Pund v. City of Bedford

• Citation: 339 F.Supp.3d 701
• Decision Date: 10 September 2018
• Docket Number: Case No. 1:16CV1076
• Parties: Kenneth PUND, et al., Plaintiffs, v. CITY OF BEDFORD, OHIO, et al. Defendants.
• Court: U.S. District Court — Northern District of Ohio

339 F.Supp.3d 701

Kenneth PUND, et al., Plaintiffs,

v.CITY OF BEDFORD, OHIO, et al. Defendants.

Case No. 1:16CV1076

United States District Court, N.D. Ohio, Eastern Division.

Signed September 10, 2018

Christopher P. Finney, Stagnaro, Saba & Patterson, Cincinnati, OH, Maurice A. Thompson, Columbus, OH, Majeed G. Makhlouf, Sheldon Berns, Gary F. Werner, Berns, Ockner & Greenberger, Beachwood, OH, for Plaintiffs.

Kallen L. Boyer, R. Eric Smearman, Smith Marshall, Middleburg Heights, OH, for Defendants.

MEMORANDUM OF OPINION AND ORDER [Regarding ECF No. 27] [Resolving ECF No. 45]

Benita Y. Pearson, United States District Judge

Pending before the Court is Plaintiffs' Motion for Partial Summary Judgment on the First, Second, Fourth, Ninth, and Thirteenth Prayers for Relief in their First Amended Complaint. ECF No. 45. Defendants responded in opposition. ECF No. 46. Plaintiffs filed a reply. ECF No. 47. For the reasons that follow, the motion is granted in part and denied in part. Additionally, the Court certifies Plaintiffs' proposed class under Fed. R. Civ. Pro. 23(b)(3) and directs Class Counsel to promptly file a Proposed Notice of Pendency of Class Action under Rule 23(b)(3).

I. Background

Plaintiffs, citizens of the City of Bedford, Ohio, filed this lawsuit against Defendants City of Bedford, Ohio ("City" or "Bedford"), Rob Brown, and Richard Hickman, pursuant to 42 U.S.C. § 1983, for Bedford's allegedly unconstitutional enforcement of the Point of Sale and Rental Inspection Ordinances. ECF No. 21. Bedford's Point of Sale Inspection Ordinance required homeowners to obtain a Certificate of Inspection ("Certificate") before selling their homes. Id. at PageID#: 180. A Certificate, valid for twelve months, was issued after a building official inspected "all structures or premises used for dwelling purposes and all secondary or accessory structures to determine whether such structures or premises conform[ed] to the provisions of th[e] code." ECF No. 1-3 at PageID#: 25. On inspection, the building official could enter the property at any reasonable time and inspect areas including basements, bathrooms, staircases, doors, windows, electrical equipment, roofing, siding, concrete walk and driveways, among others. ECF No. 21 at PageID#: 181. Obtaining the Certificate required homeowners to apply for and consent to a warrantless inspection of the home and to pay of an inspection fee ranging from $50 to $200. ECF No. 45 at PageID#: 398. If the home did not pass inspection, the homeowner was required to perform repairs or, if sold before repairs were complete, the new owner would deposit money in escrow to pay for repairs. ECF No. 1-3 at PageID#: 26. Homeowners that violated the ordinance or refused an inspection were guilty of a misdemeanor and could be fined and imprisoned. ECF No. 21 at PageID#: 182.

Similarly, Bedford's Rental Inspection Ordinance required landlords to schedule a warrantless inspection of their rental units every two years or each time a new tenant arrived. ECF No. 21 at PageID#: 202. A landlord was to obtain a Certificate in order to lease his property to a tenant. Id. Landlords paid an inspection fee ranging from $20 to $50 per unit, and failure to comply could result in criminal penalties including fines and imprisonment. Id.

After filing its initial complaint, Plaintiffs moved the Court to enter a Temporary Restraining Order and a Preliminary Injunction. ECF No. 4. Prior to the hearing, the Court granted the parties' Joint Motion for an Order Granting Preliminary Injunction as to the Fifth and Sixth Prayers for Relief enumerated in Plaintiffs' May 4, 2016 Verified Complaint. ECF No. 11 at PageID#: 74. That Order temporarily enjoined Defendants from enforcing the warrantless searches and from criminally prosecuting Plaintiffs based on the City's Point of Sale Ordinance. Id. The Court also ordered that Plaintiffs' Motion for Preliminary Injunction (ECF No. 4) be converted to and treated as a Motion for Permanent Injunction. ECF No. 11 at PageID#: 77.

The City subsequently amended its Point of Sale Inspection Ordinance by including an administrative warrant process for home inspections and removing any criminal penalties for failure to consent to an inspection. ECF No. 17-1. The Court therefore denied Plaintiffs' request for injunctive relief (ECF No. 4) as moot. ECF No. 20.

On January 30, 2017, Plaintiffs filed an Amended Complaint, which included claims for class-wide relief with respect to the Rental Inspection Ordinance. ECF No. 21. Plaintiffs contend that the warrantless search policy under the Rental Inspection Ordinance was essentially identical to the warrantless search policy under the already-enjoined Point of Sale Inspection Ordinance. Id. at PageID#: 191, ¶ 114. Following a hearing on Plaintiffs' Motion for Temporary Restraining Order, held on February 14, 2017, Defendants agreed to amend the Rental Inspection Ordinance and not to enforce it in the meantime. February 14, 2017, Minutes of Proceedings . On March 10, 2017, Defendants certified that the City had amended its ordinance to include an administrative warrant provision and eliminate criminal penalties, and they submitted a copy of the amended ordinance to the Court. See ECF Nos. 31; 31-1. The Court later denied Plaintiffs' modified Oral Motion for Temporary Restraining Order as moot. ECF No. 35.

On February 17, 2017, Plaintiffs filed a Motion for Class Certification. ECF No. 27. The Court granted Plaintiffs' motion and certified the following two classes under Rule 23(b)(1)(A) 1

and (b)(2)² :

Subclass A: All individuals and businesses that have (1) been subjected to Point of Sale Inspections between September 10, 2014 and January 30, 2017; and (2) paid Point of Sale Inspection fees to the City of Bedford in conjunction with the aforesaid inspection(s).

Subclass B: All individuals and businesses that have (1) been subjected to rental inspections between September 10, 2014 and February 14, 2017; and (2) paid Rental Inspection fees to the City of Bedford in conjunction with the aforesaid inspection(s).

ECF No. 35 at PageID#: 367.

Now, pending before the Court is Plaintiffs' Partial Motion for Summary Judgment on the First, Second, Fourth, Ninth, and Thirteenth Prayers for Relief in the First Amended Complaint. ECF No. 45. Those Prayers for Relief ask the Court to do the following:

(1) Declare that the City of Bedford's Point of Sale Inspection Requirements and Rental Inspection Requirements, as they existed on May 4, 2016, authorizing warrantless searches without probable cause, are unconstitutional, both facially and as applied to Plaintiffs;

(2) Declare that provisions of the original Point of Sale Inspection Requirements and current Rental Inspection Requirements wholly reliant upon the unconstitutional search, including but not limited to the monetary extraction for inspections and the permit requirement, violated Plaintiffs' Fourth Amendment rights;

(4) Declare that through the imposition of monetary assessments on Plaintiffs and others, precipitated by the City's desire to fund the costs of the Point of Sale Inspection Requirements and Rental Inspection Requirements, Defendant City of Bedford has been and continues to be unjustly enriched;

(9) Mandate the return of Point of Sale Inspection and Rental Inspection fees paid by Plaintiffs and others to Defendant City of Bedford; [and]

(13) Reimburse Plaintiffs for amounts they have paid to the City of Bedford in inspection fees related to unconstitutional inspections....

ECF No. 21 at PageID#: 199-200; ECF No. 45 at PageID#: 391.

II. Standard of Review

Summary judgment is appropriately granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Johnson v. Karnes , 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must "show that the non-moving party has failed to establish an essential element of his case upon which he would bear the ultimate burden of proof at trial." Guarino v. Brookfield Twp. Trustees. , 980 F.2d 399, 403 (6th Cir. 1992).

Once the movant makes a properly supported motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely on its pleadings; rather, it must "produce evidence that results in a conflict of material fact to be resolved by a jury." Cox v. Ky. Dep't of Transp. , 53 F.3d 146, 150 (6th Cir. 1995). To defeat the motion, the non-moving party must "show that there is doubt as to [whether] the material facts and that the record, taken as a whole, does not lead to a judgment for the movant." Guarino , 980 F.2d at 403. In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party when deciding whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Adickes v. S.H. Kress & Co. , 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

"The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ...." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The fact under dispute must be "material," and the dispute itself must be "genuine." A fact is "material" only if its...