In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 15-1056 

THOMAS SIMSTAD, et al.

Plaintiffs-Appellants, 

v.

GERALD SCHEUB, et al.

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Indiana, Hammond Division. 

No. 2:07-CV-407-JVB-APR — Joseph S. Van Bokkelen, Judge. 

____________________ 

ARGUED SEPTEMBER 25, 2015 — DECIDED MARCH 17, 2016 

____________________ 

Before WOOD, Chief Judge, and BAUER and EASTERBROOK,

Circuit Judges. 

WOOD, Chief Judge. Tom and Marla Simstad are longtime 

developers in Lake County, Indiana. In late 2004, the Simstads began the process of seeking approval from the Lake 

County Plan Commission for a proposed subdivision project 

called Deer Ridge South. In late 2006, the Commission approved the plans for the project. But this did not happen 

quickly enough to satisfy the Simstads. They believed that 
2 No. 15-1056 

approval was delayed, at great cost to themselves, because of 

their support in 1996 for commission member Gerald 

Scheub’s opponent in the County Commissioner primary 

race. They accordingly sued several members of the Commission and Lake County, alleging violations of the First and 

Fourteenth Amendments, the Racketeer Influenced and Corrupt Organizations Act (RICO), and various Indiana laws. 

The case went to trial before a jury, but the district court 

eliminated some of the Simstads’ claims during the trial. The 

remainder of their theories went to the jury, which found for 

the defendants. The Simstads have raised a number of points 

on appeal, but we conclude that the district court properly 

disposed of each aspect of the case and thus affirm its judgment. 

I 

The Lake County Plan Commission has nine members. 

Ind. Code § 36-7-4-208. A simple majority of five votes is 

necessary to approve a development plan. Ind. Code § 36-7-

4-302. A number of steps precede final approval. First, a developer must obtain any permits required by state and federal agencies. Two months before a public Commission hearing, the developer files a “sketch plan” with the Commission 

and reviews that plan with the relevant state and federal 

agencies. Then the developer files a primary plat for Commission approval. The Commission staff (which does not include any Commission members) prepares comments on the 

plan for the Commission. At the public meeting, the developer presents the project, the staff comments on the plan, 

and the public may speak. The staff makes recommendations to Commission members on the project’s compliance 
No. 15-1056 3

with the relevant ordinances, but its views are nonbinding. 

Then the Commission takes an initial vote. 

The Commission next evaluates the primary plat to determine whether it complies with the relevant subdivision 

control ordinance. The plat must identify standards for the 

size of individual lots, coordination between internal and 

external public ways, and coordination with municipal services. Ind. Code § 36-7-4-702. The Commission may waive 

requirements of the subdivision control ordinance, but it has 

no discretion to override the zoning ordinance. Ind. Code § 

36-7-4-707. 

Ken Bachorski was the lead developer for Deer Ridge 

South, to which we refer as the Project. He filed the first 

sketch plan on October 28, 2004. The Commission organized 

a meeting among Bachorski, a planner from the Commission’s staff, and a highway department engineer to discuss 

that plan on November 17, 2004. The engineer indicated that 

the highway department wanted the Project to add acceleration and deceleration lanes on Clark Street, the main road 

bordering the subdivision. The planner told Bachorski to 

apply for a waiver of the requirement that all subdivision 

lots be rectangular. (The waiver was necessary because some 

of the proposed lots would border the subdivision’s curved 

road.) Bachorski filed the first primary plat on November 30, 

2004. In it, he requested two waivers: one to permit the irregular lot shapes, and one that would exempt him from 

widening Clark Street, which had recently been upgraded 

and did not seem to need further work. 

Because of the highway engineer’s concerns about a proposed internal road (129th Street) that would cross a wetland, Bachorski met again with the engineer, several plan-
4 No. 15-1056 

ners, and the Commission’s Executive Director, Ned Kovachevich, on February 17, 2005. At that meeting, the group 

discussed both the wetland and sewer services. Kovachevich 

and the highway engineer suggested eliminating one of the 

two entrances to the subdivision because of the wetland concerns. That approach triggered the need for two more waivers: one from the ordinance’s requirement of two entrances, 

and the other from a part of the ordinance setting cul-de-sac 

length. 

Bachorski filed a second primary plat on April 1, 2005, 

accompanied by all four waiver requests. Despite the fact 

that outside agencies recommended approval, the staff did 

not support most of the necessary changes: it endorsed the 

irregular lot waiver, but it opposed the single-entry and culde-sac waivers and took no position on the widening of 

Clark Street. At the public meeting on May 18, 2005, numerous members of the public spoke against the Project. The 

Commission denied all four waivers and voted to defer the 

plat for 30 days. 

The Project team responded by restoring the 129th Street 

entrance to the plat. But this was not enough. At an August 

17, 2005 meeting, Kovachevich asked to review the declarations of the Property Owners’ Association regarding the 

maintenance of the subdivision’s private park. He also said 

that an easement from the cul-de-sac to the adjoining property was necessary before he could propose approval. 

Bachorski filed the third plat on August 31, 2005, with two 

entrances and no waiver requests. Kovachevich removed the 

plat from the October meeting agenda because it did not 

contain requests for waivers from the requirements to widen 

and improve Clark Street. 
No. 15-1056 5

At Bachorski’s insistence, Kovachevich put the plat on the 

agenda for the November 16, 2005 public meeting. Once 

again, the Commission withheld its approval. Kovachevich 

sent the Project team a letter citing six reasons for denial, including failure to request a waiver for Clark Street. The Plan 

Commission ultimately approved the plat on October 24, 

2006, almost exactly two years after the first sketch was filed. 

But by the time the Simstads were ready to build, the housing market had collapsed. Eventually they had to sell the 

Deer Ridge South property at a steep loss to avoid default. 

That, in a nutshell, is what led to this litigation. If the Project had been approved promptly, the Simstads believe, they 

could have made money from it. They sued everyone who 

was responsible for the approval process, but at this point 

they are asserting claims only against Scheub, who was on 

the Plan Commission’s Board, Executive Director Kovachevich, and Lake County. They argue principally that 

Scheub violated their First Amendment rights by retaliating 

against them for their support of his opponent (Wilbur Cox) 

in the 1996 County Commissioner primary race; the complaint also included claims under the Fourteenth Amendment and RICO, 18 U.S.C. §§ 1962, 1964. They also raised 

supplemental claims under the Indiana Tort Claims Act, Ind. 

Code § 34-13-3-8. 

Eight years may sound like a long time to hold a grudge, 

but the Simstads believe that this is exactly what Scheub did. 

Their lawsuit also followed a slow track. They initially filed 

it in the district court on November 15, 2007; the defendants 

filed a timely answer. On April 9, 2008, the Simstads filed an 

amended complaint, along with a number of discovery requests. The defendants filed a motion to dismiss the amend-
6 No. 15-1056 

ed complaint and requested that the court stay discovery. It 

did so pending resolution of the motion to dismiss. 

There the case sat until September 30, 2010, when the district court addressed the defendants’ motion to dismiss. It 

issued an order dismissing the RICO claims, but denying defendants’ motion with respect to the First Amendment, Fourteenth Amendment, and state-law claims. At that point, defendants’ answer to the amended complaint was due on October 14, 2010, according to Federal Rule of Civil Procedure 

12(a)(4)(A). That date came and went with no new answer. 

The district court returned to the subject of discovery on 

December 3, 2010, noting that no one was doing anything: 

the defendants had failed to answer the Simstads’ discovery 

requests, and the Simstads had not followed up with a motion to compel. The district court set new discovery deadlines. Following the close of discovery on October 26, 2011, 

the parties agreed to a trial date a year out, on October 1, 

2012. That date slipped away too. The Simstads moved to 

reopen discovery on November 9, 2012, but the district court 

denied the request, which it viewed as an attempt to “restart [the] litigation.” On September 11, 2013, nearly a year 

later, the Simstads filed a Notice of Intent to Rely on Deemed 

Admissions based on the defendants’ failure to respond to 

discovery requests and their failure to file an answer to the 

amended complaint. Defendants filed a motion for leave to 

file a belated answer and set aside the admissions. The district court granted the defendants’ motion after full briefing. 

At long last, in December 2014 the case went to trial. After the Simstads presented their case, the district court disposed of most of the case with judgments as a matter of law. 

It dismissed the First Amendment claim, finding that there 
No. 15-1056 7

was insufficient evidence of a connection between the 1996 

election and the approval process for the Project; it dismissed the state-law claim for failure to provide timely notice under the Indiana Tort Claims Act; and it tossed the individual-capacity claim against Kovachevich for lack of evidence. The Equal Protection claim went to the jury, which 

found for the defendants. 

On appeal, the Simstads complain that the district court 

should not have allowed the defendants to file such a late 

answer to the amended complaint, nor should it have permitted them to withdraw their admissions. They also argue 

that the court erred by refusing to instruct the jury on cat’spaw liability and the class-of-one theory of Equal Protection. 

Finally, they attack the court’s grant of judgment as a matter 

of law on their First Amendment claim, their individualcapacity claim against Kovachevich, and their state-law 

claims. 

II 

A 

Before we reach any of these arguments, we must first 

consider a potential bar to this entire lawsuit. Indiana’s 

courts have already considered the ramifications of the 

Commission’s refusal to approve the Project. The state trial 

court ordered mediation, and the parties reached a settlement, which provided that the Commission would approve 

a revised sketch plan for the Project at its regular meeting on 

August 16, 2006, or earlier. The Simstads filed a motion in 

Jasper County Circuit Court to enforce the settlement 

agreement on August 21, 2006, because the Project at that 

point had not yet been approved. On September 25, the state 
8 No. 15-1056 

court ordered enforcement and required the Commission to 

pay all the mediation fees. But the court refused to impose 

sanctions. The Simstads appealed the latter ruling, and the 

Commission cross-appealed from the decision that it had 

acted in bad faith in failing to approve the Project in August. 

Ultimately, the Indiana Supreme Court found that the 

Commission was not immune from sanctions, but that it had 

not acted in bad faith because the settlement agreement 

could not bind the Commission to approve the Project in 

violation of Indiana’s Open Door Laws, which give the public the right of final approval. Lake Cnty. Trust Co. v. Advisory 

Plan Comm’n of Lake Cnty., 904 N.E.2d 1274, 1278, 1279 (Ind. 

2009). 

When the case reached the federal court, the defendants 

raised the defense of claim preclusion in their motion to 

dismiss the first amended complaint. At that stage, the district court decided to postpone any definitive ruling on the 

defense, for several reasons. It was not sure whether the necessary identity of the parties existed; it was not sure from the 

record before it what issues had been raised and resolved in 

the state action; and it was not sure whether the plaintiffs 

had a full and fair opportunity to litigate the issues in that 

state court proceeding. These concerns suggest that the court 

had not decided whether claim or issue preclusion was implicated. Identity of parties is required for both, but actual 

litigation of particular issues is necessary only for issue preclusion. See, e.g., Miller Brewing Co. v. Indiana Dep’t of State 

Revenue, 903 N.E.2d 64, 68 (Ind. 2009) (issue preclusion); Reed 

v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (claim preclusion). 

But the difference in these doctrines does not matter for present purposes, for a simple reason: the defendants never renewed their motion on any theory of preclusion. Had they 
No. 15-1056 9

done so, we might have been able to end our opinion here. 

But under the circumstances, they have waived their preclusion defense, see Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 

1996), and we must press on. 

B 

We begin with the Simstads’ procedural arguments. They 

urge that the district court erred by permitting the defendants to file an untimely answer and to be relieved of certain 

deemed admissions they made. On the one hand, these missteps are inexplicable: the defendants were represented by as 

many as five lawyers at any time, and it seems that at least 

someone would have known to take action. On the other 

hand, we review this type of ruling only for abuse of discretion. See Lock Realty Corp. IX v. U.S. Health, LP, 707 F.3d 764, 

772 (7th Cir. 2013); Banos v. City of Chicago, 398 F.3d 889, 892 

(7th Cir. 2005). From that standpoint, the district court may 

well have thought that there was blame enough to go around 

in the way this suit was being handled, and that it was best 

to clear the way for adjudication on the merits. 

With respect to the late answer, the Simstads push back 

against the abuse-of-discretion standard by arguing that 

oversight is, as a matter of law, insufficient to excuse the late 

filing. They point to Federal Rule of Civil Procedure 

6(b)(1)(B), which generally governs extensions of time when 

permission is not sought until after the expiration of a deadline, and adopts the “excusable neglect” standard. We do not 

find so much rigidity in the rule. The district court offered 

several reasons in support of its decision. It noted that it had 

not ruled on the defendants’ motion to dismiss for approximately two and a half years, and that when it did, the ruling 

was “sort of a split decision” that meant that an answer to 
10 No. 15-1056 

the amended complaint was required even though time had 

passed. During the hiatus, the defendants’ team of attorneys 

had changed. The court also observed that the Simstads had 

not notified the defendants that they intended to pursue default admissions based on the failure to answer. 

We accept that a party must show that its neglect is excusable. Cf. United States v. Marbley, 81 F.3d 51, 52 (7th Cir. 

1996) (“inadvertence” in the context of Federal Rule of Appellate Procedure 4(b) is simply a synonym of “neglect,” and 

a party must demonstrate more to show excusable neglect). 

The Simstads contend that the defendants’ “oversight” is 

nothing more than the “inadvertence” that Marbley found 

inadequate. But as we have just noted, the court found more 

than simple inadvertence. See Mommaerts v. Hartford Life & 

Accident Ins. Co., 472 F.3d 967, 968 (7th Cir. 2007) 

(“[e]xtensions may be granted, after the time for action has 

passed ... ‘[in] situations in which the failure to comply with 

a filing deadline is attributable to negligence’ if the oversight 

is excusable”) (quoting Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993)). The district 

court’s decision whether to allow a late filing is “at bottom 

an equitable one, taking account of all relevant circumstances ... includ[ing] ... the danger of prejudice ... the length of 

the delay ... the reason for the delay, including whether it 

was within the reasonable control of the movant, and 

whether the movant acted in good faith.” Pioneer Investment 

Servs. Co., 507 U.S. at 395. 

The court addressed any potential prejudice to the Simstads by reopening discovery only for them. The Simstads 

moved for reconsideration, arguing that because one Commission member had since died, the reopening of discovery 
No. 15-1056 11

did not cure their prejudice. The district court, however, 

found that this was not reason enough to exempt the Simstads from litigation on the merits. It was plain from the record that the Simstads had ample notice of the defendants’ 

position. The district court did not abuse its discretion in allowing a belated answer to the amended complaint. 

For similar reasons, we find no abuse of discretion in the 

district court’s decision to permit the defendants to withdraw their deemed admissions. Federal Rule of Civil Procedure 36(b) allows a court to permit withdrawal of deemed 

admissions “if it would promote the presentation of the merits of the action and if the court is not persuaded that it 

would prejudice the requesting party.” That is the language 

of discretion. Any prejudice—and we do not think the Simstads have demonstrated any—was mitigated by the reopening of discovery for them alone. The inability to rely on default admissions and the obligation to litigate a case on the 

merits were not prejudicial here, nor did they reflect an 

abuse of discretion. 

C 

The district court granted judgment as a matter of law on 

several aspects of the case: the Simstads’ First Amendment 

theory; their individual-capacity suit against Kovachevich; 

and their state-law claims. Judgment as a matter of law is 

appropriate where “a party has been fully heard on an issue 

during a jury trial and the court finds that a reasonable jury 

would not have a legally sufficient evidentiary basis to find 

for the party on that issue.” FED. R. CIV. P. 50(a). We review 

the district court’s grant of judgment as a matter of law de 

novo. Murray v. Chicago Transit Auth., 252 F.3d 880, 886 (7th 

Cir. 2001). 
12 No. 15-1056 

1 

We consider first the Simstads’ argument that the real 

reason why approval of the Project was delayed was retaliation for their political support of Gerald Scheub’s opponent 

in the 1996 County Commissioner election. In order to prevail on a First Amendment theory, the plaintiffs must show 

that their conduct (1) was constitutionally protected and (2) 

was a substantial or motivating factor in the defendant’s 

challenged actions. Roger Whitmore’s Auto. Servs. v. Lake 

Cnty., 424 F.3d 659, 668 (7th Cir. 2005). The parties agree that 

the conduct—supporting Scheub’s opponent in the County 

Commissioner race—was protected. Cf. O’Hare Truck Serv., 

Inc. v. City of Northlake, 518 U.S. 712 (1996) (state may not refuse to contract with a party because of his exercise of First 

Amendment rights). The question for us is whether any jury 

could find that the Simstads’ exercise of their First Amendment rights during the 1996 race had anything to do with the 

Project. 

The district court concluded that the answer was no. 

Even accepting the general idea that the passage of time 

alone does not defeat a claim, it is certainly relevant. The 

Simstads rely on our decision in Radentz v. Marion Cnty., 640 

F.3d 754 (7th Cir. 2011), which held that an 18-month period 

between the time when the defendants made comments expressing a desire to hire an African-American and their termination of a contract with the white plaintiffs did not defeat an Equal Protection claim. Id. at 759. The length of time 

here, however, is 9 years! Without powerful evidence that 

the alleged grudge lasted that long, no jury could base its 

decision on that fact. 
No. 15-1056 13

And there is, for all intents and purposes, no other evidence, powerful or otherwise. The only shred we can find is 

Tom Simstad’s testimony that Wilbur Cox had told him that 

Scheub is a political animal who would get back at him. This 

statement obviously could not be used for the truth of the 

matter asserted; at most it would shed light on the effect it 

had on Tom. But without the ability to use the Cox statement 

for its truth, there is no evidence that Scheub even knew of 

the Simstads, let alone that he had any desire to retaliate 

against them. 

The Simstads insist that Commission approval is a “ministerial” act and that therefore the fact that it voted against 

the Project once it complied with all ordinances is competent 

evidence of improper motive. But whether a proposal meets 

ordinances is not as cut-and-dried as the Simstads suggest. 

Rather, the determination of whether their project or any 

other meets the ordinances, with or without waivers, involves some degree of discretion. 

2 

The Simstads next contend that they should have reached 

the jury on their claim that Kovachevich personally violated 

their right to Equal Protection by influencing the Commission’s vote in some way. This claim is woefully underdeveloped in the Simstads’ briefs in this court; they do not even 

identify the basis or legal standard for an equal protection 

claim. But even if they have narrowly avoided waiver, they 

cannot prevail. As the Executive Director of the Commission, 

Kovachevich did not have a vote. Several voting members 

testified that they did not rely exclusively on staff comments, 

and Kovachevich was not the sole author of the staff comments on the Project. Furthermore, the Simstads have almost 
14 No. 15-1056 

no evidence of animus on his part. They point only to one 

heated exchange that took place between them in 1996, related to an earlier project. 

Problems of causation aside, the Simstads’ Equal Protection claim also stumbles on the standard of review. They do 

not assert that they were disadvantaged because of any suspect classification. That means that Kovachevich’s actions 

must be examined solely for a rational basis. From that 

standpoint, it is easy to find reasons why the Project was delayed: the concern about wetlands, the debate about the 

number of entrances to the subdivision, and the adequacy of 

Clark Street, to name a few. Add to these Kovachevich’s limited power to influence the final decision, and only one conclusion is possible: he was entitled to judgment as a matter 

of law for the Equal Protection claims against him in his individual capacity. 

 3 

The district court dismissed the Simstads’ state-law claim 

for tortious interference with business relationships for failure to file timely notice in accordance with the Indiana Tort 

Claims Act. That Act requires a person with a claim against a 

governmental entity to file notice within 180 days of when 

the events giving rise to the claim occur. Ind. Code § 34-13-3-

8. The Simstads contend that the defendants forfeited this 

defense by stating that they were ready to go to trial on the 

claims that survived the motion to dismiss. But the defendants had raised the notice defense in both their original answer and their answer to the amended complaint. That was 

enough. In fact, if anyone was guilty of forfeiture, it is the 

Simstads, who said nothing about this point until their briefs 

on appeal. 
No. 15-1056 15

The Simstads filed their notice-of-claim with the state on 

February 16, 2007. The district court found that this was too 

late, on the assumption that the clock began to run in November 2005, when the Commission first denied approval of 

the Project. The Simstads now argue that the clock did not 

begin to run until the Commission’s ultimate approval vote 

in October 2006. If that is correct, then their notice was timely. But it would be perverse to look to the date when they 

succeeded in obtaining approval, and ignore the date when 

they failed. And their own actions support this view. They 

considered the November 2005 denial sufficiently final to 

appeal in state court. 

The Simstads argue in the alternative that they can reach 

the October 2006 trigger date by virtue of the “continuing 

wrong” doctrine. But it does not apply here. The continuing 

wrong doctrine requires that “the plaintiff ... demonstrate 

that the alleged injury-producing conduct was of a continuous nature.” Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. 

Ct. App. 2012). The doctrine “will not prevent the statute of 

limitations from beginning to run when the plaintiff learns 

of facts which should lead to the discovery of his cause of 

action even if his relationship with the tortfeasor continues 

beyond that point.” Fox v. Rice, 936 N.E.2d 316, 322 (Ind. Ct. 

App. 2010). 

 As the district court correctly recognized, the time provided by state law began to run in November 2005. The Simstads were thus barred from asserting their state-law claims 

for failure to file timely notice. 
16 No. 15-1056 

D 

Last, the Simstads urge that they are entitled to a new trial because of two alleged errors in the instructions to the jury: first, the absence of an instruction on cat’s paw liability, 

and second, the absence of an instruction on a “class-of-one” 

Equal Protection violation. In order to obtain a new trial on 

this basis, an appellant must demonstrate that the given instructions failed to state the law properly, the jury was likely 

to be misled or confused, and prejudice resulted. 

The Simstads wanted the jury to consider whether the 

improperly motivated conduct of subordinate employees of 

the Plan Commission caused the voting members of the 

board to vote as they did. This theory is known as “cat’s 

paw” liability. Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011). 

The Simstads wished to impute Kovachevich’s or Scheub’s 

alleged animus to the rest of the Commission, which they 

believe was swayed by Kovachevich’s recommendations 

against approval prior to October 2006. 

It is not clear how, or whether, this type of imputed motive applies in the municipal liability context. Monell v. Dep’t 

of Social Servs. of City of New York, 436 U.S. 658, 690-91 (1978), 

prohibits finding municipal liability through the theory of 

respondeat superior. We have wondered whether the cat’s-paw 

theory can support entity liability under the civil rights laws 

when the entity is a municipal corporation and the biased or 

retaliatory subordinate is not a policy-maker. Smith v. Bray, 

681 F.3d 888, 899 (7th Cir. 2012); Waters v. City of Chicago, 580 

F.3d 575, 586 n.2 (7th Cir. 2009). This is not the case, however, 

in which we need to confront that issue. As our discussion 

thus far shows, there is insufficient evidence of animus or 

improper motive held by anyone involved to warrant a jury 
No. 15-1056 17

instruction on the theory. The Simstads suggest that the fact 

that it took the Commission two years to approve the project 

is somehow evidence of improper motive or animus, but we 

cannot accept that circular reasoning. 

The Simstads’ request for a class-of-one instruction fares 

no better. Such a claim exists where “a public official, ‘with 

no conceivable basis for his action other than spite or some 

other improper motive ... comes down hard on a hapless 

private citizen.’” Swanson v. City of Chetek, 719 F.3d 780, 784 

(7th Cir. 2013) (quoting Lauth v. McCollum, 424 F.3d 631, 633 

(7th Cir. 2005)). A class-of-one plaintiff must “negat[e] any 

reasonably conceivable state of facts that could provide a rational basis for the classification.” Miller v. City of Monona, 

784 F.3d 1113, 1121 (7th Cir. 2015) (quoting Scherr v. City of 

Chicago, 757 F.3d 593, 598 (7th Cir. 2014)). 

The Simstads’ evidence fell far short of that showing, and 

so the district court properly refused to instruct the jury on 

this theory. 

III 

We are distressed that it took this case so long to be resolved. Some of the problems might have been avoided with 

better control over the schedule, and some might have been 

resolved in a way that did not prompt an appeal. But in the 

final analysis, we find no error in the district court’s procedural rulings or its Rule 50 decisions. We therefore AFFIRM

its judgment.