with the same issues requirement) with its
decision, which acknowledged that “the federal and
state litigation present different issues.” App.
8a. The Seventh Circuit admitted that, “regardless
of how the dust settles in state court, their public-
use takings claim in federal court will go
unanswered.” App. 8a. The court justified its finding
of parallelism by explaining that, although the state
and federal proceedings involve different issues,
they could have involved the same issues if
Petitioners had raised their public-use claim years
earlier in either state or federal court. App. 8a.

This logic seems to be an outgrowth of the

Seventh Circuit’s willingness to consider how the
state court case could have been pled as opposed to
how it is actually pled, in performing the parallelism
analysis. See Rosser v. Chrysler Corp., 864 F.2d
1299, 1308 (7th Cir. 1988). This goes even further
than the Second Circuit Telesco case, supra, in which
the state pleadings could be amended to become
parallel to the federal case. The Seventh Circuit is
willing to find parallelism even when the state
pleadings cannot be amended to become more
similar to the federal action, due the statute of
limitations having run (in the Rosser case), or due to
the Wisconsin statutory bar to bringing
constitutional challenge claims in a Wis. Stat. §
32.05(11) case (in the case at bar).
 27
If the proceedings are parallel, the Seventh
Circuit is the only circuit to use a ten (non-exclusive)
factor test to determine whether abstention is
proper. Adkins, 644 F.3d at 500-01.

It has been noted that in practice, the Seventh

Circuit applies the Colorado River doctrine very
broadly, which results in “routine denial” of
jurisdiction. Note, Owen W. Gallogly, Colorado River
Abstention: A Practical Reassessment, 106 Va. L.
Rev. 199, 224-233 (2020). Suffice to say, “routine
denial” is not consistent with a doctrine that this
Court originally envisioned would be invoked in
“limited” and “exceptional” circumstances. Colorado
River, 424 U.S. at 818. This Court envisioned that,
“[o]nly the clearest of justifications will warrant
dismissal.” Id. at 819.

VIII. Eighth Circuit

The Eighth Circuit has a more precise test for

parallelism. Fru-Con Const. Corp. v. Controlled Air,
Inc., 574 F.3d 527, 535 (8th Cir. 2009). It is not
enough that the cases involve the same parties and
are based on the same general facts. Id. (citing
Federated Rural Elec. Ins. Corp. v. Ark. Elec. Coop.,
Inc., 48 F.3d 294, 297 (8th Cir. 1995)). The Eighth
Circuit requires “a substantial likelihood that the
state proceeding will fully dispose of the claims
presented in the federal court.” Id. (citing TruServ
Corp. v. Flegles, Inc., 419 F.3d 584, 592 (7th Cir.
2005)). “This analysis focuses on matters as they
currently exist, not as they could be modified.” Id.
(citing Baskin v. Bath Township Bd. of Zoning
Appeals, 15 F.3d 569, 572 (6th Cir. 1994)).
 28
If the cases are found to be parallel, the Eighth
Circuit applies the six factor test, noting that it is
“non-exhaustive.” Id. at 534 (quoting Mountain
Pure, LLC v. Turner Holdings, LLC, 439 F.3d 920,
926 (8th Cir. 2006)).

IX. Ninth Circuit

In the Ninth Circuit, “exact parallelism” is not

required, “[i]t is enough if the two proceedings are
‘substantially similar.’” Holder v. Holder, 305 F.3d
854, 867 (9th Cir. 2002) (quoting Nakash v.
Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989)). “In
this Circuit, the narrow Colorado River doctrine
requires that the pending state court proceeding
resolve all issues in the federal suit.” Holder, 305
F.3d at 859. A state court proceeding is parallel only
if it provides “relief for all of the parties’ claims.”
Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d
908, 913 n.4 (9th Cir. 1993).

If the cases are found to be parallel, then Ninth

Circuit courts apply an eight factor test, which
consists of the usual six plus “the desire to avoid
forum shopping” and “whether the state court
proceedings will resolve all issues before the federal
court.” United States v. State Water Resources
Control Bd., 988 F.3d 1194, 1203 (9th Cir. 2021)
(quoting R.R. St. & Co., Inc. v. Trans. Ins. Co., 656
F.3d 966, 978-79 (9th Cir. 2011)). The eighth factor,
of course, is also part of the parallelism test.

The Ninth Circuit has strong language

counseling against declining jurisdiction (which is
consistent with the original language of Colorado
River and Moses H. Cone). “[T]he existence of a
 29
substantial doubt as to whether the state
proceedings will resolve the federal action precludes
the granting of a stay.” Intel Corp., 12 F.3d at 913. A
doubt as to whether the state suit can resolve all the
issues in the federal suit can be “dispositive.” Id. “[A]
district court may enter a Colorado River stay order
only if it has ‘full confidence’ that the parallel state
proceeding will end the litigation.” Intel Corp., 12
F.3d at 913 (quoting Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 277 (1988)).

The Ninth Circuit has noted that, “federal courts

are particularly reluctant to relinquish jurisdiction
when a case involves federal law issues. As the
Supreme Court stated in Moses H. Cone, ‘the
presence of federal law issues must always be a
major consideration weighing against surrender.’”
Intel Corp., 12 F.3d at 913 n.7 (quoting Moses H.
Cone, 460 U.S. at 26). The Ninth Circuit also
recognizes, in the context of Younger abstention,
that a federal court’s obligation to exercise its
jurisdiction is “particularly weighty” in 42 U.S.C. §
1983 cases. Potrero Hills Landfill, Inc. v. Cty. of
Solano, 657 F.3d 876, 890 (9th Cir. 2011) (quoting
Miofsky v. Superior Ct. of Cal., 703 F.2d 332, 338
(9th Cir. 1983)).

X. Tenth Circuit

In the Tenth Circuit, “[s]uits are parallel if

substantially the same parties litigate substantially
the same issues in different forums” and “exact
identity of parties and issues is not required.” Fox v.
Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994)
(quoting New Beckley Mining Corp. v. Int’l Union,
 30
UMWA, 946 F.2d 1072, 1073 (4th Cir. 1991), United
States v. City of Las Cruces, 289 F.3d 1170, 1182
(10th Cir. 2002)). Similar to the other circuits, the
Tenth Circuit requires that the state court action
will be “‘an adequate vehicle for the complete and
prompt resolution of the issue between the parties.’”
Fox, 16 F.3d at 1081-82 (quoting Moses H. Cone, 460
U.S. at 28).

In applying the Tenth Circuit test, the court

examines the state proceedings as they actually exist
to determine whether they are parallel to the federal
proceedings as opposed to examining how they
might have been pled, or might be amended. Fox, 16
F.3d at 1081 (citing McLaughlin v. United Va. Bank,
955 F.2d 930, 935-36 (4th Cir. 1992), Crawley v.
Hamilton County Comm’rs, 744 F.2d 28, 31 (6th Cir.
1984)).

If the cases are found to be parallel, then the

court uses an eight factor test. Wakaya Perfection,
LLC v. Youngevity Int’l, Inc., 910 F.3d 1118, 1122
(10th Cir. 2018) (citing Fox, 16 F.3d at 1082). Any
doubt should be resolved against Colorado River
abstention and in favor of exercising federal
jurisdiction. Travelers Indem. Co. v. Madonna, 914
F.2d 1364, 1369 (10th Cir. 1990).

XI. Eleventh Circuit

Referencing the “virtually unflagging obligation

of federal courts to exercise the jurisdiction given to
them” stated in Colorado River, 424 U.S. at 817-18,
the Eleventh Circuit notes that, “[a] policy
permitting federal courts to yield jurisdiction to
 31
state courts cavalierly would betray this obligation.”
Ambrosia Coal & Constr. Co. v. Pagés Morales, 368
F.3d 1320, 1328 (11th Cir. 2004). The Eleventh
Circuit does not require identical parties and issues
to find parallelism, “substantially the same parties
and substantially the same issues” are sufficient.
Id., at 1330.

The Eleventh Circuit uses the six factor test

“with a heavy bias favoring the federal courts’
obligation to exercise the jurisdiction that Congress
has given them.” Jackson-Platts v. Gen. Electric
Capital Corp., 727 F.3d 1127, 1141 (11th Cir. 2013).

XII. D.C. Circuit

For cases to be deemed parallel in the D.C.

Circuit, a recent district court decision analyzed
whether the state proceedings must involve the
same parties, the same issues, and be “an adequate
vehicle for the complete and prompt resolution of the
issues between the parties in federal court.” US
Dominion, Inc. v. Herring Networks, Inc., 639 F.
Supp. 3d 143, 155-57 (D.D.C. 2022) (citing Moses H.
Cone, 460 U.S. at 28). See Edge Inv., LLC v. District
of Columbia, 927 F.3d 549, 553, 555-56, 559 (D.C.
Cir. 2019) (requirement that state and federal cases
be parallel).

The D.C. Circuit uses the six factor test, “heavily

weighted in favor of the exercise of jurisdiction.”
Edge Inv., 927 F.3d at 553-54 (quoting Moses H.
Cone, 460 U.S. at 16). Apparently sensing an
unwanted flood of Colorado River abstentions, the
D.C. Circuit recently provided a thorough review of
the exceptional circumstances analysis in order to
 32
“ensure that Colorado River is confined to its banks.”
Edge Inv., 927 F.3d at 550.

The D.C. Circuit also recognizes that Colorado

River does not eschew piecemeal litigation as a
matter of course, but only “‘piecemeal litigation that
is abnormally excessive or deleterious.’” Edge Inv.,
927 F.3d at 556 (quoting Ambrosia Coal & Constr.
Co. v. Pagés Morales, 368 F.3d 1320, 1333 (11th Cir.
2004) (emphasis added)). The D.C. Circuit explicitly
states that Colorado River is not meant to block “a
garden-variety example of two lawsuits proceeding
concurrently in two courts.” Id. at 556.

B. This Case Presents an Important Fifth

Amendment Issue

Although Wisconsin law allows for an action to

be filed under state law to challenge a taking (within
40 days of service of the jurisdictional offer),
Wisconsin’s eminent domain statutory procedure
cannot act to limit or foreclose federal causes of
action under 42 U.S.C. § 1983. Knick v. Township of
Scott, 588 U.S. 180, 191-94 (2019). In the post-Knick
environment, public use challenges may be brought
directly in federal court. The D.C. Circuit recently
held that, “[p]rompt access to federal court review of
the lawfulness of the taking, including the public use
determination, is part of the protection the Fifth
Amendment affords.” Allegheny Defense Project v.
Fed. Energy Reg. Comm’n, 932 F.3d 940, 955 (D.C.
Cir. 2019).
 33
This case involves the well-known private
Foxconn development. Takings projects must be
evaluated for whether they are unconstitutional “in
light of the entire plan” and not on a piecemeal basis.
Kelo v. City of New London, 545 U.S. 469, 484 (2005).
Kelo makes it clear that takings for economic
development schemes may, in some cases, be
unconstitutional private takings. Kelo, 545 U.S. at
487. In Kelo, the four justice lead opinion reasoned
that, in that case, the City had invoked a state
statute that specifically authorized the use of
eminent domain to promote economic development,
the City’s plan was “comprehensive” in character,
thorough deliberation had preceded the City’s
adoption of the plan, and (in their view at that time)
the plan unquestionably served a public purpose. Id.
at 484. In his concurrence, Justice Kennedy made a
clear command to courts considering economic
development takings: “A court confronted with a
plausible accusation of impermissible favoritism to
private parties should treat the objection as a
serious one and review the record to see if it has
merit, though with the presumption that the
government’s actions were reasonable and intended
to serve a public purpose.” Kelo, 545 U.S. at 491.
This case would give this Court an opportunity to
address the constitutionality of a taking where,
unlike the “comprehensive” development plan in
Kelo, there was a plausible accusation of
impermissible favoritism to a private party,
Foxconn.
 34
C. The Decision of the Court of Appeals is
Incorrect

I. The Court of Appeals Erred in

Concluding that the State and Federal
Proceedings were Parallel

The Seventh Circuit’s decision in this case does

away with the requirement that the issues in the
state and federal proceedings be substantially the
same, as the court acknowledged that “the federal
and state litigation present different issues.” App.
8a. This was because the state case was solely a
contest of “the amount of compensation owed for the
taking.” App. 8a. The federal case, on the other
hand, was a public-use claim that “the taking has
been illegitimate all along, because the Village
seized their property for a private use under the
guise of a public one.” App. 8a. The court even
referred to the difference between the two suits as
“lopsidedness” and “a mismatch between the federal
and state actions.” App. 8a, 11a. The court erred
when it fell back on its understanding that “the two
suits involve the same operative facts,” App. 7a,
because the question is whether the issues are the
same, and whether the state action will be able to
resolve the issues raised in the federal action.

The court seemed to agree that it was impossible

to bring a constitutional challenge under the
existing Wis. Stat. § 32.05(11) compensation appeal,
due to the statutory bar on any claims in that action
other than “questions of title, if any ... and the
amount of just compensation to be paid by
condemnor.” Wis. Stat. § 32.05(11). The court
acknowledged that, “regardless of how the dust
 35
settles in state court, their public-use takings claim
in federal court will go unanswered.” App. 8a.
Therefore, despite reciting the standard that there
must be “a substantial likelihood that the state
litigation will dispose of all claims presented in the
federal case,” App. 7a (quoting Huon v. Johnson &
Bell, Ltd., 657 F.3d 641, 646 (7th Cir. 2011)), the
Seventh Circuit has effectively overruled that
requirement. This is because the court was fully
aware that the state litigation could not dispose of
the federal claims, but the court found the actions
“parallel” anyway.

The court essentially created a new requirement

that it was too late for Petitioners to bring their
public use claim. This was not because the statute of
limitations had run (it hadn’t), but because “[t]hey
could have raised a public-use claim years ago.” App.
8a. The court justified its finding of parallelism by
explaining that, although the state and federal
proceedings involve different issues, they could have
involved the same issues if Petitioners had raised
their public-use claim years earlier in either state or
federal court. App. 8a. The court essentially found
that the federal case was parallel to a hypothetical
state case that the Petitioners had never filed but
hypothetically could have filed.

Performing the parallelism analysis, not with the

cases that were actually filed, but with a
hypothetical case that was never filed, stretches the
Colorado River doctrine beyond the breaking point.
The Seventh Circuit’s logic seems to be an outgrowth
of its willingness to consider how a state court case
could have been pled as opposed to how it is actually
pled, in performing the parallelism analysis. See
 36
Rosser v. Chrysler Corp., 864 F.2d 1299, 1308 (7th
Cir. 1988). However, this case goes even further
than Rosser. The Seventh Circuit’s method of finding
parallelism by comparing the federal case to a
hypothetical state case that was never brought,
based on the court’s opinion that it could have been
brought, does not give effect to the original
motivations of Colorado River. In the absence of
actual parallel proceedings, an inquiry into whether
Petitioners could or should have brought another
case at a different time simply does not implicate the
Colorado River doctrine. Furthermore, a case that is
brought within the statute of limitations is not
barred simply because it could have been brought
years earlier, and in this case, the Petitioners
alleged that they could not have brought the case
earlier. D. Ct. Doc. 23, First. Am. Compl. ¶¶ 21, 26-
41.

The context here for the proper Colorado River

analysis is that, in Wisconsin, a claim for
compensation and a claim challenging the taking are
never brought together, in fact this is forbidden by
state statute and the claims are required to be
brought in separate cases that may proceed
simultaneously. Wis. Stat. § 32.05(5); Wis. Stat. §
32.05(11). Furthermore, the court’s opinion that a
public-use claim could have been brought earlier
was contradicted by the allegation in Petitioners’
First Amended Complaint that the jurisdictional
offer in this case clearly stated that the Village was
acquiring the property under Wis. Stat. § 32.05 for
“Highway or other transportation related purposes.”
D. Ct. Doc. 23, First. Am. Compl. ¶ 11. The
implication of limiting the taking to being a “road
project” as opposed to “the Foxconn Project” in the
 37
takings documents was that it insulated the Village
from a legal challenge on the grounds that the
taking was a violation of the public purpose clause
of the Fifth Amendment to the United States
Constitution. D. Ct. Doc. 23, First. Am. Compl. ¶ 22.

II. The Court of Appeals also Erred in its

Application of the Exceptional
Circumstances Factors

The main factor in the court of appeals’ analysis

was the timing of the federal filing in relation to the
state proceeding, which the court also found to be
“vexatious and contrived.” App. 9a, 12a. Indeed,
another way of viewing the court’s opinion is that the
court essentially skipped the parallelism step and
focused entirely on the fact that the federal case was
filed right before the scheduled trial in the state
case. The court thought that the federal case sought
“to circumvent the Wisconsin appellate court” and
believed that the Petitioners had employed
“litigation tactics” that signaled “‘a lack of respect for
the state’s ability to resolve [the issues] properly
before its courts.’” App. 9a (quoting SKS &
Associates v. Dart, 619 F.3d 674, 679 (7th Cir. 2010)).
Respect for the state court system is an ideal well-
worth protecting. Here, however, the Petitioners
were not seeking to overrule the Racine County
Circuit Court in federal court. Rather, the position
that the Village took to convince the state court of
the nature of the project opened the Village up to the
federal claim that the Village illegally took property
for a private purpose. When this happened, the
Petitioners filed their case in federal court, alleging
that the Village had violated their constitutional
 38
rights under the Fifth and Fourteenth
Amendments.

The timing of this lawsuit, on the eve of the state

court trial, was brought on by the Village’s initial
styling of the takings documents as being for a road
project, and its sudden new position to convince the
state circuit court late in the case that the taking
was for the purpose of the Foxconn Project. The
Seventh Circuit found it “uncredible” that the
Petitioners did not know until that point that “the
road improvements made on their property were
associated with the Foxconn development.” App.
12a. With respect, the road’s “association” with the
Foxconn development is not precise language and is
not the legal test. The question is whether the
Village took the Petitioners’ property for a public
purpose (the improvement of Highway KR) or
whether the Village took the Petitioners’ property
for an illegal private purpose (the Foxconn Project).
Originally, the Village styled all the takings
documents to refer to the purpose for the taking as
Highway KR. Then, late in the case, the Village
claimed, for strategic reasons, that the taking was
for the Foxconn Project, which was a private
purpose.

The federal case was a direct consequence of the

Village taking the position that the taking was not
for a public road project, but rather was for the
private purpose of the Foxconn Project. The Village
took this position in order to obtain a favorable
ruling based on the project influence rule, but the
natural consequence of the Village’s admission was
that it opened the Village up to the claim that it took
property for an impermissible private purpose.
 39
The court of appeals only did a brief review of the
other factors. Although these cases involve property,
neither case is “in rem.” See Ambrosia Coal &
Constr. Co. v. Pagés Morales, 368 F.3d 1320, 1332
(11th Cir. 2004). The court of appeals invoked “the
desirability of avoiding piecemeal litigation,” App.
11a, but this cannot be used to deny a federal forum
for the Petitioners’ federal constitutional rights,
especially in light of the fact that Wisconsin law
requires a right-to-take case and a compensation
appeal to be brought separately, therefore,
“piecemeal” litigation was chosen by the Wisconsin
legislature by design. The court invoked judicial
economy, but used the same argument regarding
timing, that it was too late to file a constitutional
challenge in light of the fact that the compensation
appeal had been pending for two years. App. 11a.
This opinion did not acknowledge the reality that,
under Wisconsin law, a compensation appeal under
Wis. Stat. § 32.05(11) and a challenge under Wis.
Stat. § 32.05(5) would proceed independently of each
other, on separate tracks. This means that a plaintiff
always has the right to bring both types of cases.
And the Knick, Allegheny Defense Project, and
Burnett cases support the Petitioners’ position that
a takings plaintiff can bring a public-use claim
directly in federal court, without being limited by a
short statute of limitations imposed by state law.
Knick v. Township of Scott, 588 U.S. 180, 185 (2019);
Allegheny Defense Project v. Fed. Energy Reg.
Comm’n, 932 F.3d 940, 955 (D.C. Cir. 2019); Burnett
v. Grattan, 468 U.S. 42, 48-55 (1984).
 40
Finally, the court declined to analyze the factor
of “the adequacy of the state-court action to protect
the federal rights of the plaintiffs,” because this and
the other remaining factors “do not decisively
support anyone.” App. 12a. By failing to find that
this factor necessitated that the federal court
assume jurisdiction, the court of appeals abdicated
its responsibility to ensure that plaintiffs with
federal constitutional rights claims get their day in
court. The court was aware that the state court
compensation action was fully inadequate to protect
the federal rights of the Petitioners. See App. 8a.
Rather than holding that this required the district
court to assume jurisdiction over the case, however,
the court decided that a hypothetical case under
Wis. Stat. § 32.05(5), which the Petitioners had
never filed, would have been adequate to protect
these rights. In support of this assertion, the court
of appeals cited two cases that were very different
from the case at hand. App. 13a. In Depuy Synthes
Sales, Inc. v. OrthoLA, Inc., 953 F.3d 469, 479 (7th
Cir. 2020), a parallel case was pending in state court
with the same issues, in which the plaintiff’s claims
could be heard. And in DeVillier v. Texas, 601 U.S.
285, 287, 293 (2024), the Court assumed that the
plaintiff’s state-law cause of action would proceed, as
the state agreed not to oppose amending the
complaint to include this claim (DeVillier was not a
Colorado River case).

The Seventh Circuit has departed from

established jurisprudence by substituting the
Colorado River factor of “the adequacy of the state-
court action to protect the federal rights of the
plaintiffs,” with a modified factor to the effect of
“whether there was a state procedure in place that
 41
could have protected the plaintiffs’ federal rights.”
This modification violates the holding in Knick: “The
‘general rule’ is that plaintiffs may bring
constitutional claims under § 1983 ‘without first
bringing any sort of state lawsuit, even when state
court actions addressing the underlying behavior
are available.’ … This is as true for takings claims
as for any other claim grounded in the Bill of
Rights.” Knick v. Township of Scott, 588 U.S. 180,
194 (2019) (quoting D. Dana & T. Merrill, Property:
Takings 262 (2002)). The Seventh Circuit effectively
reimposes the Williamson County state litigation
requirement, which was overruled in Knick, on the
takings plaintiffs in this case. Knick, 588 U.S. at 206
(overruling Williamson County Regional Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S.
172 (1985)). An overruled state litigation
requirement cannot be a valid Colorado River factor
barring the Petitioners’ federal case.
 42
CONCLUSION

For the reasons stated above, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

ERIK S. OLSEN
Counsel of Record
EMINENT DOMAIN SERVICES, LLC
6515 Grand Teton Plaza, Suite 241
Madison, WI 53719
[email protected]
608-535-6109
Attorney for Pamela J. Antosh
and Ned E. Lashley

July 23, 2024

 APPENDIX

TABLE OF CONTENTS

Appendix A: Opinion of the United States

Court of Appeals for the Seventh Circuit
(April 25, 2024)………………………………………..1a

Appendix B: Opinion of the United States

District Court for the Eastern District of
Wisconsin (March 10, 2023)…………………….…16a
43
 APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

NO. 23-1678

PAMELA J. ANTOSH AND

NED E. LASHLEY,

Plaintiffs-Appellants,

v.

VILLAGE OF MOUNT PLEASANT, et al.,

Defendants-Appellees.

Appeal from the United States District Court for

the Eastern District of Wisconsin.

No. 2:22-cv-00117-BHL — Brett H. Ludwig,

Judge.

ARGUED JANUARY 8, 2024

DECIDED APRIL 25, 2024

Before WOOD, SCUDDER, and ST. EVE, Circuit Judges.

WOOD, Circuit Judge. Before us is another

chapter in Pamela Antosh and Ned Lashley’s
litigation challenging the Village of Mount

(1a)
 2a

Pleasant’s use of its eminent-domain power to

acquire their property. They first filed suit in state
court in 2019, soon after the Village condemned
their property for road improvements associated
with the private Foxconn development. In state
court, Antosh and Lashley opted to contest only the
amount of compensation they were owed, not the
propriety of the taking. But when the state court
ruled against them on an evidentiary issue two
years into litigation, they decided to try their luck in
federal court. In their federal complaint, they
alleged for the first time that the taking was
improper because it served a private purpose, not a
public one.

The district court saw this federal suit as a

strategic effort to circumvent an unfavorable state-
court ruling without taking the necessary steps to
appeal. Accordingly, it dismissed the action without
prejudice, citing Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976).
Antosh and Lashley now appeal that judgment. We
conclude that the district court was right to refrain
from exercising jurisdiction over their federal
claims, and so we affirm.

The Village of Mount Pleasant gained national

notoriety as an economic hub in late 2017, when
Taiwanese electronics company Foxconn announced
a plan to open its first major American factory there.
The Village lured the manufacturing giant to the
area in part by promising to acquire more than 2,800
 3a

acres of privately owned land for the new

development. In September 2017, the state of
Wisconsin helped the Village live up to its word: the
legislature authorized the creation of Tax
Incremental Financing District Number 5 (“TIF No.
5”), allowing the Village to finance expenses
associated with the Foxconn development.
Consistent with TIF requirements under state law,
the Village rezoned properties within TIF No. 5 from
“agricultural” to “business park.” See Wis. Stat. §
66.1105.

The Village also needed to make substantial

improvements to the transportation infrastructure
in the area to facilitate public access to the Foxconn
development. One of these efforts included
expanding and improving both County Highway KR
and 90th Street. To do that, the Village determined
that it was necessary to re-route 90th Street through
part of a three-acre parcel owned by Antosh and
Lashley. The parcel was located within TIF No. 5 on
the corner of the two roads.

In 2019, the Village followed the steps required

under state law to condemn a large portion of Antosh
and Lashley’s property. See Wis. Stat. § 32.05. On
June 3, 2019, the Village sent Antosh and Lashley
an appraisal letter explaining that the “proposed
municipal improvement project” would involve the
improvement of various roadways “to allow for the
construction of an industrial development that is
commonly known as the Foxconn development.” The
Village later filed a relocation order stating that the
condemnation of the property was necessary for the
 4a

highway improvement project. On September 19,

2019, the Village issued a jurisdictional offer to
purchase their property. That document identifies
“[h]ighway or other transportation related purposes”
as the “public purpose” of the taking. And finally, on
November 20, 2019, the Village recorded an award
of damages, thereby transferring the property
interests to the Village. See Wis. Stat. § 32.05(7).

Under Wisconsin law, Antosh and Lashley had

two options for challenging the taking: a
“compensation” action and a “right-to-take” action.
An owner who wishes to contest “the amount of just
compensation to be paid” by the condemnor must file
a compensation action within two years from the
date of the taking. Wis. Stat. § 32.05(11). On the
other hand, an owner who wishes to contest a taking
“for any reason other than that the amount of
compensation offered is inadequate” must file a
right-to-take action within 40 days of receiving the
jurisdictional offer. See Wis. Stat. § 32.05(5) (stating
that an owner who fails to meet that deadline “shall
be barred from raising any such objection in any
other manner”).

Antosh and Lashley did not file a right-to-take

action. (They received the Village’s jurisdictional
offer on September 19, 2019, and so their 40-day
window lapsed on October 29, 2019.) They did,
however, file a compensation action in Racine
County Circuit Court on December 4, 2019, seeking
greater compensation for the taking. They
contended that the Village had paid other property
owners in the Foxconn area five to eight times more
 5a

than it had offered them. After two years of state-

court proceedings, the case was set to proceed to trial
on February 1, 2022.

That schedule was interrupted when a key

evidentiary dispute emerged in advance of trial.
Antosh and Lashley hired an expert appraiser who
produced two valuations of their property. One
valued the land as “agricultural” property; the other,
higher appraisal, valued the land as “business park”
property (reflecting the 2017 zoning changes). In
response, the Village filed a motion in limine,
seeking to exclude any evidence relating to the
“business park” valuation. The Village urged that
this evidence was barred by Wisconsin’s Project
Influence Rule, which provides that changes in
property value “caused by the public improvement
for which such property is acquired” may not be
considered in determining just compensation. Wis.
Stat. § 32.09(5)(b). The Village argued that the
“public improvement” for which the property was
taken included the Foxconn development (not just
the highway improvements), and so the property
had to be assessed as “agricultural.”

At a final pre-trial conference on January 5,

2022, the state court granted the Village’s motion in
limine. For purposes of the Project Influence Rule,
the court concluded, the “public improvement”
involved “all of the public infrastructure, including
requiring zoning modifications implemented to
better support the [Foxconn] development.”
 6a

On January 28, 2022, four days before trial was

to start, Antosh and Lashley filed this suit in the
Eastern District of Wisconsin against the Village
under 42 U.S.C. § 1983. For the first time, they
alleged that the Village condemned their land for a
private purpose in violation of the Fifth
Amendment. They also alleged equal protection and
substantive due process violations under the
Fourteenth Amendment.

The state court held a hearing three days later to

discuss the impact of the federal suit on the state
case. Antosh and Lashley asked the state court to
adjourn the proceedings. That court expressed
serious concerns about their litigation tactics. It saw
the federal suit as an attempt to have a federal court
“take a look at” its ruling on the Village’s motion in
limine, “essentially circumventing” appellate review
by the state courts. At the same time, the court
recognized that a favorable ruling in federal court
would render the state case “a nullity.” Although it
was “not happy” that the federal complaint “looks
like an end run of [its] decision,” the state court
agreed to stay the trial pending resolution of the
federal suit.

The Village later filed a motion to dismiss the

federal complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). It asked the district court to
abstain from exercising its jurisdiction over the
proceeding, and in the alternative, to dismiss the
case on the merits. Characterizing the federal suit
as “utter gamesmanship” showing “tremendous
disrespect for the state court system,” the district
 7a

court elected to dismiss the federal claims, though it

did so without prejudice to their renewal. Antosh
and Lashley now appeal that judgment, arguing that
the district court’s decision to abstain was an abuse
of discretion.
II

Although abstention “is the exception, not the

rule,” Colorado River, 424 U.S. at 813, under
established abstention doctrines, “a federal court
may, and often must, decline to exercise its
jurisdiction where doing so would intrude upon the
independence of the state courts and their ability to
resolve the cases before them.” SKS & Associates,
Inc. v. Dart, 619 F.3d 674, 677 (7th Cir. 2010). These
doctrines “are not rigid,” however. Driftless Area
Land Conservancy v. Valcq, 16 F.4th 508, 525 (7th
Cir. 2021). The unifying feature of the Supreme
Court’s abstention cases is that “they all implicate
(in one way or another and to different degrees)
underlying principles of equity, comity, and
federalism foundational to our federal constitutional
structure.” J.B. v. Woodard, 997 F.3d 714, 722 (7th
Cir. 2021).

Under the doctrine recognized in Colorado River,

a federal court may defer to a concurrent state court
case in exceptional circumstances where abstention
would promote “wise judicial administration.” 424
U.S. at 818. Several prudential principles animate
this doctrine, including “the interest in conserving
judicial resources, the desirability of avoiding
duplicative litigation and the risk of conflicting
rulings, and the benefits of promoting a
 8a

comprehensive disposition of the parties’ dispute in

a single judicial forum.” Driftless, 16 F.4th at 526.
We use a two-step inquiry to assess whether
Colorado River abstention is appropriate. First, we
ask “whether the federal and state actions are ...
parallel.” DePuy Synthes Sales, Inc. v. OrthoLA, Inc.,
953 F.3d 469, 477 (7th Cir. 2020). If so, we ask
“whether the necessary exceptional circumstances
exist to support a stay or dismissal.” Id.

We review a district court’s determination that

state and federal proceedings are parallel de novo,
but we review its overall decision to abstain for
abuse of discretion. Loughran v. Wells Fargo Bank,
2 F.4th 640, 647 (7th Cir. 2021).

Two suits need not be mirror images to be

considered parallel. Rather, concurrent actions are
parallel “when substantially the same parties are
contemporaneously litigating substantially the
same issues in another forum.” DePuy, 953 F.3d at
477 (quoting Clark v. Lacy, 376 F.3d 682, 686 (7th
Cir. 2004)). The “critical question” is whether there
is a “substantial likelihood that the state litigation
will dispose of all claims presented in the federal
case.” Huon v. Johnson & Bell, Ltd., 657 F.3d 641,
646 (7th Cir. 2011).

Antosh and Lashley’s state and federal actions

bear obvious similarities. For one, the two suits
involve the same operative facts. Both arise from the
Village’s exercise of its eminent-domain power to
 9a

condemn their property. And, although in the

federal suit Antosh and Lashley named two
additional defendants (the Village’s development
authority and the Village’s president), the parties
are otherwise identical. The relevant inquiry is
“whether the addition of new parties with different
interests alters the central issues in the concurrent
case.” Loughran, 2 F.4th at 648. Here, the incentives
and goals of the new defendants in the federal action
align with those of the Village, and that suffices to
make the parties in the two suits “functionally the
same.” Id.

That said, the federal and state litigation present

different issues. In state court, Antosh and Lashley
spent two years contesting the amount of
compensation owed for the taking. In federal court,
they urge that the taking has been illegitimate all
along, because the Village seized their property for a
private use under the guise of a public one. So the
two suits are not perfectly symmetrical: regardless
of how the dust settles in state court, their public-
use takings claim in federal court will go
unanswered.

This lopsidedness, however, is not fatal to a

finding that the actions are parallel. The fact that
the federal and state suits involve different issues is
entirely a product of Antosh and Lashley’s own
litigation choices. They could have raised a public-
use claim years ago—either in state court, by filing
a right-to-take action, see Wis. Stat. § 32.05(5), or in
federal court, see Knick v. Township of Scott, 139 S.
Ct. 2162 (2019) (holding that plaintiffs need not
 10a

exhaust state court remedies before challenging a

taking in federal court). Antosh and Lashley chose
neither of these paths. Instead, they spent two years
in state court seeking only to recover more money for
their property. That they now, with the benefit of
hindsight, regret their earlier litigation decisions is
not a valid basis for granting them a chance to start
over on their takings claim in federal court.

Moreover, we have never demanded an exact fit

between the federal and state cases, no matter the
theory of abstention. See, e.g., Courthouse News
Service v. Brown, 908 F.3d 1063, 1071 (7th Cir. 2018)
(basing its decision to abstain “on the more general
principles of federalism” even though the case was
“not a perfect fit” with any of the abstention
doctrines), cert. denied, Courthouse News Service v.
Brown, 140 S. Ct. 384 (2019) (mem.); see also J.B.,
997 F.3d at 723 (same). “Instead, the abstention
inquiry is flexible and requires a practical judgment
informed by principles of comity, federalism, and
sound judicial administration.” Driftless, 16 F.4th at
527.

Federalism concerns loom large here. The timing

of the federal suit is telling. For two years, as state
court proceedings moved along, Antosh and Lashley
were satisfied to contest only the amount of
compensation owed. They were ready to proceed to
trial on that issue. Only after the state court issued
a ruling that limited the compensation they could
recover did they decide to file their federal
complaint. As the state court observed, what Antosh
and Lashley “obviously” want is for a federal court
 11a

to “take a look at” its ruling. At bottom, they seek to

circumvent the Wisconsin appellate court—the
proper tribunal in which they may challenge the
state court’s ruling. Their litigation tactics signal “a
lack of respect for the state’s ability to resolve [the
issues] properly before its courts.” SKS & Associates,
619 F.3d at 679. We would be endorsing those tactics
were we to allow this federal suit to proceed.

Although Antosh and Lashley insist that they are

not forum shopping, the record belies this assertion.
They contend that for two years the Village
concealed the fact that the road improvements that
necessitated the taking were intended to facilitate
the private Foxconn development, and so they
discovered that they had an actionable public-use
takings claim only when the Village filed its motion
in limine in 2021. As the saying goes, that dog won’t
hunt. Given the extensive local and national media
coverage that the 2,800-acre Foxconn development
received, it is hard to believe that Antosh and
Lashley failed to connect the dots between the road
improvements and Foxconn. And not surprisingly,
the record confirms this common-sense insight. Back
in June 2019, the Village sent Antosh and Lashley
an appraisal letter notifying them that the
“roadways are being improved to allow for the
construction of an industrial development that is
commonly known as the Foxconn development”
(emphasis added). And, as the district court noted,
Antosh and Lashley “spent two years arguing in
state court that they should be entitled to greater
compensation similar to other property owners
 12a

whose land was condemned for the purpose of the

Foxconn development” (emphasis in original).

Antosh and Lashley also point out that they have

pleaded due process and equal protection claims in
federal court, but for similar reasons, this does not
help them. Their substantive due process claim
alleges that the taking was an arbitrary abuse of
power. This theory relies on a premise that, as we
have just explained, the record contradicts—that the
Village blindsided them about the relation between
the road improvements and Foxconn. Meanwhile,
their equal protection theory is that the Village paid
their “similarly situated neighbors” five to eight
times more than it offered them. Yet recall that
Antosh and Lashley advanced this exact argument
in the state-court compensation action. We
repeatedly have held that the parallel nature of the
concurrent cases cannot be “dispelled by repacking
the same issue under different causes of action.” See,
e.g., Clark, 376 F.3d at 687.

Taken together, it is evident that this case is just

a strategic attempt to bypass an unfavorable state-
court ruling two years into that litigation. That
Antosh and Lashley’s own litigation decisions have
created a mismatch between the federal and state
actions is not enough to destroy the parallel nature
of the actions here, where exercising federal
jurisdiction would offend fundamental principles of
federalism. We thus agree with the district court
that the two actions are parallel for the purposes of
Colorado River abstention.
 13a

Keeping in mind the federalism concerns we

outlined earlier, we next consider the district court’s
determination that exceptional circumstances
justify its decision to dismiss without prejudice. A
variety of factors can inform this inquiry. They are
spelled out in Loughran, 2 F.4th at 647. This list, we
have stressed, is “designed to be helpful, not a
straitjacket. Different considerations may be more
pertinent to some cases, and one or more of these
factors will be irrelevant in other cases.” Id. We
address only the more useful points here.

Several factors counsel in favor of abstention.

Both the federal and state suits are about rights in
the same real property, over which the Village
assumed jurisdiction more than four years ago.
Indeed, the Village already has built a road across
it. The desirability of avoiding piecemeal litigation
over the Village’s use of its eminent domain power
to acquire the property also supports abstention.
“Multi-jurisdictional legal challenges involving the
same subject matter are costly, disruptive, and run
the risk of conflicting rulings.” Driftless, 16 F.4th at
527. Judicial economy concerns run deep also: the
state court has devoted two years of judicial time
and resources to resolving Antosh and Lashley’s
compensation action. The timing of the two actions
favors deferring to the state courts. Antosh and
Lashley filed the state suit in December 2019 and
were just four days away from the start of trial when
they filed the federal suit in January 2021. They
have provided no good reason for us to interfere with
 14a

the state court’s extensive handling of the first-filed,

pending case.

Finally, the vexatious or contrived nature of the

federal claims strongly favors abstention. We
already have explained why that is so, but we
repeat: only after Antosh and Lashley lost an
evidentiary ruling in state court did they file their
federal complaint. Further evincing the contrived
nature of the federal action is their uncredible
assertion that they did not know until 2021 that the
road improvements made on their property were
associated with the Foxconn development. The
district court was entitled to infer from Antosh and
Lashley’s litigation strategy that this federal suit is
“utter gamesmanship”—“little more than a tardy,
tactical effort to get a ‘do-over’ on their takings
challenge to avoid a ruling they do not like without
taking the necessary steps to appeal.”

We see no need for an exhaustive survey of the

remaining factors. Even if we were to assume that
they do not support abstention, there is more than
enough here to demonstrate that the district court
did not abuse its discretion. And the remaining
factors (inconvenience of the federal forum, source of
governing law, concurrent jurisdiction, possibility of
removal, and the adequacy of the state-court action
to protect the federal rights of the plaintiffs) do not
decisively support anyone. We understand that,
pursuant to Wisconsin law, it is probably too late for
Antosh and Lashley to bring a public-use takings
 15a

claim in state court. See Wis. Stat. § 32.05(5). But

they have only themselves to blame for that. Since
“state courts are co-equal partners when it comes to
protecting federal rights[,]” it is enough to know that
Antosh and Lashley could have sought to vindicate
their federal rights in Wisconsin courts. DePuy, 953
F.3d at 479; see also DeVillier v. Texas, No. 22-913,
2024 WL 1624576 (U.S. Apr. 16, 2024) (availability
of an action under state law provides adequate
vehicle for claims under the Takings Clause).

What matters most in the end is that the district

court acted well within its discretion when it
concluded that allowing this federal suit to proceed
would run contrary to fundamental principles of
equity, comity, and federalism. The need to
safeguard these principles readily supports
deference to the state courts in this case.

The judgment of the district court is AFFIRMED.

43
 APPENDIX B
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN

No. 22-cv-0117-bhl

PAMELA J ANTOSH, NED E LASHLEY,

Plaintiffs,
v.

VILLAGE OF MOUNT PLEASANT, et al.,

Defendants.

Filed: March 10, 2023

ORDER GRANTING MOTION TO DISMISS

This is the second lawsuit Plaintiffs Pamela J.

Antosh and Ned E. Lashley have filed challenging
the Village of Mount Pleasant’s use of its eminent
domain power to acquire a parcel of their real
property. They first filed suit in state court in
December 2019, shortly after the Village took steps
to condemn their property for highway changes
associated with the much-publicized Foxconn
development. In state court, Antosh and Lashley
elected not to challenge the propriety of the taking
itself but instead focused on the amount of
compensation they were to receive. Two years into
that litigation, however, they changed their minds.

(16a)
 17a

With their case on the brink of trial, the state

court undercut their damages theory in a motion in
limine ruling. Rather than addressing the
correctness of that ruling in the state courts, Antosh
and Lashley filed this action, now alleging for the
first time that the taking was for an improper
private purpose. The Village has moved to dismiss,
arguing that this Court should either reject these
latest claims on their merits or abstain from
exercising jurisdiction to allow the long-pending
state court action to run its course. (ECF Nos. 24 &
25.) For the reasons given below, the Court
concludes that abstention is appropriate and will
grant the Village’s motion to dismiss.

BACKGROUND1

In July 2017, Taiwan-based electronics company

Foxconn announced a plan to build its first
American factory in Wisconsin. Three months later,
the Village of Mount Pleasant emerged as the
winner of the bid process for the factory site. Local
and national news extensively covered the
development and its progress.2

1 This Background is derived from the allegations in Antosh’s

amended complaint. (ECF No. 23.) Those allegations are
presumed true for purposes of the motion to dismiss. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 554–56 (2007).
2 See, e.g., Nelson D. Schwartz & Vindu Goel, Foxconn Says It

Plans to Build Factory in Wisconsin, Adding 3,000 Jobs, N.Y.

TIMES (July 26, 2017),
https://www.nytimes.com/2017/07/26/business/foxconn-
factory-wisconsin- jobs html; Chris Isidore & Julia Horowitz,
Foxconn Got a Really Good Deal from Wisconsin. And It’s
 18a

In securing the bid, the Village agreed to acquire

more than 2,800 acres of privately owned land for
the new facility. (ECF No. 23 ¶2.) To accomplish
this, the Village used a financing mechanism called
a Tax Incremental Financing District (TID). (ECF
No. 23-5 at 3.) Wisconsin law provides for the
creation of TIDs through a state-legislature
managed process that allows municipalities to
finance expenses associated with private, tax-
producing development. (See id.); Wis. Stat. §
66.1105 (2019–20). The legislation creating the TID
must identify a specific purpose, and, if the TID is
industrial, all the lands within the TID must be
zoned as industrial. See Wis. Stat. §
66.1105(4)(gm)(4)(a). The Wisconsin legislature
authorized the creation of the Foxconn TID in
September 2017. (See ECF No. 23-5 at 2.) After this
authorization, the Village rezoned properties around
the site as “business park” properties. (See id.)

Getting Better, CNN BUS., (Dec. 28, 2017)

https://money.cnn.com/2017/12/28/news/companies/foxconn-
wisconsin-incentive- package/index html; Danielle Paquette,
Todd C. Frankel & Hamza Shaban, Foxconn Announces New
Factory in Wisconsin in Much-Needed Win for Trump and Scott
Walker, THE WASHINGTON POST, (July 26, 2017)
https://www.washingtonpost.com/news/wonk/wp/2017/07/26/fo
xconn-to-announce-new-factory-in-wisconsin-in- much-
needed-win-for-trump-and-scott-walker/; Patrick Marley &
Jason Stein, Foxconn Announces $10 Billion Investment in
Wisconsin and up to 13,000 Jobs, MILWAUKEE J.
SENTINEL, (July 26, 2017)
https://www.jsonline.com/story/news/2017/07/26/scott-walker-
heads-d-c-trump-prepares-wisconsin-foxconn-
announcement/512077001/.
 19a

The size of the Foxconn development

necessitated substantial improvements to the
transportation and utility infrastructure in the
project area. (See id. at 3.) Among other
infrastructure efforts, the Village, Racine County,
and the State of Wisconsin Department of
Transportation agreed to expand and improve
County Road KR and 90th Street. (Id. at 3–5.) The
need for the expansion and re-routing of 90th Street
impacted Antosh and Lashley, who owned a three-
acre parcel at the corner of County Highway KR and
90th Street. (ECF No. 23 ¶¶3, 5.) As part of the re-
routing, the Village utilized its direct condemnation
powers under Wis. Stat. § 32.05. (Id. ¶14.)
Consistent with Wisconsin law, on September 19,
2019, the Village provided Antosh and Lashley with
a “jurisdictional offer,” which explained that the
Village “in good faith intends to use the above-
described property for [a] public purpose.” (Id. ¶12.)
Two months later, on November 20, 2019, the
Village awarded the Plaintiffs “damages” for the
taking of their property, stating that the
compensation was for “road purposes” described as
the “improvement of CTH KR in Racine County.” (Id.
¶¶17–19; ECF No. 23-5 at 1.) Under Wisconsin law,
the recording of this award served to transfer
interest in Plaintiffs’ property to the Village. (See
ECF No. 23 ¶¶17–19.)

On December 4, 2019, Antosh and Lashley filed

suit in Racine County Circuit Court. Invoking Wis.
Stat. § 32.11, they sought greater compensation for
the taking. (Id. ¶25; ECF No. 25 at 6.) They
complained that while the Village had paid five to
 20a

eight times the value of most properties it acquired

for the Foxconn project, it had never offered Antosh
and Lashley such multipliers for their land. (ECF
No. 23 ¶6.) Antosh and Lashley did not contend that
their property had improperly been taken for a
private (as opposed to a public) use. Under
Wisconsin law, they would have had to file such a
“right to take” challenge within 40 days of their
receipt of the jurisdictional offer, or no later than
October 29, 2019. See Wis. Stat. § 32.05(5). Antosh
and Lashley did not pursue such a challenge.

After two years of discovery and other

proceedings, the case was finally ready for a
February 1, 2022 trial date. (ECF No. 25 at 6.) In
advance of trial, the Village filed motions in limine,
asking for the exclusion of expert evidence or
argument that the Antosh property would have a
higher valuation if considered “business park”
rather than “agricultural” property. (ECF Nos. 23-5
& 23-6 at 6.) The Court granted the Village’s motion
at a January 5, 2022 final pretrial conference, citing
Wisconsin’s Project Influence Rule, codified at Wis.
Stat. § 32.09(5)(b). (See ECF No. 23-7 at 18.)

In response, on January 28, 2022, just four days

before trial was to start, Antosh and Lashley filed
this federal court suit. (ECF No. 1.) In federal court,
they complained, for the first time, that the Village’s
taking of their property was an improper acquisition
of private land for private use in violation of the
Fifth Amendment. (ECF No. 23 ¶52.) Their
complaint also alleges equal protection and
 21a

substantive due process challenges under the

Fourteenth Amendment. (Id.¶¶54–55.)

The state court held a hearing on January 31,

2022 to discuss the impact of the federal filing on the
state court case. (See ECF No. 26-2 at 3.) Plaintiffs’
counsel argued that the court should adjourn the
February 1 trial unless the Village agreed to waive
all issue or claim preclusion arguments. (Id. at 4.)
The state court ultimately agreed to stay the case,
but only after expressing serious concern and
frustration over Plaintiffs’ litigation tactics. It
characterized the federal court lawsuit as an effort
to have the federal court “take a look at” the state
court’s motion in limine rulings, “essentially
circumventing” the state court of appeals. (Id. at 5–
6.) The court observed that Plaintiffs’ forum
shopping threatened to render the state trial a
“nullity” in disregard for the “efficient use of the
judicial system [and] the judicial process here in
Wisconsin.” (Id. at 6.) Noting it was “not happy” that
Plaintiffs were attempting what “looked like an end
run of [its] decision,” the court nevertheless agreed
to stay the state court trial pending resolution of the
federal lawsuit to avoid “a waste of [its] judicial
time.” (Id. at 11.)

LEGAL STANDARD

When deciding a Rule 12(b)(6) motion to dismiss,

the Court must “accept all well-pleaded facts as true
and draw reasonable inferences in the plaintiffs’
favor.” Roberts v. City of Chicago, 817 F.3d 561, 564
(7th Cir. 2016) (citing Lavalais v. Vill. of Melrose
 22a

Park, 734 F.3d 629, 632 (7th Cir. 2013)). “To survive
a motion to dismiss, the complaint must ‘state a
claim to relief that is plausible on its face.’” Roberts,
817 F.3d at 564 (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged.” Roberts, 817 F.3d at 564-65
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“The complaint must do more than recite the
elements of a cause of action in a conclusory
fashion.” Roberts, 817 F.3d at 565 (citing Iqbal, 556
U.S. at 678).

ANALYSIS

The Village seeks dismissal of the Amended

Complaint on the merits. It insists Plaintiffs’ Fifth
Amendment claim fails because Antosh and Lashley
have waived any “private” purpose challenge by
failing to raise the issue timely under state law and,
waiver aside, the Antosh Property was taken for a
highway improvement, a quintessential “public”
purpose. (See ECF No. 25 at 13– 14.) The Village
further contends that the Fourteenth Amendment
substantive due process and equal protection claims
fail because there is nothing “conscience shocking”
about taking a property for a road improvement, and
neither Antosh nor Lashley is a member of any
protected class. (Id. at 18–20.) While these
arguments are compelling, the Court will not reach
them; doing so would improperly intrude on the
state court’s handling of the takings arguments that
 23a

have long been pending in that forum. Plaintiffs’

attempt to initiate this federal court challenge to the
Village’s actions, with a new legal theory apparently
waived in state court, only after losing an
evidentiary ruling in the state forum, offends
fundamental principles of equity, comity, and
federalism that underly our parallel judicial
systems. Accordingly, rather than enabling
gamesmanship, the Court will accept the Village’s
alternate argument for dismissal and abstain from
proceeding with the case.

I. The Village Bears a Heavy Burden in

Seeking Abstention.

The decision to abstain should not be taken

lightly. As the Supreme Court has emphasized,
abstention “is the exception, not the rule.” Colorado
River Water Conservation Dist. v. United States, 424
U.S. 800, 813 (1976). Federal courts have a
“virtually unflagging obligation...to exercise the
jurisdiction given them” that rests on “the
undisputed constitutional principle that Congress,
and not the Judiciary, defines the scope of the
federal jurisdiction within the constitutionally
permissible bounds.” Adkins v. VIM Recycling, Inc.,
644 F.3d 483, 496 (7th Cir. 2011) (quoting Colorado
River, 424 U.S. at 817; New Orleans Pub. Serv., Inc.
v. Council of City of New Orleans, (NOPSI), 491 U.S.
350, 359 (1989)).

But “a federal court may, and often must, decline

to exercise its jurisdiction where doing so would
intrude upon the independence of the state courts
 24a

and their ability to resolve the cases before them.”

SKS & Assocs., Inc. v. Dart, 619 F.3d 674, 677 (7th
Cir. 2010). Abstention is required in a variety of
situations where federal jurisdiction would
improperly interfere with state court litigation.
Where “denying a federal forum would clearly serve
an important countervailing interest” like
“considerations of proper constitutional
adjudication,” “regard for federal-state relations,” or
“wise judicial administration,” abstention is
justified. Adkins, 644 F.3d at 496-97 (quoting
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716
(1996)).

The situations in which abstention is appropriate

fall into four general categories named for the
Supreme Court cases in which they originated:
Pullman, Burford, Younger, and Colorado River.3
Pullman abstention is typically applied in cases with
unsettled questions of state law that could render
deciding a federal constitutional question
unnecessary. Burford abstention is invoked to avoid
federal involvement when a federal court is asked to
review a complicated issue of state law and federal
involvement threatens to confuse rather than clarify
state law. Younger abstention generally applies
where there are ongoing state criminal proceedings
and a federal lawsuit would interfere with those
proceedings. Finally, Colorado River is cited where
there are parallel state and federal lawsuits and

3R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941);

Burford v. Sun Oil Co., 319 U.S. 315 (1943); Younger v. Harris,
401 U.S. 37 (1971); Colorado River, 424 U.S.
 25a

exceptional circumstances warrant avoiding

proceeding with cases in federal court. See 17A
Charles Alan Wright & Arthur R. Miller, Fed. Prac.
& Proc. § 4241 (3d. ed. 2022).

The Seventh Circuit has cautioned against

mindless application of these labels, directing courts
to look instead to the underlying “animating force”
supporting all of them. Driftless Area Land
Conservancy v. Valcq, 16 F.4th 508, 525–26 (7th Cir.
2021). All four categories “implicate (in one way or
another and to different degrees) underlying
principles of equity, comity, and federalism
foundational to our federal constitutional structure.”
Id. (quoting J.B. v. Woodard, 997 F.3d 714, 722 (7th
Cir. 2021)). Accordingly, a court should focus on
these fundamental principles in deciding whether
the rare situation exists in which abstention is
necessary.

II. The Village’s Invocation of Younger

Abstention under Ahrensfeld is
Problematic.

The Village primarily invokes Younger

abstention based on a nearly fifty-year-old Seventh
Circuit precedent: Ahrensfeld v. Stephens, 528 F.2d
193 (7th Cir. 1975). At first blush, this seems like an
easy call. Ahrensfeld applied Younger to affirm a
district court’s decision to abstain in a substantially
similar case, involving parallel state and federal
court challenges to a municipality’s exercise of its
eminent domain power. But the legal landscape
concerning both abstention and takings law has
 26a

changed dramatically over the last half-century,

bringing into question whether a straightforward
application of Ahrensfeld remains appropriate.

In Ahrensfeld, the Village of Rosemont, Illinois

(Rosemont) acquired property pursuant to its
eminent domain power to construct an athletic and
convocation center. Id. at 195. To do this, Rosemont
instituted condemnation proceedings in state court
against several property owners. Id. While those
actions were pending, the property owners brought
a Section 1983 lawsuit in federal court to stop
Rosemont from proceeding, insisting it was violating
their Fifth and Fourteenth Amendment rights. Id.
The district court dismissed the case on grounds that
Rosemont was a municipality and thus not a
“person” for Section 1983 purposes.4 Id. at 196. It
also grounded its dismissal on “reasons of comity.”
Id. The Seventh Circuit affirmed on appeal, citing
Younger and invoking the “principles of equity,
comity, and federalism [that] lie at the heart of the
judge-made doctrine of abstention.” Id. The Court of
Appeals highlighted the need to respect the ability
of state courts to dispose of litigation in an orderly
and comprehensive fashion, particularly in relation
to state law eminent domain procedures. Id. at 198.
Accordingly, even though the plaintiffs asserted
federal constitutional claims in the federal lawsuit,
abstention remained appropriate given the

4 This analysis preceded by four years the Supreme Court’s

ruling in Monell v. Department of Social Services, 436 U.S. 658
(1978) that municipalities were indeed “persons” for purposes
of Section 1983.
 27a

“sensitive nature” of the state’s eminent domain

scheme and the need for federal courts to presume
that their state court brethren could consider and
resolve any federal constitutional claims properly
raised in the state court. Id. at 198–99.

The Ahrensfeld analysis was bolstered ten years

later by the Supreme Court’s holding in Williamson
County Regional Planning Commission v. Hamilton
Bank of Johnson City, 473 U.S. 172, 194 (1985).
Relying on many of the same cases cited in
Ahrensfeld, the Supreme Court in Williamson held
that federal courts were precluded from adjudicating
Fifth Amendment takings cases until after a
property owner had availed himself of state court
systems to try to obtain just compensation. Id. If the
law surrounding Younger abstention and takings
claims under Williamson had held fast over the last
thirty-five years, this Court’s task would be easy.
Abstention would clearly be required. But the legal
foundations in both areas have shifted, bringing into
question the Village’s reliance on Ahrensfeld.

As an initial matter, the scope of Younger

abstention has narrowed significantly since
Ahrensfeld, and particularly so in the last decade.
See Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73
(2013) (“Circumstances fitting within the Younger
doctrine, we have stressed, are ‘exceptional.’”) (citing
NOPSI, 491 U.S. at 367–68). Courts now emphasize
that Younger abstention is only warranted in three
types of cases: “where federal jurisdiction would
intrude into ongoing state criminal proceedings, or
into certain civil enforcement proceedings (judicial
 28a

or administrative) akin to criminal prosecutions, or

into civil proceedings ‘that implicate a State’s
interest in enforcing the orders and judgments of its
courts.’” Mulholland v. Marion Cnty. Election Bd.,
746 F.3d 811, 815 (7th Cir. 2014) (quoting Sprint,
571 U.S. at 72–73). Outside of these specific
situations, federal courts are not to abstain under
Younger even if there is a risk of duplicitous, parallel
litigation in state and federal proceedings. Id. at
816. While the Seventh Circuit has cautioned
against wooden application of the various categories
of abstention, it has also clearly identified the
limited situations in which Younger abstention is
allowed, and none are present here.

Second, and perhaps more significantly, in Knick

v. Township of Scott, 139 S. Ct. 2162 (2019), the
Supreme Court dramatically revised takings law
and the division between federal and state courts in
deciding takings challenges. Knick expressly
overruled Williamson and makes clear that property
owners experiencing a taking need not wait and
avail themselves of state court compensation
remedies before filing suit in federal court. Id. at
2167. The Supreme Court explained that requiring
a federal takings plaintiff to pursue state law
compensation remedies put the property owner in an
improper Catch-22 given the potential for issue and
claim preclusion. By precluding federal adjudication
until the property owner went first to state court, the
property owner risked having his claim barred
simply as a result of losing in state court. Id. (citing
San Remo Hotel, L.P. v. City & Cnty. of San
Francisco, 545 U.S. 323 (2005)). The Court rejected
 29a

this “preclusion trap” as relegating the Fifth

Amendment to a separate, lesser realm than other
constitutional rights vindicated through Section
1983. See id. Accordingly, the Court held that a
property owner has an actionable Fifth Amendment
claim immediately upon a taking regardless of
whether the owner has pursued his claims in state
court first. Id. at 2168.

Given the substantial narrowing of Younger

abstention and the Supreme Court’s confirmation in
Knick that federal takings proceedings can proceed
even with state remedies available and not yet
completed, the Court is reluctant to accept the
Village’s invitation to abstain based on Younger and
Ahrensfeld. But the extraordinary circumstances of
this case nevertheless cry out for abstention.
Accordingly, mindful of the Seventh Circuit’s
caution against pedantic application of the various
abstention doctrines and, given the remarkable
circumstances in which Plaintiffs chose to undercut
the state court’s resolution of their own previously
filed state court lawsuit, the Court will abstain
based on the rationale of Colorado River.

III. The Long-Pending State Court Lawsuit

and the Exceptional Circumstances
Leading to Plaintiff’s Federal Court
Claims Require Abstention Under
Colorado River.

Abstention under Colorado River is appropriate

where there are parallel state and federal
proceedings and “exceptional circumstances” require
 30a

the federal court to abstain to promote “wise judicial

administration.” 424 U.S. at 818. In such a situation,
abstention conserves judicial resources, avoids
duplicative litigation and the risk of conflicting
rulings, and “promote[s] a comprehensive
disposition of the parties’ dispute in a single judicial
forum.” Valcq, 16 F.4th at 526 (citing Colorado
River, 424 U.S. at 818). In the Seventh Circuit,
application of Colorado River is a two-step inquiry.
First, the Court must ask “whether the concurrent
state and federal actions are actually parallel.” Id.
(quoting DePuy Synthes Sales, Inc. v. OrthoLA, Inc.,
952 F.3d 469, 477 (7th Cir. 2020)). But this alone is
not enough. The Court must also determine
“‘whether the necessary exceptional circumstances
exist to support’ abstention.” Id. (quoting DePuy, 952
F.3d at 477). Because both requirements are met
and, more fundamentally, because doing so will
vindicate the interests of equity, comity, and
federalism, all of which have been undermined by
Plaintiffs’ litigation tactics, the Court will abstain.

The record confirms that the Plaintiffs have

brought parallel state and federal lawsuits over the
same issues. Suits are considered parallel “when
substantially the same parties are
contemporaneously litigating substantially the
same issues in another forum.” DePuy, 953 F.3d at
477–78 (quoting Clark v. Lacy, 376 F.3d 682, 686
(7th Cir. 2004)). Perfect symmetry between cases is
unnecessary. Rather, where both cases will be
resolved using the same evidence and the same legal
standard, it becomes “nearly certain” that state
litigation will dispose of the federal case, suggesting
 31a

abstention is appropriate. See Valcq, 16 F.4th at 526

(citing Huon v. Johnson & Bell, Ltd., 657 F.3d 641,
647 (7th Cir. 2011)); DePuy, 953 F.3d at 478 (“The
two lawsuits in our case are parallel,
by...any...definition we can imagine. They involve
the same parties, the same facts, and the same
issues.”).

Here, the cases are parallel. Plaintiffs’ federal

suit contains exactly the same parties as their state
suit, with the addition of two new defendants, the
Village’s development authority and Village
president, David De Groot, the inclusion of whom
matters little if any to the issues in dispute.
(Compare ECF No. 23 with ECF No. 23-6.) The basic
facts and issues are also the same. Both cases
concern the process by which the Village used its
eminent domain power to take the Antosh property
for road improvements related to the Foxconn
development. Plaintiffs seek different remedies in
this Court, but that is solely the result of their
litigation choices. Plaintiffs elected to forgo a
challenge to the legitimacy of the taking in state
court, focusing instead on the compensation due,
only to change course when an evidentiary ruling
went against them. In federal court, Plaintiffs seek
a ruling that the taking violated both the Fifth and
Fourteenth Amendments, as well as damages.
Defendants claim Plaintiffs have long ago waived
such challenges in state court, but that conclusion
depends on an interpretation of state law,
specifically Wis. Stat. Section 32.05(5). Neither
party has given the state court the chance to address
that issue, and this Court is reluctant to interfere in
 32a

a state law matter. In sum, the state and federal

suits are symmetrical in “all the ways that matter
under Colorado River.”5 Valcq, 16 F.4th at 526.

The remarkable events leading to Plaintiffs’ last-

minute resort to federal court also satisfy the second
“exceptional circumstances” requirement in the
Colorado River framework. For more than two years,
Antosh and Lashley were content to litigate their
takings challenge in state court utilizing state
procedures without complaint. They elected to forgo
and may have forfeited their right to challenge the
public purpose of the taking in state court, focusing
instead on monetary compensation. Then, after two
years of proceedings, Plaintiffs lost an evidentiary
ruling and, only then, decided to pursue a new
federal court challenge. This lawsuit is thus little
more than a tardy, tactical effort to get a “do-over”
over on their takings challenge to avoid a ruling they
do not like without taking the steps necessary to
appeal. This is utter gamesmanship. As the state
court observed in staying its case, Plaintiffs’
litigation tactics show tremendous disrespect for the
state court system. Allowing this gambit to proceed
would fly in the face of the interests of equity, comity

5 The different remedies sought raise another complication.

Plaintiffs have not explained how this Court could grant them
a remedy for their “private purpose” claim, the exclusive
remedy for which is the return of their property. See Kelo v.
City of New London, 545 U.S. 469, 477 (2005). Plaintiffs’ delay
in raising their private purpose argument has made this
impossible as the expanded roadway has already been built on
Plaintiffs’ land.
 33a

and federalism at the heart of the abstention

doctrines.

The Seventh Circuit has identified ten non-

exhaustive and unweighted factors for use in
determining whether exceptional circumstances
exist. See Valcq, 16 F.4th at 526 (citing DePuy, 953
F.3d at 477). These factors are intended to be merely
illustrative. They are “helpful, not a straightjacket.”
Id. at 526–27 (quoting Loughran v. Wells Fargo
Bank, N.A., 2 F.4th 640, 647 (7th Cir. 2021) (“This
list...is primarily helpful as a heuristic
aid....Different considerations may be more
pertinent to some cases, and one or more of these
factors will be irrelevant in other cases.”)). A district
court may thus consider other special characteristics
of the case before it too. Id. at 527 (quoting DePuy,
953 F.3d at 477). This case hits a number of them.

Both cases are about property rights, pure and

simple. At Plaintiffs’ own request, the state court
has been exercising jurisdiction over issues relating
to those rights for a full two years and was ready to
proceed to trial when Plaintiffs decided to try a new
approach in a new forum to avoid a ruling they did
not like. (Factors 1, 4 & 7.) Requiring Plaintiffs to
continue on the state-court path they initially chose
will avoid piecemeal litigation, while affording them
adequate protection for their federal rights. (Factors
3 & 6.) And it will not countenance Plaintiffs’
gamesmanship, an effort that disrespected the state
trial court, its extensive handling of the first-filed
case, and the Wisconsin appellate courts, which
 34a

should be deciding the correctness of the trial court’s

rulings.

Nor is this Court persuaded by Plaintiffs’

counsel’s remarkable claim that this federal lawsuit
arises not from any dissatisfaction with the state
court’s motion in limine ruling, but rather because
Plaintiffs only just learned that they might have an
actionable “private purpose” takings claim. (ECF
No. 27 at 2–3.) This assertion is patently absurd.
The Foxconn development in the Village of Mt.
Pleasant was widely publicized, receiving extensive
coverage in the local, state, and national media. (See
supra note 2.) Counsel’s suggestion at oral argument
that he was “shocked” to discover that the taking of
this property related to Foxconn when motions in
limine were filed is impossible to accept at face
value. It was never a secret that the road
improvement that led to the taking of the Antosh
property was intended to facilitate public access to
the private Foxconn development. Indeed, counsel
simultaneously admitted at argument that he
considered, but decided against, joining Antosh and
Lashley to another, prior, federal suit challenging
the Foxconn development on private purpose
grounds. See Jensen v. Vill. of Mount Pleasant, No.
18-C-0046, 2018 WL 2063181 (E.D. Wis. May 2,
2018). And the record confirms that Plaintiffs have
spent two years arguing in state court that they
should be entitled to greater compensation similar
to other property owners whose land was condemned
for purpose of the Foxconn development. (See ECF
No. 23 ¶6.) These facts lay bare that this suit is a
 35a

thinly veiled attempt to change horses midstream

following an unfavorable motion in limine ruling.

The extraordinary circumstances surrounding

this case and fundamental principles of federalism
necessitate abstention in this case pursuant to
Colorado River. As such, the Court will abstain and
dismiss the case without prejudice.

CONCLUSION

For the reasons given above,

IT IS HEREBY ORDERED that the Village’s

motion to dismiss, ECF No. 24, is GRANTED
without prejudice. The Clerk of Court is directed
to enter judgment accordingly.

Dated at Milwaukee, Wisconsin on March 10, 2023.

s/ Brett H. Ludwig

BRETT H. LUDWIG
United States District Judge