Kissinger v. Mahoning Cnty. Republican Party
| Docket Number | 4:22-CV-00709 |
| Decision Date | 16 June 2023 |
| Parties | DAVID KISSINGER, et al., Plaintiffs, v. MAHONING COUNTY REPUBLICAN PARTY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Although in its procedural infancy, the contentiousness of the dispute in this case is plain: before the Court is (1) Defendant David Johnson's Motion to Dismiss for Lack of Jurisdiction (ECF No. 18); (2) Defendants Mahoning County Republican Party (“MCRP”) and Thomas McCabe's Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (ECF No. 21); (3) Defendant Robert Aurandt's Motion to Dismiss (ECF NO. 22); (4) Johnson's Motion for Sanctions made under Fed.R.Civ.P. 11 (ECF No. 24); (5) Plaintiffs' Cross-Motion for Sanctions against all Defendants (ECF No. 29); (6) Johnson's Motion to Strike Portions of Plaintiffs' Response to Johnson's Motion for Sanctions (ECF No. 31); and (7) Plaintiffs' Motion for Leave to Amend Complaint (ECF No 36).
For the reasons stated in this Memorandum Opinion and Order Defendants' Motions to Dismiss made under Rule 12(b)(1) are GRANTED; Defendants' Motions to Dismiss made under Rule 12(b)(6) are DENIED AS MOOT; Plaintiffs' Motion for Leave to Amend Complaint is DENIED on futility grounds Johnson's Motion for Sanctions is DENIED; Johnson's Motion to Strike is GRANTED; and Plaintiffs' Cross-Motion for Sanctions is STRICKEN.
Plaintiffs allege that they went to MCRP Headquarters on April 27, 2022, to deliver political campaign signs supporting political candidates whom Former President Donald Trump had not endorsed. (ECF No. 1, Compl., PageID# 4). Senator J.D. Vance, who had at that time been campaigning for the position he now holds and had received the Former President's endorsement, was at the MCRP Headquarters that day for a scheduled speech. (Id. at PagelD# 4-5; ECF No. 361, Proposed Am. Compl., PageID# 193). Plaintiffs protested the speech from outside the building, and Plaintiff David Kissinger held a sign that stated, apparently offending the attendees inside. (Id.). Plaintiff alleges that Aurandt “led a physical assault on Mr. Kissinger” by taking his sign and throwing Mr. Kissinger to the ground. (Id.). The Proposed Amended Complaint explains that proposed new-party defendants, Dennis Zimmet and Brian Devine, also participated in the assault on Mr. Kissinger, and that all three men threatened the protestors, claiming they would to “kick their asses.” (ECF No. 36-1, PageID# 188, 194). Plaintiffs claim that they were business invitees expressing purely political speech, and that their removal from Senator Vance's speech violated their First Amendment rights. (ECF No. 1, PageID# 5, 7). (These events are collectively referred to as the “Incident”).
While the Incident precipitated the instant lawsuit, the parties' contretemps did not begin or end there. The Proposed Amended Complaint alleges that the parties had been at odds in early 2021 over a vote by the members of the Columbiana County Board of Elections (for which Johnson serves as Chairman); the vote regarded the purchase of new voting machines. (ECF No. 36-1, PageID# 191). Mr. Kissinger and Johnson exchanged heated words over the vote, and Plaintiffs collected over 600 signatures opposing the new machines. (Id.). In September of 2021, Plaintiffs protested a fundraising event for Governor Mike DeWine at the Columbiana County Republican Party (“CCRP”) headquarters, during which Johnson shouted to Plaintiffs that they are “RINOs” (“Republican In Name Only”); Johnson's brother also threatened protestors and shouted obscenities until police asked him to leave. (Id. at PageID# 192).
On April 10, 2022, Plaintiffs and Johnson were again at loggerheads. This time it was about Johnson's alleged involvement in a scandal involving money that was missing from the Ohio GOP. (Id.). Plaintiff Cheryl Kissinger alleges that an editorial letter she drafted and sent to three Columbiana County newspapers entitled “Audit Lies” was not immediately published because it referred to Johnson as a liar, a term to which the editor objected. (Id.). The letter was eventually published on April 28, 2022 (one day after the Incident), with a new title, “Local Business OwnerCitizen Offers Opinion.”[1] On May 2, 2022, Johnson published a letter to the editor of the Morning Journal, purportedly containing false, offensive, and derogatory statements about Plaintiffs. (ECF No. 1, PageID# 10). Johnson also posted derogatory comments about Plaintiffs on the Columbiana County Republican Party's Facebook page on the same day. (Id.). Johnson allegedly called Ms. Kissinger “a liar, a lunatic, a ‘nut job,' an anarchist, ANTIFA, etc.” (ECF No. 36-1, PageID# 192). At another point over the last year, Plaintiffs claim that they placed a four-foot sign in front of their business that read, “Don't forget to vote for Rick Barron,” an apparent political adversary of Johnson. (Id. at PageID# 193). A known Johnson associate and CCRP volunteer came to Plaintiffs' business and shouted at them for supporting Barron. (Id.).
The tension between Plaintiffs and Johnson culminated in Plaintiffs' filing of their sevencount Complaint against Defendants on May 2, 2022-the same day that Johnson's editorial was published. (ECF No. 1). The Complaint bases federal court jurisdiction on 28 U.S.C. § 1343 (civil rights) and 28 U.S.C. § 1367 (supplemental jurisdiction). (ECF No. 1, PageID# 6; ECF No. 36-1, PagelD# 189-90). Specifically, Plaintiffs seek to invoke this Court's subject matter jurisdiction in Count One of the Proposed Amended Complaint, which asserts that all Defendants conspired to violate Plaintiffs' First Amendment rights in violation of 42 U.S.C. § 1983.[2] The Proposed Amended Complaint alleges that the current Defendants are all state actors, and thus properly subject to a § 1983 claim, based on the following facts:
The Proposed Amended Complaint seeks to add two additional defendants, Dennis Zimmet and Brian Devine, to replace John Does 1 and 2 named in the original Complaint, respectively. Plaintiffs allege that Zimmet and Devine are both agents and/or employees of the MCRP and/or the Ohio Republican Party. Beyond Plaintiffs' § 1983 claim against all of the existing and additional Defendants, Plaintiffs assert state-law claims for Battery, Assault, Negligence, Loss of Consortium, Defamation, False Light, and Civil Conspiracy. (ECF No. 36-1, PageID# 195-200). (Zimmet and Devine, together with Johnson, McCabe, and Aurandt, are referred to as the “Individual Defendants”).
Johnson, McCabe, MCRP, and Aurandt all filed Motions to Dismiss the Complaint, primarily focused on whether this Court has subject matter jurisdiction to hear this case. (See ECF Nos. 18, 21, & 22). Defendants argue that none of the defendants are state actors against whom a § 1983 claim may lie, and therefore there is no valid federal question to support this Court's jurisdiction. (ECF No. 18, PageID# 72-75; ECF No. 21, PageID# 84-86; ECF No. 22, PageID# 97-98). Plaintiffs respond that the defendants are state actors for the reasons explained in the Proposed Amended Complaint. (See ECF No. 35, PageID# 167, 171). Plaintiffs suggest that Defendants had two distinct goals on the day of Senator Vance's speech: “to one end acting out their individual political aims but for a second end, doing so with their offices in mind and with the ends they could achieve by way of those positions likewise in mind.” (Id.).
Johnson filed a Motion for Sanctions, in which he asserts that Plaintiffs' Complaint violates Fed.R.Civ.P. 11 because it is not supported by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law. (ECF No. 24). Johnson claims that the allegations in Plaintiffs' Complaint are nothing more than political grandstanding; he asserts Plaintiffs know that their claims are based on private, not state, action, and that the law does not support federal court jurisdiction nor a valid § 1983 claim. (Id.).
Plaintiffs opposed Johnson's Motion on August 7, 2022, and moved for Cross-Sanctions, claiming that Johnson's Motion for Sanctions is itself sanctionable because it was filed solely to gain leverage in this case. (ECF No. 29, PageID# 151). Plaintiffs also oppose Johnson's Motion for Sanctions within their response to the defendants' Motions to Dismiss, arguing that this case presents an opportunity...
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