United States District Court, S.D. Ohio, Western Division, Dayton
AND ENTRY: (1) DENYING PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT (DOC. 75); (2) GRANTING DEFENDANT'S
CROSS MOTION FOR SUMMARY JUDGMENT (DOC. 88) WITH REGARD TO
PLAINTIFFS' FEDERAL CLAIMS; (3) DECLINING TO EXERCISE
SUPPLEMENTAL JURISDICTION OVER PLAINTIFFS' REMAINING
STATE LAW CLAIMS; (4) DENYING WITHOUT PREJUDICE THE
PARTIES' REMAINING MOTIONS (DOCS. 102, 104, 113, 115,
116); (5) DENYING AS MOOT PLAINTIFFS' MOTION FOR LEAVE TO
EXCEED THE PAGE LIMITATION (DOC. 121); AND (6) DIRECTING THE
CLERK OF COURTS TO ENTER JUDGMENT ACCORDINGLY, REMAND THE
REMAINING STATE LAW CLAIMS TO THE COMMON PLEAS COURT OF MIAMI
COUNTY, OHIO, AND TERMINATE THE CASE ON THE COURT'S
MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 case, for which the parties have
consented, is before the Court on the parties' cross
motions for summary judgment; namely, Plaintiffs' motion
for partial summary judgment (doc. 75) and Defendant's
cross summary judgment motion (doc. 88). Also before the
Court are a number of other motions related to the summary
judgment briefing -- the City's motion to strike certain
exhibits (doc. 104), Plaintiffs' three motions to strike
certain evidence (docs. 102, 113, 116), and the City's
motion to disqualify counsel (doc. 115). All of the
motions are all fully briefed (docs. 91, 96, 101, 105, 108,
109, 111, 112, 114, 117, 118, 119, 120, 122, 123). The Court
has carefully considered all of the foregoing, including
proper Rule 56 evidence cited to by the parties, and these
motions are all ripe for decision.
case concerns, among other claims, alleged constitutional
violations by Defendant Tipp City, Ohio (“the
City”) with regard to development of the Cedar Grove
subdivision (“subdivision”) and, in particular,
issues concerning the electrical infrastructure proposed by
the City for the subdivision. The parties have submitted
hundreds of pages of arguments (docs. 75, 88, 91, 96, 101-02,
104-05, 108-09, 111-23), thousands of pages of deposition
testimony (docs. 72-74, 76-87, 93-95), as well as thousands
of pages of exhibits in support of their motions. See,
e.g., docs. 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82,
83, 84, 85, 86, 87, 88. The Court will summarize the facts
material to disposition of the pending motions herein.
plaintiffs now seek relief. Plaintiff Talismanic Properties,
LLC (“Talismanic”) owns a tract of real estate
within the City limits which consists of 42 lots available
for residential construction. Doc. 5 at PageID
Plaintiff Judith Tomb is Talismanic's general
manager.Id. Talismanic purchased the
subject property from another developer in 2013 (doc. 85 at
PageID 4843) and, thereafter, began the process of designing
the subdivision and obtaining the necessary approvals from
the City to commence development. Doc. 85 at PageID 4843-47.
2013, the City approved Plaintiffs' preliminary plan for
Cedar Grove and set a hearing for approval of Plaintiffs'
final plan later that month. Doc. 96-17 at PageID 6846.
Subsequently, on July 25, 2013, the City Planning Board
recommended approval of Plaintiffs' final plan.
Id. at PageID 6846-47.
Plaintiffs' final plan at that time was an electrical
extension agreement executed by Plaintiffs in which
Talismanic agreed to pay the City $142, 721.00 for an
electrical extension to the subdvision. See doc.
85-5 at PageID 5056-57. The cost for the electrical extension
was originally estimated by the City in July 2013 and
communicated to Plaintiffs at or about that time. Doc. 79-5
at PageID 3823-24. On July 25, 2013, Plaintiffs advised the
City that the electrical extension cost was excessive and
appeared “‘to be an ‘exaction' by the
City which may be illegal.” Doc. 85-4 at PageID 5055.
Plaintiffs requested additional detail regarding the cost of
the extension on August 5, 2013 (doc. 85-2 at PageID 5050)
and, on August 9, 2013, Plaintiffs advised the City that
construction documents could not be executed because,
inter alia, “the financial burden” of
the electrical extension “is too great for . . . the
developer . . . to bear[.]” Doc. 85-3 at PageID 5052.
As further explained by Plaintiffs on that date, “[t]he
project simply cannot go forward until there is an
economically viable resolution on the electrical
on August 30, 2013, Plaintiffs signed the electrical
extension agreement, agreeing, inter alia, “to
pay to the city the sum of $142, 721.00[.]” Doc. 85-5
at PageID 5056. When asked why she signed the agreement on
behalf of Talismanic, Judith Tomb testified that she
“had no alternative” after being “told
point blank by Brad Vath of the City of Tipp City that if I
did not sign it, the project would stop right then and there
and no use would be made of the land.” Doc. 85 at
PageID 4871-72. The electrical extension agreement was made
part of Plaintiffs' Subdivision Construction Agreement
with the City executed on July 15, 2014 and subsequently
submitted to the City Council for approval by ordinance.
See doc. 96-17 at PageID 6848; see also
doc. 96-17 at PageID 6938-39.
ordinance to approve the Plaintiffs' final plan and the
Subdivision Construction Agreement was placed on the City
Council agenda for July 21, 2014, where it had its first
reading. Doc. 96-17 at PageID 6848. The ordinance had its
second reading at a City Council meeting on August 4, 2014
and, immediately thereafter, the City Council President
called for a second to the motion to approve the ordinance.
Id. at PageID 6849. When the motion was not
seconded, the ordinance was declared dead. Id.
failure of the ordinance, Talismanic filed suit against the
City in the Common Pleas Court of Miami County, Ohio on
August 18, 2014 (hereinafter referred to as “the first
lawsuit”). See doc. 85-6. The pleadings were
subsequently amended in November 2014 to add Tomb among the
plaintiffs to that case. Doc. 96-17 at PageID 6843. The
claims asserted by Plaintiffs against the City in the first
lawsuit included, inter alia, a petition for a writ
of mandamus in which Plaintiffs sought to compel the City
“to (1) reverse the wrongful de facto
denial/rejection of the ordinance and the failure to pass the
ordinance [on August 4, 2013] and (2) approve the ordinance
immediately.” Id. at PageID 6854
(capitalization omitted). In that first lawsuit, Plaintiffs
did not seek relief as a result of an alleged taking arising
out of the electrical cost demand. Doc. 96-17. The parties
ultimately settled their dispute and, in March 2015, the
Common Pleas Court dismissed the first lawsuit with
prejudice. Doc. 84-1 at PageID 4810-11. As part of that
settlement, the City, by a 2015 ordinance, approved
Plaintiffs' electrical extension. See doc. 5 at
dismissal of the first lawsuit, a number of other disputes
arose between the parties regarding development of the
subdivision and the cost of the electrical extension.
See doc. 5 at PageID 145-51. In June 2016,
Plaintiffs filed the instant suit against the City --
i.e., the second lawsuit between the same parties --
in the Miami County Common Pleas Court. See id.
Seeking relief under § 1983, Plaintiffs claim in the
second lawsuit that: (1) application of City Ordinance §
155.03(F) deprives them of due process of law guaranteed by
the Fourteenth Amendment; (2) the City's excessive fee
demand constitutes a taking without just compensation in
violation of the Fifth Amendment; and (3) the City's fee
demand also violates Plaintiffs' right to equal
protection under the Fourteenth Amendment. Doc. 5 at PageID
157. Seeking relief under state law and via the Court's
supplement jurisdiction, see 28 U.S.C. § 1367,
Plaintiffs also claim in the second lawsuit that the City
violated their right to due process under the Ohio
Constitution, breached the parties' construction
agreement, and tortuously interfered with Plaintiffs'
business relationships with others. Doc. 5.
2016, the City timely removed Plaintiffs' complaint to
this Court on the basis of federal question jurisdiction.
Doc. 1. It is this complaint from the second ...