Bauman v. City of Cleveland et al
Memorandum Opinion: The Court overrules the movants' objections and accepts the findings of the Magistrate Judge, including the ultimate recommendation that the motion to show cause be denied. Movants' motion to show cause (Doc. No. 88 ) is denied. Judge Sara Lioi on 3/3/2015. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
BRIAN J. BAUMAN1,
CITY OF CLEVELAND, et al.,
CASE NO. 1:04-cv-1757
JUDGE SARA LIOI
On October 21, 2014, Magistrate Judge George J. Limbert submitted his
Interim Report and Recommendation (Doc. No. 98 [“R&R”]) addressing the motion to
show cause of third-party defendants, William Baumann (“W. Baumann”) and Bradley
Rd., Inc. (“Bradley”), and non-party Landsong Environmental Inc. (“Landsong”)
(collectively “movants”) (Doc. No. 88 [“Show Cause Mot.”).2 Movants maintain that
defendants, City of Cleveland (“City of Cleveland” or the “City”) and City Department of
Public Health (“Health Department”), have violated a 2006 consent decree and should be
held in contempt. The R&R recommends that the motion be denied. Following the grant
of several requests by movants to extend the time for filing objections, movants filed
As noted in the R&R, the surname “Baumann” is misspelled on the docket. (See Doc. No. 1-1 [“St. Ct.
Compl.”].) The Clerk is directed to correct the docket to reflect the proper spelling.
This case was originally assigned to the late Hon. John M. Manos. On July 11, 2006, it was reassigned to
the Hon. Peter C. Economus, and it was ultimately reassigned to the undersigned on April 15, 2014.
Magistrate Judge George Limbert was assigned to serve as the designated magistrate judge, pursuant to
L.R. 3.1, on July 11, 2006.
objections to the R&R. (Doc. No. 101 [“Obj.”].) Defendants have filed a timely response.
(Doc. No. 102 [“Resp.”].)
Upon de novo review of those portions of the R&R to which movants have
made objection, the Court overrules movants’ objections and denies the motion to show
Because movants objected only to the portion of the R&R recommending
the denial of the contempt motion, the remainder of the R&R—including its thorough
account of the factual and procedural history of the case—is hereby accepted as written.
(See R&R at 906-919.)3 Nonetheless, to understand how the movants and defendants
arrived at this juncture, it is necessary to go back more than a decade to the genesis of the
underlying dispute and briefly review the more salient details.
The story begins with Bradley’s efforts to operate a landfill (referred to
herein as the “Landfill”) on a parcel of land owned by plaintiff Brian Baumann (“B.
Baumann”). When Bradley’s construction and demolition debris (“C&DD”) license was
revoked by the City of Cleveland in 2003, B. Baumann entered into a business venture
with his brother, W. Baumann, to reinstate the Landfill as an operating concern.
Following faltering licensing negotiations with defendants, B. Baumann brought suit in
state court. By his August 30, 2014 complaint, B. Baumann attempted to block
defendants’ efforts to collect the $250,000.00 letter of credit B. Baumann offered to
All page numbers are to the page identification number generated by the Court’s electronic docketing
support the reopening of the Landfill. He raised claims for unconstitutional taking, unjust
enrichment, conversion, statutory theft, and fraud. He sought monetary damages and a
declaration that defendants were not entitled to the funds supporting the letter of credit.
(Doc. No. 1-1 [“St. Ct. Compl.”] at 9-18.) The action was removed to federal court on
August 30, 2004. (Doc. No. 1 [“Not. of Rem.”].) The City filed a counterclaim against B.
Baumann and Bradley, and filed a third-party complaint against W. Baumann and various
other entities. (Doc. No. 4 [“Ans. & CC”]; Doc. No. 7 [“Th. Pty. Compl.”].)
On July 13, 2006, the Court, upon the agreement of the parties, entered a
consent decree. (Doc. No. 61 [“2006 Consent Decree” or the “Consent Decree”].) The
Consent Decree provided that the 2003 C&DD license was to be reinstated, and that the
annual renewal licenses for 2004-2006 were to be issued for the Landfill. (Id. at 282.)
With respect solely to the 2006 C&DD license, it was to be modified to designate
Edgerton Holdings LLC (“Edgerton”) as the Landfill operator, and it was further
modified to require Edgerton to post the necessary financial assurances and correct
existing violations, including those explicitly identified in the Consent Decree. (Id. at
282-284.) As part of the supporting settlement agreement, the funds securing B.
Baumann’s letter of credit were to be returned to him. (Doc. No. 76-2 [“2006 Settlement
Agreement”] at 415.) Neither the 2006 Consent Decree, nor the 2006 Settlement
Agreement provided for licensing after 2006.
In accordance with the Consent Decree, defendants caused the C&DD
licenses to retroactively issue for the years 2003-2006. However, movants concede that
almost immediately thereafter, issues arose between W. Baumann and Edgerton. (Obj. at
593.) On October 6, 2006, the City of Cleveland filed a motion to show cause against W.
Baumann, Bradley, and other entities accusing them of wrongfully ejecting Edgerton
from the property and interfering with Edgerton’s efforts to correct the violations,
enumerated in the Consent Decree, at the Landfill. (Doc. No. 62.) After a hearing on the
motion, the Court entered an order finding W. Baumann, Bradley and the other entities in
contempt and enjoined these parties from further interference. (Doc. No. 68 [“Nov. 16,
2006 Order of Contempt”].) The City sought a second order of contempt against these
same parties. (Doc. No. 78.)Although no ruling appears to have ever issued on this
subsequent show cause motion, the docket indicates that a show cause hearing was
scheduled to address it. (See Doc. No. 81 and Minute entry dated July 24, 2007.)
The relationship between W. Baumann and Bradley on the one side, and
Edgerton on the other continued to sour. On November 16, 2007, W. Baumann, Bradley
and others filed a motion to clarify the Consent Decree to replace Edgerton with another
entity, Kurtz Bros. (Doc. No. 83 [“Mot. to Clarify”] at 500.) On December 12, 2007, the
Court denied the motion. W. Baumann and Bradley also became embroiled with
Edgerton in two state court actions involving the Landfill. (Doc. No. 91-4 [docket in
Edgerton Holdings LLC, et al., vs. Bradley Road Inc., et al., Cuyahoga County Court of
Common Pleas Case No. cv-06-603496]; Doc. No. 91-5 [docket in Edgerton Holdings,
LLC, et al., vs. Bradley Road, Inc., et al., Cuyahoga County Court of Common Pleas
Case No. cv-11-757167].) By the time the latter of these lawsuits was filed, W. Baumann
and Bradley had joined forces with Landsong, a company that was interested in
conducting surface mining at the Landfill and was W. Baumann’s latest choice to replace
Edgerton as operator. (See Show Cause Mot. at 595-96.) The first of these state court
actions, referred to in the present briefing as “Edgerton 1,” resulted in a 2010 settlement
that provided, in part, that Landsong would be the facility’s operator going forward.
(Doc. No. 88-1 [Edgerton 1 Settlement Agreement] beginning at 653.) The second action,
referred to in the present briefing as Edgerton II, also resulted in a settlement. (Edgerton
II docket.) The City was not a party to either action.
On April 7, 2014, movants filed the present show cause motion. Relying
on the 2006 Consent Decree, movants complain that the City of Cleveland has refused to
issue renewal licenses for the Landfill for the years 2010, 2011, 2012, and 2013. (Show
Cause Mot. at 595.) In support of the motion, movants cite notices of violations issued in
2010 and 2012 by the City of Cleveland, as well as the City’s December 2013 resolution
opposing future licensing of the Landfill on the ground that the unabated environmental
hazards existing on the property had rendered it unsafe and unusable as a C&DD landfill.
(Id. at 601-02.) Movants also highlight the City’s recent decision to withdraw its support
for surface mining at the Landfill. (Id. at 610.) By refusing to support the issuance of a
current C&DD license to Landsong, movants insist that defendants are frustrating
Landsong’s efforts to remediate the violations existing at the Landfill and identified in
the 2006 Consent Decree.
In the R&R, the Magistrate Judge recommended that the Court deny the
show cause motion because movants’ complaints fell outside the four corners of the 2006
Consent Decree. Noting that the Consent Decree only addressed licensing at the Landfill
for the years 2003, 2004, 2005 and 2006, the Magistrate Judge determined that the City’s
recent actions could not support a violation. Moreover, the Magistrate Judge concluded
that the “[t]he facts that other lawsuits have emanated about the operator of [t]he Landfill
and other issues have arisen concerning the ability of Landsong to come into compliance
with licensing requirements has no bearing upon the requirements of Cleveland or W.
Baumann and Bradley dictated by the [Consent Decree].” (R&R at 925.)
II. STANDARD OF REVIEW
A. Magistrate Judges Act and Objections to a Magistrate’s Report
“Any report and recommendation by a magistrate judge that is dispositive
of a claim or defense of a party shall be subject to de novo review by the district court in
light of specific objections filed by any party.” Powell v. United States, No. 94-5441, 37
F.3d 1499 (Table), 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994) (citing, among
authorities, 28 U.S.C. § 636(b)(1)). “An ‘objection’ that does nothing more than state a
disagreement with a magistrate’s suggested resolution, or simply summarizes what has
been presented before, is not an ‘objection’ as that term is used in this context.” Aldrich
v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004); see also Fed. R. Civ. P. 72(b)(3)
(“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”); LR 72.3(b) (any objecting party shall
file “written objections which shall specifically identify the portions of the proposed
findings, recommendations, or report to which objection is made and the basis for such
objections”). After review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” Fed. R. Civ. P. 72(b)(3).
B. The Court’s Authority to Enforce its Orders and Decrees
The purpose of a contempt proceeding is to “enforce the message that
court orders and judgments are to be taken seriously.” Elec. Workers Pension Trust Fund
of Local Union #58 v. Gary’s Elec. Serv. Co., 340 F.3d 373, 385 (6th Cir. 2003) (citing
N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th Cir. 1987)). A complaining
party in a contempt proceeding must prove by clear and convincing evidence that the
alleged contemnor violated “a definite and specific order of the court requiring him to
perform or refrain from performing a particular act or acts with knowledge of the court’s
order.” Cincinnati Bronze, 829 F.2d at 591 (quotation marks and citation omitted).
Consent decrees are orders issued by a court, and, as such, a court has a
“duty to enforce . . . [its] consent decrees as required by circumstance.” Shy v. Navistar
Intern. Corp., 701 F.3d 523, 532 (6th Cir. 2012) (quotation marks and citations omitted);
Waste Mgmt. of Ohio v. City of Dayton, 132 F.3d 1142, 1145 (6th Cir. 1997) (A federal
court is required to “protect the integrity of [its consent decrees] with its contempt
powers[.]”). When ruling on a motion to show cause why a party should not be held in
contempt of a court’s consent decree, the interpretation of the consent decree is a
question of law for the court. City of Covington v. Covington Landing Ltd. P’ship, 71
F.3d 1221, 1227 (6th Cir. 1995) (further citation omitted).
III. OBJECTIONS TO THE R&R
A. Non-Party Landsong Lacks Standing to Object
While Landsong readily concedes that it was not a party to the 2006
Consent Decree, it claims to have standing to enforce the decree by virtue of the fact that
it is the “successor to the prior operator” of the Landfill. (Obj. at 934, n.1.) “The Supreme
Court has held, however, that ‘a well-settled line of authority . . . establishes that a
consent decree is not enforceable directly or in collateral proceedings by those who are
not parties to it even though they were intended to be benefited by it.’” S.E.C. v. Dollar
Gen. Corp., 378 F. App’x 511, 514 (6th Cir. 2010) (quoting Blue Chip Stamps v. Manor
Drug Stores, 421 U.S. 723, 750, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975)); see Sanders v.
Republic Servs. of Ky., LLC, 113 F. App’x 648, 650 (6th Cir. 2004) (“Following Blue
Chip Stamps, we have held that third parties, even intended third-party beneficiaries, lack
standing to enforce their interpretations of agreed judgments.”); Vogel v. City of
Cincinnati, 959 F.2d 594, 598 (6th Cir. 1992) (“A consent decree is not enforceable . . .
by those who are not parties to it.”) (quotation marks and citation omitted). Because
Landsong was not a party to the underlying federal litigation, or the Consent Decree that
grew out of it, it lacks standing to bring the present motion.
B. The Scope and Goals of the 2006 Consent Decree
By their first three objections, the remaining movants—W. Baumann and
Bradley—complain that: (1) the Magistrate Judge misconstrued the “purposes” of the
Consent Decree by overlooking the parties’ expectations about the future of the Landfill
and its subsequent licensing; (2) the R&R urges the premature dissolution of the Consent
Decree before its goals have been met; and (3) the R&R ignores the reciprocal nature of
the Consent Decree’s two objectives. Because these objections require the Court to
interpret the scope of the Consent Decree, the Court shall address them together.
The Court begins with the law governing the interpretation of consent
decrees. “A consent decree is a strange hybrid in the law.” Vanguards of Cleveland v.
City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994) (quoting Brown v. Neeb, 644 F.2d
551, 557 (6th Cir. 1981)). Consent decrees “bear some of the earmarks of judgments
entered after litigation” and “[a]t the same time, because their terms are arrived at
through mutual agreement of the parties, consent decrees also closely resemble
contracts.” Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501,
519, 106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986) (citations omitted). As the Supreme Court
Consent decrees are entered into by parties to a case after careful
negotiation has produced agreement on their precise terms. The parties
waive their right to litigate the issues involved in the case and thus save
themselves the time, expense, and inevitable risk of litigation. Naturally,
the agreement reached normally embodies a compromise; in exchange for
the saving of cost and elimination of risk, the parties each give up
something they might have won had they proceeded with the litigation.
Thus the decree itself cannot be said to have a purpose; rather the parties
have purposes, generally opposed to each other, and the resultant decree
embodies as much of those opposing purposes as the respective parties
have the bargaining power and skill to achieve. For these reasons, the
scope of a consent decree must be discerned within its four corners, and
not by reference to what might satisfy the purposes of one of the parties to
United States v. Armour & Co., 402 U.S. 673, 681, 91 S. Ct. 1752, 29 L. Ed. 2d 256
(1971) (first and second emphases in original; third emphasis added).
“The court’s task in interpreting a consent decree is ‘to ascertain the intent
of the parties at the time of settlement.’” Nat’l Ecological Found. v. Alexander, 496 F.3d
466, 477-78 (6th Cir. 2007) (quoting Huguley v. Gen. Motors Corp., 67 F.3d 129, 134
(6th Cir. 1995)). “A court has no occasion to resolve the merits of the disputed issues or
the factual underpinnings of the various legal theories advanced by the parties.” Williams
v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983) (citations omitted). Rather, “[a] consent
decree . . . should be strictly construed to preserve the bargained for position of the
parties.” Id. (citing, among authorities, ITT Cont’l Baking Co., 420 U.S. 223, 238, 95 S.
Ct. 926, 43 L. Ed. 2d 148 (1975)).
Movants broadly interpret the twin aims identified in the 2006 Consent
Decree as the licensing of the Landfill’s operations and the correction of the regulatory
violations existing on the property. (Obj. at 948.) However, examination of the language
of the four corners of the Consent Decree reveals that its scope was much more limited.
The document “orders that the 2003 construction and demolition debris license” be
“reinstated and that the annual renewal licenses for 2004, 2005, and 2006 . . . be deemed
issued[.]” (2006 Consent Decree at 282.) Additionally, with respect to the 2006 C&DD
license, the Consent Decree designated Edgerton as the Landfill operator and placed
certain requirements on Edgerton as the operator. (Id. [“The 2006 License is hereby
modified to designate Edgerton Holdings LLC as the Operator for the” Landfill.]; Id. at
282-83 [“The  License is hereby modified to require that the Operator shall . . .
correct existing violations and address other related issues set forth herein” at the
Landfill.].) Thus, the parties’ negotiated two purposes identified in the Consent Decree
are more properly understood as: (1) reinstating and issuing the operating licenses for
2003-2006; and (2) in connection with the 2006 license, installing Edgerton as the
operator and requiring it to perform its operator duties, including the remediation of
certain enumerated and un-enumerated violations at the site.4
There is nothing in the four corners of the 2006 Consent Decree that
points to a duty owed by the City of Cleveland to ensure the licensing of the Landfill
beyond 2006. While the Court retained jurisdiction to enforce “the terms” of the Consent
Decree, there is nothing in the language that would suggest that the Court was to provide
on-going oversight of the Landfill in perpetuity. (2006 Consent Decree at 285.) That the
Consent Decree required Edgerton to submit a plan for “future operation” of the Landfill
does not, as movants suggest, change the result. (Obj. at 941 [citing 2006 Consent Decree
at 282].) It was the submission of the plan, and not the execution of the plan, that was
governed by the Consent Decree. Moreover, the mere fact that the Consent Decree
anticipated that the Landfill would remain a going concern after 2006 does not mean that
it was the parties’ intent to require the Court to continue to monitor the Landfill’s
Likewise, the recent actions by the City’s zoning administration, taken in
connection with Landsong’s requests for permits in 2010 and beyond, cannot constitute
contempt of the 2006 Consent Decree. There is nothing in the 2006 Consent Decree that
precludes Landsong from pursuing a license in 2010 and beyond, but there is also nothing
In connection with these duties, Edgerton was also required by the 2006 Consent Decree to comply with
state law to provide financial assurances and comply with all applicable laws and regulations governing the
operation of such landfills. (2006 Consent Decree at 284-85.)
in that document that requires the City to take any particular position regarding future
licensing at the site. The movants are free to seek such licensing, but actions surrounding
applications for licensing beyond 2006 are simply not governed by the Consent Decree.
To conclude otherwise, the Court would have to disregard the plain language of the
Consent Decree and overlook the fact that the Consent Decree specifically anticipated
that Edgerton would be the operator, and not W. Baumann’s unilaterally selected
operator—Landsong—who is the present applicant.5
Because the Court finds that the Magistrate Judge did not err in his
construction of the limited scope of the Consent Decree, movants’ first and third
objections—that the Magistrate Judge overlooked the parties’ expectations for the future
of the Landfill and the reciprocal nature of the goals of the Consent Decree—are
With respect to their second objection—that the R&R’s recommended
resolution of the present show cause motion would leave the goals of the Consent Decree
unfulfilled—movants underscore the public benefits, such as remediation of land erosion
near the Landfill, that will be lost if the City is not enjoined from its purported efforts to
interfere with current licensing applications. In support, movants cite to Youngblood v.
Dalzell, wherein the Sixth Circuit instructed trial courts to consider whether the goals of a
Movants insist that the Court may consider the 2006 Settlement Agreement as within of the “four corners”
of Consent Decree, inasmuch as the Consent Decree specifically incorporates that document by reference.
(Obj. at 940 [citing 2006 Consent Decree at 285].) Reference to the 2006 Settlement Agreement does not
help movants because it only requires the City to continue to the support the rezoning ordinance that was
pending at the time the agreement was finalized, and does not take into account the fact that W. Baumann’s
newly selected operator would want to pursue surface mining at the site or that the violations at the site
would go unabated for years. (2006 Settlement Agreement at 414.)
consent decree had been achieved before dissolving existing consent decrees. 925 F.2d
954, 961 (6th Cir. 1991). (Obj. at 946.) Movants’ reliance on Youngblood and other
similar cases is misplaced.
In cases involving institutional reform, such as Youngblood, which
addressed racial discrimination in the hiring of firefighters, the Sixth Circuit has held that
a district court should not terminate its jurisdiction until it determines that the defendants
have complied with the terms of the consent decree and achieved the social reform goals
set forth therein. See Heath v. DeCourcy, 992 F.2d 630, 633 (6th Cir. 1993) (finding that
the district court erred in dissolving the consent decree addressing double-celling in
prison where the district court failed to determine whether the goal of improving prison
conditions had been achieved) (citing Youngblood, 925 F.2d at 957-58); see, e.g.
Gonzales v. Galvin, 151 F.3d 526, 532 (6th Cir. 1998) (consent decree growing out of
civil rights litigation was improperly terminated in the absence of findings by the district
court that the goal of eradicating race discrimination in hiring practices of a police
department had been met).
“However, [the Sixth Circuit has] held that consent decrees relating to
institutions are ‘fundamentally different’ from those between private parties.” Sweeton v.
Brown, 944 F.2d 905 (Table), 1991 WL 181751, at *9 (6th Cir. Sept. 17, 1991) (quoting
Heath, 888 F.2d at 1109). “This is because these types of decrees ‘reach beyond the
parties involved directly in the suit and impact on the public’s right to sound and efficient
operation of its institutions.’” Id. (quoting Heath, 888 F.2d at 1109). Because of the broad
impact of consent decrees that grow out of institutional reform litigation, the standard for
extending such decrees by way of modification is more relaxed. Id.; see Thompson v.
United States Dep’t of Housing & Urban Dev., 404 F.3d 821, 826 (4th Cir. 2005) (noting
the “need for a flexible approach [in modifying consent decrees] was particularly great as
to consent decrees arising out of institutional reform litigation[.]”) (citing Rufo v. Inmates
of Suffolk Cnty., 502 U.S. 367, 379, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992)); Lorain
NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1149 (6th Cir. 1992) (recognizing a “less
stringent” modification standard in institutional consent decrees) (citations omitted).
The present Consent Decree did not spring from institutional reform
litigation. Instead, it was the result of the resolution of a dispute between parties
involving the use of a parcel of land. As such, it was not crafted to ensure the long-term
eradication of a societal ill, but represented the parties’ negotiated compromise regarding
the operation of a Landfill on the property between 2003 and 2006. See Armour, 402 U.S.
at 681. Neither the fact that one of the parties to the lawsuit happened to be a public
entity, nor the fact that the public would have indirectly benefited from certain
environmental improvements to this private property, changes the nature of the
To require the City to issue a license in 2015 to Landsong would certainly
“satisfy the purposes” of movants and Landsong in operating the Landfill in 2015 and
beyond and in enabling them to engage in surface mining at the site. It would also,
however, result in a ruling that reaches far beyond the scope of the Consent Decree and
the parties’ expectations at the time it was entered. See Armour, 402 U.S. at 681. Again,
the Consent Decree cannot be construed to mandate that the City must issue licenses in
perpetuity to whomever movants unilaterally select, at any given time, to operate the
Landfill, any more than it can be interpreted to require the City to endorse surface mining
at the site, something that was not contemplated by the parties when the Consent Decree
was entered. Moreover, the fact that movants, through Landsong, now purportedly stand
ready to remediate the violations enumerated more than eight years earlier in the Consent
Decree does not provide justification for re-writing the parties’ bargained for
compromise. See Vanguards, 23 F.3d at 1018 (“[A] consent decree should be construed
to preserve the position for which the parties bargained.”) (citing Vogel, 959 F.2d at 598)
(further citation omitted). Movants’ second objection is overruled.
C. No Inequitable Enforcement of the 2006 Consent Decree
By their fourth objection, movants complain that the denial of their show
cause motion would result in an inequitable enforcement of the Consent Decree. Movants
direct the Court’s attention to the November 16, 2006 Order of Contempt finding
movants and others in violation of the 2006 Consent Decree, highlighting language
prohibiting movants “from engaging in any further conduct violating the Consent Decree
or impeding [the operator] from operating the Landfill . . . .” (Obj. at 950 [quoting Nov.
16, 2006 Order of Contempt, emphasis and substituted language supplied by movants].)
Movants underscore the fact that the injunction was not limited to either a certain time
period or to any particular type of impeding. (Obj. at 951.) Movants’ attempt to isolate
(and re-write) one sentence from the Court’s prior order is unavailing.6
In 2006, the Court found movants had violated the terms of the Consent
Decree by interfering with the ability of Edgerton to operate and take “other actions
necessary to correct existing violations . . . as required by the Consent Decree.” (Nov. 16,
2006 Order of Contempt.) The corrections at issue were tied to the 2006 license and were
clearly covered by the 2006 Consent Decree. The Court’s prior contempt order, therefore,
was well within the scope of the Consent Decree. As set forth above, the present motion
strays far beyond the scope, and its denial does not result in inequitable treatment. The
fourth objection is overruled.
D. Changed Circumstances Cannot Support Contempt Motion
In their final objection, movants maintain that the R&R discounts
evidence of changed circumstances, including the state court litigation between movants
and Edgerton and Landsong’s efforts to seek regulatory authority to operate the Landfill.
(Obj. at 953.) Movants now argue, for the first time, that these changed circumstances
necessitate a modification of the 2006 Consent Decree. (Id. at 954.)
“Our Circuit holds that ‘[t]he Magistrate Judge Act, 28 U.S.C. § 631 et
seq. . . . does not allow parties to raise at the district court stage new arguments or
issues.’” Jones-Bey v. Caruso, No. 1:07-cv-392, 2009 WL 3644801, at *1 (W.D. Mich.
The actual relevant language of the contempt order was directly tied to the terms (and the relevant time
period) of the Consent Decree, and provides that the contemnors were “enjoined from engaging in any
further conduct violating, obstructing, impeding and/or interfering with implementation of the Consent
Decree by denying access to the Property or otherwise impeding the ability of Edgerton Holdings to
operate the Bradley Road landfill and/or to implement the Consent Decree under the City’s supervision.”
(Nov. 16, 2006 Order of Contempt at 354.)
Oct. 30, 2009) (quoting Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)
(further citation omitted); see United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998)
(“issues raised for the first time in objections to [a] . . . report and recommendation are
deemed waived”) (citation omitted); Marr v. Foy, No. 1:07-cv-908, 2010 WL 3061297,
at *4 (W.D. Mich. Aug. 3, 2010) (“It is well established that a party may not raise an
argument, advance a theory, or marshal evidence before a District Judge that was not
fairly presented to the Magistrate Judge.”) “The Magistrates Act was not intended ‘to
give litigants an opportunity to run one version of their case past the magistrate, then
another past the district court.’” Jones-Bey, 2009 WL 3644801, at *1 (quoting Greenhow
v. United States, 863 F.2d 633, 638-39 (9th Cir. 1988), rev’d o.g. sub nom, United States
v. Hardesty, 977 F.2d 1347 (9th Cir. 1992) (en banc)).
“Moreover, ‘[i]f the Court were to consider [this] untimely argument, it
would unduly undermine the authority of the Magistrate Judge by allowing litigants the
option of waiting until a Recommended Ruling has issued to advance additional
arguments.’” Kita v. Comm’r of Soc. Sec., No. 1:08-cv-446, 2009 WL 1464252, at *2
(W.D. Mich. May 18, 2009) (quoting Burden v. Astrue, 588 F. Supp. 2d 269, 279 (D.
Conn. 2008)); see, e.g., In re Neurontin Mktg., Sales Practices, and Prods. Liab. Lit., 433
F. Supp. 2d 172, 185 (D. Mass. 2006) (“Defendants raised none of these arguments
before the Magistrate Judge, and they may not raise them for the first time as objections
to the Report and Recommendation.”) (citation omitted); Borden v. Sec’y of Health &
Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (“[H]ere the district court judge properly
refused to consider an argument which could have been, but inexplicably was not,
presented to the magistrate in the first instance.”) Because movants did not raise the issue
of modification before the Magistrate Judge, the objection is overruled.
Of course, when the objection is considered in the context of the present
motion—a motion to show cause why defendants should not be held in contempt of the
Consent Decree—the weakness of movants’ position is thrown into sharp relief. By now
advocating for a modification of the Consent Decree, movants essentially concede that
they cannot point to “a definite and specific order of the court” requiring defendants to
“perform or refrain from performing a particular act or acts[.]” See Cincinnati Bronze,
Inc., 829 F.2d at 590. In the absence of “clear and convincing evidence” that defendants
have violated a specific provision of the 2006 Consent Decree, it would be inappropriate
for the Court to modify the consent decree to retroactively manufacture a violation. See
id. For this additional reason, the objection is overruled.7
In so ruling, the Court is mindful that district courts retain the jurisdiction
to, in appropriate circumstances, modify consent decrees. See Thompson, 404 F.3d at
825-26 (discussing the court’s “inherent power” to modify consent decrees); Waste
Mgmt. of Ohio, 132 F.3d at 1146 (recognizing that courts have a “duty to enforce,
interpret, modify, and terminate their consent decrees as required by circumstance”).
Nonetheless, even if the request for modification was properly before this Court, there
remains a serious question as to whether it would have been approved. Rule 60(b)(5)
It is appropriate for the Court to reach this conclusion without holding a hearing. While a hearing is
necessary before a consent decree can be modified over the objection of one party, a hearing is not
necessary before a modification is rejected when (as here) the “motion does not raise a serious challenge to
the consent decree and merely appears to be a post-judgment attempt by a party to escape from obligations
it had voluntarily assumed[.]” See United States v. Wayne Cnty., Mich., 369 F.3d 508, 512 (6th Cir. 2004)
(quotation marks and citation omitted).
permits modification of a consent decree when continued prospective application would
be inequitable. Fed. R. Civ. P. 60(b)(5). “This rule does not allow modification simply
‘when it is no longer convenient to live with the terms of a consent decree,’ but solely
when there is ‘a significant change either in factual conditions or in law.’” Northridge
Church v. Charter Twp. of Plymouth, 647 F.3d 606, 613-14 (6th Cir. 2011) (quoting
Rufo, 502 U.S. at 383-84) (emphasis in original). Moreover, “modification of a consent
decree is an extraordinary remedy that should not be undertaken lightly.” Id. at 614
(quotation marks and citation omitted).
There is nothing in the record to show that movants have met their “heavy
burden” of demonstrating that they “made a reasonable effort to comply with the decree
and should be relieved of the undertaking under Rule 60(b).” Northridge Church, 647
F.3d at 616 (quoting Rufo, 502 U.S. at 385). Rather, the record demonstrates that movants
opposed Edgerton’s efforts to comply with the Consent Decree, and their actions resulted
in a finding of contempt and years of state court litigation. Considerable time and effort
also seem to have been devoted to pursuing surface mining at the Landfill, an activity not
contemplated by the Consent Decree. Under these circumstances, movants would be hard
pressed to demonstrate that they made reasonable efforts to comply with the Consent
Decree as written. Id. at 618 (In affirming district court’s denial of a motion to modify a
consent decree, court relied, in part, on the fact that the changed circumstances were not
beyond the movant’s control).
For all of the foregoing reasons, the Court overrules the movants’
objections and accepts the findings of the Magistrate Judge, including the ultimate
recommendation that the motion to show cause be denied. Movants’ motion to show
cause (Doc. No. 88) is denied.
IT IS SO ORDERED.
Dated: March 3, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?