The opinion of the court was delivered by: Sandra S. Beckwith, Chief Judge United States District Court
Before the Court are several pending motions. The first is Defendant's motion for leave to file an amended answer, to assert the affirmative defense of qualified immunity. (Doc. 9) Plaintiff opposes the motion, arguing defendants have waived this defense by not timely asserting it, citing Fed. R. Civ. P. 12(h). (Doc. 13)
Rule 12(h) requires that four specific defenses (personal jurisdiction, improper venue, insufficient process, or insufficient service of process) be asserted in a pre-answer Rule 12 motion, if those defenses are available at the time the motion is filed. These defenses may be waived if not asserted in a Rule 12 motion or in a responsive pleading. Qualified immunity is not one of the enumerated Rule 12(h) defenses.
Rule 12(g)(2) states that if a party makes a Rule 12 motion, it must assert its available affirmative defenses in that motion, and may not assert them in a subsequent Rule 12 motion, except as provided in Rule 12(h). Defendants did not file a Rule 12 motion to dismiss before they filed their motion for leave to amend their answer.
In English v. Dyke, 23 F.3d 1086 (6th Cir. 1994), the Sixth Circuit reversed a district court's order that defendants, various prison officials, waived qualified immunity by failing to assert it in their initial motion to dismiss. After the district court denied that motion, defendants raised qualified immunity in their answer. They then filed a second Rule 12 motion based on immunity. The district court found the defendants had waived immunity by failing to argue it in their first motion. The Sixth Circuit reversed, holding that qualified immunity may be raised at any stage of the case.
While an immunity defense, as with other affirmative defenses, may be waived by a party's undue delay, the Court finds that no undue delay or dilatory conduct occurred here. Plaintiff filed its complaint and motion for injunctive relief on December 18, 2007. The same day Plaintiff withdrew its motion for a temporary restraining order, and Defendants filed their answer on January 18, 2008. Since then, this case has essentially been dormant, and Plaintiff pursued an administrative appeal in the Ohio courts. Plaintiff does not identify any actual prejudice that would result from Defendants' assertion of qualified immunity at this juncture of the case.
Defendants' motion for leave to file an amended answer is therefore granted. Plaintiff's motion to strike (Doc. 14) is denied for the same reasons.
Defendants' Motion to Dismiss
After filing the motion to amend their answer, Defendants filed a motion to dismiss the complaint (Doc. 11), which Plaintiff opposes. (Doc. 12) Defendants argue that Plaintiff's constitutional claims are not ripe or fatally flawed, and that Defendants are immune from suit.
The following facts appear to be largely undisputed based upon the pleadings to date. Plaintiff purchased a nursing home/assisted living facility from a bankruptcy estate. Plaintiff applied for a "certificate of need" to rebuild the outdated facilities, which was granted by the Ohio Department of Health. Plaintiff's plan was to tear down another building (used for assisted living facilities) on the site and build a new nursing home facility, then move the existing residents into the new building. After this was accomplished, Plaintiff intended to demolish the old nursing home and build a new assisted living facility; assisted living changes or alterations do not require a certificate of need.
A "certificate of need" is an approval from the state to conduct a "reviewable activity." Ohio Rev. Code §3702.51(S) defines "reviewable activity" to include:
(1) The establishment, development, or construction of a new long-term care facility;
(2) The replacement of an existing long-term care facility;
(3) The renovation of a long-term care facility that involves a capital expenditure of two million dollars or more, not including expenditures for equipment, staffing, or operational costs;
(4) Any of the following changes in long-term care bed capacity:
(a) An increase in bed capacity; (b) A relocation of beds from one physical facility or site to another, excluding the relocation of beds within a long-term care facility or among buildings of a long-term care facility at the same site; (c) A recategorization of hospital beds registered under section 3701.07 of the Revised ...