United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss (Doc. 10), Plaintiff's Motion for Leave to File
Amended Complaint (Doc. 13), and Plaintiff's Second
Motion for Leave to File Amended Complaint (Doc. 24). For the
reasons that follow, Plaintiff's Second Motion for Leave
to File Amended Complaint (Doc. 24) is
GRANTED conditioned on the terms set forth
in this Opinion and Order. Further, Defendants' Motion to
Dismiss (Doc. 10) and Plaintiff's First Motion for Leave
to File Amended Complaint (Doc. 13) are DENIED as
case concerns construction work performed by Defendants on
Plaintiff's driveway. Plaintiff is the current owner and
prior tenant of 6310 Riverside Drive in Dublin, Ohio. (Doc.
24, Proposed Am. Compl., ¶ 2). Defendants are the City
of Dublin, Ohio and Dana McDaniel, Dublin's City Manager.
(Id. at 1).
2015, Plaintiff entered into a three-year lease (the
“Lease”) with an option to purchase the property
at 6310 Riverside Drive (the “Property”).
(Id., ¶ 15). Riverside Drive is a major road
connecting Defendant Dublin to downtown Columbus, Ohio. In
relevant part, it runs North-South along the Scioto River.
The Property abuts Riverside Drive on the east side and is
just south of the intersection of Riverside Drive and State
Route 161. The Property's driveway runs East-West to
provide ingress and egress to Riverside Drive.
months later in September 2015, Defendant Dublin "sued
to appropriate a permanent bike path easement and a temporary
construction easement" on the Property. (Id.,
¶ 17). The parties-along with the then current owner of
the Property, Karen Friedman-litigated the appropriation in
the Franklin County Court of Common Pleas, Ohio Tenth
District Court of Appeals, and Ohio Supreme Court (the
"State Court Action"). (Id., ¶¶
17-22, 34, 37-39).
the State Court Action was pending, in November 2015,
Defendant Dublin began construction on the Property and
"over several months, cleared and regraded the property;
constructed a wall separating the property from the bike path
and the street that obstructed visibility of pedestrians and
bicycles on the bike path, and vehicles on Riverside Drive;
and removed the existing driveway access to Riverside
Drive." (Id., ¶ 11). According to
Plaintiff, the driveway was not part of the appropriation
litigated in the State Court Action. (Id., ¶
here is the portion of Plaintiff's driveway and related
improvements in between Riverside Drive to the west and the
bike path to the east (the “Driveway”). (See
id., ¶ 2 (“The section of driveway, at issue,
is in the right of way granted for a highway
easement.”)). A highway easement on the Property
encompasses the Driveway. (Id.). In removing the
Driveway, Defendant Dublin “relocated the driveway
without notice or an opportunity to be heard” and
“failed to comply with its Codified Ordinances
regarding driveway improvements and Ohio Department of
Transportation requirements regarding driveway access on
State highways.” (Id., ¶ 12). Defendant
Dublin subsequently altered the Driveway on two additional
occasions in 2016, changing the grade of the land and moving
the Driveway itself. (Id., ¶¶ 42-44).
result of Defendant Dublin's actions, Plaintiff alleges,
the Driveway “is unsafe.” (Id., ¶
48). And “[a] vehicle entering from Riverside Drive and
ascending to the bike path cannot see anyone approaching the
driveway from the south.” (Id.). Plaintiff
further alleges that the Driveway's slope does not meet
ODOT's maximum recommended driveway slope or recommended
maximum intersection angle. (Id., ¶ 49).
filed a four-count Complaint under 42 U.S.C. § 1983 on
November 2, 2018. (Doc. 2). It alleged violations of its
Fourth, Fifth, and Fourteenth Amendment rights based on
Defendants' alleged seizure and removal of the Driveway.
(See generally id.). Defendants subsequently filed a
Motion to Dismiss (Doc. 10), and Plaintiff filed a Motion for
Leave to File Amended Complaint (Doc. 13).
the Supreme Court issued its decision in Knick v. Twp. of
Scott, Pennsylvania, 139 S.Ct. 2162 (2019), Plaintiff
filed its Second Motion for Leave to File Amended Complaint
(Doc. 24). That Motion seeks to add a takings claims
consistent with Knick in addition to its procedural
and substantive due process claims under the Fourteenth
Amendment. (Doc. 24, ¶¶ 68-76). It also drops two
claims included in the original Complaint (Doc. 2) and the
initial proposed Amended Complaint (Doc. 13): a Fourth
Amendment claim for illegal seizure of property and a
Fourteenth Amendment equal protection claim. The Motions are
fully briefed and ripe for resolution.
SECOND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (Doc.
Standard of Review
courts enjoy broad discretion in deciding motions for leave
to amend. See Gen. Elec. Co. v. Sargent & Lundy,
916 F.2d 1119, 1130 (6th Cir. 1990). When a party seeks leave
of court to amend a pleading, “[t]he court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). This rule “reinforce[s] the
principle that cases ‘should be tried on their merits
rather than the technicalities of pleadings.'”
Inge v. Rock Finan. Corp., 388 F.3d 930, 936 (6th
Cir. 2004) (quoting Moore v. City of Paducah, 790
F.2d 557, 559 (6th Cir. 1986)). In interpreting this Rule,
“[i]t should be emphasized that the case law in this
Circuit manifests liberality in allowing amendments to a
complaint.” Parchman v. SLM Corp., 896 F.3d
728, 736 (6th Cir. 2018) (citation and internal quotation
In the absence of any apparent or declared reason-such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc.-the leave sought should, as the rules require, be
“freely given.” Pittman v. Experian Info.
Sols., Inc., 901 F.3d 619, 640-41 (6th Cir. 2018)
(quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
“[o]nce a pleading deadline has passed, litigants must
meet the higher threshold for modifying a scheduling order
found in Rule 16(b).” Shane v. Bunzl Distribution
USA, Inc., 275 Fed.Appx. 535, 536 (6th Cir. 2008)
(citing Leary v. Daeschner, 349 F.3d 888, 906-07
(6th Cir. 2003)). “[T]he touchstone of the good cause
inquiry under Rule 16(b) is whether the moving party acted
diligently in attempting to meet the deadline set forth in
the pretrial order.” Permasteelisa CS Corp. v.
Airolite Co., LLC, No. 2:06-cv-0569, 2007 WL 1683668, at
*2 (S.D. Ohio June 8, 2007). The Court must also consider
“the potential prejudice to the nonmovant.”
Leary, 349 F.3d at 909. Because the deadline for
amending the pleadings has passed (see Doc. 18), the
Court considers both Rules 15 and 16 in ruling on
Plaintiff's Second Motion for Leave to File Amended
Complaint (Doc. 24).
requests leave to file its proposed Amended Complaint.
(See Doc. 24). Defendants argue that Plaintiff's
Motion should be denied because: (1) Plaintiff's proposed
amendments are futile; (2) Plaintiff has acted in bad faith;
(3) Plaintiff has repeatedly failed to cure deficiencies in
the Complaint; and (4) Defendants will suffer undue prejudice
if Plaintiff's amendments are permitted. The Court
addresses each of these arguments in turn.
neither party addresses the Rule 16(b) good cause standard,
(see generally Docs. 24-26), the Court finds that
Plaintiff has satisfied it here. The deadline for motions to
amend was June 3, 2019. But on June 21, 2019, the Supreme
Court issued its decision in Knick v. Township of Scott,
Pennsylvania, 139 S.Ct. 2162 (2019), authorizing
property owners to bring takings claims in federal court
without first exhausting their state remedies. Two weeks
later, Plaintiff filed the instant Motion seeking to file the
proposed Amended Complaint, which adds a takings claim in
light of Knick. Because Knick was not
issued prior to the deadline for amendments, Plaintiff
demonstrated the necessary diligence to establish good cause
by promptly filing the proposed Amended Complaint within
weeks of Knick's issuance. The Court, therefore,
turns to the Rule 15 analysis.
Rule 15 encourages leave to amend be freely granted, a court
“need not give leave to amend when doing so would be
futile.” SFS Check, LLC v. First Bank of Del.,
774 F.3d 351, 355 (6th Cir. 2014) (citing Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th
Cir. 2000)). “Amending would be futile if a proposed
amendment would not survive a motion to dismiss.”
SFS Check, 774 F.3d at 355 (citing Riverview
Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512
(6th Cir. 2010)).
12(b)(6) of the Federal Rules of Civil Procedure requires
that a complaint “state a claim to relief that is
plausible on its face” to survive a motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 663-64, 678 (2009);
Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007).
In reviewing the complaint, a court must construe it in favor
of the plaintiff and accept all well-pleaded factual
allegations as true. Twombly, 550 U.S. at 555-56.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678
(emphasis added) (citing Twombly, 550 U.S. at 556).
other hand, a complaint that consists of “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action” is insufficient.
Twombly, 550 U.S. at 555; see also Brown v.
Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011)
(noting that a plaintiff must give specific, well-pleaded
facts, not just conclusory allegations). In other words,
while “detailed factual allegations” are not
required under Fed.R.Civ.P. 8(a)(2)'s “short and
plain statement” rule, the law “demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 677-78
(quoting Twombly, 550 U.S. at 555).
contend that Plaintiff's claims are barred by the
doctrine of res judicata. (See Doc. 10 at 4-5; Doc.
16 at 8; Doc. 22 at 2-3; Doc. 25 at 7-8). Specifically, they
argue that issue preclusion prevents Plaintiff from
relitigating the exact same facts and legal issues that were
raised in the State Court action. (See, e.g., Doc.
10 at 4-5).
the Constitution's Full Faith and Credit Clause, and the
Full Faith and Credit Statute, 28 U.S.C. § 1738,
“a federal court must give to a state-court judgment
the same preclusive effect as would be given that judgment
under the law of the State in which the judgment was
rendered.” Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984). When a party relies on a
prior state court action as the basis for its res judicata
argument, courts “look to the state's law to assess
the preclusive effect it would attach to that
judgment.” Ohio ex rel. Boggs v. City of
Cleveland, 655 F.3d 516, 519 (6th Cir. 2011) (citation
and internal quotations omitted).
Ohio, “[t]he doctrine of res judicata encompasses the
two related concepts of claim preclusion, also known as res
judicata or estoppel by judgment, and issue preclusion, also
known as collateral estoppel.” O'Nesti v.
DeBartolo Realty Corp., 862 N.E.2d 803, 806 (Ohio 2007)
(citing Grava v. Parkman Twp., 653 N.E.2d 226, 228
(Ohio 1995)). “Issue preclusion … serves to
prevent relitigation of any fact or point that was determined
by a court of competent jurisdiction in a previous action
between the same parties or their privies.”
O'Nesti, 862 N.E.2d at 806 (citing Fort Frye
Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 692
N.E.2d 140, 144 (Ohio 1998)). It “applies even if the
causes of action differ.” O'Nesti, 862
N.E.2d at 806 (citing Fort Frye Teachers Assn., 692
N.E.2d at 144).
preclusion has four elements under Ohio law:
(1) The party against whom estoppel is sought was a party or
in privity with a party to the prior action;
(2) There was a final judgment on the merits in the previous
case after a full and fair opportunity to litigate the issue;
(3) The issue must have been admitted or actually tried and
decided and must be necessary to ...