Keene Grp., Inc. v. City of Cincinnati

• Decision Date: 20 May 2021
• Docket Number: No. 20-3807,20-3807
• Citation: 998 F.3d 306
• Parties: The KEENE GROUP, INC., Plaintiff-Appellant, v. CITY OF CINCINNATI, OHIO; Art Dahlberg, Director, Department of Buildings & Inspections for the City of Cincinnati; Edward Cunningham, Division Manager, Division of Property Maintenance Code Enforcement, Department of Buildings & Inspections for the City of Cincinnati; Sean Minihan, Assistant Supervisor of Inspections, Division of Property Maintenance Code Enforcement, Department of Buildings & Inspections for the City of Cincinnati; Kevin Rhodes, Inspector, Hazard Abatement Program, Division of Property Maintenance Code Enforcement, Department of Buildings & Inspections for the City of Cincinnati; John Does 1–5, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

998 F.3d 306

The KEENE GROUP, INC., Plaintiff-Appellant,

v.CITY OF CINCINNATI, OHIO; Art Dahlberg, Director, Department of Buildings & Inspections for the City of Cincinnati; Edward Cunningham, Division Manager, Division of Property Maintenance Code Enforcement, Department of Buildings & Inspections for the City of Cincinnati; Sean Minihan, Assistant Supervisor of Inspections, Division of Property Maintenance Code Enforcement, Department of Buildings & Inspections for the City of Cincinnati; Kevin Rhodes, Inspector, Hazard Abatement Program, Division of Property Maintenance Code Enforcement, Department of Buildings & Inspections for the City of Cincinnati; John Does 1–5, Defendants-Appellees.

No. 20-3807

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 20, 2021

Rehearing En Banc Denied June 30, 2021

CLAY, Circuit Judge.

Plaintiff The Keene Group, Inc. appeals the district court's dismissal of its complaint against the City of Cincinnati, Ohio ("the City") and several members of its Department of Buildings and Inspections. Plaintiff's claims arise from the City's demolition of a building as a public nuisance on property owned by Plaintiff. The complaint asserted causes of action under 42 U.S.C. § 1983 and for trespass under Ohio law. Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion and entered judgment in favor of Defendants. We AFFIRM .

BACKGROUND

Factual Background

The City demolished a building located at 5033 Newfield Avenue in Cincinnati, Ohio on April 8, 2019. Prior to its demolition, the property had been the subject of two simultaneous, although uncoordinated, government proceedings. One, a property code enforcement action, led to the property's condemnation in December 2017 and eventually its demolition. The other, a tax foreclosure action, ultimately resulted in Plaintiff's purchase of the property at a sheriff's sale in July 2018.

On April 27, 2017, the Hamilton County Treasurer commenced a tax foreclosure action against the then-owner of the property, Devin D. Davis. The case was filed in the Hamilton County Court of Common Pleas, and the City was named as a defendant. On November 27, 2017, a judgment and a decree for sale were entered. On May 21, 2018, an order for a sheriff's sale of the property was issued by the Hamilton County Clerk of Court. A notice of the sheriff's sale was served on the City's counsel on June 1, 2018.

During 2017 and through the summer of 2018, a building on the property was also the subject of administrative condemnation proceedings conducted by the City's Department of Buildings and Inspections. The building was condemned on December 6, 2017. At a public hearing on June 29, 2018, Defendant Sean Minihan, acting under the authority of the City's Chief Building Official, was presented with evidence of damage to the building, premises strewn with trash and vegetation, a dead tree that was creating a hazard for nearby structures, and delinquent taxes. After considering this evidence and his own observations, Minihan concluded that the building presented a fire and safety hazard and needed to be demolished. His decision was dated July 16, 2018 and was sent by certified mail to the owner of the property then on record, Davis.

After the public hearing, but before the decision to demolish the building was made, Plaintiff emerged as the successful bidder at the sheriff's sale on July 5, 2018. A decree confirming the sale was entered by the Court of Common Pleas on July 17, 2018. Plaintiff's winning bid was $22,520.65. A sheriff's deed was issued on August 9, 2018. The deed was recorded with the Hamilton County Recorder later that month.

Plaintiff was not aware of the demolition decision prior to the razing of the building. On the other hand, Defendants Minihan and Edward Cunningham of the City's Department of Buildings and Inspections knew that Plaintiff had become the owner of the property prior to the demolition. On November 14, 2018, they sent letters to Plaintiff and its agent summarizing the public nuisance proceedings, informing Plaintiff of the decision to raze the building, and requesting that Plaintiff respond "within 10 days to acknowledge receipt of this notice and provide [its] plan to bring the building into compliance." (Notice of Nuisance Declaration, R. 7-5, Page ID #86.) The letters were sent via certified mail, with return receipt requested, but were never delivered to Plaintiff or its agent. Defendants made no subsequent efforts to provide notice of the demolition to Plaintiff.

On January 4, 2019, Defendant Kevin Rhodes directed a construction company to proceed with a demolition and site clearance at the property. The building was demolished on April 8, 2019. On January 2, 2020, the City demanded $10,515.00 from Plaintiff for the costs of the demolition, to be paid within 30 days, with 9% interest charged on the balance.

Procedural Background

Plaintiff filed the original complaint in this suit on September 3, 2019 and a three-count amended complaint on November 25, 2019.¹ Plaintiff also filed a supplemental complaint pursuant to Federal Rule of Civil Procedure 15(d) on January 29, 2020, with allegations relating to the newly issued invoice for demolition costs.

Defendants moved to dismiss the amended complaint on December 9, 2019. The district court held a hearing on the motion on May 28, 2020. On July 14, 2020, the district court granted Defendants’ motion, Keene Group, Inc. v. City of Cincinnati , No. 19-730, 2020 WL 3980304 (S.D. Ohio July 14, 2020), and entered judgment. An amended judgment was entered on July 29, 2020, dismissing the amended complaint with prejudice. Plaintiff timely appealed.

DISCUSSION

Standard of Review

We review a district court's grant of a motion to dismiss de novo . Waskul v. Washtenaw Cnty. Cmty. Mental Health , 979 F.3d 426, 440 (6th Cir. 2020). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This standard is met when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff, draw all reasonable inferences in its favor, and accept all well-pleaded allegations in the complaint as true. Cahoo v. SAS Analytics, Inc. , 912 F.3d 887, 897 (6th Cir. 2019). This analysis focuses on "the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account." Meyers v. Cincinnati Bd. of Educ. , 983 F.3d 873, 880 (6th Cir. 2020) (quoting Amini v. Oberlin Coll. , 259 F.3d 493, 502 (6th Cir. 2001) ).

I. Due Process Claim

Plaintiff argues that the City failed to provide adequate notice, as required by the Due Process Clause of the Fourteenth Amendment, before taking its property and demolishing the building located at 5033 Newfield Avenue. Due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action" before the government may take property. Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Equally well-established by Mullane is that "when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." Id. at 315, 70 S.Ct. 652. However, actual notice is not required. See Dusenbery v. United States , 534 U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002).

The district court properly dismissed this claim because Plaintiff purchased the property with full knowledge of the condemnation proceedings that resulted in the demolition. Despite its admitted awareness of the public nuisance issues with the building, Plaintiff took no action to resolve those problems or work with the City on a solution. Moreover, Plaintiff's argument that the City was required to use all public databases to gather additional contact information after the November 2018 letters failed to be delivered was rejected by the Supreme Court in Jones v. Flowers , 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).

In fact, Plaintiff's appeal primarily relies on Jones , which held that the government does not meet Mullane ’s "desirous of actually informing" standard if it did "nothing when a certified letter sent to the owner is returned unclaimed." Id. at 229, 126 S.Ct. 1708. Plaintiff claims that is precisely what happened in this case, and that the district court must be reversed.

There is no dispute that Defendants sent Plaintiff certified letters to provide notice of the demolition, those letters were never delivered, and Defendants knew or should have known that their attempt at notice had failed. Attached to the amended complaint were the certified letters sent to Plaintiff and its agent in November 2018 entitled "Notice of Nuisance Declaration." Those letters stated that the property had been declared a public nuisance, that the building was subject to demolition, and that Plaintiff, as the property's owner, would be responsible for the costs of abatement. The notice also requested that Plaintiff contact Defendants Minihan or Cunningham within ten days to acknowledge receipt and to present a plan to bring the building into compliance with relevant Cincinnati municipal code sections. The letters were not delivered to Plaintiff or its agent. The City does not deny that it knew these efforts at notice had failed prior to the...