United States District Court, N.D. Ohio, Eastern Division
OHIO PROPERTIES, LLC. Plaintiff and Counterdefendant,
CITY OF CLEVELAND, Defendant and Counterclaimant.
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon Defendant City of
Cleveland's Motion for Summary Judgment (ECF DKT #13) and
Plaintiff Ohio Properties, LLC's Motion for Summary
Judgment (ECF DKT #28). For the following reasons, the Court
grants Defendant's Motion for Summary Judgment and denies
Plaintiff's Motion for Summary Judgment.
is engaged in the business of buying and rehabilitating
deteriorated properties to sell or rent. Id. at 5.
Plaintiff acquired the property at 6905 Clement Avenue,
Cleveland, Ohio 44105, from the State of Ohio on September
20, 2010. Id. In September 2012, Defendant provided
Plaintiff with a condemnation and demolition order for this
property which provided that the property could be demolished
in thirty days if not brought up to code. (ECF DKT #13 at 4).
Plaintiff did not contest the condition of the property. (ECF
DKT #28 at 5).
2013, Plaintiff received permits to do the work required by
the condemnation notice. (ECF DKT #13 at 4). The permits were
granted for a term of one year. Id. In March 2014,
Defendant did a “rough in” inspection of the
property and found that Plaintiff was in partial compliance
with only the electrical rehabilitation required by the
condemnation notice. Id. In July 2014, the
rehabilitation permits expired and Plaintiff never sought new
permits. Id. In September 2015, the permits were
closed as noncompliant. Id.
September 2015, following the closing of the permits,
Defendant sent an asbestos inspector to the property.
Id. Photographs taken by the inspector during the
inspection at 6905 Clement Avenue showed that the property
was still not habitable. Id. Upon this finding,
Defendant boarded up the house and prepared for demolition.
Id. at 5. Plaintiff's agents admit that the
repairs required by the condemnation notice were not complete
at this time. (ECF DKT #28 at 6). Plaintiff also failed to
contact Defendant about the property at any time following
Defendant's boarding up of the property. Id. at
5. Defendant demolished the property on October 29, 2015.
Plaintiff's Complaint, three counts are alleged,
including: (1) deprivation of property without due process of
law in violation of the Fifth and Fourteenth Amendments to
the United States Constitution; (2) taking without just
compensation in violation of the Fifth and Fourteenth
Amendments to the United States Constitution; and (3)
conversion. Both Plaintiff and Defendant have filed a Motion
for Summary Judgment. (ECF DKT #1, Exhibit 3).
56(a) of the Federal Rules of Civil Procedure provides that
the Court shall grant summary judgment if the moving party
“shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. Pro. 56(a). In asserting
that a material fact can or cannot be genuinely disputed, a
party must support that assertion by either citing to
materials contained in the record or show that the materials
cited to do or do not create a genuine issue or material
fact. Fed. R. Civ. Pro. 56(c)(1). In its consideration of a
motion for summary judgment, the Court need only consider
those materials cited in the motion. Fed. R. Civ. Pro.
56(c)(3). The trial court is not required to search the
entire record to establish that a genuine issue of material
fact exists. Tucker v. Tennessee, 539 F.3d 526, 531
(6th Cir. 2008) (citing Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Further,
“if a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact as required by Rule 56(c), ” the
court may determine that that fact is undisputed. Fed. R.
Civ. Pro. 56(e)(2).
Plaintiff's Due Process Claim
parties have moved for summary judgment on Plaintiff's
due process claim. In its Complaint, Plaintiff alleges that
Defendant violated its due process rights when it demolished
Plaintiff's property at 6905 Clement Avenue. In order to
be successful in a procedural due process claim, Plaintiff
must establish that it: 1) had a life, liberty or property
interest protected by the Due Process Clause, 2) was deprived
of the protected interest and 3) the state “did not
afford him adequate procedural rights.” Daily
Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir.
2014) (citing Women's Med. Prof'l Corp. v.
Baird, 438 F.3d 595, 611 (6th Cir. 2006)). In cases
concerning real property, “due process does not require
that a property owner receive actual notice before the
government may take his property.” Jones v.
Flowers, 547 U.S. 220, 226 (2006). The Supreme Court has
instead stated that due process only requires that the
government provide “notice reasonably calculated, under
all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.” Mullane v. Central
Hanover Bank & Trust Co. et. al., 339 U.S. 306, 314
undisputed that in September 2012, Defendant notified
Plaintiff that its property at 6905 Clement Avenue was
condemned. It is also undisputed that the condemnation notice
allowed Defendant to demolish the property after thirty days
if the property was not brought up to code. Plaintiff admits
that the condemnation and demolition notice provided
Plaintiff with the opportunity to appeal but Plaintiff did
not do so. Three years later in September 2015, Defendant
sent an inspector to the property. Based on the photos taken
during the inspection, Ayonna Donald, the Interim Director of
the City of Cleveland Department of Building and Housing,
determined that the structure was not habitable. After making
this determination, Defendant demolished the property on
October 29, 2015.
argues, however, that as of September 2015, it had satisfied
the requirements put in place by the Housing Court for this
property. Plaintiff's allegations regarding the Housing
Court are without merit as Plaintiff fails to cite any
evidence from the Housing Court and instead wholly relies on
its own unsubstantiated evidence. Plaintiff's Motion for
Summary Judgment is completely devoid of any documents,
orders or records from the Housing Court. As the trial court
is not required to search the record to establish that a
genuine issue of material fact exists, it follows that the
Court is not obligated to search beyond the record for those
documents on which Plaintiff relies. Although not obligated
to do so, the Court did in fact search the Housing
Court's docket and was unable to verify Plaintiff's
representations. Further, Plaintiff fails to allege that
compliance with a Housing Court order would prevent Defendant