Winer v. Clay Twp.

• Decision Date: 06 July 2016
• Docket Number: Case No. 3:15-cv-276
• Parties: EMANUEL H. WINER, Plaintiff, v. CLAY TWP., MONTGOMERY COUNTY, OHIO, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

EMANUEL H. WINER, Plaintiff,
v.
CLAY TWP., MONTGOMERY
COUNTY, OHIO, et al., Defendants.

Case No. 3:15-cv-276

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

July 6, 2016

JUDGE WALTER H. RICE

DECISION AND ENTRY SUSTAINING IN PART AND NOT RULING UPON IN PART DEFENDANTS CLAY TOWNSHIP, MONTGOMERY COUNTY, OHIO, DAVID A. VORE, STEVEN A. WOOLF AND DALE R. WINNER'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS (DOC. #10); PLAINTIFF EMANUEL H. WINER'S CLAIMS AGAINST VORE AND WOOLF IN THEIR INDIVIDUAL CAPACITIES ARE DISMISSED WITH PREJUDICE TO THE EXTENT THEY ARE BROUGHT UNDER 42 U.S.C. § 1983; PLAINTIFF'S CLAIM FOR DECLARATORY JUDGMENT (COUNT I AND PARAGRAPH E OF PRAYER FOR RELIEF) IS DISMISSED WITHOUT PREJUDICE AS UNRIPE TO THE EXTENT THAT IT IS BROUGHT UNDER 42 U.S.C. § 1983; DEFENDANTS' MOTION TO STRIKE (DOC. #15) OVERRULED AS MOOT; CAPTIONED CASE REMANDED TO MONTGOMERY COUNTY, OHIO, COURT OF COMMON PLEAS; TERMINATION ENTRY

Plaintiff Emanuel H. Winer ("Plaintiff") alleges that the decision by the Board of Trustees of Defendant Clay Township, Montgomery County, Ohio ("Township"), to deny his request to rezone a parcel of land that he owns was a regulatory taking without just compensation, in violation of the Fifth and Fourteenth Amendments to the United States Constitution (action brought under 42 U.S.C. § 1983) and Ohio law. Doc. #1-12. Plaintiff filed suit against the Township and its Trustees, David A. Vore ("Vore"), Steven A. Woolf ("Woolf") and Dale R. Winner ("Winner"), in their official

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capacities, and against Vore and Woolf in their respective individual capacities. The Township, Vore, Woolf and Winner (collectively "Defendants") now move for partial judgment on the pleadings. In the alternative, Defendants move to dismiss Plaintiff's claims against Vore and Woolf for ineffective service of process. Doc. #10. Also, Defendants move to strike portions of Plaintiff's memorandum in opposition to their motion, and the memorandum's attached exhibits. Doc. #15 (citing Doc. #12, PAGEID #102, 108-09). The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367, 1441(a). For the reasons set forth below, Defendants' motion for partial judgment on the pleadings is SUSTAINED IN PART and not ruled upon in part, and Defendants' motion to strike is OVERRULED AS MOOT.

I. FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY¹

Since 1992, Plaintiff has owned a parcel of approximately four acres ("Property") in an area of the Township that is zoned as Business-2 ("B-2"). Doc. #1-12, ¶¶ 3, 5, 8, PAGEID #34. Plaintiff built a model home on the Property for use in his residential home construction business. Id., ¶ 12, PAGEID #35. Upon his retirement in 2013, Plaintiff sought to convert the model home into his full-time residence, at which point he was informed that the B-2 zoning designation precluded him from having an occupied residential unit on the Property. Id., ¶ 14, PAGEID #35-36. Plaintiff applied to have the Property rezoned as Planned Development-4 ("PD-4"), which would allow him to use the house as a residence. Id., ¶ 15, PAGEID #36. Plaintiff's application was approved

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by the Township's Zoning Commission and the Montgomery County Planning Commission. Id., ¶¶ 17-18, PAGEID #36-37. However, the Township Trustees-including Vore and Woolf, but not Winner—voted unanimously to deny Plaintiff's application. Id., ¶¶ 19-20, PAGEID #37.

On July 14, 2015, Plaintiff filed suit, alleging that Defendants' "refus[al] to rezone the Property was arbitrary and capricious and bears no substantial relation to the public health, safety, morals or general welfare." Id., ¶ 22. Plaintiff sought a declaratory judgment that the denial of his rezoning application was an uncompensated regulatory taking, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Ohio law. Id., ¶¶ 23-27, PAGEID #37-38 (Count I).² Plaintiff also sought to enjoin Defendants "from interfering with Plaintiff's development and use of the subject tract pursuant to PD-4 zoning." Id., ¶ 29, PAGEID #38 (Count II). In addition to declaratory and injunctive relief, Plaintiff sought $245,000 in compensatory damages against the Township, Vore and Woolf, and punitive damages against Vore and Woolf. Id., PAGEID #39.

On July 15, 2015, Deputy M. Walters of the Montgomery County, Ohio, Sheriff's Office attempted to execute personal service upon the Township, Vore, Woolf and Winner by delivering all four summonses to the Township's offices and leaving them

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with Michelle Williams, the Township's Administrative Assistant. Doc. #1-8; Doc. #1-9; Doc. #1-10; Doc. #1-11. Defendants removed the case on August 10, 2015, Doc. #1, and also answered the Complaint on that date. Doc. #4. In their answer, Defendants raised the affirmative defenses that: "[t]he Plaintiff has failed to state a claim upon which relief can be granted"; and "[t]here was insufficient service of process upon some Defendants." Id., PAGEID #52.

On October 22, 2015, pursuant to Fed. R. Civ. P 12(c), Defendants moved for partial judgment on the pleadings, arguing that, for several reasons, Vore and Woolf should be dismissed from the case completely. Doc. #10, PAGEID #83-87. In the alternative, Defendants moved for Vore and Woolf to be dismissed, pursuant to Fed. R. Civ. P. 12(b)(5), because they were not properly served, and the Court thus lacks personal jurisdiction over them. Id., PAGEID #79, 87-88. Further, Defendants moved for judgment on the pleadings on behalf of the Township with respect to: (1) Count I, to the extent that Plaintiff was raising a federal constitutional claim; (2) Count II in its entirety; and (3) paragraphs "e" and "h"³ of Plaintiff's prayer for relief. Id., PAGEID #88-91.

II. LEGAL STANDARD

A. Judgment on the Pleadings

"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "A motion for judgment on

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the pleadings under Rule 12(c) attacks the sufficiency of the pleadings and is reviewed under the same standard applicable to a motion to dismiss under Rule 12(b)(6)." Wurzelbacher v. Jones-Kelly, 728 F. Supp. 2d 928, 931 (S.D. Ohio 2010) (Marbley, J.) (citing Ziegler v. IBP Hog Mkt.. Inc., 249 F.3d 509, 511-12 (6th Cir. 2011)).

Fed. R. Civ. P. 8(a) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Fed. R. Civ. P. 12(b)(6) allows a party to move for dismissal of a complaint on the basis that it "fail[s] to state a claim upon which relief can be granted." The moving party "has the burden of showing that the opposing party has failed to adequately state a claim for relief." DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991)). The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or for judgment on the pleadings under Fed. R. Civ. P. 12(c) "is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). In ruling on a Fed. R. Civ. P. 12(b)(6) or 12(c) motion, the Court must "construe the complaint in the light most favorable to the plaintiff, accept its [well-pleaded] allegations as true, and draw all reasonable inferences in favor of the plaintiff." Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Treesh, 487 F.3d at 476).

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Nevertheless, to survive a Fed. R. Civ. P. 12(b)(6) or 12(c) motion, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Unless the facts alleged show that the plaintiff's claim crosses "the line from conceivable to plausible, [the] complaint must be dismissed." Id. Although this standard does not require "detailed factual allegations," it does require more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 555. "Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, those conclusions "must be supported by well-pleaded factual allegations . . . [that] plausibly give rise to an entitlement of relief." Id. at 679.

B. Motion to...