MBM HOLDINGS LLC and BRET EULBERG v. CITY OF GLENDALE and COLLIN JOHNSON

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 22, 2020
Decided February 8, 2021
Before
DIANE S. SYKES, Chief Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 20-1286
MBM HOLDINGS LLC and
BRET EULBERG,
Plaintiffs-Appellants,
v.
CITY OF GLENDALE and
COLLIN JOHNSON,
Defendants-Appellees.
Appeal from the
United States District Court for the
Eastern District of Wisconsin.
No. 19-CV-366-JPS
J. P. Stadtmueller,
Judge.
O R D E R
Bret Eulberg purchased a dilapidated commercial building in Glendale,
Wisconsin, but he did not have it professionally inspected before he bought it. He let
the building sit vacant and unrepaired for two years. At that point Collin Johnson, the
City’s Building Inspector, conducted two inspections and ordered Eulberg to raze or
repair the building within 90 days. The City eventually overruled him and lifted the
order. Apparently not satisfied, Eulberg sued Johnson and the City under 42 U.S.C.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-1286 Page 2
§ 1983 alleging an equal-protection claim against both defendants and a “policies and
practices” claim against the City; he also alleged several state-law claims.
Ruling on the defendants’ summary-judgment motion, the judge expressed
frustration with the general incoherence of Eulberg’s complaint and the muddled and
conclusory nature of his response to the motion. But the judge labored to construct what
he thought was the gist of the equal-protection claim; he also thought he saw a due-
process claim lurking under the surface. In the end, the judge entered summary
judgment for the defendants across the board and terminated the case. Eulberg
appealed, challenging only the judge’s due-process ruling.
We affirm. Eulberg did not mention a due-process violation in his complaint or
develop such a claim in his summary-judgment brief. That’s a waiver. The judge’s
charitable reading of his incoherent filings does not excuse Eulberg’s failure to plead
and support a due-process claim.
I. BACKGROUND
In September 2015 Eulberg purchased an abandoned commercial building in
Glendale through his company MBM Holdings LLC. (MBM is also a named plaintiff but
is irrelevant for purposes of this appeal.) Although Eulberg knew the building needed
repairs, he did not have it professionally inspected. The building sat vacant until
Eulberg leased it in September 2017. He assigned all responsibility for repairs to his
tenant.
Johnson worked as the Director of Inspection Services for the City for over a
decade. In July 2017 and again a few weeks later, Johnson inspected Eulberg’s building.
He concluded that it needed repairs costing over 50% of the building’s value. That
conclusion triggered a presumption under Wisconsin law that the building may be a
raze candidate.
Two months later Johnson sent Eulberg a raze order. The order directed Eulberg
to raze or repair the building within 90 days, listed numerous maintenance deficiencies,
demanded that occupancy cease, warned of possible fines, and described the procedure
for obtaining judicial review. Eulberg told his tenant to fix the building, but he neither
contacted Johnson nor sought judicial review.

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No. 20-1286 Page 3
Several months later and at the City’s behest, Eulberg obtained a professional
inspection of the building. The private inspector sharply disagreed with Johnson’s
conclusions, leading the City to voluntarily rescind the raze order.
Dissatisfied with this resolution, Eulberg hired an attorney and sued Johnson
and the City for damages under § 1983 and state law. The complaint alleged two federal
claims: an equal-protection claim against both defendants and a “policies and practices”
claim against the City. The complaint also raised four state-law claims. The words “due
process” appear nowhere in the complaint, nor is there any language suggestive of a
claim for due process.
Johnson and the City moved for summary judgment on all claims. Despite the
complaint’s silence on a due-process theory of relief, they suspected based on discovery
that Eulberg may be trying to bring such a claim. Their motion thus protectively
attacked the validity of any due-process claim Eulberg might attempt to raise in his
response to the motion.
As it turned out, however, Eulberg did not develop a due-process argument. A
reference to “due process” appears in a heading in his response brief, but he did not
explain how the defendants violated his due-process rights. He did not assert a
deprivation of a protected interest, contest the adequacy of state-law procedures, or cite
a single legal authority to support a due-process claim. Rather, this section of his brief
concerns the policy-or-practices claim against the City under Monell v. Department of
Social Services of New York, 436 U.S. 658 (1978).
In his decision granting the defendants’ motion, the judge repeatedly expressed
his exasperation with Eulberg’s incoherent filings. He generously described the
complaint as “far from a model of clarity,” and mostly looked to Eulberg’s summary-
judgment response to ascertain what claims he was trying to raise against the
defendants. That did not help much either. The judge excoriated Eulberg’s brief as “so
poor that the [c]ourt is left to consider finding all of [Eulberg’s] arguments
underdeveloped and thus waived.” Nonetheless, the judge addressed the equal-
protection claim mentioned in the complaint, and he also endeavored to construct
possible procedural and substantive due-process claims that Eulberg might be trying to
raise. He then entered summary judgment for the defendants on all claims because they
lacked factual or legal support (or both).

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No. 20-1286 Page 4
II. DISCUSSION
Eulberg’s briefing on appeal is limited to the judge’s due-process ruling. We take
that as an abandonment of all other claims. The defendants respond that Eulberg
waived any possible due-process claim by failing to allege one in his complaint and
support it with evidence and law at summary judgment. We agree.
“It is a well-established rule that arguments not raised to the district court are
waived on appeal.” Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).
Conclusory and underdeveloped arguments are likewise waived. Id. Though the judge
went out of his way to construct possible due-process theories when Eulberg’s counsel
failed to do so, we need not be so forgiving. It is the responsibility of the litigants to
raise coherent legal claims, produce factual support, and develop reasoned arguments
supported by citation to legal authority. Soo Line R.R. Co. v. Consol. Rail Corp., 965 F.3d
596, 602 (7th Cir. 2020); Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718,
721 (7th Cir. 2008).
Eulberg’s complaint does not contain even a whiff of a due-process claim.
Indeed, the words “due process” are nowhere to be found. The sweeping allegation that
the defendants’ conduct was “unconstitutional” is not enough to preserve a due-process
claim. See In re Veluchamy, 879 F.3d 808, 821 (7th Cir. 2018) (“A party waives the ability
to make a specific argument for the first time on appeal when the party failed to present
that specific argument to the district court, even though the issue may have been before
the district court in more general terms.” (quotation marks and alterations omitted)); cf.
Econ. Folding Box Corp., 515 F.3d at 720–21 (“A plaintiff cannot rely on the entire UCC
and leave it to the court to determine what code sections apply to her claim.”).
The barebones argument in Eulberg’s summary-judgment response was not an
improvement. He offered no supporting legal authority, did not discuss a deprivation
of a protected interest, and failed to mount a challenge to existing state-law procedures.
We have repeatedly held that unsupported, underdeveloped, and conclusory
arguments are not sufficient to preserve review. See Soo Line R.R. Co., 965 F.3d at 601;
Dorris v. Unum Life Ins. Co. of Am., 949 F.3d 297, 306 (7th Cir. 2020); Betco Corp. v. Peacock,
876 F.3d 306, 309 (7th Cir. 2017); Puffer, 675 F.3d at 718.
When we raised the issue of waiver at oral argument, Eulberg’s counsel argued
that because the defendants and the judge recognized a due-process claim in Eulberg’s
filings, we should likewise address it. We disagree. The defendants’ due diligence and
the judge’s charity do not excuse Eulberg’s failure to raise an intelligible due-process

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claim in the first instance. See Price v. Bd. of Educ., 755 F.3d 605, 608 (7th Cir. 2014);
Puffer, 675 F.3d at 719. “It is not the court’s responsibility to research the law and
construct the parties’ arguments for them.” Econ. Folding Box Corp., 515 F.3d at 721.
Eulberg chose to limit his lawsuit to an equal-protection theory and state-law claims
and to jettison those claims after he lost. We hold him to those choices. See Builders NAB
LLC v. FDIC, 922 F.3d 775, 778 (7th Cir. 2019).
We conclude by addressing Eulberg’s Monell claim against the City. The first step
in a Monell claim is proving a constitutional violation. E.g., Walker v. Wexford Health
Sources, Inc., 940 F.3d 954, 966 (7th Cir. 2019). Having abandoned his equal-protection
claim on appeal and waived any possible due-process claim, Eulberg cannot do so.
Litigants and lawyers who “do not do their legal research until after losing in the
district court have wasted a judge’s valuable time.” Builders, 922 F.3d at 778. That is
precisely what happened here.
AFFIRMED

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