Bauer et al v. City of Rossford et al

Filing 44

Memorandum Opinion and Order denying 33 Motion to amend complaint. See Opinion for details. Judge Jack Zouhary on 3/30/2017. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Louis T. Bauer, et al.,

Case No. 3:16 CV 722
Plaintiffs,

MEMORANDUM OPINION
AND ORDER

-vsJUDGE JACK ZOUHARY
City of Rossford,
Defendant.

INTRODUCTION
This case resembles a game of whack-a-mole. After a year of litigation and an adverse
summary judgment ruling, Plaintiffs now seek to amend their Complaint a second time to raise an
entirely new legal theory (Docs. 33–34, 41). An overview of the procedural history of this case is
helpful to an understanding of whether another leave to amend is appropriate.
BACKGROUND
Original Complaint. Plaintiffs filed their Complaint in March 2016 -- more than a year ago
(Doc. 1). The thrust of the Complaint was that the City of Rossford illegally destroyed Plaintiffs’
property, based on a demolition order that, in turn, was based on an invalid settlement agreement (id.).
Bauer was allegedly arrested for “protesting the demolition of his own house,” and police officers told
him they would “accompany him to City Council Chambers” if he decided to go to the City Council
meeting that evening (id. at ¶¶ 27–28). According to Bauer, this “prevent[ed] him (again) from being

heard regarding the wrongful demolition of his property and den[ied] him his First Amendment and
Due Process rights” (id. at ¶ 28).
The Complaint enumerated five claims against the City for: (1) an illegal taking in violation
of the Fifth Amendment; (2) deprivation of procedural due process under the Fourteenth Amendment;
(3) violation of the Fourth Amendment’s guarantee against unreasonable searches and seizures; (4)
demolition of property without notice under Ohio law; and (5) wrongful demolition (id. at ¶¶ 31–53).
The wrongful demolition claim was also brought against the City’s contractor, Competitive Hauling,
Inc. (id. at ¶¶ 51–53).
The City answered in April 2016, and this Court held a status conference in June. At that
conference, the City argued there was no legal basis for the Complaint’s first, fourth, and fifth claims.
This Court ordered counsel to exchange authorities concerning the arguments raised by the City (Doc.
6). A few weeks later, Plaintiffs requested leave to amend the Complaint to address the City’s
arguments. That request was granted (Doc. 10). Plaintiffs also acknowledged that the facts relevant
to their Amended Complaint were not in dispute. Both parties then agreed to submit the legal issues
for this Court to decide on cross motions for summary judgment.
Amended Complaint. The Amended Complaint lists the City as the only Defendant, and it
enumerates claims for violation of: (1) procedural due process under the Fourteenth Amendment; (2)
the right to be free from unreasonable searches and seizures under the Fourth Amendment; and (3)
the freedom of speech under the First Amendment (Doc. 11 at ¶¶ 29–40). With respect to the Fourth
Amendment claim, the Amended Complaint states -- in conclusory fashion -- that “the actions and
inactions of the City as alleged herein constitute a denial of Plaintiffs’ right to be free from unlawful
searches and seizures, and are contrary to the Fourth Amendment of the United States Constitution”

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(id. at ¶ 34). Plaintiffs explained the theory underlying that claim as follows: “[T]here was no valid
order for the demolition. In addition, there was no valid settlement agreement to provide a basis for
the demolition and the related police presence to enforce it. As such, the police officers were
essentially sent to enforce an invalid civil settlement agreement” (id. at ¶ 25). Notably, the Amended
Complaint makes no mention of the term “probable cause.” And to the extent a lack of probable
cause for arrest is implied, the only factual basis alleged is the purportedly invalid demolition order.
Summary Judgment. On August 11, the parties jointly submitted Stipulations of Fact to be
used by this Court in deciding cross motions for summary judgment (Doc. 13). In a status conference
with this Court (Doc. 14), the parties also agreed that the threshold issue of the settlement agreement’s
validity would likely be case dispositive. The parties briefed summary judgment motions (Docs.
15–17, 19–21), and this Court held a record hearing on October 14 (Doc. 22). At this Court’s request,
the parties submitted additional briefing on an issue raised by Plaintiffs (Docs. 23–24). On November
4, this Court granted the City’s Motion and denied Plaintiffs’ Motion, holding both that the settlement
agreement was valid and that Plaintiffs’ due process claim failed in any event (Doc. 25).
Following the summary judgment ruling, this Court held another status conference. At that
conference, Plaintiffs requested two weeks to evaluate what remained of their First and Fourth
Amendment claims in light of this Court’s ruling. That request was granted, and this Court scheduled
a further status conference for the following month (Doc. 26). At that time, despite having nearly a
month to consider the implications of this Court’s ruling, Plaintiffs still were unable to articulate a
basis for proceeding with their First and Fourth Amendment claims. Instead, they sought further
discovery to supplement the record and more time to consult with a criminal lawyer to determine the
viability of a Fourth Amendment claim. This Court granted Plaintiffs an additional three weeks (id.).

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Proposed New Complaint. On December 27, Plaintiffs filed a Motion to Supplement Record,
asking to re-open discovery and briefing on the issues resolved by summary judgment (Doc. 27). This
Court denied Plaintiffs’ Motion and gave Plaintiffs two weeks to advise whether they had any
remaining claims (Doc. 30). At a status conference on January 18, 2017, Plaintiffs reported they
reviewed some legal authority suggesting the police may not enforce a civil contract, and they stated
their intention to proceed with their Fourth Amendment claims on that basis. This Court ordered
counsel to exchange the relevant authorities and discuss the merits of moving forward.
The following week, Plaintiffs requested leave to depose the arresting officers to assist in
determining the validity of their Fourth Amendment claim (Doc. 31). Over the City’s objection, this
Court granted Plaintiffs’ request (id.). Following those depositions, Plaintiffs announced they wanted
to proceed with their Fourth Amendment claim on a new basis: the officers lacked probable cause to
arrest Bauer. This Court pointed out that the pending Complaint makes no reference to “probable
cause.” Accordingly, this Court suggested Plaintiffs may not have adequately pled that as a basis for
holding the City liable (Doc. 32). Plaintiffs requested and were given until March 10 to seek leave
to amend to cure any deficiencies in their Amended Complaint (id.).
Plaintiffs then filed a proposed Second Amended Complaint that -- for the first time -mentions probable cause (Doc. 34-1). Plaintiffs argue there is no need to amend because their First
Amended Complaint adequately pleads First and Fourth Amendment claims. Alternatively, to the
extent this Court disagrees, they seek leave to amend (Docs. 33–34). The City opposes the Motion
(Doc. 41), arguing: (1) the officers had probable cause to arrest Bauer; (2) Plaintiffs were previously
afforded an opportunity to amend; (3) Plaintiffs have caused undue delay and appear to have dilatory
motives; (4) the City did not have notice of Plaintiffs’ probable cause argument; (5) the City will be

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prejudiced if Plaintiffs are permitted to amend their Complaint again; and (6) Plaintiffs have not
properly pled a Fourth Amendment claim for false arrest.
LEGAL STANDARDS
Federal Civil Rule 15(a)(2) instructs that this Court “should freely give leave [to amend] when
justice so requires.” But leave may be denied for “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”
Riverview Health Institute LLC v. Med. Mutual of Ohio, 601 F.3d 505, 520 (6th Cir. 2010) (emphasis
removed) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Moreover, “a party must act with due
diligence if it intends to take advantage of [Rule 15(a)(2)’s] liberality.” Detrick v. Heidtman Steel
Prods., Inc., 2017 WL 360552, at *5 (6th Cir. 2017) (quoting United States v. Midwest Suspension
& Brake, 49 F.3d 1197, 1202 (6th Cir. 1995)).
This Court has discretion to deny leave to amend following summary judgment. Riverview
Health Institute LLC, 601 F.3d at 521. In fact, the Sixth Circuit -- on several occasions -- has upheld
a district court’s decision to deny leave following dispositive motion practice. See, e.g., Hiller v.
HSBC Fin. Corp., 589 F. App’x 320, 321 (6th Cir. 2015) (upholding denial of leave to amend after
cross motions were briefed and argued); Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 458–59 (6th
Cir. 2013) (“[A]llowing amendment under these circumstances would encourage delay and bad faith
on the part of plaintiffs and prejudice defendants who would have wasted time and expense attacking
a hypothetical complaint.”); Kelso v. City of Toledo, 77 F. App’x 826, 834 (6th Cir. 2003) (“The
Kelsos offer no explanation why the district court abused its discretion in denying them leave to file
this amendment after summary judgment, and no reasons can be gleaned from the record. The Kelsos

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were well aware of these individuals’ involvement . . . long before the parties filed their summary
judgment papers.”).
This principle also has been affirmed by federal circuits around the country, often citing the
reasoning articulated by the Fifth Circuit in Freeman v. Continental Gin Co.:
A busy district court need not allow itself to be imposed upon by the presentation of
theories seriatim. Liberality in amendment is important to assure a party a fair
opportunity to present his claims and defenses, but equal attention should be given to
the proposition that there must be an end finally to a particular litigation. . . . Much of
the value of summary judgment procedure in the cases for which it is
appropriate . . . would be dissipated if a party were free to rely on one theory in an
attempt to defeat a motion for summary judgment and then, should that theory prove
unsound, come back long thereafter and fight on the basis of some other theory.
381 F.2d 459, 469–70 (5th Cir. 1967) (quotations and citations omitted); see, e.g., Aponte-Torres v.
Univ. of Puerto Rico, 445 F.3d 50, 58 (1st Cir. 2006); Pallottino v. City of Rio Rancho, 31 F.3d 1023,
1027 (10th Cir. 1994); Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1082 (8th Cir.
1993); State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir.
1990); Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990); Nguyen v. United States, 792 F.2d
1500, 1503 (9th Cir. 1986); Twohy v. First Nat’l Bank of Chicago, 758 F.2d 1185, 1196–97 (7th Cir.
1985); Tenneco Resins, Inc. v. Reeves Bros., Inc., 752 F.2d 630, 635 (Fed. Cir. 1985); see also 10A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2712 (4th ed. 2017) (“A
litigant cannot amend as a matter of right under Rule 15(a) after a summary judgment has been
rendered and a court ordinarily will be reluctant to allow leave to amend to a party against whom
summary judgment has been entered.” (footnotes omitted)).

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ANALYSIS
Granting Plaintiffs leave to amend their Complaint a second time -- more than a year after they
filed their original Complaint, almost nine months after they last amended their Complaint, and almost
five months after this Court granted Defendants’ Motion for Summary Judgment -- would be
inequitable and would unduly prejudice Defendants. Granting leave to amend would also be futile,
because Plaintiffs’ proposed Second Amended Complaint still fails to state a plausible First or Fourth
Amendment claim against the City -- the only named Defendant.
Plaintiffs were aware of the circumstances surrounding Bauer’s arrest when they filed their
original Complaint. In fact, the original Complaint references both arresting officers (Doc. 1 at ¶ 22).
Bauer now contends his conduct was insufficient to give the officers probable cause to arrest him, but
he fails to explain how he only became aware of those facts after deposing the officers (Doc. 34 at 4).
Bauer was there; he therefore knew all he needed to know to determine whether his conduct met the
legal standard for arrest. He also knew all he needed to know about whether his First Amendment
rights were violated.
Plaintiffs offer only one explanation for why they failed to previously allege more details
concerning the factual bases of their claims -- they do not think it was necessary. They are wrong.
It is true a complaint need only contain a “short and plain statement of the claim,” and it need not
contain “detailed factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a)(2)). Nevertheless, stating a
plausible claim requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id. at 679. Rather, Plaintiffs must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads

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facts that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).
Plaintiffs’ own characterization of the Amended Complaint’s Fourth Amendment allegations
demonstrates their failure to satisfy the Iqbal/Twombly standard: “In this case, Plaintiff’s Amended
Complaint states that Mr. Bauer was arrested and that his rights to be free from unlawful searches and
seizures were violated. He has therefore pleaded a plausible and viable Fourth Amendment claim
based on lack of probable cause” (Doc. 34 at 6). That is nothing more than an “unadorned, thedefendant-unlawfully-harmed me accusation.” Id. It is not enough to state that Bauer was arrested
and that his arrest was illegal. A plausible claim based on a lack of probable cause must -- at a
minimum -- allege facts suggesting there was no probable cause. The Amended Complaint is silent
as to Bauer’s conduct other than to say he “was arrested for protesting the demolition of his own
house” (Doc. 11 at ¶ 26).
Instead, the Amended Complaint focuses solely on Plaintiffs’ theory that the police should not
have been sent to help enforce an invalid demolition order. That is the only factual circumstance
outlined in the Amended Complaint that even remotely approaches adequate notice of a theory
underlying Plaintiffs’ Fourth Amendment claims. But, as Defendants correctly point out (Doc. 41 at
10), the Amended Complaint could not have given them adequate notice of Plaintiffs’ current
probable cause theory, because it appears Plaintiffs did not even know it was their theory. Indeed,
it took Plaintiffs months -- in addition to significant prodding from this Court -- before they were able
to articulate that theory.
Plaintiffs’ First Amendment claims are similarly deficient. The Amended Complaint provides
nothing more than conclusory allegations of a First Amendment violation. Plaintiffs again plead no

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facts allowing this Court to draw the reasonable inference that the officers arrested Bauer for
exercising his First Amendment rights -- Plaintiffs allege neither that the police lacked probable cause
to arrest Bauer nor that their decision was in any way motivated by his protected speech. On the
contrary, Plaintiffs allege the officers were instructed to “keep the peace,” “make sure there were no
problems during the demolition,” and “arrest Bauer for obstructing official business if he gets in the
way of contractors while they were demolishing” (Doc. 11 at ¶¶ 21–24). On its face, the Amended
Complaint fails to suggest the officers wanted to limit Bauer’s ability to lawfully protest. Likewise,
Bauer’s assertion that the officers told him they would accompany him to the City Council meeting
does not plausibly suggest a First Amendment violation. Bauer does not allege the officers told him
he would not be allowed to speak at the meeting or that he otherwise would be prohibited from
lawfully protesting the destruction of his home. In short, the Amended Complaint fails to state a
plausible claim under either the First or Fourth Amendment.
But even if this Court were to assume Plaintiffs had adequately alleged that one or more of
the officers violated Bauer’s constitutional rights, the Amended Complaint would still be deficient
because it fails to allege facts (much less a legal theory) leading to an inference that the City is liable
for those officers’ conduct. “It is well established that a municipal entity may not be sued for injuries
inflicted solely by its employees or agents under § 1983.” Baynes v. Cleland, 799 F.3d 600, 620 (6th
Cir. 2015). To state a claim against a municipality, Plaintiffs must show “the alleged federal violation
occurred because of a municipal policy or custom.” Bickerstaff v. Lucarelli, 830 F.3d 388, 401–02
(6th Cir. 2016). Moreover, Plaintiffs must “identify the policy, connect the policy to the city itself
and show that the particular injury was incurred because of the execution of that policy.” Baynes, 799
F.3d at 621 (quoting Fair v. Franklin Cty., Ohio, 215 F.3d 1325 (6th Cir. 2000) (table decision)).

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Plaintiffs plead no facts concerning any “official policy or custom” of the City that could
plausibly be responsible for Bauer’s allegedly unlawful arrest. All they offer is the bare allegation
that the officers “were asked by Chief Goss to make [sure] that there were no problems during the
demolition” (Doc. 11 at ¶ 22). This allegation does not plausibly suggest the City is liable for the
officers’ decision to arrest Bauer based on unspecified conduct at the demolition site. In sum, the
Amended Complaint falls far short of providing the City adequate notice of the factual and legal bases
for Plaintiffs’ claims.
And the proposed Second Amended Complaint fares no better. Although the proposed
Complaint adds minimal clarity with respect to the legal theories Plaintiffs intend to pursue (see Doc.
34-1 at ¶¶ 34, 38), it fails to address the factual bases underlying those theories. Moreover, the
proposed Complaint adds nothing with respect to whether the City may be held liable for the officers’
alleged constitutional violations. Thus, granting Plaintiffs leave to file the proposed Second Amended
Complaint would be futile.
CONCLUSION
This Court is not persuaded by Plaintiffs’ recently hatched theory of the case. This case has
always been about the allegedly invalid settlement agreement. That is what the parties agreed when
the issues were first presented to this Court on cross motions for summary judgment. Plaintiffs may
disagree with this Court’s ruling on the settlement and, if so, their remedy is to pursue an appeal.
They are not permitted to keep tossing up legal theories, hoping one will eventually stick. As one
court remarked:

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[It] is inequitable to Defendants to force them to chase Plaintiffs down blind legal
alleys while Plaintiffs search for one leading to their desired destination. Rather,
Plaintiffs must put their best legal foot forward, and the Court is under no obligation
to permit them to test-drive various potential causes of action, using the defendant’s
responsive motion practice and the Court’s opinions as a kind of roadmap in an effort
to find a meritorious claim. “Plaintiffs must exercise due diligence in amending their
complaints. As a corollary of that principle, busy trial courts, in the responsible
exercise of their case management functions, may refuse to allow plaintiffs an endless
number of trips to the well.”
In re Keithley Instruments, Inc. Derivative Litigation, 599 F. Supp. 2d 908, 916 (N.D. Ohio 2009)
(quoting Aponte-Torres, 445 F.3d at 58).
This Court finds that Plaintiffs have not provided a sufficient explanation for why they should
be granted leave to amend at this stage of the litigation. Plaintiffs have unduly delayed these
proceedings, and this latest request to amend will prejudice the City. Further, this Court finds that
granting leave to amend would be futile because the proposed Second Amended Complaint fails to
state a plausible claim against the City. Plaintiffs’ Motion to Amend is denied.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
March 30, 2017

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