Northwest Ohio Properties, Ltd v. Lucas County

Filing 51

MEMORANDUM OPINION granting Motion to dismiss for lack of jurisdiction. (Related Doc # 37 ). Judge David A. Katz on 6/30/15.(G,C)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

NORTHWEST OHIO PROPERTIES, LTD.,
Plaintiff,

Case No. 3:11 CV 1867

-vsMEMORANDUM OPINION
LUCAS COUNTY, et al.,
Defendant.
KATZ, J.
I. Introduction
Plaintiff Northwest Ohio Properties, Ltd. (“NWOP”) brings this 42 U.S.C. § 1983 civil
rights action against Defendants Lucas County, Watermark Properties, Ltd. V, Gulfstream
Development, LTD, Gulfstream Development LTD II, Waterside Sylvania, LLC, Ankney
Enterprises, Inc. and John Does 1-30 (collectively “Defendants”) alleging certain Constitutional
violations and supplemental state law claims stemming from alleged easement-agreement
violations by Defendants. (Doc. No. 19).
Defendant Lucas County has moved to dismiss the case for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. No. 37).
NWOP has filed an opposition (Doc. No. 44), Defendant Lucas County has filed a reply (Doc. No.
47), and NWOP has filed a sur-reply (Doc. No. 49). For the reasons explained below, the motion
to dismiss will be granted.
II. Background
This case involves a dispute as to whether Defendants Watermark Properties, Ltd. V,
Gulfstream Development, LTD, Gulfstream Development LTD II, Waterside Sylvania, LLC,
Ankney Enterprises, Inc., and John Does 1-30 violated the terms of an easement agreement with

NWOP by constructing a forced sewer line across NWOP’s property without installing or
approving two free taps into the line for NWOP’s use. As a result, NWOP claims Defendant
Lucas County has permitted and overseen the transmission of raw sewage across NWOP’s
property without “any consideration to NWOP for the appropriation/use of its property.” (Doc.
No. 44 at 2).
Given the nature of the pending motion, the Court will not set forth the facts in detail.
Briefly, NWOP initially agreed to provide an easement to Defendants Watermark and Ankney
Enterprises for the construction a gravity-sanitary sewer line across its property in exchange for
consideration in the form of two free taps into the line following its completion. (Doc. No. 19 at
¶¶ 35-38). Construction of the sewer line was approved by Defendant Lucas County. (Id. at ¶¶
40-41). The sewer line was ultimately installed and connected to Lucas County’s existing sanitary
sewer infrastructure by the non-Governmental Defendants under the oversight and approval of the
Lucas County Engineer. (Id. at ¶¶ 39-40). However, the type of line installed was a force main
instead of the gravity-fed line agreed upon by the parties. (Id. at ¶ 45).
Since the construction of the line across NWOP’s property, Lucas County has allegedly
refused to approve NWOP’s entitlement to the two, previously agreed upon taps. (Id. at ¶ 47). In
2009, Defendant Watermark was placed into receivership. Since that time, Defendant Lucas
County has operated and maintained the sewer line without compensation to NWOP. (Id. at ¶¶
57-58). Defendant Lucas County has never accepted ownership of the sewer line.
In seeking relief, NWOP asserts a variety of supplemental state law tort claims against the
Defendants. NWOP also asserts one federal claim against Lucas County brought under § 1983

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and the Fifth and Fourteenth Amendments. With respect to the federal claim, NWOP specifically
states:
COUNT ONE – VIOLATION OF NWOP’S FEDERAL CIVIL RIGHTS
(against Lucas County)
66. The Fifth Amendment to the United States Constitution prohibits the taking
of private property for public use without just compensation, and this prohibition
is applicable to the States pursuant to the Fourteenth Amendment to the United
States Constitution.
67. Lucas County was therefore prohibited under the United States Constitution
from taking NWOP’s property rights without just compensation.
68. Further, Lucas County was prohibited under the United States Constitution
from taking plaintiff’s property and transferring same to another private party,
even if compensation was paid.
69. 42 U.S.C. § 1983 provides, inter alia, that persons who have been deprived of
Constitutional rights may utilize the statute to secure both legal and equitable
relief.
....
77. Lucas County’s acts and procedures have wrongfully denied plaintiff of its
property and liberty interests without due process of law as required by the
Fourteenth Amendment to the United States Constitution.
78. Lucas County’s actions were unreasonable in light of plaintiff’s clearly
established constitutional rights.
79. Lucas County was, and is, unable to use the power of eminent domain to
obtain any of NWOP’s property rights in this instance, as the appropriation of
NWOP’s rights has been undertaken for a private transfer and use, and not a
public one.
80. Lucas County’s conduct directly and proximately caused a deprivation of
federally protected rights of NWOP.
(Doc. No. 19).
The parties do not dispute that NWOP has failed to seek compensation by way of a state
court writ of mandamus or state court actions in conversion and restitution.

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III. Standard of Review
Because Defendant Lucas County filed their motion to dismiss subsequent to filing their
answer, NWOP argues Defendant Lucas County’s motion to dismiss pursuant to Rule 12(b)(1)
should be converted into one for judgment on the pleadings pursuant to Rule 12(c). (Doc. No. 481 at 1). It is well settled that parties cannot consent to subject matter jurisdiction where it is
lacking, nor can they waive it. Alongi v. Ford Motor Co., 386 F.3d 716, 728 (6th Cir. 2004).
Therefore, “‘[t]he existence of subject matter jurisdiction may be raised at anytime, by any party,
or even sua sponte by the court itself.’” Ogle v. Church of God, 153 F. App’x 371, 374 (6th Cir.
2005) (quoting In re Lewis, 398 F.3d 735, 739 (6th Cir. 2005)). The court must determine
whether subject matter jurisdiction exists before making any decision on the merits. Moir v.
Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Therefore, a court may not
convert a post-answer, Rule 12(b)(1) motion to dismiss into a Rule 12(c) motion for judgment on
the pleadings because “a decision on the merits cannot be decided without first determining
whether subject matter jurisdiction is proper, regardless of whether the court used the factual
record to resolve that threshold inquiry.” Ogle, 153 F. App’x at 374-75. Accordingly, the Court
will use the lack of subject matter jurisdiction standard of review pursuant to Rule 12(b)(1).
Where subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff
bears the burden of proving jurisdiction. Moir, 895 F.2d at 269. Rule 12(b)(1) motions to dismiss
for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual
attacks. Fed. R. Civ. P. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
A facial attack challenges the sufficiency of the pleading itself. Where the Rule 12(b)(1)
motion presents a facial attack, the Court accepts the material allegations in the complaint as true

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and construes them in the light most favorable to the nonmoving party, similar to the standard for
a Rule 12(b)(6) motion. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235–37
(1974)). For a facial attack, the plaintiff can survive a Rule 12(b)(1) motion to dismiss by
showing that the complaint alleges a claim cognizable under federal law and the claim is
“substantial.” Moher v. United States, 875 F. Supp. 2d 739, 748-49 (W.D. Mich. 2012). A claim
is substantial unless prior court decisions inescapably render it frivolous. Metro
Hydroelectric Co., LLC v. Metro Parks, 541 F.3d 605, 610-11 (6th Cir. 2008); Michigan
S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass’n, Inc., 287 F.3d 568, 573
(6th Cir. 2002)). A plaintiff can survive a facial attack by showing any arguable basis in the law
for his claims. Metro Hydroelectric, 541 F.3d at 610-12; Board of Trustees v. City of Painesville,
200 F.3d 396, 398 (6th Cir. 1999).
In contrast, a factual attack is “not a challenge to the sufficiency of the pleading’s
allegation, but a challenge to the factual existence of subject matter jurisdiction.” United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Where the motion presents a factual attack, the
allegations in the complaint are not afforded a presumption of truthfulness and the Court weighs
the evidence to determine whether subject matter jurisdiction exists. On a factual attack, the Court
has broad discretion to consider extrinsic evidence, including affidavits and documents, and can
conduct a limited evidentiary hearing if necessary. See DLX, Inc. v. Kentucky, 381 F.3d 511, 516
(6th Cir. 2004); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). The
district court’s factual findings, however, do not bind the Court in future proceedings, and “[t]he
res judicata effect of a 12(b)(1) motion is . . . limited to the jurisdictional issue.” Ohio Nat’l Life
Ins. Co., 922 F.2d at 325.

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Here, Defendant Lucas County presents a facial attack on subject matter jurisdiction.
Therefore, the Court will not consider extrinsic evidence and accepts the material allegations in
the amended complaint as true, construing them in the light most favorable to the nonmoving
party. Ritchie, 15 F.3d at 598.
IV. Discussion
Section 1983 Claims
Section 1983 is not itself a source of substantive rights, but rather provides a right of action
for the vindication of independent constitutional guarantees. Bradley v. City of Pontiac, 906 F.2d
220, 223 (6th Cir. 1990). To state a claim under § 1983, a plaintiff must establish both that the
defendant acted under the color of state law, and the defendant deprived him of a federal statutory
or constitutional right. United States v. Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir.
1992).
The Fifth Amendment’s Takings Clause prohibits appropriation of private property for
public use where just compensation is not paid. U.S. Const. amend. V; Peters v. Fair, 427 F.3d
1035, 1037 (6th Cir. 2000). A takings claim is not ripe for federal review, however, until
plaintiffs have sought just compensation by available state procedure. Williamson Cnty. Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985); Coles v.
Granville, 448 F.3d 853 (6th Cir. 2006). On the other hand, when a party claims their property is
taken for a strictly private use, state eminent domain proceedings are unnecessary to determine
whether there has been a constitutional violation. Montgomery v. Carter Cnty., Tennessee, 226
F.3d 758, 766-76 (6th Cir. 2000). This is because “[p]rivate-use takings, rare as they may be, are
unconstitutional regardless of whether just compensation is paid.” Id. at 766.

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Lucas County argues that the Court does not have subject matter jurisdiction over
NWOP’s § 1983 claims because NWOP failed to exhaust statutory appropriation procedures
required by the State of Ohio for Fifth Amendment takings claims. Because jurisdiction over
NWOP’s state law claims is premised upon federal questions jurisdiction over its § 1983 claims,
Lucas County also argues the Court does not possess supplemental jurisdiction over the state law
claims and the entire amended complaint should be dismissed without prejudice.
Despite citing the Takings Clause, NWOP argues this is not a “takings” case. (Doc. No.
44 at 4). Instead, NWOP argues its allegations combine to create a colorable – yet unspecified –
due process claim because Lucas County “took its property rights and transferred them to a
private party, not for public use.” (Doc. No. 44 at 5) (emphasis in original). Because of this
private use, NWOP contends they were not required to exhaust state post-deprivation remedies
before filing in federal court. Stated otherwise, NWOP argues their claim is a due process claim –
not a takings claim – because the taking was not for “public use.” Therefore, this case turns on
whether the installation of a sewer line maintained and operated by Lucas County for the benefit
of Waterside Sylvania residents constitutes “public use” or “public purpose” within the meaning
of the Takings Clause. The Court finds that it does.
NWOP implies that any use of the sewer line should be presumed private because
Defendant Lucas County has not accepted ownership of the sewer line. NWOP, however, has set
forth no authority to support that property must be conveyed to a municipality to constitute public
use. Instead, it appears NWOP has “repackaged a takings claim as a . . . due process violation for

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purposes of filing a § 1983 action in federal court.” Choate’s Air Conditioning & Heating Inc. v.
Light, Gas, & Water Div. of the City of Memphis, 16 F. App’x 323, 331-332 (6th Cir. 2001).1
The concept of public use must be liberally construed. Kelo v. City of New London, 545
U.S. 469, 480 (2005) (“without exception, our cases have defined the [public purpose] concept
broadly, reflecting our deference to legislative judgments in the field.”). As a result, the test for
public use is not onerous. The Sixth Circuit merely requires a taking be “rational[ly] connect[ed]
to a minimally plausible conception of the public interest.” Montgomery, 226 F.3d at 768
(defining a private-use taking as one where there is “no rational relationship to come conceivable
purpose). Not surprising, [v]ery few takings will fail to satisfy [this] standard.” Montgomery, 226
F.3d at 766-76 (explaining that “it is easy to allege something in a complaint in order to state a
cognizable federal claim, it is much more difficult to actually prove it, . . . .”).
On the facts pled in NWOP’s amended complaint, the Court is not persuaded this is one of
the “rare real-life example[s]” of a private use taking. See Montgomery, 226 F.3d 758. NWOP
admits “Lucas County has been collecting sewer fees from the residents of Waterside Sylvania.”
(Doc. No. 18 at ¶ 52). Therefore, based on the facts in the amended complaint, NWOP
acknowledges the sewer line at issue benefits the residents who purchased homes in Waterside
Sylvania and are now paying Lucas County for public sewer services. This clearly demonstrates

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NWOP attempts to dissuade the Court from applying the Sixth Circuit’s holding in Choate’s
because that case involved the application of Tennessee’s eminent domain law. This argument is
irrelevant, however, because the test for public use under the Takings Clause of the United States
Constitution remains the same. Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984) (“A
purely private taking could not withstand the scrutiny of the public use requirement; it would
serve no legitimate purpose of government and would thus be void.”).
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“a rational connection to a minimally plausible conception of the public interest.” Montgomery,
226 F.3d at 768.
Because violations of substantive and procedural due process ancillary to a takings claim
are subject to this ripeness requirement, those claims also fail to create a jurisdictional hook.
Warren v. City of Athens, Ohio, 411 F.3d 697, 708 (6th Cir. 2005); Peters v. Fair, 427 F.3d 1035,
1037 (6th Cir. 2005). When “the injury [a plaintiff] seeks to redress is harm to their property
amounting to a ‘deprivation’ in constitutional terms, a final judgment is required . . . .” Bowers v.
City of Flint, 325 F.3d 758, 762 (6th Cir. 2003); see also Williamson, 473 U.S. 172 at 194.
Accordingly, NWOP’s § 1983 claims are dismissed without prejudice, allowing NWOP to reassert
these claims, should they become ripe in the future.
Supplemental Claims
28 U.S.C. § 1367(c)(3) allows the Court to decline to exercise supplemental jurisdiction
over state law claims if this Court “has dismissed all claims over which it has original jurisdiction
. . . .” Because all federal claims have been dismissed, the Court exercises its discretion and
declines supplemental jurisdiction over the remaining state law claims. Wee Care Child Ctr., Inc.
v. Lumpkin, 680 F.3d 841, 849 (6th Cir. 2012). Therefore, NWOP’s state-law claims are also
dismissed without prejudice.
V. Conclusion
Accordingly, the motion to dismiss is granted. (Doc. No. 50).
IT IS SO ORDERED.
S/ David A. Katz
DAVID A. KATZ
U.S. DISTRICT JUDGE

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