The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
This matter is before the Court for consideration of Defendant Grove City's motion to dismiss (Doc. # 34), Plaintiffs' memorandum in opposition (Doc. # 43), and Defendant Grove City's reply memorandum (Doc. # 44). For the reasons that follow, this Court finds the motion not well taken.
Plaintiffs are a assembly of corporate entities doing business as various hotels and lodging establishments in and around Grove City, Ohio that have taken issue with Defendant Grove City's 2003 amendment of a 1986 ordinance that purported to expand the boundaries of a community reinvestment area ("CRA"). This CRA allowed Defendant Drury Inn to enjoy a 15-year tax abatement related to the construction of a new hotel on property purchased from Defendant Bob Evans, which also received an abatement for the construction of a new restaurant. Asserting that they are at a competitive disadvantage, Plaintiffs contend that they are unable to take advantage of the abatement unless they undertake remodeling or construct new improvements upon their properties.
Plaintiffs therefore filed an action against the previously identified defendants, as well as other defendants, in the Franklin County Court of Common Pleas on September 27, 2006. (Doc. # 2-3.) The majority of the defendants subsequently joined in the removal of the action to this Court on October 20, 2006. (Doc. # 2-1.)
On December 6, 2006, Plaintiffs filed a motion for leave to file an amended complaint. (Doc. # 29.) Plaintiffs sought to add new claims against Grove City arising from the alleged violation of the following Ohio statutes: Ohio Rev. Code § 3735.66, which outlines procedural and filing requirements involved in the creation of CRAs (Count Five); Ohio Rev. Code § 149 et seq., the Ohio Public Records Act, and Ohio Rev. Code §§ 121 et seq. and 149 et seq., setting forth the Ohio Records Retention Schedule (Count Thirteen); and Ohio Rev. Code § 121 et seq., the Ohio Open Meetings Act (Count Fourteen). Grove City filed a memorandum in opposition to the motion to amend. (Doc. # 34.)
In a December 28, 2006 Order, the Magistrate Judge granted the motion to amend. (Doc. # 35.) On January 4, 2007, however, the Magistrate Judge held a preliminary pretrial conference in which he took the unusual step of converting Grove City's prior memorandum in opposition into a motion to dismiss. (Doc. # 38, at 4.) The parties have completed briefing on this motion to dismiss, and the converted motion is now ripe for adjudication.
Grove City moves to dismiss Plaintiffs' amendments pursuant to Federal Rule of Civil Procedure 12(b)(6). Dismissal is warranted under that rule " 'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.' " Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)), cert. denied, 520 U.S. 1251 (1997)). The focus is not on whether Plaintiffs will ultimately prevail, but rather on whether they have offered " 'either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.' " Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)).
In making such a determination, the Court must " 'construe the complaint liberally in the plaintiff's favor and accept as true all factual allegations and permissible inferences therein.' " Sistrunk, 99 F.3d at 197(quoting Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994)). The Court need not, however, accept conclusions of law or unwarranted inferences of fact. Perry v. American Tobacco Co., Inc., 324 F.3d 845, 848 (6th Cir. 2003). The Court may also consider matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint. Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001).
A. Failure to Comply with Filing and Procedural Requirements
In Count Five of the amended complaint, Plaintiffs assert that the 2003 Ordinance is void because Grove City failed to comply with Ohio Rev. Code § 3735.66 and "other [Ohio Department of Development] filing and procedural requirements." (Doc # 36-1 ¶ 119.) Grove City moves to strike this count on the grounds that because § 3735.66 does not provide for a private cause of action, this Court cannot grant relief for a violation of that statute. The city also posits that the claim is ...