* The Ho nora ble James S. Gwin, United States Distr ict Judge for the

Northern District of Ohio, si tting by designation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0080P (6th C ir.) File Name: 04a00 80p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

M ARTINGALE LL C; B RIDG E

THE G AP , I

NC ., Plaintiffs- Appellant s,

v.

C ITY OF L OUISVILLE ; W ATERF RONT D EVELOP MENT C ORPORATI ON , Defenda nts-Appe llees. X - - - -

> , - - - - - - N No. 02-5895

Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 01-00255—Charles R. Simpson, II I, District Judge.

Argued: October 22, 2003
Decided and Filed: March 17, 2004

Befor e: BOGG S, Chief Judg e; GI BBONS, Circuit Judg e; GWIN, District Judge. * 2 Martingale LLC, et al. v. City of Louisville , et al. No. 02-5895

_________________ COUNSEL

ARG U ED: Donald L. Cox, LYNCH, COX, GI LMAN & MAHAN, Louisville, Kentucky , for Ap pel lan ts . J ohn L. Tate, ST ITES & HA RBIS O N, Louisville, Kentucky, for Appellee s. ON BRI EF: Donald L . Cox, Will iam H

. Mo on ey, LYNCH, COX, GI LMAN & MAHAN, Louisville, Ke nt uc ky, Theodore L. Mussler, Jr.
, MUSSLE R & ASSOCI ATES, Louisville, Kentucky , for Appellants. John L. Tate, Emily R. Hart l age, STITES &

HARBISON, Louis ville, Ke

ntucky, for App ellees.

_________________ OPINION

_________________ JAMES S. GWIN, District Judge. In this case, Martinga le, LLC (“Mart ingale ”) and B ridge t he Gap, Inc. (“Bri dge th e Gap”) appeal the district court’s ruling permitting the City of Louis ville (“City”) and the Waterfront Development Corporationto cond em n a structure known as the Big Four Bridge. The Big Four Bridg e connects Jeffersonville, Indiana with Louis vill e, Kentucky. The City and the Waterfront Development

Corpora tion wish to use the bridge as part of a public park, bu

t Marting ale and

Bridge the Gap contend that the City has no lega

l power to condemn the bridge.

For the following reasons, the district court’s dec ision is AFFIRMED.No. 02-5895 Martingale LLC, et al. v. City of Louisville , et al. 3

1 The r ecord is not

clear on what exa ctly

was abandoned. One way to read the record indic ates t hat onl y the rail lin e was abandoned, and that the ICC proc eeding had no ef fect on th e bri dge. Anoth er i nter pret ati on holds that

Penn Central abandoned the bridge when it aban don ed the rail lin e. Regard less, this amb iguity does not af fect our resol uti on of th e case. I. Backgro und

The story of th is case begins in 1888, when the Kentucky General Assembly charte

red the L ouisville a

nd Jeffersonville Bridge Company (“B ridge Com pany ”). Th e Bridge Company’scharter provided i t the “right and powe

r to construc t, maint ain an d oper ate” a b ridge to m ake rai l

co nnectio ns 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, theClevelan

d, Cincinnati, Chicag o, and St. Louis Railroad Company (known as the “Big Four Railroad Company”) acquired an interest in the bridge from t he Brid ge Com pan y. Over the

following

two y ears, th e bridg e and its approaches were rebuilt. Years later, in 1955
, the Bri dge Company and Big Four merg ed, makingBig Four t he bri dge's sole owner and the operator.

Throu gh a series of subsequent mergers, Big Four became

a part of the Penn C ent ral Transportation Company (“Penn Centr al”). In 19 68, Penn Ce ntral de cided tha

t due to its merger with the New York C entral Ra il ro ad Co mp an y, certain rail line s were su

rplus, an d that con tinuing t o operate theselines would be a “financial burden . . . and an undue burden on inters tate commerce.” The rail line cro ssi ng the bridge was one such line. A ye ar later, the I nterstat e Commerce Comm issi on (“ICC ”) appr oved P enn Ce ntral 's applicationto abandon the bridge. In 1969, the rail line spanning the bridge was thus abandone d. 1 4 Martingale LLC, et al. v. City of Louisville , et al. No. 02-5895

2 Bec ause the s ale c ontra ct was co ntingen t upo n the gra nt of cer tain perm its from the City and the Wa terfront Developm ent Corporation, the sale may not have been cons umm ated. Ho weve r, M artinga le app arently has at least an equita ble lien on the Bridge unde r the term s of the co ntract. Five years la

ter , th e bridge's approac

hes were removed. The bridge

remains i

n this cond

ition to da y, complete ly in a ccessib le to hu mans. For th e past thirt y years, the br idge has not be en funct

ional.

T he bridge's abandonment did not stop the transfer of the bridge. Pe nn Central Transportation Company went bankrupt in1970 and transfe rred all of its properties other than operatingrailroads to the Penn Central Corporation. But the Penn Central Corporation did not keep the bridge, either. In 198 2, Charles R. Hammond (“Hammond”) acquired the bridge and then tra nsferred it to the Louisville and Jeffersonville Bridge Corporation (“Bridge Corporation”), of whichhe was preside

nt. Hammon

d then tra nsferr ed all of the real property a ssociated with the bridg e, but not t he bri dge itself, to the Kentucky Rea l Estate Holding Corporation.

In1987, B ridge t

h e Gap ac quire d the b ridge at a Sher iff's sale for $10,300. The Waterfront Development Corporation purchased

the real estate surrounding the bridge py lon on the Kentucky side of th e river

in1995. In 2000, Bridge the Gap sold its i nterest in the bridge to Martingale for $400,000, retainingonly the right to display holiday lights on th e brid ge for a ten-y

ear period. 2

Hoping to use the br

idge as a pedestrian walkway

as a part of the City 's Water front Par k, the City

of Louisville passed a resolutionauthorizing condemnation of the bridge on November

28, 2000. In April 2001, Bridg e the Gap and Marting ale sued in the

United Sta

tes Dis trict Court for the WesternDistrict of

Kentuck y. T heir suit sought a declaratory judgment of their right to insulat e the bridge fromNo. 02-5895 Martingale LLC, et al. v. City of Louisville , et al. 5

condemnation, an injunction restra i ning the City of Lo uisville and the Waterfront Developm e nt Corporation from

co ndemning the bridge, compensatory damages, costs, a

n d attorne ys’ fees. I

n July 2001, the City filed suit inKentucky state court to condemn the bridge.

On June 5, 2002 , the distr ic t court entered summar y judgment in favor of the City and the Waterfront Development

Corporation. The court reasoned that: (1) the br idge is not in interstate commerce; (2) the Rive rs an d Harbors Act

does not pr

ohibit condemnation of the bridge; (3) th e bridge ’s status a s a post ro ute does n

ot prohib i t condemnation; and

(4) t he plaintiffs’ alleged franchises ha d been forfeited in 1969 whe

n the I CC permitted Penn Central to abandon the bridge. Additionally , the district cour t hel d that even if the plaintiffs possessed the alleged fran

chises, this

was no bar to c ondemnat ion beca use the C ity and the Waterfront

Development Cor

p oration could condemn the franchises and pay

the plaintiffs reasonable compensation for them. Plaintiffs Martingale and Bridge the Gap now ap pea l the district court’s grant of summary judgment.
II. Summary of the Parties’ Ar guments Marting ale and Bridge the Gap ar gue that summary judgment was inapprop ria te beca use th ey present ed eno ugh evidence to the district court to create issues of materia l fact withreg ard to: (1) whether the bridge is in interstate commerce, and

if so, whether the City ’s attemp t to conde mn it is an imperm is sible burden on interstate commerce; (2) whether the bridge and

any franchises to operate it were abandoned

as a matter of law under the I CC’s procedures for abandoninga rail line; (3) whe ther amunicipa lity in Kentucky can c ondemn a federal, Kentucky, or Indiana franch ise to own and operate bridge over the Ohio River; and (4) w hether the City of L ouisville can condemn persona l property for

use in a park. 6 Martingale LLC, et al. v. City of Louisville , et al. No. 02-5895

The City of L ouisville an d th e Waterfront Development Corporationrespond by ar guing that the re are no issues of material fact re gardin g any of the ab ove-men

tioned issu

es, and that the district court correctly granted judgment

in their favor as a matter of law . Addit ionally, the City and the Wate rfront

Develop ment Corporation sa y that the Ant

iInjunction

Act, 28 U. S.C. § 2283, prohibits t his C ou rt from enjoining a state court condemnation proceeding

. The Court analyzes these a rguments below.

III. Standard of Review

Anappellate court reviews a di str ict court’s grant of summary judgmen t de novo

. Do ren v. Ba ttle Cree k Health Sys.
, 187 F.3d

595, 597 (6th Cir. 1999). Summary judgment is appropriate wherethe evidence submitted shows “that there is no genuine issue as to any material fact and

that the moving party is entitledto a ju dgm ent as a matter of law.” F ed. R. Civ. P. 56 (c). Th e movi ng pa rt y h as the initial burden of showing the absence of

a genu ine issue of mater ial fact as to

anessential element

of the non-moving party ’s case. Wate rs
v. City of Mor

ristown , 242 F.3d 353, 358 (6th Cir. 2001). A fact is material if its resolution will affect the outcome of the lawsuit. Daughenb augh v. Cit y 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 satisfie s its burden, the burde n shifts to the non- moving pa

rty to set for thspeci fic fac ts sh owing a triable issue. Matsushita Elec. Indus. v. Zenith Radio Corp.
, 475 U.S. 574, 5 86 (1986) . It is not suffic ie nt for t he nonmoving party mere ly to show some possi

bility of doubt a s to the material facts. Id.

Indeciding a motion for summary judgment, the court views th e factua

l evidenc e and dra

ws all re asonable inferences in favor of the non-moving party

. NationalNo. 02-5895 Martingale LLC, et al. v. City of Louisville , et al. 7

En ters., I nc. v. Sm ith , 114 F.3d 561, 563 (6th Cir. 1997). Ultimatel y the Court must decide “whether the evidence pres e nts sufficient disagreement to require submission to a jury or wheth er it is soone-side d that one party must prev ail

as a matter of law.” Terry Barr Sales Agency, Inc. v. All-Lock Co.
, 96 F.3d 17 4, 178 (6th Cir. 1996)

(inte rn al quotations omitted).
IV. Analysi s

The City and the Waterfront De ve lopment Corporation assert that even if Martingale and

Bridg e the Ga

p’s arg uments

are meritori ous, the f

ederal Anti-I njunction Act, 28 U .S.C. § 228 3, barred the district court from granting the requested relief. If the City

and the Wate rfront Development Corporationare cor

rect, th en we ne ed not re ach the merits of the case with respe ct to M artingale and Bridge the Gap’s claims for declaratory

and injunctive relief. For thisreason, we open our analy sis with this issue.

The distr

ict c ourt d

id not addr ess the Waterf

ront Development

Corporation and the City’s Anti-I njunction Act

a rgumen t. Regardless, this Court may consider it. Th i s would be the case even if the p arties did not raise the issue. See, e.g. , Glouces ter Marine Rys. Corp. v. Charle

s Parisi, Inc., 848 F.2d 1 2, 15 (1st Cir. 1988) ; Hickey

v. Duff y , 82 7 F.2d 234, 243 (7th Cir. 1987).
According

to t he Ci ty and the Waterfr ont Development Co rporatio

n, the Anti-Injunction Act forbade the district court fromgranting ther elief that Martingale and Bridg e the Gap requested. The City and the Waterfr ontDevel opment Co rpo rationclaim that the Anti-Injunction Act bars re lief because Marti ngale an d Brid ge the Gap seek injunctive relief andbecause their claims do not fit into any of the An ti

Injunction 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

re li ef in ad di ti on to an in

ju nc ti on . A dd it io na ll y, they argue that the Anti-Injunction Act can not apply because they request ed that th e injunct

ion be dir ected a gainst the City and the Waterfront Development Corporation, not against the state courts. F inally , Marti ngale and Bridge the Gap assert that the Anti-Injunction

Act does not prohibit injunctions that forbid the commencement of state court procee dings.

We now turnto these ar

guments , using the text of theAntiInjunction

Act as a starting point. The Anti-Injunction Act states in f ull:

A court of the United States may not gr ant an injunction to s ta y p roceed

ings in a State cou

rt except a s expressly authorized

by Act of Congress, or wherenecessa ry in aid of its jurisdic

tion, or to protect

or effe ctuate it s judgments.

28 U.S.C. § 2283. T he Supr eme Court has, on several occasions, recog

nized that t

h e Anti -Injunction Act crea tes “an absolute prohibition a gainst enjoining state c ourt proc eeding s, unless the injunction falls within one of thr

ee spec ifically defined exceptions.” Atlantic Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs , 3 98 U.S. 281, 286-87, 90 S. Ct. 1739, 1743 (1970); see also Vendo Co. v. Lektro-Vend C orp. , 4 33 U.S. 623, 630- 31, 97 S. Ct. 2881, 2886 (1977). These three exception s, embedde d within the st atute ’s text, per

mit injunct i ons against state court proceeding s (1) where Congre ss expressly authorizes, (2) wher e necessary

in aid of the court’s jurisdiction, and (3) where necessa ry to protect or effectuate the court’s judgments. See 28 U.S.C. § 2283.
Marting ale and Bridg e the Gap fit into none of the Act’s excepti ons. First, the parties do not assert, nor do we find, that Congr ess expressly

authorize s injunctio

ns aga inst state courts in the Rivers and Har bors 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 invo lve as pects of real pr operty l aw, juri sdic ti on over these parties is base d on in pers onam, rat her th an i n re m, principles. Theref

ore, the “i n ai d o f ju

ris dict ion” except ion doe s not app ly. See Ven do C o. v. Le ktro-V end Co rp., 433 U.S. 623, 641-42 (1977) (declining to ap ply the “n ecess ary in aid of jurisdict ion” exception where the feder al and state actio ns were base d on in personam jurisdiction, and noting tha t “ [t] he t radi ti onal noti on is that in personam act ions i n federal and stat e court may

proceed concurre ntl y, wi thout int erfer ence fr om eith er cour t, and the re is no evide nce tha t th e exception to § 2283 was int ended to alter this b alanc e.”); see also In re Am. Ho nda Mo tor C o., Inc., De alersh ips R elation Litig., 315 F.3d 417, 439 (4th Cir. 2003) (“The ‘necessary i n aid of its jurisdict ion’ exception to t he Anti -In

junction Act is widely un derst oo d to apply most often when a federal court was the fir st i n obtain ing jurisdi ction over a res in an in rem act ion and t he s ame federal court s eeks t o enjoin s uit s in s tate courts invol ving t he same res. ”); Ben nett v. Medtronic, Inc. , 285 F.3d 801 , 806 (9th Cir. 2002) (indicating that the mo st pro min ent form of the “in a id of ju risdictio n” exc eptio n is forin rem a ctions) ; In re D iet Drug s, 282 F.3d 2 20, 234 (3d Cir. 2002). Second, the injunction they seek is not necessary

in aid of the court’s

jurisdict ion. Courts

have ap plie d thi s second exception in only

two scenario s: wh ere the case is removed fromthe state court, and where the feder al court acq

u ires in

rem or quasi in rem jurisdict ion over a case involving real propert y before the state court does. Se e, e.g. , 17 Wrigh t, Miller, & Coope r , Federal Practice & Procedure: Jurisdiction 2d § 4 22 5, at 52 8 ( 19 88 ); Er wi n C he me ri ns ky, Federal Jurisdic tion, §11.2.3, at 699-700 (3d ed. 1999). Neither of these scenar ios applie s in th i s case. 3 Further, the existence of a fed

eral rig ht not to have property

taken without just compensation does not render equitable relief nece ssary inaid of the

federa l courts’ jurisdict

ion. Firs t of all, Marting ale 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 p rop er course is to seek resolution of that issue by the state cour

ts.” Ch ick Kam Choo v. Exxon Corp., 486 U.S. 140, 1 49-50, 108 S. Ct. 1684, 1691 (1988). 10 Martingale LLC, et al. v. City of Louisville , et al. No. 02-5895

Fi na ll y, because there has been no prior f eder al court decisionon the m att er of t he bri dge, Ma rtinga le and Bridge the Gap cannot show that an injunction would be “necessary to promote or effectuate [the court’s] judgments.”
Marting ale and Bri dge the Gap’s a

rgumen ts agai nst 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 declara t ory relief

. Marting ale and Bridge the Gap’s ar gument is clever, but unpersuasive. Their ultimate goal is to halt the state c ourt condemnation

procee dings, a

result t hat either an injunction

or a declarat ory

ju dgment would acc omplish eq ually well. Other parties have tr

ied 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. C t. 2740 (2000); U.S. Steel Corp. Plan for Employee Ins. Benefits v. Musisko, 885 F .2 d 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 f

ollows the

guidance of th ese court s and determines that

where, as here, declara

tory relief would have the same practical effect as an injunction, the Anti-Injunction Act precludes the court

from gr anting a declar atory judgmen t.

Ad di ti on al ly, Marti ngale an d Brid ge the Gap argue that the Anti-Injunction

Act does not prevent a court from enjoining t he parties f

rom commencing

state court proceedings, as opposed to enjoining

the part ies from proceed

ing with already-filed

st at e a ct io ns . T he y a re corr ect. How ever, th

is is of no mome

nt to the instant ca se beca use the Cit

y f iled its

con demnationaction in July 2 001. Bec ause th e
con demnationaction ha s been pe nding sin ce that ti me, th e Anti-Injunction

Act prohibits any fede

ral court from granting the declaratory

or injunctive relief that

Marti ngale an d Brid geNo. 02-5895 Martingale LLC, et al. v. City of Louisville , et al. 11

the Gap see

k. In other wo rds, an in

junction issued an

ytime after July 2001 would not prevent thep arties from commencingstate co

urt litig ation; it would s top the parties fromprocee ding with

existing st

ate cour t litigat ion, which is exactly what the Anti-I

njunction Act prohibits.

The Cou rt find s support for this analysis in its own preced ent. In Roth v. Ba nk of the Co m monwealth , 583 F.2d 527 (6th Cir. 1978), state court litigation commenced after the federa l suit was file d. The dis trict cou rt relie d on a Seve

nth Circuit precedent to grant an injunction.
This Court reversed, concluding,

we are led inevitably

to the convictionthat th e logic of [the Seventh Circuit’s opinion in] Barancik [ v. Inve stors Finding Corp.
, 489 F.2d 933 (7th Cir. 1 973)] (whi ch in effect say s that stat

e proceedings which are commenc ed infact are not commenced in law if commenced after the time the judicial power of the federal court was invoked)

amoun ts to preci sely

that ty pe of judi cial impr

ovisati o n which the Supreme Court has warned us to avoid.

Id

. at 534. Th erefor

e, th e fact that the City did not file the state court

lawsuit until after Bridge the Gap and Marting ale filed suit in the federal district co urt has no bearing on the applica bility of t he Anti-I

njunction Act. For these re asons,
we conclude that the Anti-Injunction Act a pplies and that the districtcourt lacked the po wer to grant M artin gale and Bridge the Gap’s requested injunctive and declara tory relief.

The injunctive and

declaratory

relief sought by Ma

rtinga le and Br id ge th e G ap is cl ea rl y t he he art of thi s case. Y et, included in the praye

r for relief in plaintiffs’ “Complaint for Declaration

of Right s and I njunctive Relief” is a request for compensatory

damages and

attorne ys’ fees. A brief mention of monetary injury

“in the form

of lost business opportunities and a ttorney s fees”

is include d elsewh ere in th e compla int. 12 Martingale LLC, et al. v. City of Louisville , et al. No. 02-5895

4 Mo reover, the appel lat e bri efs do not mention compensatory dama ges or attorney’s fees. The complaint alleges no furthe r facts i nsupport of this relief and fails to allege any

claim or theory

of recovery

for which plaintiffs seek com

pensator y da mages or attorne

ys’ f ees. 4 The complaint fails to allege a claim for intentional interferencewith prospe cti ve contractual relations under Ken tucky law. See Nat’l Collegiate Athletic Ass’n v. Hornung, 754 S.W.2d 855, 858-59 (Ky. 1988) (requ iri ng allegat ions of an improper motive, consisting of malice or

some wrongful conduct on behalf o f defendant). Like wise, the complain

t fails to a

llege a cla im for a Ta

kings Cla use violation. See Williamson County Reg’l Planning Comm’n v. Hamilton Bank of J

ohnson Ci ty , 473 U.S. 172, 194 (1985) (requiring an allegation of a deprivation of due proc ess or a denial of fair compensation). B ecause this stray reque st for monetary relief i s not accompanied by any alleg ed claim on whichthe relie f could be based, our determination that the Anti-Injunction

Act bars declaratory

and injun c tive relief concludes the case . It is

unnecessary

for us to reach the issues on which the district court based its decision.

We therefore AFFI

RM the district court’s decisionto grant summary judgmen t in favor of the City

of Lo uisville and the Waterfront Development Corporation.