In re Ohio Execution Protocol Litig.

• Decision Date: 12 July 2017
• Docket Number: Case No. 2:11-cv-1016
• Parties: In re: OHIO EXECUTION PROTOCOL LITIGATION, This Order relates to Plaintiffs Tibbetts and Otte
• Court: U.S. District Court — Southern District of Ohio

In re: OHIO EXECUTION PROTOCOL LITIGATION,

This Order relates to Plaintiffs Tibbetts and Otte

Case No. 2:11-cv-1016

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

July 12, 2017

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

This case is before the Court on Motion of Defendants Kasich, Mohr, Erdos, Morgan, Gray, Vorhies, Theodore, Jenkins, Coleman, and the un-named and anonymous execution team members ("Moving Defendants") to dismiss in part Plaintiffs' Fourth Amended and Supplemental Complaints (ECF No. 691 as to Mr. Tibbetts; ECF No. 695 as to Mr. Otte) and the Joint Ohio Corrupt Practice Act ("OCPA") Supplement to Tibbetts' and Otte's Fourth Amended Complaints (ECF No. 954). The Motion is filed at ECF No. 981; Plaintiffs' Memorandum in Opposition is at ECF No. 1018; Defendants Reply is at ECF No. 1033.

The Moving Defendants¹ seek dismissal under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) or, in the alternative, judgment on the pleadings under Fed. R. Civ. P. 12(c). The Motion istherefore a "dispositive" motion within the meaning of Fed. R. Civ. P. 72. However, these two Plaintiffs and the Defendants as respects these two Plaintiffs have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c)(ECF No. 734).

Subject Matter Jurisdiction

Defendants seek dismissal on the grounds this Court lacks subject matter jurisdiction of the controversy.

Because federal courts are courts of limited jurisdiction, they are empowered to hear only those cases which are within the judicial power of the United States as defined in the United States Constitution and as further granted to them by Act of Congress. Finley v. United States, 490 U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). Therefore there is a presumption that a federal court lacks jurisdiction until it has been demonstrated. Turner v. President, Directors and Co. of the Bank of North America, 4 U.S. 8 (1799). Facts supporting subject matter jurisdiction must be affirmatively pleaded by the person seeking to show it. Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is on the party asserting jurisdiction if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936). A federal court is further obliged to note lack of subject matter jurisdiction sua sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 465 (6^th Cir. 2009); Clark v. United States, 764 F.3d 653 (6^th Cir. 2014).

The burden of persuasion on a Rule 12(b)(1) motion is on the party asserting jurisdiction. Thomson v. Gaskill, 315 U.S. 442 (1942); Moir v. Greater Cleveland Regional Transit Authority,895 F.2d 266 (6^th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d §1350 (1990).

A facial attack is proper under rule 12(b)(1) and requires the Court to assume the truth of all allegations made by a plaintiff. DLX, Inc., v. Kentucky, 381 F.3d 511, 516 (6^th Cir. 2004), citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6^th Cir. 1996); United States v. Ritchie, 15 F.3d 592, 598 (6^th Cir. 1994); and Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6^th Cir. 1990).

"Because at issue in a factual [as opposed to facial] 12(b)(1) motion is the trial court's jurisdiction -- its very power to hear the case -- there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen v. First Federal Savings and Loan Ass'n., 549 F.2d 884, 890 (3^rd Cir. 1977), quoted in RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125 (6^th Cir. 1996); Rogers v. Stratton Industries, Inc., 798 F.2d 913 (6^th Cir. 1986).

The Court reads the Motion to Dismiss as raising a facial as opposed to a factual objection to subject matter jurisdiction. Moving Defendants argue that Plaintiffs' claims are "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as to not involve a federal controversy." (Motion, ECF No. 981, PageID 36999-37000, quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998), quoting in turn Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974).) Plaintiffs do not respond to Defendants' Fed. R. Civ. P. 12(b)(1) argument.

In Steel Co., the Court rejected the practice of some lower courts of assuming jurisdiction and deciding a case's merits as violating the jurisdictional limits of Article III. Although theylacked Article III standing, the Citizens Assn. had pleaded a sufficiently substantial claim to satisfy that jurisdictional requirement. The Court held

It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case. See generally 5A C. Wright & A. Miller, Federal Practice and Procedure § 1350, p. 196, n. 8 and cases cited (2d ed. 1990). As we stated in Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946), "jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover." Rather, the District Court has jurisdiction if "the right of petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another," id., at 685, unless the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Id., at 682-683; see also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913). Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Oneida Indian Nation of N. Y. v. County of Oneida, 414 U.S. 661, 666, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974); see also Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959).

523 U.S. at 89. Certainly some if not all of Plaintiffs' claims are arguable under the Constitution. There is thus federal question jurisdiction over this case - a claim, for example, that a method of execution violates the Eighth Amendment is plainly cognizable in a proceeding under 42 U.S.C. § 1983. See Nelson v. Campbell, 541 U.S. 637 (2004), and Hill v. McDonough, 547 U.S. 573 (2006). Defendants' general subject-matter jurisdiction defense is rejected. TheirEleventh Amendment immunity defense (Motion, ECF No. 981, PageID 37000-002) is considered below with the relevant Causes of Action.

Cognizability

Moving Defendants seek dismissal under Fed. R. Civ. P. 12(b)(6) or judgment on the pleadings under Fed. R. Civ. P. 12(c) on the ground that many of Plaintiffs' Causes of Action do not state a claim upon which relief can be granted. The parties agree the same standard of cognizability applies under both Rules. See Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6^th Cir. 2008); EEOC v. J. H. Routh Packing Co., 246 F.3d 850, 851 (6^th Cir. 2001).

"The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case." Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at 294 (1990); see also Gex v. Toys "R" Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6^th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6^th Cir. 1987). Stated differently, a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is designed to test the sufficiency of the complaint. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6^th Cir. 2010).

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been re-stated by the Supreme Court:

Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in thecomplaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)("Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, "'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" 5 Wright & Miller § 1216, at 233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125

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