DeCasso et al v. Wyman-Gordon Forgings, Inc. et al
Filing
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Opinion and Order. Defendants' Motion to Dismiss (Related doc # 12 ) is granted in part. Count Two of Plaintiffs' Second Amended Complaint is dismissed without prejudice. The Court declines to exercise its supplemental jurisdiction over Plaintiffs' remaining state law claims and remands the case to the Cuyahoga County Court of Common Pleas for further adjudication. Judge Christopher A. Boyko on 8/16/2012. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALAN DECASSO, ET AL.,
Plaintiff,
Vs.
CITY OF CLEVELAND, ET AL.,
Defendant.
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CASE NO.1:11CV2644
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on the Motion of Defendants City of Cleveland, Karen
Butler and Matt Carroll to Dismiss (ECF # 12). For the following reasons, the Court grants, in
part, Defendants’ Motion and dismisses, without prejudice, Count Two of Plaintiffs’ Second
Amended Complaint. The Court declines to exercise its supplemental jurisdiction over
Plaintiffs’ remaining state law claims and remands the case back to Cuyahoga County Court of
Common Pleas for further adjudication.
FACTUAL BACKGROUND
Plaintiffs Allan Decasso, Galina Banas, and R.B (Plaintiffs) allege, that, in October 2007,
they drafted a neighborhood petition as to the intolerable noises and vibrations emanating from
the Wyman-Gordon factory, in particular, its drop forge hammers. Wyman-Gordon is a drop die
and forging factory. Plaintiffs allege that they were unable to garner a response from WymanGordon and, as a result, turned to the City of Cleveland (the City) for relief. In January 2008,
Plaintiffs secured a meeting with Councilman Anthony Brancatelli who promised to help remedy
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the situation. In August 2010, the City conducted a noise and vibration study at the DeCasso
home. Plaintiffs contend that the study indicated that the noises and vibrations emanating from
Wyman-Gordon did, in fact, amount to a nuisance. Plaintiffs allege further that in November
2010, following the publication of the study, counsel for Plaintiffs sent a formal demand letter to
the City to identify what steps it would take to remedy the situation, to which the City did not
respond.
In November 2010, Plaintiffs filed a Complaint for injunctive relief and money damages
against Defendant, Wyman-Gordon Forgings, Inc. The Complaint was filed on the grounds that
Defendant Wyman-Gordon’s operation of its drop forge hammers at night and on weekends
constitutes a private, qualified nuisance.
In September 2011, Plaintiffs moved to amend their Complaint by adding Defendant City
of Cleveland, Matt Carroll in his former official capacity as Director of Cleveland Department of
Public Health, and Karen Butler, in her official capacity as Director of the Cleveland Department
of Public Health. Defendant Carroll resigned from his position in January of 2011 and no longer
works for the City. Carroll was replaced shortly after by Karen Butler. Thus, the City filed a
Notice of Automatic Substitution of Defendant Matt Carroll under Fed. R. Civ. P. 25(d)
simultaneously with its Motion to Dismiss.
The Amended Complaint against the City and its officials seeks declaratory judgment
relief and money damages on the alleged grounds that the City’s 1997 enactment of Ord. 1745-97
(“Zoning Ordinance”) and decision not to enforce C.C.O. § § 203.01 and 203.02, (“Health
Nuisance Ordinances”) against Defendants constitutes a “Negligent Implementation of Policy.”
Defendants then removed the case to federal court on December 6, 2011. On January 13 ,
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2012, Defendants moved to dismiss Plaintiffs’ Amended Complaint for failure to state a claim
upon which relief can be granted. On February 23, 2012, the Court deemed filed as of that date,
Plaintiff’s Second Amended Complaint and further held Defendants’ Motion to Dismiss was not
rendered moot by the newly Amended Complaint since the amendments applied only to
Defendant Wyman-Gordon. Furthermore, the Second Amended Complaint did not alter
Plaintiffs’ claims against the City or its principals. On July 2, 2012, Plaintiffs’ dismissed their
claims against Wyman-Gordon, leaving the City and its employees as Defendants. Therefore, the
only federal claim presented is Count Two of the Second Amended Complaint.
STANDARD OF REVIEW
Civil Rule 12(b)(6) Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that “ [a] pleading that
states a claim for relief must contain...a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, to survive a Rule 12(b)(6) motion
to dismiss, the pleading must contain something more than a statement of facts that merely
creates a suspicion of a legally cognizable right of action. See Bell Atl. Corp. v. Twombley, 550
U.S. 544, 555 (2007). Instead, a complaint must contain sufficient factual matter “to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). A claim is
plausible if the complaint contains “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged,” and if there is “more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 677. Determining the
plausibility of a claim is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
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LAW AND ANALYSIS
Plaintiff alleges five separate claims against Defendants: (1) declaratory and injunctive
relief as well as money damages for the nuisance against Wyman-Gordon only; (2) violation of
the Fifth Amendment to the United States Constitution brought pursuant to 42 U.S.C. § 1983; (3)
violation of Section 19, Article 1 of the Ohio Constitution; (4) failure to abate a nuisance in
violation of Cleveland Codified Ordinances 203.01 and 203.02; and, (5) negligent
implementation of policy. Defendants seek to dismiss Plaintiffs’ Second Amended Complaint
for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiffs’ Count Two Should be Dismissed Because They Failed to Exhaust State Law
Remedies
Defendants contend that because Plaintiffs failed to pursue the requisite mandamus relief
their claim is not ripe or a cognizable cause of action. Plaintiffs, however, argue that mandamus
is an extraordinary remedy and that seeking declaratory and injunctive relief, as well as money
damages, is sufficient to exhaust available state remedies. A claim that the application of
government regulations effects a taking of a property interest is not ripe until the government
entity charged with implementing the regulations has reached the final decision regarding
application of regulations to the property. Williamson County Reg’l Planning Com’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 186 (1985). Furthermore, if a state provides adequate
procedure for seeking just compensation for the taking of property, the property owner cannot
claim a violation of the just compensation clause until it has used the procedure and been denied
just compensation. Id. at 194. The proper procedure in Ohio is to seek a mandamus from state
court directing state officials to institute eminent domain proceedings to determine just
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compensation. See Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1035 (6th
Cir. 1992). “For an alternate remedy to constitute an adequate remedy so as to preclude the
requested extraordinary relief in mandamus, it must be complete, beneficial, and speedy. State ex
rel. Gilmour Realty, Inc. v. Mayfield Hts., 119 Ohio St.3d 11 (2008).
In Gilmour, the court found that plaintiff’s pending action for declaratory and injunctive
relief was not a complete remedy because it “cannot compel the city to commence an
appropriation proceeding for the property allegedly taken.” Gilmour, 119 Ohio St.3d at 13.
Plaintiffs attempt to distinguish the present case by pointing out that the plaintiff in Gilmour did
not seek money damages, whereas here, Plaintiffs do. However, the Gilmour Court then held
that such action can only be complete if it is “coupled with ancillary extraordinary relief in the
nature of a mandatory injunction to compel the city to institute appropriation proceedings.”
Gilmour, 119 Ohio St.3d at 13. In addition, the court stated that “a request for money damages
against a municipality in a declaratory judgment action challenging the validity of a rezoning
ordinance is precluded.” Id. at 15. Plaintiffs have not obtained a mandatory injunction to compel
the City to institute appropriation proceedings nor have they cited any authority that supports
their proposition. As a result, Count Two of Plaintiffs’ Amended Complaint is dismissed,
without prejudice, because they failed to exhaust state law remedies.
Because Count Two of Plaintiffs’ Second Amended Complaint was the only claim giving
the Court original jurisdiction to hear this matter, the Court’s authority to hear Plaintiff’s
remaining state claims is pursuant to its supplemental jurisdiction. See United Mine Workers v.
Gibbs, 383 U.S. 715 (1966), 28 U.S.C. § 1367(c). The Court is given broad discretion over its
decision to exercise its supplemental jurisdiction. See Cirasuola v. Westrin, No. 96-1360, 1997
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WL 472176, at *1 (6th Cir. Aug.18, 1997)(“ the [C]ourt has discretion to decline to exercise its
supplemental jurisdiction.”). “[W]hen deciding whether to exercise supplemental jurisdiction, a
federal court should consider and weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity.” City of Chicago v. International
College of Surgeons, 522 U.S. 156, 173 (1997). In light of the above factors, the Court declines
to exercise its discretion over the remaining state claims. Plaintiff’s claims implicate Ohio
constitutional questions, municipal ordinances and state torts all of which are most appropriately
heard at the state court level. Therefore, the Court remands the case back to Cuyahoga County
Court of Common Pleas for further adjudication.
IT IS SO ORDERED.
s/ Christopher A. Boyko ____________
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: August 16, 2012
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