EJS Properties, LLC v. City of Toledo

• Decision Date: 02 September 2010
• Docket Number: Case No. 3:04CV7312
• Citation: 736 F.Supp.2d 1123
• Parties: EJS PROPERTIES, LLC, Plaintiff v. CITY OF TOLEDO, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

736 F.Supp.2d 1123

EJS PROPERTIES, LLC, Plaintiff

v.CITY OF TOLEDO, et al., Defendants.

Case No. 3:04CV7312.

United States District Court,

N.D. Ohio,

Western Division.

Sept. 2, 2010.

Daniel R. Harpole, Kristin R.B. White, Peter C. Houtsma, Meshach Y. Rhoades, Holland & Hart, Denver, CO, Pariss M. Coleman, II, Cary R. Cooper, Cooper & Walinski, Toledo, OH, Timothy M. Rastello, Holland & Hart, Boulder, CO, for Plaintiff.

Barbara E. Herring, Keith J. Winterhalter, City of Toledo, Gary R. Taylor, Mark S. Schmollinger, Department of Law, Jay E. Feldstein, Kalniz, Iorio & Feldstein, Toledo, OH, for Defendants.

ORDER

JAMES G. CARR, District Judge.

This is a civil rights case in which plaintiff, EJS Properties, LLC (EJS) raised claims under 42 U.S.C. § 1983 and Ohio state law against defendants City of Toledo (the City), and former Toledo City Councilman Robert McCloskey.

Jurisdiction is proper under 28 U.S.C. § 1331 and § 1367.

Pending is EJS' substitute motion for reconsideration [Doc. 347] of my August 27, 2009, Order [Doc. 336]. For the following reasons, EJS' motion shall be denied.

Background

I discussed the facts of this case at length in the August 27, 2009, Order. EJS Props., LLC v. City of Toledo, 651 F.Supp.2d 743 (N.D.Ohio 2009) ( EJS I ).

In that Order, I held: 1) defendants did not violate EJS's substantive or procedural due process rights because EJS could not establish a protected property interest; 2) defendants did not violate EJS's equal protection rights because it failed to show it was similarly situated to the Toledo Public Schools, which it claims the defendants had improperly treated more favorably than it; 3) defendants did not violate EJS's First Amendment right to petition the government for redress of grievances; 4) the City was immune from EJS's claim of tortious interference with a business relationship; and 5) EJS presented a genuine issue of material fact as to whether McCloskey tortiously interfered with a business relationship. EJS I, supra, 651 F.Supp.2d 743.

On August 31, 2009, EJS filed a motion for reconsideration of my Order. [Doc. 340]. EJS argued that I: 1) overlooked its liberty interest; 2) incorrectly concluded that it lacked a protected property interest; 3) assumed facts in favor of the moving party; 4) incorrectly concluded that the "shocks the conscience" standard is not an alternative avenue to establish liability under § 1983; and 5) incorrectly concluded that it had no First Amendment claim. EJS also requested that I transfer the case to the Northern District of Ohio, Eastern Division.

Defendants responded, contending that my original order was correct. [Docs. 343, 344].

Following the Sixth Circuit's decision in Wedgewood Limited Partnership I v. Township of Liberty, Ohio, 610 F.3d 340 (6th Cir.2010),¹ I requested a substitute motion for reconsideration briefing from the parties to address: 1) Wedgewood's impact on the instant case; and 2) what, if any, question might be certified to the Ohio Supreme Court for determination. The parties have submitted substitute briefs. [Docs. 347, 349, 350 and 351].²

Standard of Review

Reconsideration

A motion to amend or alter judgment under the Federal Rules of Civil Procedure 59(e) calls for the court to reconsider its decision after the entry of final judgment. Pechatsko v. Comm'r of Soc. Sec., 369 F.Supp.2d 909, 911 (N.D.Ohio 2004). The motion is not a substitute for appeal and does not give an unhappy litigant a basis for rearguing the case. Id.

Three situations justify altering or amending a judgment under Rule 59(e): 1) newly discovered evidence; 2) an intervening change in controlling law; or 3) a need to correct clear legal error to prevent manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.2005). A district court has great discretion in deciding whether to grant relief under Rule 59(e). Id. at 619-20.

It is not the function of Rule 59 motion "either to renew arguments already considered and rejected by a court, or 'to proffer a new legal theory or new evidence to support a prior argument when the legal theory or argument could, with due diligence, have been discovered and offered during the initial consideration of the issue.' " McConocha v. Blue Cross & Blue Shield Mut. of Ohio, 930 F.Supp. 1182, 1184 (N.D.Ohio 1996) (quoting In re August 1993 Regular Grand Jury, 854 F.Supp. 1403, 1408 (S.D.Ind.1994)).

Summary Judgment

A party is entitled to summary judgment on motion under Fed. R. Civ. P. 56 where the opposing party fails to show the existence of an essential element for which that party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must initially show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548.

Once the movant meets that initial burden, the "burden shifts to the nonmoving party [to] set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed. R. Civ. P. 56(e)). Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and submit admissible evidence supporting its position. Celotex, supra, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding a motion for summary judgment, I accept the opponent's evidence as true and construe all evidence in the opponent's favor. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). The movant can prevail only if the materials offered in support of the motion show there is no genuine issue of a material fact. Celotex, supra, 477 U.S. at 323, 106 S.Ct. 2548.

Discussion

I. § 1983 Claims

As stated in my August 27, 2009, Order, to bring a § 1983 challenge, a plaintiff must first demonstrate a violation of its constitutional rights. See, e.g., Marvin v. City of Taylor, 509 F.3d 234, 244 (6th Cir.2007) ("If there is no constitutional violation, then the plaintiff's § 1983 claim fails as a matter of law.").

EJS contends that I erred in dismissing its § 1983 claims based on a finding that it had not asserted a cognizable constitutional claim.

A. Procedural Due Process

To establish a procedural due process claim under § 1983, a plaintiff must establish: 1) a protectable life, liberty or property interest; 2) deprivation of such interest; and 3) "the state did not afford ... adequate procedural rights prior to"the deprivation. E.g., Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir.1999).

1. Liberty Interest

EJS argues that it "had a liberty interest in a decision from City Council free from corruption and bribery regarding its rezoning application," [Doc. 347, at 23], and a "liberty interest [in] access to a non-corrupt municipal decision-making process," [ Id. at 24]. EJS asserts, essentially, a liberty interest in an unbiased decision-making process in connection with its rezoning application.³

Defendants respond: 1) no liberty interest is implicated here; and 2) failure of process is not on its own a liberty interest, but a basis upon which I may find a due process violation once a protected liberty-or property-interest is established.

The Fourteenth Amendment to the United States Constitution provides: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.

Deprivation of either a liberty interest or a property interest may support a due process § 1983 claim. See, e.g., Bd. of Regents. v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (noting that the Supreme Court "has required due process protections for deprivations of liberty"); Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir.2008) (noting that a section 1983 plaintiff asserting a due process claim must establish the existence of a constitutionally protected property or liberty interest). ⁴

Protected liberty interests "may arise from two sources-the Due Process Clause itself and the laws of the states." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 459, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (internal quotation and citation omitted). "Only if [I] find a protected interest do [I] ask whether the deprivation of that interest was in accordance with due process." Tony L. By & Through Simpson v. Childers, 71 F.3d 1182, 1185 (6th Cir.1995) (citing Thompson, supra, 490 U.S. at 460, 109 S.Ct. 1904)).

In United of Omaha Life Insurance Co. v. Solomon, 960 F.2d 31, 34 (6th Cir.1992), the Sixth Circuit discussed the parameters of a protected liberty interest:

A protected liberty interest goes beyond freedom from bodily restraint; it includes the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge and to enjoy generally those privileges long recognized as essential to the orderly pursuit of happiness by free men. Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Although this definition of liberty interest has been somewhat narrowed by later Supreme Court cases, see, e.g., Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), it is recognized that the due process clause forbids arbitrary deprivation of liberty " '[w]here a person's good name, reputation, honor, or integrity is at stake becauseof what the government is doing to him.' " Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971)).

EJS does not allege that any state law create a liberty interest, so I turn to EJS' claim that it has a liberty interest under the Due Process Clause.

A decision by a biased or corrupt decision-maker may constitute a deprivation of procedural due process. An unbiased decision-maker, however, is relevant to what process is due; mere bias, without an effect on a cognizable liberty interest, is not a liberty interest. See McGuire v. City of Moraine, 178...