*

The Honorable James S. Gwin, United States District Judge for the

Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0080P (6th Cir.)

File Name: 04a0080p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MARTINGALE LLC; BRIDGE

THE GAP, INC.,

Plaintiffs-Appellants,

v.

CITY OF LOUISVILLE;

WATERFRONT DEVELOPMENT

CORPORATION,

Defendants-Appellees.

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No. 02-5895

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 01-00255—Charles R. Simpson, III, District Judge.

Argued: October 22, 2003

Decided and Filed: March 17, 2004 

Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; 

GWIN, District Judge.*

2 Martingale LLC, et al. v. City of

Louisville, et al.

No. 02-5895

_________________

COUNSEL

ARGUED: Donald L. Cox, LYNCH, COX, GILMAN &

MAHAN, Louisville, Kentucky, for Appellants. John L.

Tate, STITES & HARBISON, Louisville, Kentucky, for

Appellees. ON BRIEF: Donald L. Cox, William H.

Mooney, LYNCH, COX, GILMAN & MAHAN, Louisville,

Kentucky, Theodore L. Mussler, Jr., MUSSLER &

ASSOCIATES, Louisville, Kentucky, for Appellants. John

L. Tate, Emily R. Hartlage, STITES & HARBISON,

Louisville, Kentucky, for Appellees.

_________________

OPINION

_________________

JAMES S. GWIN, District Judge. In this case, Martingale,

LLC (“Martingale”) and Bridge the Gap, Inc. (“Bridge the

Gap”) appeal the district court’s ruling permitting the City of

Louisville (“City”) and the Waterfront Development

Corporation to condemn a structure known as the Big Four

Bridge. The Big Four Bridge connects Jeffersonville, Indiana

with Louisville, Kentucky. The City and the Waterfront

Development Corporation wish to use the bridge as part of a

public park, but Martingale and Bridge the Gap contend that

the City has no legal power to condemn the bridge. 

For the following reasons, the district court’s decision is

AFFIRMED.
No. 02-5895 Martingale LLC, et al. v. City of

Louisville, et al.

3

1

The record is not clear on what exactly was abandoned. One way

to read the record indicates that only the rail line was abandoned, and that

the ICC proceeding had no effect on the bridge. Another interpretation

holds that Penn Central abandoned the bridge when it abandoned the rail

line. Regardless, this ambiguity does not affect our resolution of the case.

I. Background

The story of this case begins in 1888, when the Kentucky

General Assembly chartered the Louisville and Jeffersonville

Bridge Company (“Bridge Company”). The Bridge

Company’s charter provided it the “right and power to

construct, maintain and operate” a bridge to make rail

connections between the railroad lines on each side of the

Ohio River. A year later, the Bridge Company approved final

plans for the bridge, and in 1895, construction was completed.

In 1927, the Cleveland, Cincinnati, Chicago, and St. Louis

Railroad Company (known as the “Big Four Railroad

Company”) acquired an interest in the bridge from the Bridge

Company. Over the following two years, the bridge and its

approaches were rebuilt. Years later, in 1955, the Bridge

Company and Big Four merged, making Big Four the bridge's

sole owner and the operator. 

Through a series of subsequent mergers, Big Four became

a part of the Penn Central Transportation Company (“Penn

Central”). In 1968, Penn Central decided that due to its

merger with the New York Central Railroad Company,

certain rail lines were surplus, and that continuing to operate

these lines would be a “financial burden . . . and an undue

burden on interstate commerce.” The rail line crossing the

bridge was one such line. A year later, the Interstate

Commerce Commission (“ICC”) approved Penn Central's

application to abandon the bridge. In 1969, the rail line

spanning the bridge was thus abandoned.1

4 Martingale LLC, et al. v. City of

Louisville, et al.

No. 02-5895

2

Because the sale contract was contingent upon the grant of certain

permits from the City and the Waterfront Development Corporation, the

sale may not have been consummated. However, Martingale apparently

has at least an equitable lien on the Bridge under the terms of the contract.

Five years later, the bridge's approaches were removed.

The bridge remains in this condition today, completely

inaccessible to humans. For the past thirty years, the bridge

has not been functional.

The bridge's abandonment did not stop the transfer of the

bridge. Penn Central Transportation Company went bankrupt

in 1970 and transferred all of its properties other than

operating railroads to the Penn Central Corporation. But the

Penn Central Corporation did not keep the bridge, either. In

1982, Charles R. Hammond (“Hammond”) acquired the

bridge and then transferred it to the Louisville and

Jeffersonville Bridge Corporation (“Bridge Corporation”), of

which he was president. Hammond then transferred all of the

real property associated with the bridge, but not the bridge

itself, to the Kentucky Real Estate Holding Corporation. 

In 1987, Bridge the Gap acquired the bridge at a Sheriff's

sale for $10,300. The Waterfront Development Corporation

purchased the real estate surrounding the bridge pylon on the

Kentucky side of the river in 1995. In 2000, Bridge the Gap

sold its interest in the bridge to Martingale for $400,000,

retaining only the right to display holiday lights on the bridge

for a ten-year period.2

Hoping to use the bridge as a pedestrian walkway as a part

of the City's Waterfront Park, the City of Louisville passed a

resolution authorizing condemnation of the bridge on

November 28, 2000. In April 2001, Bridge the Gap and

Martingale sued in the United States District Court for the

Western District of Kentucky. Their suit sought a declaratory

judgment of their right to insulate the bridge from
No. 02-5895 Martingale LLC, et al. v. City of

Louisville, et al.

5

condemnation, an injunction restraining the City of Louisville

and the Waterfront Development Corporation from

condemning the bridge, compensatory damages, costs, and

attorneys’ fees. In July 2001, the City filed suit in Kentucky

state court to condemn the bridge. 

On June 5, 2002, the district court entered summary

judgment in favor of the City and the Waterfront

Development Corporation. The court reasoned that: (1) the

bridge is not in interstate commerce; (2) the Rivers and

Harbors Act does not prohibit condemnation of the bridge; (3)

the bridge’s status as a post route does not prohibit

condemnation; and (4) the plaintiffs’ alleged franchises had

been forfeited in 1969 when the ICC permitted Penn Central

to abandon the bridge. Additionally, the district court held

that even if the plaintiffs possessed the alleged franchises, this

was no bar to condemnation because the City and the

Waterfront Development Corporation could condemn the

franchises and pay the plaintiffs reasonable compensation for

them. Plaintiffs Martingale and Bridge the Gap now appeal

the district court’s grant of summary judgment. 

II. Summary of the Parties’ Arguments

Martingale and Bridge the Gap argue that summary

judgment was inappropriate because they presented enough

evidence to the district court to create issues of material fact

with regard to: (1) whether the bridge is in interstate

commerce, and if so, whether the City’s attempt to condemn

it is an impermissible burden on interstate commerce; (2)

whether the bridge and any franchises to operate it were

abandoned as a matter of law under the ICC’s procedures for

abandoning a rail line; (3) whether a municipality in

Kentucky can condemn a federal, Kentucky, or Indiana

franchise to own and operate bridge over the Ohio River; and

(4) whether the City of Louisville can condemn personal

property for use in a park. 

6 Martingale LLC, et al. v. City of

Louisville, et al.

No. 02-5895

The City of Louisville and the Waterfront Development

Corporation respond by arguing that there are no issues of

material fact regarding any of the above-mentioned issues,

and that the district court correctly granted judgment in their

favor as a matter of law. Additionally, the City and the

Waterfront Development Corporation say that the AntiInjunction Act, 28 U.S.C. § 2283, prohibits this Court from

enjoining a state court condemnation proceeding. 

The Court analyzes these arguments below.

III. Standard of Review

An appellate court reviews a district court’s grant of

summary judgment de novo. Doren v. Battle Creek Health

Sys., 187 F.3d 595, 597 (6th Cir. 1999). Summary judgment

is appropriate where the evidence submitted shows “that there

is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The moving party has the initial burden of

showing the absence of a genuine issue of material fact as to

an essential element of the non-moving party’s case. Waters

v. City of Morristown, 242 F.3d 353, 358 (6th Cir. 2001). A

fact is material if its resolution will affect the outcome of the

lawsuit. Daughenbaugh v. City of Tiffin, 150 F.3d 594, 597

(6th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). 

Once the moving party satisfies its burden, the burden shifts

to the non-moving party to set forth specific facts showing a

triable issue. Matsushita Elec. Indus. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). It is not sufficient for the nonmoving party merely to show some possibility of doubt as to

the material facts. Id.

In deciding a motion for summary judgment, the court

views the factual evidence and draws all reasonable

inferences in favor of the non-moving party. National
No. 02-5895 Martingale LLC, et al. v. City of

Louisville, et al.

7

Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997).

Ultimately the Court must decide “whether the evidence

presents sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.” Terry Barr Sales Agency, Inc. v. All-Lock

Co., 96 F.3d 174, 178 (6th Cir. 1996) (internal quotations

omitted). 

IV. Analysis

The City and the Waterfront Development Corporation

assert that even if Martingale and Bridge the Gap’s arguments

are meritorious, the federal Anti-Injunction Act, 28 U.S.C.

§ 2283, barred the district court from granting the requested

relief. If the City and the Waterfront Development

Corporation are correct, then we need not reach the merits of

the case with respect to Martingale and Bridge the Gap’s

claims for declaratory and injunctive relief. For this reason,

we open our analysis with this issue.

The district court did not address the Waterfront

Development Corporation and the City’s Anti-Injunction Act

argument. Regardless, this Court may consider it. This

would be the case even if the parties did not raise the issue.

See, e.g., Gloucester Marine Rys. Corp. v. Charles Parisi,

Inc., 848 F.2d 12, 15 (1st Cir. 1988); Hickey v. Duffy, 827

F.2d 234, 243 (7th Cir. 1987). 

According to the City and the Waterfront Development

Corporation, the Anti-Injunction Act forbade the district court

from granting the relief that Martingale and Bridge the Gap

requested. The City and the Waterfront Development

Corporation claim that the Anti-Injunction Act bars relief

because Martingale and Bridge the Gap seek injunctive relief

and because their claims do not fit into any of the AntiInjunction Act’s three exceptions. 

8 Martingale LLC, et al. v. City of

Louisville, et al.

No. 02-5895

In response, Martingale and Bridge the Gap assert that the

Anti-Injunction Act is inapplicable because they seek

declaratory relief in addition to an injunction. Additionally,

they argue that the Anti-Injunction Act cannot apply because

they requested that the injunction be directed against the City

and the Waterfront Development Corporation, not against the

state courts. Finally, Martingale and Bridge the Gap assert

that the Anti-Injunction Act does not prohibit injunctions that

forbid the commencement of state court proceedings. 

We now turn to these arguments, using the text of the AntiInjunction Act as a starting point. The Anti-Injunction Act

states in full:

A court of the United States may not grant an injunction

to stay proceedings in a State court except as expressly

authorized by Act of Congress, or where necessary in aid

of its jurisdiction, or to protect or effectuate its

judgments. 

28 U.S.C. § 2283. The Supreme Court has, on several

occasions, recognized that theAnti-Injunction Act creates “an

absolute prohibition againstenjoining state court proceedings,

unless the injunction falls within one of three specifically

defined exceptions.” Atlantic Coast Line R.R. Co. v. Bhd. of

Locomotive Eng’rs, 398 U.S. 281, 286-87, 90 S. Ct. 1739,

1743 (1970); see also Vendo Co. v. Lektro-Vend Corp., 433

U.S. 623, 630-31, 97 S. Ct. 2881, 2886 (1977). These three

exceptions, embedded within the statute’s text, permit

injunctions against state court proceedings (1) where

Congress expressly authorizes, (2) where necessary in aid of

the court’s jurisdiction, and (3) where necessary to protect or

effectuate the court’s judgments. See 28 U.S.C. § 2283.

Martingale and Bridge the Gap fit into none of the Act’s

exceptions. First, the parties do not assert, nor do we find,

that Congress expressly authorizes injunctions against state

courts in the Rivers and Harbors Act, 33 U.S.C. §§ 401 et seq.
No. 02-5895 Martingale LLC, et al. v. City of

Louisville, et al.

9

3

Although this case does involve aspects of real property law,

jurisdiction over these parties is based on in personam, rather than in rem,

principles. Therefore, the “in aid of jurisdiction” exception does not

apply. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641-42 (1977)

(declining to apply the “necessary in aid of jurisdiction” exception where

the federal and state actions were based on in personam jurisdiction, and

noting that “[t]he traditional notion is that in personam actions in federal

and state court may proceed concurrently, without interference from

either court, and there is no evidence that the exception to § 2283 was

intended to alter this balance.”); see also In re Am. Honda Motor Co.,

Inc., Dealerships Relation Litig., 315 F.3d 417, 439 (4th Cir. 2003) (“The

‘necessary in aid of its jurisdiction’ exception to the Anti-Injunction Act

is widely understood to apply most often when a federal court was the

first in obtaining jurisdiction over a res in an in rem action and the same

federal court seeks to enjoin suits in state courts involving the same res.”);

Bennett v. Medtronic, Inc., 285 F.3d 801, 806 (9th Cir. 2002) (indicating

that the most prominent form of the “in aid of jurisdiction” exception is

for in rem actions); In re Diet Drugs, 282 F.3d 220, 234 (3d Cir. 2002).

 

Second, the injunction they seek is not necessary in aid of

the court’s jurisdiction. Courts have applied this second

exception in only two scenarios: where the case is removed

from the state court, and where the federal court acquires in

rem or quasi in rem jurisdiction over a case involving real

property before the state court does. See, e.g., 17 Wright,

Miller, & Cooper, Federal Practice & Procedure:

Jurisdiction 2d § 4225, at 528 (1988); Erwin Chemerinsky,

Federal Jurisdiction, §11.2.3, at 699-700 (3d ed. 1999).

Neither of these scenarios applies in this case.

3

 Further, the

existence of a federal right not to have property taken without

just compensation does not render equitable relief necessary

in aid of the federal courts’ jurisdiction. First of all,

Martingale and Bridge the Gap have failed to show a

violation of this right. Second, the Supreme Court has noted

that “when a state proceeding presents a federal issue, even a

pre-emptive issue, the proper course is to seek resolution of

that issue by the state courts.” Chick Kam Choo v. Exxon

Corp., 486 U.S. 140, 149-50, 108 S. Ct. 1684, 1691 (1988).

10 Martingale LLC, et al. v. City of

Louisville, et al.

No. 02-5895

Finally, because there has been no prior federal court

decision on the matter of the bridge, Martingale and Bridge

the Gap cannot show that an injunction would be “necessary

to promote or effectuate [the court’s] judgments.”

Martingale and Bridge the Gap’s arguments against

applying the Anti-Injunction Act are unavailing. They argue

that the Anti-Injunction Act may bar their request for an

injunction, but not their claim for declaratory relief.

Martingale and Bridge the Gap’s argument is clever, but

unpersuasive. Their ultimate goal is to halt the state court

condemnation proceedings, a result that either an injunction

or a declaratory judgment would accomplish equally well.

Other parties have tried this ruse, and most courts that have

addressed this issue have rejected their argument. See, e.g.,

Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788 (5th Cir.

2000), cert. denied 530 U.S. 1274, 120 S. Ct. 2740 (2000);

U.S. Steel Corp. Plan for Employee Ins. Benefits v. Musisko,

885 F.2d 1170, 1175 (3d Cir. 1989), cert. denied, 453 U.S.

1074 (1990); Gloucester Marine Rys. Corp., 848 F.2d at 15;

Texas Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 498-99

(5th Cir. 1988) (en banc), cert. denied, 490 U.S. 1035 (1989);

Bledsoe v. Fulton Bank, 940 F. Supp. 804, 808 (E.D. Pa.

1996). This Court follows the guidance of these courts and

determines that where, as here, declaratory relief would have

the same practical effect as an injunction, the Anti-Injunction

Act precludes the court from granting a declaratory judgment.

Additionally, Martingale and Bridge the Gap argue that the

Anti-Injunction Act does not prevent a court from enjoining

the parties from commencing state court proceedings, as

opposed to enjoining the parties from proceeding with

already-filed state actions. They are correct. However, this

is of no moment to the instant case because the City filed its

condemnation action in July 2001. Because the

condemnation action has been pending since that time, the

Anti-Injunction Act prohibits any federal court from granting

the declaratory or injunctive relief that Martingale and Bridge
No. 02-5895 Martingale LLC, et al. v. City of

Louisville, et al.

11

the Gap seek. In other words, an injunction issued anytime

after July 2001 would not prevent the parties from

commencing state court litigation; it would stop the parties

from proceeding with existing state court litigation, which is

exactly what the Anti-Injunction Act prohibits. 

The Court finds support for this analysis in its own

precedent. In Roth v. Bank of the Commonwealth, 583 F.2d

527 (6th Cir. 1978), state court litigation commenced after the

federal suit was filed. The district court relied on a Seventh

Circuit precedent to grant an injunction.

This Court reversed, concluding, 

we are led inevitably to the conviction that the logic of

[the Seventh Circuit’s opinion in] Barancik [v. Investors

Finding Corp., 489 F.2d 933 (7th Cir. 1973)] (which in

effect says that state proceedings which are commenced

in fact are not commenced in law if commenced after the

time the judicial power of the federal court was invoked)

amounts to precisely that type of judicial improvisation

which the Supreme Court has warned us to avoid. 

Id. at 534. Therefore, the fact that the City did not file the

state court lawsuit until after Bridge the Gap and Martingale

filed suit in the federal district court has no bearing on the

applicability of the Anti-Injunction Act. For these reasons,

we conclude that the Anti-Injunction Act applies and that the

district court lacked the power to grant Martingale and Bridge

the Gap’s requested injunctive and declaratory relief. 

The injunctive and declaratory relief sought by Martingale

and Bridge the Gap is clearly the heart of this case. Yet,

included in the prayer for relief in plaintiffs’ “Complaint for

Declaration of Rights and Injunctive Relief” is a request for

compensatory damages and attorneys’ fees. A brief mention

of monetary injury “in the form of lost business opportunities

and attorneys fees” is included elsewhere in the complaint.

12 Martingale LLC, et al. v. City of

Louisville, et al.

No. 02-5895

4Moreover, the appellate briefs do not mention compensatory

damages or attorney’s fees.

The complaint alleges no further facts in support of this relief

and fails to allege any claim or theory of recovery for which

plaintiffs seek compensatory damages or attorneys’ fees.

4

The complaint fails to allege a claim for intentional

interference with prospective contractual relations under

Kentucky law. See Nat’l Collegiate Athletic Ass’n v.

Hornung, 754 S.W.2d 855, 858-59 (Ky. 1988) (requiring

allegations of an improper motive, consisting of malice or

some wrongful conduct on behalf of defendant). Likewise,

the complaint fails to allege a claim for a Takings Clause

violation. See Williamson County Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985)

(requiring an allegation of a deprivation of due process or a

denial of fair compensation). Because this stray request for

monetary relief is not accompanied by any alleged claim on

which the relief could be based, our determination that the

Anti-Injunction Act bars declaratory and injunctive relief

concludes the case. It is unnecessary for us to reach the issues

on which the district court based its decision.

We therefore AFFIRM the district court’s decision to grant

summary judgment in favor of the City of Louisville and the

Waterfront Development Corporation.