Ohio Inns, Inc. v. Nye
| Decision Date | 10 November 1976 |
| Docket Number | No. 76-1636,76-1636 |
| Citation | 542 F.2d 673 |
| Parties | 79 Lab.Cas. P 53,875 OHIO INNS, INC., Plaintiff-Appellant, v. William B. NYE, Director-Department of Natural Resources of the State of Ohio; Hon. John J. Gilligan, Governor of the State of Ohio; and the Department of Natural Resources of the State of Ohio, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Robert T. Keeler, Taft, Stettinius & Hollister, Joseph W. Freeman, Cincinnati, Ohio, for plaintiff-appellant.
William J. Brown, Atty. Gen., Bruce E. Cryder, Columbus, Ohio, for defendants-appellees.
Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
Ohio Inns filed this action on January 10, 1975, against William B. Nye, at that time Director of Natural Resources for the State of Ohio, John J. Gilligan, then Governor of Ohio, and the Department of Natural Resources of the State of Ohio, seeking damages for an alleged conspiracy under color of Ohio law to deprive Ohio Inns of rights enjoyed by virtue of a contract with the Department for the operation and management of lodging, restaurant and recreation at certain Ohio State parks.
The action is basically a suit for breach of contract and defamation, matters which are within the jurisdiction of the State Courts of Ohio. Instead of filing suit in the State courts, Ohio Inns undertook to make a federal case out of a State action by asserting jurisdiction under 42 U.S.C. §§ 1983 and 1985(3).
District Judge Joseph P. Kinneary dismissed the action in an opinion which is made an appendix hereto. Ohio Inns appeals.
The appeal was dismissed by an order of this court entered July 15, 1976, on the ground that the notice of appeal was filed more than 30 days after entry of final judgment. Involved in the computation of time was the question of whether appellant filed a timely motion to alter or amend the final judgment pursuant to Fed.R.Civ.P. 59(e). A Rule 59(e) motion is timely if filed not later than ten days after final judgment. Under Rule 6(a) the last day of the period to be computed must be included, unless the last day is a Saturday, Sunday or legal holiday.
In the present case the last day for filing the Rule 59(e) motion fell on January 19, 1976, the third Monday in January which is a State legal holiday, known as Martin Luther King day, under Ohio law. Page's Ohio Revised Code § 1.14 (1975 Supp.). Therefore, Martin Luther King day is excluded in computing time in the present case. Appellant's attorney served the Rule 59(e) motion on the following day. The motion, therefore, was timely filed and the order of this court dismissing the appeal was incorrect.
Appellant has filed a timely motion for reconsideration. This motion is granted and the appeal is reinstated.
The appeal now is considered pursuant to Sixth Circuit Rule 3(e). 1
We conclude that Judge Kinneary was correct in dismissing the action for lack of jurisdiction for the reasons stated in his opinion. This case involves yet another effort to make a federal question out of litigation where exclusive jurisdiction is in the State courts. Compare Graves v. Sneed,544 F.2d 159 (6th Cir. 1976).
We further conclude that it is manifest that the questions on which the decision of this appeal depends are so unsubstantial as not to need further argument. Sixth Circuit Rule 8.
Affirmed.
APPENDIX
(Filed January 7, 1976)
Plaintiff seeks to recover damages from defendants for the deprivation of constitutional rights, tortious interference with contract, and defamation.
This matter is before the Court on the motions of defendants Nye and Gilligan to dismiss the amended complaint for failure to state a claim for relief and defendant, Department of Natural Resources of the State of Ohio, to dismiss on the grounds that it is immune from suit and that it is not a "person" within the meaning of 42 U.S.C. § 1983.
The facts as alleged in the complaint are taken as true when ruling on a motion to dismiss. The amended complaint alleges three causes of action arising out of one series of connected events.
The first cause of action is the source of federal jurisdiction. The second and third causes of action allege claims for relief under Ohio law. The Court will first consider whether the complaint pleads a federal cause of action. Then the Court will determine whether it should exercise pendant jurisdiction over the state law claims. Gibbs v. United Mine Workers, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
Plaintiff asserts that the first cause of action alleges claims for relief under 42 U.S.C. §§ 1983, 1985(3). Defendants argue that the facts pleaded do not state a cause of action under either § 1983 or § 1985(3). These claims for relief will be discussed separately; first the § 1985(3) claim, then the § 1983 claim.
Facts Alleged in the Amended Complaint Supporting the §§ 1983 and 1985(3) Claims.
At times relevant to the causes of action pleaded, plaintiff Ohio Inns, Inc. (hereinafter Inns) had a contract with defendant Department of Natural Resources of the State of Ohio (hereinafter Department) to manage and operate lodging, restaurant and recreation facilities at Burr Oak and Salt Fork State Parks. In March, 1973 Local 505 of the Hotel, Motel, Restaurant Employees and Bartenders International Union (hereinafter Local 505) demanded that Inns recognize it as the exclusive bargaining agent for certain persons allegedly employed by it at Burr Oak. Local 505 called a strike among Inn's alleged employees in May, 1973 while a representation petition proceeding was pending before the National Labor Relations Board. On May 4, 1973 the Court of Common Pleas of Morgan County, Ohio issued a temporary restraining order against Local 505, its officers and representatives. The Common Pleas Court issued a preliminary injunction on May 15, 1973 enjoining the same parties from engaging in mass picketing, acts of violence, property destruction, intimidation and threats of bodily harm to others in connection with any strike activities, and limiting the number of pickets at Burr Oak.
The complaint further alleges that defendant William B. Nye, Director of the Department of Natural Resources of the State of Ohio, defendant John J. Gilligan, Governor of the State of Ohio, and defendant Department conspired "in furtherance of objectives personal to themselves and to their political interests" to deprive Inns of its contractual right to manage and operate the lodgings, restaurant and recreational facilities at Burr Oak. Defendants failed and refused to supply adequate law enforcement and protection to Inns and to those seeking to use the public facilities at Burr Oak. Before the NLRB rendered its decision, defendant Nye wrote Inns on May 30, 1973 notifying Inns that it was subject to to the National Labor Relations Act and was obligated to recognize Local 505. On June 4, 1973 Nye again wrote Inns stating it was in violation of the National Labor Relations Act and that the violation of that Act was a breach of Inn's contract with defendant Department. Nye further notified Inns that its contract with defendant Department might be terminated. Nye publicized his letter to Inns. Nye's objective was to force Inns to deal with Local 505. 1
During early 1973 and thereafter Local 651 of the Hotel, Motel, Restaurant Employees and Bartenders International Union (hereinafter Local 651) attempted to organize Inn's Salt Fork employees. On May 31, 1973 Nye announced publicly and later notified Inns that it was "in default in vague, general and unspecified ways" under its contract with defendant Department for the management and operation of the lodging, restaurant and recreation facilities at Salt Fork. Nye also notified Inns that its Salt Fork contract would be terminated and Inns would be legally liable to the Department for all loss, expenses and damages suffered by the Department.
On June 6, 1973 Nye and other representatives of the Department met with representatives of Inns to discuss the threatened termination of the Salt Fork contract. Nye, who acknowledged he was acting out of "political considerations and pressure," demanded that Inns recognize and bargain with Local 505.
Throughout June, 1973 Nye and other representatives of the Department engaged in a course of conduct designed to force Inns to recognize and bargain with Locals 505 and 651. On July 10, 1973 Inns filed an action in the Court of Common Pleas for Guernsey County, Ohio seeking adjudication that defendants' charges of its default under the contracts were unfounded. The Common Pleas Court issued a temporary restraining order on July 11 and a preliminary injunction on July 23 enjoining Nye and the Department from taking any action to terminate Inn's contracts, from acting separately or in combination or in contract with any other person for the purpose of interfering with or harassing Inns in its management and operation of the facilities, and from actively soliciting persons not to patronize the facilities.
On August 3, 1973 Nye and the Department "procured from defendant Gilligan with his full knowledge and consent" an executive order authorizing and directing Nye and the Department to promulgate emergency rules closing the lodge and cabins at Burr Oak to the public. On August 4, 1973 Nye and the Department caused Burr Oak to be closed to the public and to Inn's employees. Burr Oak was reopened October 26, 1973.
The amended complaint alleges that defendants' conduct "violated plaintiff's civil rights, including its right to due process of law and to equal protection of the laws. . . . "
Conduct Actionable under § 1985(3).
Section 1985(3) of Title 42, United States Code, provides in relevant part:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly...
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