Chicago Regional Council of Carpenters v. Village of Schaumburg

Hon. Lynn S. Adelman, of the United States District Court å
for the Eastern District of Wisconsin, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1867
CHICAGO REGIONAL COUNCIL OF CARPENTERS,
Plaintiff-Appellant,
v.
VILLAGE OF SCHAUMBURG, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 5425—George W. Lindberg, Judge.
ARGUED OCTOBER 18, 2010—DECIDED MAY 2, 2011
Before POSNER and WOOD, Circuit Judges, and ADELMAN,
District Judge.å
WOOD, Circuit Judge. Chicago Regional Council of
Carpenters (“the Union”) filed an action under 42 U.S.C.
§ 1983 against the Village of Schaumburg, the owner of

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2 No. 10-1867
the Schaumburg Renaissance Hotel, asserting that the
Village had violated its First Amendment rights. The
Union chiefly complained that, in August 2009, the
Village denied its request to stage a protest on the
Hotel’s property. In November 2009, while the lawsuit
was pending, the Village denied a second request from
the Union to allow two of its members to distribute
pamphlets at the entrance of the Hotel. In response to
the Village’s motion for summary judgment with respect
to the August 2009 incident, the Union discussed only
the Village’s refusal in November 2009 to permit the
leafletting; it said nothing about the August incident.
The district court entered summary judgment for the
Village, noting that the Union’s complaint had been
filed before the November 2009 action and hence did
not address any events that occurred after its filing.
The Union appeals, asserting essentially that the two
incidents were part of a single wrong by the Village. We
conclude that the district court properly understood
the complaint, and we therefore affirm.
I
In the summer of 2009, the Union began representing
the housekeeping staff of the Schaumburg Renaissance
Hotel in collective bargaining negotiations. Having hit
a roadblock in the discussions, it decided to stage some
demonstrations. On August 18, 2009, the Union staged
a mock funeral procession on the Hotel premises.
During this procession, the Schaumburg police directed
the Union to keep the noise level down and to follow a

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No. 10-1867 3
specified route. After a short discussion between the
attorneys representing both sides, these terms were
agreed to and the mock funeral proceeded without a
hitch. Relying on the assumption that the same terms
would apply in the future, the Union informed the
police that it intended to undertake a similar demonstra-
tion on August 31, 2009. But things did not go as the
Union had expected. As its members approached the
Hotel on August 31, the police refused to permit them
to enter the premises. The Union promptly filed this
case on September 2, 2009; it alleged that the Village
had violated the Union’s First Amendment rights by
restricting the demonstrators’ access to public prop-
erty—specifically, the area occupied by the Hotel.
As the case was underway, the Union continued discus-
sions with the Village about how it might demonstrate
at the Hotel. On November 6, 2009, the Union sent the
Village a letter requesting that two of its volunteers be
allowed to distribute pamphlets at the entry of the Hotel.
The Village denied this request on November 19, 2009.
Both parties then filed cross-motions for sum-
mary judgment. Abandoning its claims relating to the
August 31 demonstration, the Union focused its motion
for summary judgment on the Village’s refusal to permit
its members to distribute pamphlets in November 2009.
At oral argument before this court, the Union explained
that it had dropped its complaint about the August 31
incident because it was persuaded that the First Amend-
ment jurisprudence on non-public forums would bar
relief.

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4 No. 10-1867
Reasoning that once the Union forfeited its claims
relating to the August 31 incident there was nothing
redressable left in the complaint (which the Union
never properly moved to supplement pursuant to
Federal Rule of Civil Procedure 15(d)), the district court
granted summary judgment for the Village on March 24,
2010. Only then did the Union file a motion under
Rules 15(a)(2) and 59(e) for leave to file a second
amended complaint; the court denied that motion on
March 30.
II
We review the district court’s grant of summary judg-
ment de novo, examining the record in the light most
favorable to the non-moving party. Ellis v. DHL Express
Inc. (USA), 633 F.3d 522, 525 (7th Cir. 2011).
The Union’s primary argument is that the district court
erred when it construed the Union’s summary judgment
motion as abandoning any theory relating to the
August 31 incident. What it was really doing, the Union
now says, was merely abandoning claims that depended
on its right to demonstrate on public property. But, it
now urges, there was another aspect to the planned
demonstration: Union volunteers were going to hand out
leaflets. When the Village denied the Union access to the
Hotel, it simultaneously denied the Union the oppor-
tunity to pass out its literature. The Union concludes
by asserting that it intended to preserve the leafleting
claims in its summary judgment motion.

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No. 10-1867 5
Unfortunately for the Union, this account is impossible
to square with the record. To the contrary, the Union
made it clear that it was forfeiting all arguments
relating to the August 31 demonstration and, instead,
was limiting itself to the denial of the right to leaflet in
November. This is what it wrote in its summary judg-
ment motion: “The Plaintiff now focuses, not upon its
request to demonstrate on public property, but instead
upon its right to conduct leafleting on public property in
a peaceful and non-coercive manner.” In presenting the
facts pertinent to its motion, the Union discusses only
the November incident; it uttered not a peep about any
denial of the right to pass out leaflets during the
August 31 demonstration. It thus forfeited the latter
theory and must stand or fall on the November denial.
Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.
1983) (“It is a well-settled rule that a party opposing a
summary judgment motion must inform the trial judge
of the reasons, legal or factual, why summary judgment
should not be entered. If it does not do so, and loses the
motion, it cannot raise such reasons on appeal.”).
In light of this, the district court correctly granted
summary judgment. Normally, a complaint can seek
relief only for events that have already occurred. Grain
Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 105 (2d Cir.
1998). (A person seeking injunctive relief must show a
likelihood of substantial and immediate irreparable
injury and the inadequacy of a remedy at law. See City
of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (citing
O’Shea v. Littleton, 414 U.S. 488, 502 (1974)). But the
plaintiff must still ground its right to relief on events

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6 No. 10-1867
described in the complaint, not on matters that arise
later.) Before the complaint may be broadened to encom-
pass subsequent events, the plaintiff must move to sup-
plement it. Federal Rule of Civil Procedure 15(d)
provides a mechanism for doing just that: “[o]n motion
and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.” FED. R.
CIV. P. 15(d). It is worth underscoring, however, that
there is no absolute right to expand the case in this way;
the district court has substantial discretion either to
permit or to deny such a motion. In this case, the Union
filed its complaint on September 2, 2009, but the
only event that it now is complaining about occurred in
November 2009, two months later. It did not ask the
district court to accept a supplemental pleading until
after the court had denied its motion for summary judg-
ment. The court was well within its rights to conclude
that this was too little, too late.
That is all we have to say about this lawsuit. We note,
however, that all may not be not lost for the Union. It
can follow the district court’s advice and file a new suit
for the November 2009 incident. It apparently has been
reluctant to do so because it is concerned that it may
be faced immediately with a defense of claim or issue
preclusion. We think it best not to comment on that
possibility, because at the moment it is purely hypotheti-
cal. We note only that the Village, having insisted
loudly that the November events were entirely separate
from the August events, may have to live with that char-

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No. 10-1867 7
acterization should there be a new case. See Smith v.
Potter, 513 F.3d 781, 783 (7th Cir. 2008) (stating that
claim preclusion “does not bar a suit based on claims
that accrue after a previous suit was filed”).
* * *
We AFFIRM the judgment of the district court.
5-2-11

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