The opinion of the court was delivered by: Judge Solomon Oliver, Jr.
Currently pending before the court is the Motion of Defendants City of Broadview Heights (the "City"), City of Broadview Heights Police Department (the "Police Department"), Officer Ryan Tieber ("Tieber"), Officer Michael Semanco ("Semanco"), Officer Scott Zimmerman ("Zimmerman"), Officer Rob Novotny ("Novotny"), Chief Roberty Lipton ("Lipton"), Lt. Steve Kopniske ("Kopniske"), and Sgt. Tim Scarbrough ("Scarbrough"), (collectively, the "Defendants"), to Amend this court's Order ruling on Defendants' Motion for Summary Judgment. (ECF No. 58.) For the following reasons, the court grants Defendants' Motion.
This case arises out of the August 16, 2007 death of William Parker Martin, following his arrest by Officer-Defendants Tieber, Semanco and Zimmerman. (Compl, ECF No 1-1.) On August 18, 2008, Plaintiffs filed a thirteen (13) Count Complaint asserting the following claims: (1) Count One: Assault against Defendants Tieber, Semanco, Zimmerman, and/or Novotny; (2) Count Two:
Battery against Defendants Tieber, Semanco, Zimmerman, and/or Novotny; (3) Count Three: Deprivation of Civil Rights: Unreasonable Seizure, Unreasonable/Unnecessary/Excessive Force against Defendants Tieber, Semanco, Zimmerman, and/or Novotny; (4) Count Four: Unlawful Restraint against Defendants Tieber, Semanco, Zimmerman, and/or Novotny; (5) Count Five: Negligence against Defendants Tieber, Semanco, Zimmerman, and/or Novotny; (6) Count Six: Negligent Hiring/Training/Supervision against Defendants City, Police Department, Chief Lipton; Lt. Kopniske, and Sgt. Scarbrough; (7) Count Seven: Loss of Consortium against all Defendants; (8) Count Eight: Vicarious Liability/Respondeat Superior against the City; (9) Count Nine: Infliction of Emotional Distress against all Defendants; (10) Count Ten: Supervisory Liability against Defendants Tieber, Semanco, Zimmerman, Novotny, Chief Lipton, Lt. Kopniske, and Sgt. Scarbrough; (11) Count Eleven: Wrongful Death against all Defendants; (12) Count Twelve: Survivorship against all Defendants; and (13) Count Thirteen: Punitive Damages against all Defendants. (Compl. ECF No. 1-1.) Additionally, Plaintiff named John Doe Defendants with respect to Counts Six, Eight, Nine, Ten, Eleven, Twelve, and Thirteen. The facts of the case are set forth in this court's August 18, 2011 Order deciding Defendants' Motion for Summary on August 16, 2007.
On August 15, 2010, Defendants filed their Motion for Summary Judgment (ECF No. 51), which this court granted in part and denied in part in its August 18, 2011 Order. (Order, ECF No. 57.) The court's Conclusion stated as follows: The court hereby grants in part and denies in part Defendants' motion for summary judgment. (ECF No. 51.) The court grants summary judgment in favor of Defendants for Counts Four, Five, Eight, Nine to the extent the claim is based on negligence, Ten, and Eleven, to the extent the claim is based on negligence. The court grants summary judgment in favor of Defendant Novotny for all counts against him, which are Counts One, Two, Three, Four, Seven, Eleven, Twelve, and Thirteen. Pertaining to Defendants Tieber, Semanco, and Zimmerman, the court denies summary judgment on Counts One, Two, Three, Nine, Eleven, Twelve, and Thirteen, and grants summary judgment in their favor on Counts Four. Pertaining to Defendants Lipton, Kopniske, and Scarbrough, the court grants summary judgment in their favor on all counts pled against them. Pertaining to the City, the court denies summary judgment on Counts Six and Thirteen and grants summary judgment in its favor on all other counts pled against it. (Order at 34--35.)
On August 25, 2011, Defendants filed the instant Motion seeking the following amendments to the Order:
1. The Conclusion, which states that, "[p]ertaining to the city, the court denies summary judgment on Counts Six and Thirteen [punitive damages]" (Order at 35), should be amended to comport with Section IV-C of the Order which notes that "[p]unitive damages can not be awarded against a municipality." (Id. at 33.)
2. The Conclusion should be amended to specify that summary judgment is entered in favor of the Police Department on all counts, to reflect the court's determination in Section IV-A that, "the Police Department is not a proper defendant because it is not an entity separate from the City." (Id. at 10.)
3. The Order should be amended to specify that John Doe I, John Doe II, and John Doe III are dismissed as parties because Defendants "provided authority why the John Does should be dismissed, and the Plaintiff has not opposed such dismissal."
4. The Order should be amended to specify the remaining Counts. Defendants assert that their understanding of the Order is that Counts One, Two, Three, Seven, Eleven, Twelve, and Thirteen have survived as against Officers Semanco, Tieber, and Zimmerman; and that Count Six has survived against the City.
(Defs.' Br. in Supp. of Mot. to Amend Order at 2, ECF No. 58-1.)
On September 1, 2011, Plaintiffs filed their Opposition to Defendants' Motion (ECF No. 59), objecting only to the fourth proposed amendment, arguing that "Defendants are incorrect in believing that this Honorable Court granted summary judgment against the Plaintiffs on all of the claims asserted by Plaintiffs in Counts Eight and Nine of their Complaint." (Pls.' Br. in Opp'n at 2, ECF No. 59.) Specifically, Plaintiffs contend that the court dismissed Counts Eight and Nine ...