IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE PEARSON et al.,

Plaintiffs,

v.

GOVERNOR JAY ROBERT 

PRITZKER, in his official capacity, and

STATE OF ILLINOIS,

Defendants.

No. 20-cv-02888

Judge Franklin U. Valderrama

MEMORANDUM OPINION AND ORDER

COVID-19 is a novel coronavirus that has affected nearly every aspect of 

everyday life. From mask wearing to social distancing, it has changed the way we live 

and interact with each other. On March 9, 2020, in response to the on-going COVID19 pandemic, the Governor of Illinois issued an emergency proclamation declaring 

that the COVID-19 pandemic constituted a disaster in Illinois. At the time, the state 

“had 11 confirmed cases of COVID-19, ‘an additional 260 persons under 

investigation,’ and evidence of ‘community transmission in Illinois.’” Fox Fire Tavern, 

LLC v. Pritzker, 161 N.E.3d 1190, 1192 (Ill. App. Ct. 2020) (quoting Proclamation No. 

2020-38, 44 Ill. Reg. 4744 (Mar. 9, 2020)).1 As of May 29, 2020, COVID-19 had killed 

 1The Court may take “judicial notice of matters which are so commonly known within the 

community as to be indisputable among reasonable men, or which are capable of certain 

verification through recourse to reliable authority.” McCray v. Hermen, 2000 WL 684197, at 

*2 n.1 (N.D. Ill. May 23, 2000) (quoting Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 

369 (7th Cir. 1983)). “Included in these matters are ‘proceedings in other courts, both within 

and outside of the federal judicial system, if the proceedings have a direct relation to matters 

at issue.’” Id. (quoting same); see also Ennenga v. Starns, 677 F.3d 766, 774 (7th Cir. 2012)

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more than 100,000 people nationwide. S. Bay United Pentecostal Church v. Newsom, 

140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring in denial of application for 

injunctive relief) (internal quotation marks and citations omitted). At that time, there 

was no known cure, no effective treatment, and no vaccine. Id.

In response to the global pandemic COVID-19 created, government officials 

have instituted numerous safety measures, which have restricted the movement of 

individuals, which in turn, have visited financial hardships on businesses.

Plaintiffs George Pearson (Pearson), Steve Balich (Balich) (collectively,

Individual Plaintiffs), and plaintiffs Samantha L. Palya (Palya), Amanda Hamerman 

(Hamerman), Michael Judge (Judge), Jeff Carpenter (Carpenter), John Brown 

(Brown), and James Van Dam (Van Dam) (collectively, Business Owner Plaintiffs),

bring this individual and class action against defendants Governor Jay Robert 

Pritzker (Governor Pritzker) and the State of Illinois (collectively, Defendants), 

alleging that three Executive Orders Governor Pritzker issued to address the COVID19 pandemic violate the Taking Clause of the Fifth Amendment and Illinois 

Constitution. R. 9, Am. Compl.2 Plaintiffs also bring claims under 42 U.S.C. § 1983 

for substantive and due process violations. Id. Defendants move to dismiss the 

Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 

 

(“Taking judicial notice of matters of public record need not convert a motion to dismiss into 

a motion for summary judgment.”).

2Citations to the docket are indicated by “R.” followed by the docket number and, where 

necessary, a page or paragraph citation.

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12(b)(6). R. 18, Mot. Dismiss. For the following reasons, Defendants’ motion is 

granted. 

Background

Governor Pritzker, in response to the COVID-19 pandemic, issued an 

emergency proclamation and a series of executive orders in the spring of 2020. 

Specifically, on March 9, 2020, Governor Pritzker, acting under the authority granted 

to him by the Illinois Emergency Management Agency Act (20 ILCS 3305/1 et seq.),

issued a disaster proclamation for the State of Illinois. Am. Compl. ¶ 28.3 On March 

20, 2020, Governor Pritzker issued Executive Order 2020-10 (the March 20 Executive 

Order) Id. ¶ 29. The March 20 Executive Order, among other things, ordered citizens 

to stay at home at their place of residence and limited travel within the State. Id. 

¶ 30.

On April 1, 2020, Governor Pritzker issued a second Executive Order (No. 

2020-18) (the April 1 Executive Order). Am. Comp. ¶ 31. The April 1 Executive Order 

extended the duration of the March 20 Executive Order to April 30, 2020. Id. On April 

30, 2020, Governor Pritzker issued a third Executive Order (No. 2020-32) (the April 

30 Executive Order) which extended the duration of the April 1 Executive Order to 

May 30, 2020. Id. ¶ 32.4 Governor Pritzker ordered all non-essential businesses to 

close, prohibited individuals from travel across the State, except essential travel, and 

 3The Court accepts as true all of the well-pleaded facts in the complaint and draws all 

reasonable inferences in favor of the plaintiff. Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 

2017).

4The March 20 Executive Order, the April 1 Executive Order, and the April 30 Executive 

Order are collectively referred to as “the Executive Orders.”

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ordered residents to stay at home. Id. ¶ 33. The Executive Orders mandated that all 

non-essential businesses immediately cease operations at their physical locations, 

that their employees not work at these physical locations, and that these businesses 

remain closed indefinitely, and for so long as the Executive Orders are extended and 

in effect. Id. ¶ 36.

On May 13, 2020, Plaintiffs filed a class action complaint against Governor 

Pritzker and the State of Illinois. R.1, Compl. The complaint has been amended and 

the operative complaint contains four counts. Am. Compl.5 Business Owner Plaintiffs

bring three counts: Count I alleges a violation of the Takings Clause of the Fifth 

Amendment (id. ¶¶ 57– 70); Count II alleges a violation of Substantive Due Process 

under 42 U.S.C. § 1983 (id. ¶¶ 71– 79); and Count IV alleges a violation of Procedural 

Due Process under 42 U.S.C. § 1983 (id. ¶¶ 89–99). Individual Plaintiffs bring one 

count only, Count III alleging a violation of Substantive Due Process under 42 U.S.C. 

§ 1983. Id. ¶¶ 80–88. In their global request for relief, Plaintiffs seek compensatory 

damages, declaratory relief, an injunction, and several other forms of relief. Id. at 19–

20. Defendants move to dismiss Plaintiffs’ amended complaint pursuant to Rules

 5Plaintiffs’ filings reveal a discrepancy of the exact identity of the plaintiffs to this action. The 

caption in the Amended Complaint remained the same as the one in the original Complaint, 

and identifies George Pearson, Steve Balich, Samantha L. Palya, Amanda Hamerman, and 

Michael Judge as the five Individual Plaintiffs. Compl.; Am. Compl. However, the allegations 

of the Amended Complaint reference George Pearson, Steve Balich, Samantha L. Palya, 

Amanda Hamerman, James Van Dam, Jeff Carpenter, and John Brown as the seven 

Individual Plaintiffs, and omit any reference to Michael Judge. Am. Compl. ¶¶ 20–26. Yet, 

Plaintiffs’ Response only refers to the Individual Plaintiffs as the individuals identified in the 

case caption. R. 23, Resp. For the purposes of this Opinion, the Court considers all eight of 

these identified individuals as the Individual Plaintiffs.

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12(b)(1) and 12(b)(6). Mot. Dismiss. For the reasons that follow, the Defendants’ Rule 

12(b)(6) motion is granted.

Standard of Review

A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction. 

Fed. R. Civ. P. 12(b)(1). Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 

F.3d 811, 820 (7th Cir. 2009). Standing is an “essential component of Article III’s caseor-controversy requirement,” and the plaintiff “bears the burden of establishing 

standing . . . in the same way as any other matter on which the plaintiff bears the 

burden of proof . . . .” Apex Digital, Inc. v. Sears Roebuck & Co., 572 F.3d 440, 443 

(7th Cir. 2009). In order to survive a Rule 12(b)(1) motion, the plaintiff bears the 

burden of establishing subject matter jurisdiction. Ctr. for Dermatology & Skin

Cancer, Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). When deciding a facial 

challenge to subject matter jurisdiction—that is, when the defendant argues that the 

plaintiff’s allegations as to jurisdiction are inadequate—“the district court must 

accept as true all well-pleaded factual allegations, and draw reasonable inferences in 

favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). But district 

courts may also “look beyond the jurisdictional allegations of the complaint and view 

whatever evidence has been submitted on the issue to determine whether in

fact subject matter jurisdiction exists.” Taylor, 875 F.3d at 853 (citing Apex Digital,

572 F.3d at 444). In that case, “no presumptive truthfulness attaches to plaintiff’s 

allegations,” and the court is “free to weigh the evidence and satisfy itself as to the 

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existence of its power to hear the case.” Apex Digital, 572 F.3d at 444 (internal 

citations omitted).

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the 

complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 

820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and 

plain statement of the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual 

allegations, accepted as true, sufficient to “state a claim to relief that is plausible on 

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 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.” Id. The allegations “must be enough 

to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The 

allegations that are entitled to the assumption of truth are those that are factual, 

rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79. 

Analysis

Defendants advance four primary arguments in support of their motion to 

dismiss. First, Defendants argue that the Eleventh Amendment bars all claims for 

damages and equitable relief against the State and Governor Pritzker in his official 

capacity. Mot. Dismiss at 2. Second, Defendants contend that the Court lacks subject 

matter jurisdiction over Plaintiffs’ request for prospective injunctive relief. Id. Third, 

Defendants assert that Plaintiffs cannot state a viable claim under the Takings 

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Clause because the Governor’s actions did not constitute a taking under the United 

States or Illinois Constitutions. Id. Finally, they argue that Plaintiffs fail to state a 

claim for violation of Plaintiffs’ substantive or procedural due process rights. Id. The 

Court evaluates Plaintiffs’ claims based on the nature of their requested relief.

I. Monetary Relief

Plaintiffs seek monetary damages for their lost revenue, profits, and costs. Am. 

Compl. at 19, ¶¶ 1–3. Defendants first contend that Plaintiffs cannot bring a Section 

1983 claim for damages against the State or Governor Pritzker for acting in his 

official capacity as neither Governor Pritzker nor the State of Illinois is a “person” 

subject to suit under Section 1983 for damages. R. 19, Memo. Dismiss at 6 (citing 

Arizonans for Official English v. Ariz., 520 U.S. 43, 49 n.24 (1997); Will v. Mich. Dep’t 

of State Police, 491 U.S. 58, 71 (1989); Kolton v. Frerichs, 869 F.3d 532, 535–36 (7th 

Cir. 2017)). The Court agrees.

The Eleventh Amendment provides that “[t]he judicial power of the United 

States shall not be construed to extend to any suit in law or equity, commenced or 

prosecuted against one of the United States by Citizens of another State, or by 

Citizens or subjects of any Foreign State.” U.S. CONST. amend XI. “The Eleventh 

Amendment deprives federal courts jurisdiction to consider most suits against states. 

State agencies and officials sued in their official capacities are ‘the state’ for Eleventh 

Amendment purposes.” Olison v. Governor Ryan, 2000 WL 1263597, at *4 (N.D. Ill. 

Sept. 5, 2000) (citing Will, 491 U.S. at 70; Kentucky v. Graham, 473 U.S. 159, 169 

(1985)); see also Ind. Prot. and Advoc. Servs. v. Ind. Fam. and Soc. Servs. Admin., 603 

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F.3d 365, 370 (7th. Cir. 2010) (“If properly raised, the amendment bars actions in 

federal court against a state, state agencies, or state officials acting in their official 

capacities.”) (internal citations omitted). Furthermore, “state agencies and officials in 

their official capacity cannot be sued under Section 1983 for damages.” Olison, 2000 

WL 1263597, at *4 (internal citations omitted); see also Will, 491 U.S. at 71 (“Section 

1983 provides a federal forum to remedy many deprivations of civil liberties, but it 

does not provide a federal forum for litigants who seek a remedy against a State for 

alleged deprivations of civil liberties. The Eleventh Amendment bars such suits 

unless the State has waived its immunity.”).

Plaintiffs do not challenge the above-referenced case law regarding Section 

1983 or the Eleventh Amendment, but instead insist that their suit is not one for 

damages, but rather, one seeking to compel the State to award just compensation.6

Resp. at 7. Plaintiffs’ construction of their claims as constitutional violations does not 

obscure that which is plain: this lawsuit seeks monetary damages from the State’s 

treasury for Plaintiffs’ alleged financial losses occasioned by Governor Pritzker’s 

 6Plaintiffs’ Response fails to cite to any case law in support of their arguments. While 

Plaintiffs mention a case known as the “Cedar Rust case” they fail to provide a citation for 

that case and do not demonstrate how that case supports their arguments. Resp. at 3. 

Accordingly, Defendants invite the Court to deem Plaintiffs’ arguments forfeited, and the 

Court agrees. R. 26, Reply at 2 (citing Alioto v. Town of Lisbon, 651 F.3d. 715, 721 (7th Cir. 

2011)); see also Pelfrense v. Vill. of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A 

litigant who fails to press a point by supporting it with pertinent authority, or by showing 

why it is sound despite a lack of supporting authority or in the face of contrary authority, 

forfeits the point. We will not do his research for him.”) (internal citations omitted). Of course, 

this does not mean that the Court accepts Defendants’ arguments with no critical analysis—

in this Opinion the Court evaluates the bases for dismissal presented to ensure they are 

plausible. See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) (“If 

[judges] are given plausible reasons for dismissing a complaint, they are not going to do the 

plaintiff’s research and try to discover whether there might be something to say against the 

defendants’ reasoning.”).

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Executive Orders. The Eleventh Amendment, however, bars such suits. Therefore, 

the Court grants Defendants’ motion and dismisses those claims.

II. Injunctive Relief

Plaintiffs, in addition to seeking monetary damages, also seek an order 

“enjoining Governor Pritzker from enforcing his Executive Orders until such time as 

a mechanism is enacted to provide just compensation for affected businesses and 

appellate review.” Am. Compl. at 19, ¶ 5. Defendants again move to dismiss Plaintiffs’ 

claim for injunctive relief on the basis that such relief is also barred by the Eleventh 

Amendment. Defendants also argue that, to the extent Plaintiffs seek prospective 

relief, their claims based on expired Executive Orders are moot. The Court reviews 

the mootness argument first, as it relates to the Court’s subject matter jurisdiction.

A. Mootness

If in fact Plaintiffs are seeking injunctive relief to prevent future harm—rather 

than monetary damages—in that they request that this Court prohibit “Governor 

Pritzker from enforcing his Executive Orders” (Am. Compl. at 19 ¶ 5), the Court 

agrees with Defendants that Plaintiffs’ claim is moot (Mot. Dismiss at 9–10). Federal 

courts are limited to deciding justiciable cases or controversies under Article III, and 

therefore lack jurisdiction to hear non-justiciable cases, including cases that are moot. 

See Maher v. F.D.I.C., 441 F.3d 522, 525 (7th Cir. 2006). A case is rendered moot “if 

there is no possible relief which the court could order that would benefit the party 

seeking it.” Id. (internal citations omitted). Mootness has been described as “the 

doctrine of standing set in a time frame,” because if a plaintiff loses standing during 

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the course of litigation, that plaintiff’s claim is rendered moot. U.S. Parole Comm’n 

v. Geraghty, 445 U.S. 388, 397 (1980). In other words, “[a] case is moot when it no 

longer presents a live case or controversy.” Tobin for Governor v. Ill. State Bd. of 

Elections, 268 F.3d 517, 528 (7th Cir. 2001). 

The last Executive Order with which Plaintiff takes issue expired as of May 

30, 2020. Am. Compl. ¶ 32. And the Supreme Court has long held that a change to a 

challenged law (including termination of said law) renders a claim for respective relief 

relating to that law to be moot. See Green v. Mansour, 474 U.S. 64, 67 (1985); Loc.

No. 8-6, Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v. Missouri, 361 U.S. 363, 

367 (1960). Because the challenged Executive Orders are no longer in effect, any 

claim for prospective relief is moot.

But it is true that federal courts may consider otherwise moot cases or 

controversies if the questions involved are “capable of repetition, yet evading 

review[.]” Moore v. Ogilvie, 394 U.S. 814, 816 (1969). This exception to the mootness 

doctrine applies when “(1) the challenged action is too short in duration to be fully 

litigated prior to its cessation or expiration, and (2) there is a reasonable expectation 

that the same complaining party will be subjected to the same action again.” Tobin 

for Governor, 268 F.3d at 529. The Seventh Circuit has recognized that “the capableof-repetition doctrine applies only in exceptional situations, and generally only where 

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the . . . plaintiff can make a reasonable showing that he will again be subject to the 

alleged illegality.” Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995).

Plaintiffs contend that their claims are not moot because even after the April 

30 Executive Order expired, businesses were again closed on a county-by-county 

basis, and that Governor Pritzker’s Order “did not terminate, was not revoked, and 

provides for application in the future should certain statistical reports again rise 

above an arbitrary number.” Resp. at 7–8. However, as noted above, Plaintiffs again 

cite to no authority in support of their arguments, and point to no allegations in the 

Amended Complaint or facts in other documents of which the Court could take 

judicial notice,7 that constitute a “reasonable showing” that they will again be subject 

to an allegedly illegal Executive Order.8 Therefore, any claim for prospective relief 

does not fall under the “capable-of-repetition” exception to mootness, and Plaintiffs’ 

claim for prospective injunctive relief must be dismissed for lack of subject matter 

jurisdiction.

B. Eleventh Amendment Immunity

If, though, as Defendants suggest, Plaintiffs’ claim for injunctive relief is in 

fact a claim for monetary damages, that claim is also barred by the Eleventh 

 7In fact, the State of Illinois’s Coronavirus Response webpage states that due to the 

“continued decline in the rate of infection in new COVID-19 cases,” more businesses, 

including restaurants, can begin opening. See Phrase 4: Revitalization, STATE OF ILLINOIS 

CORONAVIRUS RESPONSE, https://coronavirus.illinois.gov/s/restore-illinois-phase-4 (last 

visited Mar. 22, 2021). 

8The Court agrees with Defendants that to the extent Plaintiffs seek injunctive relief relating 

to a future executive order, such a claim is not ripe and also must be dismissed under Federal 

Rule of Civil Procedure 12(b)(1). Mot. Dismiss at 9–10 (citing Abbott Lab’ys v. Gardner, 387 

U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).

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Amendment. See generally Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 

1, 551 U.S. 701, 720 (2007) (finding that the plaintiff sought damages in her 

complaint “which is sufficient to preserve our ability to consider the question”).

There are three, limited exceptions to the Eleventh Amendment bar against 

suits against states. The first is consent—that is, a state may waive immunity and 

agree to suit in federal court. Ind. Prot. and Advoc. Servs., 603 F.3d at 371. The second 

is abrogation of the state’s immunity by a valid exercise of Congress’ powers. Id.

Plaintiffs do not assert either the first or second exceptions. The third is the doctrine

articulated by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), which 

“allows private parties to sue individual state officials for prospective relief to enjoin 

ongoing violations of federal law.” Council 31 of the Am. Fed’n of State, Cnty. and 

Mun. Emps. v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012) (emphasis added) (internal 

citations omitted). The rationale underlying this doctrine, known as the Ex parte 

Young doctrine, is as follows: “Because an unconstitutional legislative enactment is 

void, a state official who enforces that law comes into conflict with the superior

authority of the Constitution, and therefore is stripped of his official or representative 

character and is subjected in his person to the consequences of his individual 

conduct.” Id. (internal citations and quotations omitted)). Plaintiffs do not address

this exception in their Response, but the Court explains why it does not apply.

“Courts conduct a ‘straightforward inquiry’ into whether the complaint alleges 

an ongoing violation of federal law and seeks federal relief properly characterized as 

prospective.” Love v. Ill. Dep’t of Corr., 2020 WL 1237200, at *4 (N.D. Ill. Mar. 13, 

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2020) (quoting Verizon Md., Inc., v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 

(2002)). “An injunction is a forward-facing form of relief. It applies to ongoing or 

imminent harm.” Id. While “[d]amages can look back,” injunctive relief must “look to 

the present, or look forward.” Id. Accordingly, to fall under the Ex parte Young

doctrine, a plaintiff must seek prospective relief. See Eason v. Pritzker, 2020 WL 

6781794, at *7–8 (N.D. Ill. Nov. 18, 2020). 

It is on this distinction that Plaintiffs’ claim ultimately fails. On the face of the 

Amended Complaint, Plaintiffs do not seek to restrain Governor Pritzker from any 

ongoing unconstitutional conduct. Cf. Verizon Md., 535 U.S. at 645 (prayer for relief 

that “state officials be restrained from enforcing an order in contravention of 

controlling federal law[] clearly satisfies our straightforward [Ex parte Young] 

inquiry”). In Papasan v. Allain, 478 U.S. 265, 277–78 (1986), the Supreme Court 

explained the applicability of Ex parte Young as it relates to this issue specifically:

Young’s applicability has been tailored to conform as precisely as possible to 

those specific situations in which it is necessary to permit the federal courts to 

vindicate federal rights and hold state officials responsible to ‘the supreme 

authority of the United States. Consequently, Young has been focused on cases 

in which a violation of federal law by a state official is ongoing as opposed to 

cases in which federal law has been violated at one time or over a period of 

time in the past, as well as on cases in which the relief against the state official 

directly ends the violation of federal law as opposed to cases in which that relief 

is intended indirectly to encourage compliance with federal law through 

deterrence or directly to meet third-party interests such as compensation. As 

we have noted: Remedies designed to end a continuing violation of federal law 

are necessary to vindicate the federal interest in assuring the supremacy of 

that law. But compensatory or deterrence interests are insufficient to overcome 

the dictates of the Eleventh Amendment.

(internal citations and quotations omitted). Plaintiffs seek to recoup money from the 

State based on Governor Pritzker’s alleged violation of federal law that occurred over 

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a period of time in the past, and the Ex parte Young doctrine was not designed to 

award Plaintiffs such requested compensation. On this basis, the Ex parte Young

doctrine does not except Plaintiff’s claim for injunctive relief from Eleventh 

Amendment sovereign immunity. 

Moreover, Plaintiffs do not seek prospective relief, which delivers another 

defeat to the applicability of the Ex parte Young doctrine. The Amended Complaint, 

which was filed after the expiration of the April 30 Executive Order, focuses on past 

Executive Orders and alleges that Business Owner Plaintiffs were harmed financially 

by said orders and seek “just compensation” for this allegedly unconstitutional 

conduct. See generally Am. Compl. As Defendants correctly point out, Plaintiffs only 

challenge the March 20 Executive Order, the April 1 Executive Order, and the April 

30 Executive Order, the last of which expired on or around May 29, 2020. Memo. 

Dismiss. at 9. Put simply, Business Owner Plaintiffs do not seek prospective 

injunctive relief. Individual Plaintiffs, to the extent they are seeking injunctive relief 

based on just compensation, fare no better, as Pearson and Balich asserted that they 

were engaged in political fundraising on behalf of candidates who were running for 

office in the November 2020 election cycle. Am. Compl. ¶¶ 20–21. Clearly, that has 

passed. Regardless, though, Individual Plaintiffs do not assert that they seek any 

prospective relief based on expired Executive Orders. What Plaintiffs really seek are 

damages for their alleged harm occasioned by Governor Pritzker’s Executive Orders.

As discussed above, the Eleventh Amendment, however, bars Plaintiffs’ claims. The 

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Court finds that Council 31, 680 F.3d 875 (7th Cir. 2012) and McDonough Assocs., 

Inc., v. Grunloh, 722 F.3d 1043 (7th Cir. 2013) provide further guidance.

In Council 31, the plaintiff, a union representing state employees, sued the 

governor and another state official in their official capacity to challenge the state’s 

pay freeze, which the plaintiff claimed violated the Contracts Clause and Equal 

Protection Clause of the U.S. Constitution by repudiating its collective bargaining 

agreement. 680 F.3d at 878–80. The plaintiff requested injunctive relief to prevent 

enforcement of the pay freeze, arguing that that its request fell under the Ex Parte 

Young doctrine. Id. at 883. The Seventh Circuit disagreed, observing that the 

plaintiff’s argument “ignores our holding that the eleventh amendment bars a claim 

for injunctive relief that would require direct payments by the state from its treasury 

for the indirect benefit of a specific entity.” Id. at 884 (internal quotations and 

citations omitted). The Seventh Circuit made this finding even though the plaintiff’s 

request for injunctive relief did not specifically require the court to direct payment of 

funds out of the state’s treasury; because the “essence of the relief sought” constituted 

such a payment, it did not constitute prospective relief and was barred by the 

Eleventh Amendment. Id. at 882–84.

The Seventh Circuit reaffirmed this principle a year later in McDonough. In

that case, the plaintiff, an architecture and engineering firm, alleged that the Illinois 

Department of Transportation (IDOT) owed it approximately $2 million dollars for 

work it performed for IDOT. 722 F.3d at 1045–46. The plaintiff claimed that it was 

facing bankruptcy and collapse if it did not receive the payments it alleged were due 

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from the state. Id. at 1045. It filed suit in federal court against IDOT officials 

asserting a violation of the Due Process Clause of the Fourteenth Amendment. Id.

The District Court granted the plaintiff a temporary restraining order requiring state 

officials to execute certain supplemental agreements with the plaintiff so that the 

plaintiff could be paid for its past work. Id. at 1047. While complying with the 

temporary restraining order, the defendants moved the District Court to dissolve or 

decline to extend the temporary restraining order, arguing that it was a claim for 

monetary damages against the State of Illinois and therefore barred by the Eleventh 

Amendment. Id. The District Court denied their request, holding that the relief 

granted fell under the Ex parte Young doctrine as an exception to sovereign 

immunity. Id. at 1047–48. The Seventh Circuit reversed, observing that although it 

is permissible under Ex Parte Young to “order state officials to act in a certain manner 

going forward that may cost the state money to implement,” courts “may not . . . direct 

a state to make payments to resolve a private debt or to make remedy a past injury to 

a private party.” Id. at 1050–51 (emphasis added). The Seventh Circuit explained that 

although the plaintiff had cloaked its claim in the language of federal due process, its 

suit remained “in substance an effort to have a federal court order state officials to 

make payments from the state treasury to remedy past alleged breaches of contract.”

Id. at 1045. The Seventh Circuit was not persuaded by the plaintiff’s creative styling 

of its claim. Id. at 1052. Neither is the Court in this case.

The essence of Plaintiffs’ requested injunctive relief is money from the State of 

Illinois. While Plaintiffs, like the plaintiff in McDonough, attempt to cloak their 

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dispute as one involving the Takings Clause and Due Process Clause of the United 

States Constitution, once stripped of this garb, it is clear that what Plaintiffs really 

seek is to recoup from the State of Illinois money they allegedly lost due to the 

Executive Orders. Notably, again, Plaintiffs’ Response fails to address, much less 

distinguish, the numerous cases cited by Defendants and fails to develop any cogent 

arguments in opposition to Defendants’ motion. The Court grants Defendants’ motion 

to dismiss is it relates to Plaintiffs’ claims seeking injunctive relief.

III. Declaratory Relief

Plaintiffs also request a declaratory judgment “that issuance and enforcement 

of Governor Pritzker’s Executive Orders is an unconstitutional taking without just 

compensation and a violation of the Due Process Clause of the Fourteenth 

Amendment.” Am. Comp. at 19, ¶ 4. Even though the Court has denied injunctive 

relief to Plaintiffs, it can still review Plaintiff’s claims relating to declaratory relief. 

See Green, 474 U.S. at 72 (“[D]eclaratory relief may be available even though an 

injunction is not.”). Yet, this request does not save Plaintiffs’ claims, as Plaintiffs still 

cannot overcome the Eleventh Amendment. Defendants correctly point out that 

Plaintiffs’ declaratory request, if granted, would force the State to pay compensation 

from the State’s treasury for past wrong. Memo. Dismiss at 8. To the extent Plaintiffs 

seek prospective relief (Resp. at 7), such relief would result in payment of just 

compensation and compensatory damages to Plaintiffs. Id. at 9. The Seventh Circuit 

has held that “declaratory ‘relief should not be awarded where the eleventh 

amendment bars an award of monetary or injunctive relief; otherwise the 

Case: 1:20-cv-02888 Document #: 28 Filed: 03/24/21 Page 17 of 18 PageID #:338
18

[declaratory] relief would operate as means of avoiding the amendment’s bar.’”

Council 31, 680 F.3d at 883 (7th Cir. 2012) (quoting MSA Realty Corp. v. Ill., 990 F.2d 

288, 295 (7th Cir. 1993)). Again, Plaintiffs fail to address Defendants’ arguments or 

this incontrovertible legal authority in their Response.

The Court again finds that the Eleventh Amendment bars Plaintiffs’ claim for 

declaratory relief. Therefore, the Court grants Defendants’ motion as to this claim, 

and dismisses this claim. The Court need not address Defendants’ remaining 

arguments.

Conclusion

For the foregoing reasons, the Court grants Defendants’ Motion to Dismiss 

[18]. Plaintiffs’ claims relating to prospective injunctive relief are dismissed under 

Rule 12(b)(1) as moot. The Eleventh Amendment bars the remainder of Plaintiffs’ 

claims, which are dismissed under Rule 12(b)(6). Since Plaintiffs do not request leave

to file an amended complaint in their Response and the Court finds no basis to amend 

Plaintiffs’ claims, as such attempts appear to be futile based on the Eleventh 

Amendment, the Court dismisses Plaintiffs’ Amended Complaint [9] with prejudice. 

This civil case is terminated.

Dated: March 24, 2021

United States District Judge

Franklin U. Valderrama

Case: 1:20-cv-02888 Document #: 28 Filed: 03/24/21 Page 18 of 18 PageID #:339