           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Martingale LLC, et al. v. City of           No. 02-5895
        ELECTRONIC CITATION: 2004 FED App. 0080P (6th Cir.)                    Louisville, et al.
                    File Name: 04a0080p.06
                                                                                              _________________
UNITED STATES COURT OF APPEALS                                                                     COUNSEL
                  FOR THE SIXTH CIRCUIT                                   ARGUED: Donald L. Cox, LYNCH, COX, GILMAN &
                    _________________                                     MAHAN, Louisville, Kentucky, for Appellants. John L.
                                                                          Tate, STITES & HARBISON, Louisville, Kentucky, for
 MARTINGALE LLC; BRIDGE           X                                       Appellees. ON BRIEF: Donald L. Cox, William H.
 THE GAP , INC .,                  -                                      Mooney, LYNCH, COX, GILMAN & MAHAN, Louisville,
          Plaintiffs-Appellants, -                                        Kentucky, Theodore L. Mussler, Jr., MUSSLER &
                                   -  No. 02-5895                         ASSOCIATES, Louisville, Kentucky, for Appellants. John
                                   -                                      L. Tate, Emily R. Hartlage, STITES & HARBISON,
            v.                      >                                     Louisville, Kentucky, for Appellees.
                                   ,
                                   -
 CITY OF LOUISVILLE ;                                                                         _________________
                                   -
 WATERFRONT DEVELOPMENT -                                                                         OPINION
 CORPORATION ,                     -                                                          _________________
         Defendants-Appellees. -
                                   -                                        JAMES S. GWIN, District Judge. In this case, Martingale,
                                  N                                       LLC (“Martingale”) and Bridge the Gap, Inc. (“Bridge the
       Appeal from the United States District Court                       Gap”) appeal the district court’s ruling permitting the City of
    for the Western District of Kentucky at Louisville.                   Louisville (“City”) and the Waterfront Development
  No. 01-00255—Charles R. Simpson, III, District Judge.                   Corporation to condemn a structure known as the Big Four
                                                                          Bridge. The Big Four Bridge connects Jeffersonville, Indiana
                   Argued: October 22, 2003                               with Louisville, Kentucky. The City and the Waterfront
                                                                          Development Corporation wish to use the bridge as part of a
              Decided and Filed: March 17, 2004                           public park, but Martingale and Bridge the Gap contend that
                                                                          the City has no legal power to condemn the bridge.
Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge;
              GWIN, District Judge.*                                       For the following reasons, the district court’s decision is
                                                                          AFFIRMED.




    *
     The Ho norable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
No. 02-5895                 Martingale LLC, et al. v. City of               3    4       Martingale LLC, et al. v. City of                     No. 02-5895
                                          Louisville, et al.                             Louisville, et al.

                            I. Background                                          Five years later, the bridge's approaches were removed.
                                                                                 The bridge remains in this condition today, completely
  The story of this case begins in 1888, when the Kentucky                       inaccessible to humans. For the past thirty years, the bridge
General Assembly chartered the Louisville and Jeffersonville                     has not been functional.
Bridge Company (“Bridge Company”).                The Bridge
Company’s charter provided it the “right and power to                               The bridge's abandonment did not stop the transfer of the
construct, maintain and operate” a bridge to make rail                           bridge. Penn Central Transportation Company went bankrupt
connections between the railroad lines on each side of the                       in 1970 and transferred all of its properties other than
Ohio River. A year later, the Bridge Company approved final                      operating railroads to the Penn Central Corporation. But the
plans for the bridge, and in 1895, construction was completed.                   Penn Central Corporation did not keep the bridge, either. In
                                                                                 1982, Charles R. Hammond (“Hammond”) acquired the
  In 1927, the Cleveland, Cincinnati, Chicago, and St. Louis                     bridge and then transferred it to the Louisville and
Railroad Company (known as the “Big Four Railroad                                Jeffersonville Bridge Corporation (“Bridge Corporation”), of
Company”) acquired an interest in the bridge from the Bridge                     which he was president. Hammond then transferred all of the
Company. Over the following two years, the bridge and its                        real property associated with the bridge, but not the bridge
approaches were rebuilt. Years later, in 1955, the Bridge                        itself, to the Kentucky Real Estate Holding Corporation.
Company and Big Four merged, making Big Four the bridge's
sole owner and the operator.                                                       In 1987, Bridge the Gap acquired the bridge at a Sheriff's
                                                                                 sale for $10,300. The Waterfront Development Corporation
  Through a series of subsequent mergers, Big Four became                        purchased the real estate surrounding the bridge pylon on the
a part of the Penn Central Transportation Company (“Penn                         Kentucky side of the river in 1995. In 2000, Bridge the Gap
Central”). In 1968, Penn Central decided that due to its                         sold its interest in the bridge to Martingale for $400,000,
merger with the New York Central Railroad Company,                               retaining only the right to display holiday lights on the bridge
certain rail lines were surplus, and that continuing to operate                  for a ten-year period.2
these lines would be a “financial burden . . . and an undue
burden on interstate commerce.” The rail line crossing the                         Hoping to use the bridge as a pedestrian walkway as a part
bridge was one such line. A year later, the Interstate                           of the City's Waterfront Park, the City of Louisville passed a
Commerce Commission (“ICC”) approved Penn Central's                              resolution authorizing condemnation of the bridge on
application to abandon the bridge. In 1969, the rail line                        November 28, 2000. In April 2001, Bridge the Gap and
spanning the bridge was thus abandoned.1                                         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

    1
      The record is not clear on what exactly was abandoned. One way                 2
to read the record indicates that only the rail line was abandoned, and that           Because the sale contra ct was co ntingent upon the gra nt of certain
the ICC proceeding had no effect on the bridge. Another interpretation           perm its from the City and the Wa terfront Developm ent Corporation, the
holds that Penn Central abandoned the bridge when it abandoned the rail          sale may not have been consumm ated. Ho wever, Martingale app arently
line. Regard less, this amb iguity does not affect our resolution of the case.   has at least an equitable lien on the Bridge under the term s of the co ntract.
No. 02-5895             Martingale LLC, et al. v. City of       5    6      Martingale LLC, et al. v. City of           No. 02-5895
                                      Louisville, et al.                    Louisville, et al.

condemnation, an injunction restraining the City of Louisville         The City of Louisville and the Waterfront Development
and the Waterfront Development Corporation from                      Corporation respond by arguing that there are no issues of
condemning the bridge, compensatory damages, costs, and              material fact regarding any of the above-mentioned issues,
attorneys’ fees. In July 2001, the City filed suit in Kentucky       and that the district court correctly granted judgment in their
state court to condemn the bridge.                                   favor as a matter of law. Additionally, the City and the
                                                                     Waterfront Development Corporation say that the Anti-
   On June 5, 2002, the district court entered summary               Injunction Act, 28 U.S.C. § 2283, prohibits this Court from
judgment in favor of the City and the Waterfront                     enjoining a state court condemnation proceeding.
Development Corporation. The court reasoned that: (1) the
bridge is not in interstate commerce; (2) the Rivers and                 The Court analyzes these arguments below.
Harbors Act does not prohibit condemnation of the bridge; (3)
the bridge’s status as a post route does not prohibit                                  III. Standard of Review
condemnation; and (4) the plaintiffs’ alleged franchises had
been forfeited in 1969 when the ICC permitted Penn Central              An appellate court reviews a district court’s grant of
to abandon the bridge. Additionally, the district court held         summary judgment de novo. Doren v. Battle Creek Health
that even if the plaintiffs possessed the alleged franchises, this   Sys., 187 F.3d 595, 597 (6th Cir. 1999). Summary judgment
was no bar to condemnation because the City and the                  is appropriate where the evidence submitted shows “that there
Waterfront Development Corporation could condemn the                 is no genuine issue as to any material fact and that the moving
franchises and pay the plaintiffs reasonable compensation for        party is entitled to a judgment as a matter of law.” Fed. R.
them. Plaintiffs Martingale and Bridge the Gap now appeal            Civ. P. 56(c). The moving party has the initial burden of
the district court’s grant of summary judgment.                      showing the absence of a genuine issue of material fact as to
                                                                     an essential element of the non-moving party’s case. Waters
         II. Summary of the Parties’ Arguments                       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
   Martingale and Bridge the Gap argue that summary                  lawsuit. Daughenbaugh v. City of Tiffin, 150 F.3d 594, 597
judgment was inappropriate because they presented enough             (6th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477
evidence to the district court to create issues of material fact     U.S. 242, 248 (1986)).
with regard to: (1) whether the bridge is in interstate
commerce, and if so, whether the City’s attempt to condemn              Once the moving party satisfies its burden, the burden shifts
it is an impermissible burden on interstate commerce; (2)            to the non-moving party to set forth specific facts showing a
whether the bridge and any franchises to operate it were             triable issue. Matsushita Elec. Indus. v. Zenith Radio Corp.,
abandoned as a matter of law under the ICC’s procedures for          475 U.S. 574, 586 (1986). It is not sufficient for the non-
abandoning a rail line; (3) whether a municipality in                moving party merely to show some possibility of doubt as to
Kentucky can condemn a federal, Kentucky, or Indiana                 the material facts. Id.
franchise to own and operate bridge over the Ohio River; and
(4) whether the City of Louisville can condemn personal                In deciding a motion for summary judgment, the court
property for use in a park.                                          views the factual evidence and draws all reasonable
                                                                     inferences in favor of the non-moving party. National
No. 02-5895            Martingale LLC, et al. v. City of     7    8      Martingale LLC, et al. v. City of         No. 02-5895
                                     Louisville, et al.                  Louisville, et al.

Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997).          In response, Martingale and Bridge the Gap assert that the
Ultimately the Court must decide “whether the evidence            Anti-Injunction Act is inapplicable because they seek
presents sufficient disagreement to require submission to a       declaratory relief in addition to an injunction. Additionally,
jury or whether it is so one-sided that one party must prevail    they argue that the Anti-Injunction Act cannot apply because
as a matter of law.” Terry Barr Sales Agency, Inc. v. All-Lock    they requested that the injunction be directed against the City
Co., 96 F.3d 174, 178 (6th Cir. 1996) (internal quotations        and the Waterfront Development Corporation, not against the
omitted).                                                         state courts. Finally, Martingale and Bridge the Gap assert
                                                                  that the Anti-Injunction Act does not prohibit injunctions that
                        IV. Analysis                              forbid the commencement of state court proceedings.
  The City and the Waterfront Development Corporation               We now turn to these arguments, using the text of the Anti-
assert that even if Martingale and Bridge the Gap’s arguments     Injunction Act as a starting point. The Anti-Injunction Act
are meritorious, the federal Anti-Injunction Act, 28 U.S.C.       states in full:
§ 2283, barred the district court from granting the requested
relief. If the City and the Waterfront Development                    A court of the United States may not grant an injunction
Corporation are correct, then we need not reach the merits of         to stay proceedings in a State court except as expressly
the case with respect to Martingale and Bridge the Gap’s              authorized by Act of Congress, or where necessary in aid
claims for declaratory and injunctive relief. For this reason,        of its jurisdiction, or to protect or effectuate its
we open our analysis with this issue.                                 judgments.
  The district court did not address the Waterfront               28 U.S.C. § 2283. The Supreme Court has, on several
Development Corporation and the City’s Anti-Injunction Act        occasions, recognized that the Anti-Injunction Act creates “an
argument. Regardless, this Court may consider it. This            absolute prohibition against enjoining state court proceedings,
would be the case even if the parties did not raise the issue.    unless the injunction falls within one of three specifically
See, e.g., Gloucester Marine Rys. Corp. v. Charles Parisi,        defined exceptions.” Atlantic Coast Line R.R. Co. v. Bhd. of
Inc., 848 F.2d 12, 15 (1st Cir. 1988); Hickey v. Duffy, 827       Locomotive Eng’rs, 398 U.S. 281, 286-87, 90 S. Ct. 1739,
F.2d 234, 243 (7th Cir. 1987).                                    1743 (1970); see also Vendo Co. v. Lektro-Vend Corp., 433
                                                                  U.S. 623, 630-31, 97 S. Ct. 2881, 2886 (1977). These three
  According to the City and the Waterfront Development            exceptions, embedded within the statute’s text, permit
Corporation, the Anti-Injunction Act forbade the district court   injunctions against state court proceedings (1) where
from granting the relief that Martingale and Bridge the Gap       Congress expressly authorizes, (2) where necessary in aid of
requested. The City and the Waterfront Development                the court’s jurisdiction, and (3) where necessary to protect or
Corporation claim that the Anti-Injunction Act bars relief        effectuate the court’s judgments. See 28 U.S.C. § 2283.
because Martingale and Bridge the Gap seek injunctive relief
and because their claims do not fit into any of the Anti-           Martingale and Bridge the Gap fit into none of the Act’s
Injunction Act’s three exceptions.                                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.
No. 02-5895                 Martingale LLC, et al. v. City of               9    10   Martingale LLC, et al. v. City of           No. 02-5895
                                          Louisville, et al.                          Louisville, et al.

  Second, the injunction they seek is not necessary in aid of                      Finally, because there has been no prior federal court
the court’s jurisdiction. Courts have applied this second                        decision on the matter of the bridge, Martingale and Bridge
exception in only two scenarios: where the case is removed                       the Gap cannot show that an injunction would be “necessary
from the state court, and where the federal court acquires in                    to promote or effectuate [the court’s] judgments.”
rem or quasi in rem jurisdiction over a case involving real
property before the state court does. See, e.g., 17 Wright,                        Martingale and Bridge the Gap’s arguments against
Miller, & Cooper, Federal Practice & Procedure:                                  applying the Anti-Injunction Act are unavailing. They argue
Jurisdiction 2d § 4225, at 528 (1988); Erwin Chemerinsky,                        that the Anti-Injunction Act may bar their request for an
Federal Jurisdiction, §11.2.3, at 699-700 (3d ed. 1999).                         injunction, but not their claim for declaratory relief.
Neither of these scenarios applies in this case.3 Further, the                   Martingale and Bridge the Gap’s argument is clever, but
existence of a federal right not to have property taken without                  unpersuasive. Their ultimate goal is to halt the state court
just compensation does not render equitable relief necessary                     condemnation proceedings, a result that either an injunction
in aid of the federal courts’ jurisdiction. First of all,                        or a declaratory judgment would accomplish equally well.
Martingale and Bridge the Gap have failed to show a                              Other parties have tried this ruse, and most courts that have
violation of this right. Second, the Supreme Court has noted                     addressed this issue have rejected their argument. See, e.g.,
that “when a state proceeding presents a federal issue, even a                   Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788 (5th Cir.
pre-emptive issue, the proper course is to seek resolution of                    2000), cert. denied 530 U.S. 1274, 120 S. Ct. 2740 (2000);
that issue by the state courts.” Chick Kam Choo v. Exxon                         U.S. Steel Corp. Plan for Employee Ins. Benefits v. Musisko,
Corp., 486 U.S. 140, 149-50, 108 S. Ct. 1684, 1691 (1988).                       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);
    3
       Although this case does involve aspects of real property law,             Bledsoe v. Fulton Bank, 940 F. Supp. 804, 808 (E.D. Pa.
jurisdiction over these parties is based on in personam, rather than in rem,     1996). This Court follows the guidance of these courts and
principles. Therefore, the “in aid of jurisdiction” exception does not           determines that where, as here, declaratory relief would have
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 same practical effect as an injunction, the Anti-Injunction
the federal and state actio ns were based on in personam jurisdiction, and       Act precludes the court from granting a declaratory judgment.
noting that “[t]he traditional notion is that in personam actions in federal
and state court may proceed concurrently, without interference from                 Additionally, Martingale and Bridge the Gap argue that the
either court, and there is no evidence that the exception to § 2283 was          Anti-Injunction Act does not prevent a court from enjoining
intended to alter this b alance.”); see also In re Am. Ho nda Mo tor Co.,        the parties from commencing state court proceedings, as
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
                                                                                 opposed to enjoining the parties from proceeding with
is widely understood to apply most often when a federal court was the            already-filed state actions. They are correct. However, this
first in obtaining jurisdiction over a res in an in rem action and the same      is of no moment to the instant case because the City filed its
federal court seeks to enjoin suits in state courts involving the same res.”);   condemnation action in July 2001.                Because the
Ben nett v. Medtronic, Inc., 285 F.3d 801 , 806 (9th Cir. 2002) (indicating      condemnation action has been pending since that time, the
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).
                                                                                 Anti-Injunction Act prohibits any federal court from granting
                                                                                 the declaratory or injunctive relief that Martingale and Bridge
No. 02-5895            Martingale LLC, et al. v. City of    11    12       Martingale LLC, et al. v. City of        No. 02-5895
                                     Louisville, et al.                    Louisville, et al.

the Gap seek. In other words, an injunction issued anytime        The complaint alleges no further facts in support of this relief
after July 2001 would not prevent the parties from                and fails to allege any claim or theory of recovery for which
commencing state court litigation; it would stop the parties      plaintiffs seek compensatory damages or attorneys’ fees.4
from proceeding with existing state court litigation, which is    The complaint fails to allege a claim for intentional
exactly what the Anti-Injunction Act prohibits.                   interference with prospective contractual relations under
                                                                  Kentucky law. See Nat’l Collegiate Athletic Ass’n v.
  The Court finds support for this analysis in its own            Hornung, 754 S.W.2d 855, 858-59 (Ky. 1988) (requiring
precedent. In Roth v. Bank of the Commonwealth, 583 F.2d          allegations of an improper motive, consisting of malice or
527 (6th Cir. 1978), state court litigation commenced after the   some wrongful conduct on behalf of defendant). Likewise,
federal suit was filed. The district court relied on a Seventh    the complaint fails to allege a claim for a Takings Clause
Circuit precedent to grant an injunction.                         violation. See Williamson County Reg’l Planning Comm’n v.
                                                                  Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985)
  This Court reversed, concluding,                                (requiring an allegation of a deprivation of due process or a
                                                                  denial of fair compensation). Because this stray request for
  we are led inevitably to the conviction that the logic of       monetary relief is not accompanied by any alleged claim on
  [the Seventh Circuit’s opinion in] Barancik [v. Investors       which the relief could be based, our determination that the
  Finding Corp., 489 F.2d 933 (7th Cir. 1973)] (which in          Anti-Injunction Act bars declaratory and injunctive relief
  effect says that state proceedings which are commenced          concludes the case. It is unnecessary for us to reach the issues
  in fact are not commenced in law if commenced after the         on which the district court based its decision.
  time the judicial power of the federal court was invoked)
  amounts to precisely that type of judicial improvisation          We therefore AFFIRM the district court’s decision to grant
  which the Supreme Court has warned us to avoid.                 summary judgment in favor of the City of Louisville and the
                                                                  Waterfront Development Corporation.
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         4
and attorneys fees” is included elsewhere in the complaint.            Mo reover, the appellate briefs do not mention compensatory
                                                                  dama ges or attorney’s fees.
