In the

United States Court of Appeals

For the Seventh Circuit

No. 06-1621

JOHN G. REGET,

Plaintiff-Appellant,

v.

CITY OF LA CROSSE, JOHN MEDINGER,

LARRY KIRCH, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05-C-238—Barbara B. Crabb, Chief Judge.

ARGUED JANUARY 12, 2009—DECIDED FEBRUARY 8, 2010

Before EASTERBROOK, Chief Judge, and WILLIAMS and

SYKES, Circuit Judges.

SYKES, Circuit Judge. The City of La Crosse and John

Reget have had a long, acrimonious relationship

stemming from Reget’s operation of a business that

doubles as a body shop and an automobile-restoration

company. The City’s junk-dealer ordinance required

Reget to comply with certain building and safety-code
2 No. 06-1621

provisions and to fence his outdoor auto storage from

the view of his surrounding residential neighbors. Reget

claims the City singled him out for enforcement of this

ordinance and also that it discriminated against him in

connection with a proposed rezoning plan, all in violation of his rights under the Equal Protection Clause of

the Fourteenth Amendment. He filed this lawsuit

seeking damages and injunctive relief, but the district

court granted the defendants’ motion for summary judgment. Because Reget has not shown that the City has

treated him differently than other similarly situated

businesses, we affirm.

I. Background

Reget has operated John’s Auto Body in the City of

La Crosse, Wisconsin, since 1975. The conflict between

Reget and the City dates back to 1980, when the City

condemned his old building, compensated him for a

move to his present location, and gave him an additional $14,000 to remodel his current building. On

receipt of this compensation, Reget signed a release

waiving all claims against the City arising from the condemnation and relocation. Since then, however, Reget

is convinced the City is trying to drive him out of business.

In the district court, Reget made numerous claims of

mistreatment at the hands of city officials, but on appeal

he limits his argument to three: He claims that the

City selectively enforced its junk-dealer ordinance

against him, targeted him for rezoning in a discriminatory fashion, and selectively enforced its noise regulations.
No. 06-1621 3

It is unclear exactly when this fence requirement was added 1

to the ordinance. Reget claims it was passed in 1991 in a

resolution he says city officials nicknamed the “Reget Resolution.” The City disagrees but does not specify when the fence

requirement was adopted. The district court thought the

ordinance was passed in 1993, but we cannot locate any

record evidence supporting that statement. Whether it was

adopted in 1991 or 1993, it is undisputed that Reget never

complied with the ordinance’s fence requirement.

The dispute between Reget and the City flared up in the

early 1990s, when the City cited Reget several times for

violating the junk-dealer ordinance. This ordinance

imposes a variety of obligations on junk dealers. It requires, among other things, that junk dealers obtain a

license; it also imposes certain building and safety requirements on junk dealers, and limits when and where

they can operate. See LA CROSSE, WIS., CODE § 20.12. Most

important for purposes of this litigation, the ordinance

requires that any junk dealer who stores two or more

junked vehicles outdoors for more than 30 days build

an opaque fence shielding the vehicles from public

view. Id. § 20.12(F). Reget was cited three times between 1

1991 and 1994 for violating the junk-dealer ordinance.

The parties have not told us which provisions of the

ordinance Reget allegedly violated, but it is undisputed

that all three citations were eventually dismissed.

The next dispute between the parties arose in 1995-1996

when the City attempted to rezone Reget’s property

from “heavy industrial” to “commercial,” a move that

would have forced Reget to relocate his business yet
4 No. 06-1621

again. The proposed reclassification of Reget’s property

was part of a comprehensive rezoning of the City’s north

side, and in connection with this project, more than

100 properties were rezoned. Reget contends, however,

that his property was the only heavy industrial property

targeted for rezoning. He complained, and the City eventually agreed to abandon its attempt to rezone Reget’s

property in exchange for his agreement to abide by the

junk-dealer ordinance. More specifically, in a covenant

signed in 1997, Reget promised to install a fence on

several sides of his business to hide his outdoor auto

storage from the view of nearby residences. He also

agreed to abide by the City’s noise restrictions by limiting

his nighttime operations. The City, in turn, agreed

that Reget’s property would remain zoned for heavy

industrial use. In addition, to allay Reget’s persistent

complaints that the City was selectively enforcing its

ordinances, the City agreed to enforce any ordinance

violations committed by Reget’s neighbors.

Reget never installed the fence. He says he was

excused from doing so because the City failed to live up

to its agreement to enforce ordinance violations—in

particular, noise violations—that he claimed his

neighbors were committing. In 2003 Reget received a

fourth citation, this time for violating a building-code

provision of the junk-dealer ordinance. Again, the

parties compromised. The City agreed to install a fence

on Reget’s property itself, and Reget agreed to repay

the City for the cost of the fence over a period of fifteen

years. Based on this agreement, the 2003 citation was

dismissed.
No. 06-1621 5

In 2006 Reget filed this lawsuit alleging, among other

claims, that the City and various city officials violated

his equal-protection rights by selectively enforcing its

ordinances against him and by targeting him for

rezoning. The defendants moved for summary judgment. The district court granted this motion, holding

that Reget had failed to submit evidence showing that

similarly situated junk dealers received more favorable

treatment from the City. This appeal followed.

II. Discussion

We note first that although most of the events at issue

in this dispute are quite dated, the defendants did not

assert a statute-of-limitations defense. This surprises us.

Under the applicable statute of limitations supplied by

Wisconsin law, Reget had six years to bring a claim. See

WIS. STAT. § 893.53 (governing actions to recover for

violations of injuries to noncontractual rights); Gray v.

Lacke, 885 F.2d 399, 409 (7th Cir. 1989) (applying section

893.53 to § 1983 equal-protection claims filed in Wisconsin). Reget filed this lawsuit in 2006, but nearly all of

the events in this case occurred in the early and mid1990s. The only event falling within the statute of limitations was the 2003 citation, and this citation was dismissed when the City and Reget agreed that the City

would install a fence around Reget’s property and assess

him for the cost in installments spread over fifteen years.

However, a statute-of-limitations defense is waived if it

is not raised, see Perry v. Sullivan, 207 F.3d 379, 382 (7th

Cir. 2000), so we will proceed to the merits.
6 No. 06-1621

The district court granted the defendants’ motion for

summary judgment, holding that Reget failed to establish that a similarly situated business was treated more

favorably. Our review is de novo, see Woodruff v. Mason,

542 F.3d 545, 550 (7th Cir. 2008), and summary judgment

is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law,”

FED. R. CIV. P. 56(c). We construe all facts in the light

most favorable to Reget and draw all reasonable inferences in his favor. See McKinney v. Cadleway Props., Inc.,

548 F.3d 496, 499-500 (7th Cir. 2008). However, when

the nonmoving party bears the burden of proof, as

Reget does here, he must demonstrate the existence of a

genuine issue of material fact to defeat summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-26 (1986).

The Equal Protection Clause of the Fourteenth Amendment prohibits state action that discriminates on the

basis of membership in a protected class or irrationally

targets an individual for discriminatory treatment as a socalled “class of one.” See Engquist v. Oregon Dep’t of Agric.,

128 S. Ct. 2146, 2153 (2008); Vill. of Willowbrook v. Olech,

528 U.S. 562, 564 (2000). The class-of-one theory of equal

protection “presupposes that like individuals should

be treated alike, and that to treat them differently is to

classify them in a way that must survive at least rationality review.” Engquist, 128 S. Ct. at 2155. A plaintiff

alleging a class-of-one equal-protection claim must establish that (1) a state actor has intentionally treated him

differently than others similarly situated, and (2) there
No. 06-1621 7

is no rational basis for the difference in treatment. Olech,

528 U.S. at 564; Srail v. Vill. of Lisle, 588 F.3d 940, 943 (7th

Cir. 2009).

Some of our cases have also required proof that the

state action was motivated by illegitimate animus

against the plaintiff, while others have treated illegitimate animus as an alternative basis for class-of-one

liability. See Srail, 588 F.3d at 944 (comparing our “divergent class-of-one precedent”); Hanes v. Zurick, 578 F.3d

491, 494 (7th Cir. 2009); United States v. Moore, 543 F.3d

891, 898 (7th Cir. 2008) (collecting cases). We need not

reconcile the conflict here. Reget’s class-of-one claim

fails at the first step in the analysis. To be similarly

situated for purposes of a class-of-one equal-protection

claim, the persons alleged to have been treated more

favorably must be identical or directly comparable to the

plaintiff in all material respects. Srail, 588 F.3d at 945;

Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424

F.3d 677, 680 (7th Cir. 2005). While this is not a “precise

formula,” it is nonetheless “clear that similarly situated

individuals must be very similar indeed.” McDonald v.

Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). We

agree with the district court that Reget has failed to

show that a similarly situated auto-salvage business

was treated more favorably.

We begin with Reget’s claim that the City singled him

out for enforcement of the junk-dealer ordinance. That

ordinance requires, among other things, that “[t]he premises of a junk dealer” be enclosed by a “proper fence.” LA

CROSSE, WIS., CODE § 20.12(F). The ordinance applies to
8 No. 06-1621

a junk dealer who stores two or more junked automobiles outside of any building for more than 30 days. Id.

§ 7.01(V) (Regulations for Storage of Junked Automobiles

and Parts). Reget maintains that the City intentionally

targeted him for enforcement of this ordinance by:

(1) citing him three times between 1991 and 1994 for

violating the ordinance (the specific nature of these

violations is unclear); and (2) “requiring” him to fence

his property in exchange for settlement of the zoning

dispute. Reget has failed, however, to establish that he

was treated differently than a similarly situated junk

dealer.

In his deposition testimony, Reget identified several

other auto-repair shops in La Crosse that he claimed

were not cited for violating the junk-dealer ordinance.

But he did not establish that these businesses had

actually violated the ordinance. That is, he did not

produce evidence that any of the comparator businesses

engaged in the outdoor storage of two or more junked

vehicles for more than 30 days and failed to comply

with the fence requirement in the junk-storage ordinance.

Nor did he produce evidence that the comparator junk

dealers violated the ordinance in some other way yet

were not cited. Moreover, the City’s three citations

against Reget were for unspecified violations of the

ordinance and were ultimately dismissed; this

makes comparison with other junk dealers in the City

impossible. Finally, Reget voluntarily agreed to build

a fence around his property as a part of the 1997 settlement of his rezoning dispute with the City. We cannot

see how a voluntary agreement can support a claim of

class-of-one equal discrimination.
No. 06-1621 9

Reget also contends that the City singled him out for

rezoning, but the record does not support this contention. The City rezoned more than 100 properties as

part of a rezoning project encompassing the City’s north

side. Reget argues that none of his immediate neighbors

were targeted for rezoning and that his was the only

property in the rezoning initiative that was slated to

be reclassified from a heavy industrial to a commercial

use. We cannot see how either point matters. Even if

he was the only property owner in his immediate neighborhood affected by the City’s rezoning effort, Reget can

hardly claim he was targeted for discriminatory treatment when 100 properties were ultimately rezoned.

Regardless, he has not identified a similarly situated

comparison property—in his immediate neighborhood

or otherwise—that was treated more favorably. Reget

simply asserts, without evidence, that his was the

only property that city planners wanted to move

from a heavy industrial to a commercial use. There is

no evidence in the record regarding the prior zoning

classifications of the 100 properties that were slated

for rezoning.

Moreover, and significantly, Reget’s property was

never rezoned. The City abandoned its effort to

reclassify Reget’s property in exchange for his agreement

to build a fence and abide by the City’s noise ordinance.

Reget does not identify—and we have not found—any

cases suggesting that a class-of-one equal-protection

claim premised on an allegation of discriminatory

zoning can be maintained when the plaintiff’s property

is never in fact rezoned. Cf. Barstad v. Murray County,
10 No. 06-1621

420 F.3d 880, 884 (8th Cir. 2005) (finding no equal-protection violation when county reversed a recent rezoning).

Finally, Reget argues that the City discriminated against

him by “requiring” him to comply with the noise ordinance while refusing to enforce the ordinance against

his neighbors. Again, the basis of this claim is the 1997

covenant in which Reget agreed to reduce his nighttime

operations in order to comply with the City’s noise ordinance and the City, in turn, agreed to enforce ordinance

violations committed by Reget’s neighbors. Reget says

he complained to the City about numerous noise violations from trucks idling at a neighboring motel and that

the City refused to cite the motel. This argument has

things backward. To establish a claim of selective enforcement, Reget had to show that he was cited under

the ordinance and a similarly situated ordinance violator

was not. But he has no such evidence. The 1997 covenant

does not establish that the City selectively enforced

the ordinance against him. Reget had an obligation to

comply with the City’s noise ordinance regardless of the

promises he made in that settlement; the 1997 agreement

imposed no new obligations on either party and seems

designed simply to encourage Reget’s compliance with

the City’s ordinances.

Accordingly, the district court properly entered summary judgment for the defendants, and the judgment

dismissing Reget’s claims is AFFIRMED.

2-8-10