Martingale LLC; Bridge the Gap, Inc. v. City of Louisville; Waterfront Development Corporation

*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.

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No. 02-5895 Martingale LLC, et al. v. City of
Louisville, et al.
3
1The 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. Regard less, this amb iguity 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
2Because the sale contra ct was co ntingent upon the grant of certain
perm its from the City and the Wa terfront Developm ent Corporation, the
sale may not have been consumm ated. However, Martingale app arently
has at least an equitable lien on the Bridge under the term s of the co ntract.
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

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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 Anti-
Injunction 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 non-
moving 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

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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 Anti-
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 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 Anti-
Injunction 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 the Anti-Injunction Act creates “an
absolute prohibition against enjoining 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.

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No. 02-5895 Martingale LLC, et al. v. City of
Louisville, et al.
9
3Although 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
app ly. See Ven do C o. v. Le ktro-V end Corp., 433 U.S. 623, 641-42 (1977)
(declining to apply the “necessary in aid of jurisdiction” exception where
the federal and state actio ns 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 b alance.”); see also In re Am. Honda Mo tor Co.,
Inc., Dealersh ips 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.”);
Ben nett v. Medtronic, Inc., 285 F.3d 801 , 806 (9th Cir. 2002) (indicating
that the mo st prominent form of the “in aid of jurisdiction” exc eption is
for in rem actions); In re Diet Drugs, 282 F.3d 2 20, 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

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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
4Mo reover, 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.

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