ORDER
NORGLE, District Judge.
Before the court is the motion of defendants, Richard C. Hogan, Jeanne D. Hogan, Shelly Latoria, Joseph Latoria, Shawn Sterne, Juli Sterne, Peter Sorensen, Nancy Sorensen, Dennis Bomberek, and Vicki Bomberek, to dismiss plaintiff's complaint. For the following reasons, defendants' motion is granted.
On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hospital, 788 F.2d 411 (7th Cir.1986). The plaintiff need not set out in detail the facts upon which the claim is based, but must
FACTS
Accordingly, the pertinent facts are as follows. The plaintiff, Westfield Partners, Ltd. ("Westfield"), is an Illinois corporation engaged in the business of real estate development. Westfield purchased three parcels of land in Wayne Township, DuPage County, Illinois, which it hoped to develop into an upscale single family home subdivision named "Tall Oaks Estates". The preliminary plat provided ingress and egress to the subdivision via a road running between Fair Oaks Road to the west and Woodcreek Lane North to the east.
All defendants live on Woodcreek Lane North. The defendants oppose the use of the proposed roadway to access Tall Oaks Estates. The defendants filed a Petition to Vacate Woodcreek Lane North as a public roadway, pursuant to Ill.Rev.Stat. ch. 121 ¶ 6-303. Vacation of the road would interfere with approval Tall Oaks Estates subdivision by the Village of Carol Stream and inhibit prices for individual subdivided lots. A public hearing was scheduled and notification of the hearing was provided by publication.
Plaintiff, aggrieved by the Highway Commissioner's decision, filed the instant suit against the homeowners who had petitioned for the vacation. Plaintiff's complaint seeks relief in four counts. Count one, the only basis for federal jurisdiction, alleges that defendants conspired with Wayne Township officials
DISCUSSION
At an initial court appearance by both counsel, the court, citing Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir.1988), inquired as to the propriety of filing this action in a federal forum. As noted in Coniston, as well as the more recent case of Northside Sanitary Landfill, Inc. v. City of Indianapolis, et. al., 902 F.2d 521 (7th Cir.1990), the federal court is not a Board of Zoning Appeals. Despite this admonition, developers who are disappointed with local land use decisions persist in seeking federal avenues to receive favorable decisions. The court perceives this, with a great deal of alarm, as part of a growing trend of what have come
The court grants defendant's motion to dismiss count one on two grounds; 1) that defendant's Petition to Vacate, submitted to Wayne Township Highway officials, is absolutely privileged under the first amendment, and, in the alternative, 2) that plaintiff's complaint, on its face, fails to show that defendant's actions were taken "under color of state law" as is required by 42 U.S.C. § 1983.
As to the first ground, the court holds that defendants' petitioning of Wayne Township officials is absolutely privileged under the first amendment, and defendants cannot incur § 1983 liability for those actions. Plaintiff's entire complaint against defendants is based upon nothing more than defendants' exercise of their right, under the first amendment, to petition the government for a redress of grievances
The basis for the court's decision finds its genesis in what has come to be known as the Noerr-Pennington doctrine. The doctrine is based upon two Supreme Court decisions, Eastern Rail Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).
The Noerr case involved a dispute between a group of railroads and a group of trucking companies for primary control of the nation's long distance heavy freight hauling business. The railroads had engaged in an advertising campaign designed to curtail the use of trucks for long distance hauling, and most notably had persuaded the Governor of Pennsylvania to veto the "Fair Truck Bill" in his state. 365 U.S. at 129-31, 81 S.Ct. at 525-26. The trucking companies filed suit against the railroads, alleging violations of the Sherman Act, §§ 1 and 2
365 U.S. at 137, 81 S.Ct. at 529.
Five years later, the Court decided the Pennington case. There, a union representing coal workers successfully petitioned the Secretary of Labor for an increase in the minimum wage paid to coal miners. This had the consequence of forcing smaller coal companies out of business. Again, the Court held that "joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." 381 U.S. at 670, 85 S.Ct. at 1593.
The application of the Noerr-Pennington doctrine has been applied outside the narrow confines of antitrust suits and has been used to protect citizen's communications with the government in a wide variety of cases. Most notably, it has been applied to shield citizens from liability for petitions to a zoning board under § 1983 — conduct similar to that engaged in by defendants in this action. In Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir.1980), a developer sought to impose liability, under § 1983, on a group of citizens for an alleged conspiracy with city officials to prevent the construction of plaintiff's building. Gorman, 626 F.2d at 614. The Eighth Circuit, noting that the concept of the Noerr-Pennington doctrine had been applied to hold individuals immune from suit in a number of different actions
The requirement of action under color of state law is essential in order to state a claim under § 1983. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir.1978). In this action, defendants are not state officials, but private citizens. The acts of private citizens, no matter how discriminatory, are not prohibited under § 1983. Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir.1989); Ouzts v. Maryland National Insurance Co., 505 F.2d 547, 550 (9th Cir.1974). Therefore, plaintiff's complaint must allege that these private citizens somehow acted under color of state law.
The alleged basis for state action in plaintiff's complaint is a conspiracy between defendants and Wayne Township officials. Private parties have been found to have acted under color of state law when involved in a conspiracy with state officials. Adickes, 398 U.S. at 152, 90 S.Ct. at 1605-06; Moore v. Marketplace Restaurants, Inc., 754 F.2d 1336, 1352 (7th Cir.1985). However, bald allegations of conspiracy are not sufficient to state a claim; the plaintiff must support the allegation with specific facts. Moore, 754 F.2d at 1352-53; Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980). In order to establish a conspiracy, the plaintiff must allege facts demonstrating that state officials and private parties somehow reached an understanding to deny the plaintiff its constitutional rights. Moore, 754 F.2d at 1352.
An examination of the complaint fails to turn up any specific facts supporting plaintiff's allegation of a conspiracy between the defendants and Wayne County officials. Although plaintiff does alleges that the defendants conspired with Wayne Township officials to thwart the development of Tall Oaks Estates, Complaint, p. 3, par. 8, such allegation is nothing more than a conclusory allegation, wholly unsupported by specific facts. As plaintiff has failed to sufficiently allege a conspiracy between the defendants and state officials, it fails to allege that defendants acted under color of state law. Defendant's motion to dismiss count one for failure to state a claim is granted.
Left before the court, therefore, are the state causes of action. Since the plaintiff's basis for a federal forum has been dismissed, the court also dismisses counts two through four, plaintiff's pendant state claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Manor Healthcare Corp. v. Guzzo, 894 F.2d 919, 922 (7th Cir.1990); Gorman, 626 F.2d at 616 ("Where the federal element which is the basis for jurisdiction is disposed of early in the case, as on the pleadings, it smacks of the tail wagging the dog to continue with a federal hearing of the state claim." (citing McFaddin Express, Inc. v. Adley Corp., 346 F.2d 424, 427 (2nd Cir.1965)). Accordingly, the court grants defendant's motion to dismiss plaintiff's complaint in its entirety.
IT IS SO ORDERED.
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