Harmon et al v. Hamilton County, Ohio et al
Filing
28
ORDER denying 9 Motion for Leave to File Third Party Complaint; granting 11 Motion to Intervene; denying 18 Motion for Sanctions. Signed by Judge Herman J. Weber on 12/7/11. (do1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOHN HARMON, et al.
Plaintiffs,
v.
Case No. 1:10-cv-911-HJW
HAMILTON COUNTY, OHIO, et al.,
Defendants
ORDER
This matter is before the Court upon the “Motion for Leave to File Third-Party
Complaint” (doc. no. 9) by two of the nine defendants: the Hamilton County Board
of County Commissioners and Simon L. Leis, Jr., Sheriff for Hamilton County
(hereinafter “the Hamilton defendants”). Defense counsel indicates that John and
Stephanie Harmon (“plaintiffs”) have advised, through counsel, that they are taking
“no position” regarding the filling of the proposed third-party complaint against the
Anderson Township Board of Trustees and Administrator, Vicky L. Earhart (“the
Township”). The Township has filed an unopposed “Motion to Intervene” (doc. no.
11) for the limited purpose of filing a brief in opposition to the motion for leave to file
the third-party complaint. Also pending is its “Motion for Sanctions” (doc. no. 18),
which the Hamilton defendants oppose.
Having fully considered the record, including the motions, briefs, responses,
replies, proposed third-party complaint, and applicable authority, the Court will grant
the motion to intervene, deny the motion for leave to file the third-party complaint,
and deny the motion for sanctions, for the following reasons:
I. Background
Anderson Township does not have its own police force, and instead,
contracts with Hamilton County for policing services by the Hamilton County
Sheriff’s Department.1 According to the plaintiffs’ amended complaint (doc. no. 3),
several officers of the Hamilton County Sheriff’s Department allegedly violated Mr.
Harmon’s constitutional rights by using excessive force against him during a traffic
stop. While Mr. Harmon was driving home on the evening of October 20, 2009, he
began suffering from extremely low blood sugar due to a diabetic condition and was
pulled over after officers observed his vehicle weave (¶¶ 14-18 ). He was unable to
fully respond, and several officers then smashed his car window, tased him
repeatedly, forcibly removed him, physically injured him, and continued to mistreat
him while he was compliant on the ground (¶¶ 19-32 ). Criminal charges (e.g.,
resisting arrest) were filed against Mr. Harmon under a Hamilton County Sheriff’s
policy which allegedly requires the arrest of any citizen tased by the Sheriff’s
officers (¶ 33). The charges were dropped several weeks later (¶ 34).
The Hamilton defendants seek to file a third-party complaint in an effort to
shift their potential liability to the Township and obtain a declaration of third-party
liability. They attach the contract for policing services to their proposed pleading
(doc. no. 9-3).
Notably, such contract lacks any indemnification clause and
1
See Ohio R.C. § 504.16 (“Each township that adopts a limited home rule
government shall . . . contract . . .to obtain police protection services”) and Ohio
R.C. § 505.43 (“In order to obtain police protection, . . . any township may enter
into a contract with . . . county sheriffs . . . for services of police departments . . .
if the contract is first authorized by respective boards of township trustees”).
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expressly indicates in plain language (indeed, in bold letters) that the officers are the
employees of the Hamilton County Sheriff. Nonetheless, the Hamilton defendants
contend that they have a “relationship” with the Township such that, in the event of
a judgment against them, the Township defendants should be liable “for the full
amount of any such judgment based on primary liability, equitable subrogation, and
implied indemnification” (doc. no. 9-1 at ¶ 22). Incredibly, the Hamilton defendants
also contend that the Hamilton County Sheriff should be relieved of his duty to
defend his own officers and that the proposed third-party defendants should defend
them instead.
The Township defendants seek to intervene for the limited purpose of
opposing the Hamilton defendant’s motion for leave to file the third-party complaint.
They contend that the proposed pleading is factually and legally baseless and that
the filing of the proposed third-party complaint would be futile. The Township
contends that it is simply not liable to the Hamilton defendants for any of plaintiffs’
claims and ask for sanctions against the Hamilton defendants.
II. The Motion for Intervention
Rule 24(a) of the Federal Rules of Civil Procedure provides in relevant part:
On timely motion, the court must permit anyone to
intervene who: . . . (2) claims an interest relating to the
property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a
practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately
represent that interest.
Fed.R.Civ.P. 24. The proposed intervenors point out that the Hamilton defendants
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are trying to shift liability to them, and that the Township’s obvious financial interest
in this matter is not currently protected and needs to be protected. An intervenor’s
burden of showing inadequacy of representation under part (a)(2) is “minimal.”
Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972) (citing 3B J. Moore,
Federal Practice 24.09-1 (4) (1969)). It is readily apparent that the existing parties do
not adequately represent the interests of the Township. The proposed intervenors
easily meet the criteria for intervention of right on the requested limited basis.
III. The Motion for Leave to File Third-Party Complaint
Pursuant to Fed. R. Civ. P. 14, the Hamilton defendants request leave to file
a third-party complaint against the Township, seeking a declaration that, if any
judgment is rendered against them in this case, then the Township defendants
should be liable “for the full amount of any such judgment based on primary liability,
equitable subrogation, and implied indemnification” (doc. no. 9-1 at ¶ 22).2 Fed. Rule
Civ. Pro. 14 permits parties who are defending against claims to join other persons,
not yet parties, who may be obligated to reimburse the party defending the claim for
some or all of that party’s liability. Fed.R.Civ.P. 14. “The purpose of Rule 14 is to
permit additional parties whose rights may be affected by the decision in the original
action to be joined so as to expedite the final determination of the rights and
liabilities of all the interested parties in one suit.” American Zurich Ins. Co. v.
2
The Hamilton defendants moved to file the third-party complaint more
than 14 days after filing their answer (doc. no. 5), and thus, must seek leave of
court. Fed.R.Civ.P. 14(a)(1) (providing that the defendant/third-party plaintiff must
“obtain the court’s leave if it files the third-party complaint more than 14 days
after serving its original answer”).
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Cooper Tire & Rubber Co., 512 F.3d 800, 805 (6th Cir. 2008).
However, “a party does not have an absolute right to implead.” U.S.
Commodity Futures Trading Com'n v. Complete Developments, LLC, 2011 WL
4361633 (N.D.Ohio). Whether to allow an impleader lies within the sound discretion
of the Court. General Elec. Co. v. Irvin, 274 F.2d 175, 178 (6th Cir. 1960) (affirming
district court’s denial of leave to file third-party complaint); see also Moore's Federal
Practice, Sec. 14.20, citing Advisory Committee Notes. Even if timely filed, a motion
to file a third-party complaint may be denied if it would prejudice the plaintiff, unduly
complicate the trial, or foster an obviously unmeritorious claim. Trane U.S. Inc. v.
Meehan, 250 F.R.D. 319, 321–22 (N.D.Ohio 2008) (citing Nova Prods., Inc., 220 F.R.D.
at 240)); Stevens v. Lazzarini, 2002 WL 1584277(S.D. Ohio 2002) (denying leave
because impleader would have prejudiced the plaintiffs).
The Court observes that the proposed third-party complaint and related briefs
abundantly illustrate that its filing would unduly complicate and further delay the
proceedings in this case. Although the Hamilton defendants contend that the
Township will not be prejudiced because it was advised of this lawsuit early on, the
Court is concerned about the resulting prejudice to the plaintiffs, whose case is
being delayed by wrangling over the Hamilton defendants’ tenuous arguments for
potential third-party liability. The Court emphasizes that this is a civil rights action
pursuant to 42 U.S.C. § 1983, not a breach of contract or insurance interpleader case.
The complication, delay, and prejudice to the plaintiffs are all sufficient here to deny
leave to file the third-party complaint.
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Moreover, the Township asserts that the third-party complaint is frivolous and
asserts no viable legal theory for relief. The Township points to another case where
leave to file a third-party complaint for contribution, indemnity, and breach of
contract was denied on grounds of futility. See Davis v. Protection One Alarm
Monitoring, 2005 WL 3728711, *6-7 (D. Mass.)(denying leave because third-party
indemnification or contribution was not available, and because the contract claim
merely sought indemnification “dressed up in different language”).
The Hamilton defendants are seeking contribution for alleged constitutional
violations by the officers and its own policy, however, contribution is not available
under federal law for violations of § 1983 (against a party who did not commit any
acts), nor is it available under Ohio state law for intentional torts. The Hamilton
defendants and Township defendants were not “joint-tortfeasors.” Neither the
complaint, nor the proposed third-party complaint, contains any allegations of
unlawful actions by the Township defendants. See Sears v. Atchison, Topeka &
Santa Fe Railway Co., 749 F.2d 1451, 1454 (10th Cir. 1984), cert. denied, 471 U.S. 1099
(1985) (observing, with respect to a demand for contribution, that “[t]here might be
merit in the contentions if this were an ordinary case of joint tortfeasors who were
liable to each other for contribution”). The police officers employed by the Hamilton
County Sheriff’s Department had their own duty not to use excessive force against
or otherwise violate the plaintiff’s constitutional rights and cannot shift their liability
to the Township. See Deaton v. Montgomery County, Ohio, 989 F.2d 885, 887-888 (6th
Cir. 1993). The third-party complaint states no claim for relief on such basis.
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Additionally, the amended complaint identifies only the policy of the Hamilton
County Sheriff (doc. no. 3 at ¶¶ 33, 63). No policy of the Township is identified. See
Deaton, 989 F.2d at 887-888 (holding that where city agreed to operate the county’s
jail, “[t]he duty to . . . operate the facility belongs to the City and the .... . . policy it
chooses to implement does not become that of the County because the City has
separate statutory authority to house prisoners. . . any constitutional violations of
the plaintiffs' rights were the result of City, not County, policy”). Even if the
Township had some degree of control over the officers by virtue of the contract,
“[t]he law is clear that, in actions brought pursuant to 42 U.S.C. Sec. 1983 . . . the
liability of supervisory personnel and government entities must be based on more
than merely the right to control.” Ridgeway v. Union County Com'rs, 775 F.Supp.
1105, 1110 (S.D.Ohio 1991). The United States Supreme Court has long held that
respondeat superior is not a basis for liability. Monell v. Dept. of Social Servs., 436
U.S. 658, 694 (1978).
Section 1983 does not contain any provision for contribution. Federal case
law, including the case law cited by the Hamilton defendants, generally reflects that
there is no right of contribution for § 1983 violations from a party who did not
participate in any acts. See, e.g., Sears, 749 F.2d at 1454 (finding no right of
contribution in § 1983 case). With respect to the plaintiffs’ pendant state law claims,
Ohio law provides that “[t]here is no right of contribution in favor of any tortfeasor
against whom an intentional tort claim has been alleged and established.” Ohio R.C.
§ 2307.25(A); and see, Ballreich Bros., Inc. v. Criblez, 2010 WL 2735733 (Ohio App.
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3 Dist.) (affirming dismissal with prejudice of several counts of third-party complaint
because “there is no way the [defendants] can plead a claim for contribution” on
counts alleging intentional torts). The Hamilton defendants allegedly committed
intentional torts and may not seek contribution from the Township defendants, who
did not participate in those acts.
The Hamilton defendants’ other theories for shifting liability fare no better.
“Equitable subrogation” is essentially a claim of unjust enrichment, which is not
available when an express contract exists, as here. Morever, “recovery under unjust
enrichment is designed to compensate the plaintiff for the benefit he has conferred
upon another, not to compensate him for a loss suffered.” Jones v. Jones, 179 Ohio
App.3d 618, 903 N.E.2d 329, 337 (2008) (citing Hughes v. Oberholtzer, 162 Ohio St.
330, 335 (1954)). The Township defendants are not alleged to have unjustly retained
any benefit without payment. This theory simply does not fit the fact pattern before
the Court, i.e. there is no allegation that the Township failed to pay for the policing
services. Moreover, such a claim would not be derivative of the § 1983 claims here,
and thus, would not be appropriately brought under Rule 14 as a third-party claim.
Finally, while a claim for indemnification may properly be asserted under Rule
14(a), see Am. Zurich Ins. Co., 512 F.3d at 805, there must be an actual basis for the
asserted indemnity. Here there is none. The written contract for policing services
contains no agreement to indemnify, and the Hamilton defendants suggest no
plausible reason why indemnification should be “implied” given that the written
contract expressly indicates it is the “entire agreement” between the parties.
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The Hamilton defendants point to Ohio R.C. § 2744.07(A)(1), which requires a
political subdivision to defend employees “in any . . . action . . .which contains an
allegation for damages for injury . . .caused by an act . . . of the employee in
connection with a governmental . . . function.” They argue that this statute requires
the Township to defend and indemnify the defendant officers in this case. This
argument is easily dispensed with, as the contract expressly provides that the
officers were the employees of the Hamilton County Sheriff. In fact, under Ohio law,
the Hamilton County Sheriff has the sole authority to appoint deputy sheriffs. Ohio
R.C. § 311.04. The Hamilton County Sheriff, not the Township, is responsible for
defending his officers.
In their reply, the Hamilton defendants improperly raise additional arguments
for the first time and urge that the “relationship” of the Hamilton defendants and
Township should somehow provide a basis for imposing liability on the Township,
despite the unambiguous language of the contract. It is not necessary to address
these convoluted arguments. This Court will exercise its discretion to deny leave
to file the proposed third-party complaint on the ground that it would unduly
complicate and delay this case and prejudice the plaintiffs. This Court will not
condone any further delay of the plaintiffs’ civil rights case here. Briefing of these
purported third-party liability issues has already consumed over four months and
resulted in modification of this Court’s Scheduling Order.
C. The Motion for Sanctions
Finally, the Township defendants move for sanctions against the Hamilton
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defendants and their counsel pursuant to Rule 11 and the Court’s inherent authority
(doc. no. 18 at 2).3 Rule 11 imposes a duty on attorneys to certify that they have
conducted a reasonable inquiry and have determined that any papers filed with the
court are well grounded in fact, legally tenable, and "not interposed for any improper
purpose." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394 (1990). Specifically,
Rule 11(b) of the Federal Rules of Civil Procedure provides in relevant part:
“By presenting . . . a pleading, written motion, or other
paper . . . an attorney . . . certifies that to the best of the
person's knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances: (1) it is
not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase
the cost of litigation; (2) the claims, defenses, and other
legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law; (3) the
factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery . . .”
Fed.R.Civ.P. 11. Rule 11(c)(1) provides that a court may impose an appropriate
sanction for such violations. To the extent the Township asks for sanctions against
the Hamilton defendants and their counsel for seeking to file a pleading that “lacks
a basis in law,” Rule 11(c)(5)(A) provides that a court “must not impose a monetary
sanction against a represented party for violating Rule 11(b)(2).”
The Township defendants assert that the legal contentions in the third-party
complaint are not “warranted by existing law or by a nonfrivolous argument for
3
The Township defendants indicate in their motion that the mandatory
“safe harbor” provision of Rule 11(c)(2) has been complied with.
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extending, modifying, or reversing existing law or for establishing new law.” A court
must examine counsel’s conduct in the context of what was reasonable under the
circumstances. Mann v. G & G Mfg., Inc., 900 F.2d 953, 958 (6th Cir. 1990); see also,
Mich. Division-Monument Builders v. Mich. Cemetery Ass'n, 524 F.3d 726, 739 (6th
Cir. 2008); Andretti v. Borla Perf. Indus., 426 F.3d 824, 833 (6th Cir. 2005). The Court
must examine whether counsel acted reasonably when he submitted the pleading.
Having carefully considered the briefs, the Court is satisfied that counsel has not
presented his proposed pleading and briefs for an improper purpose, such as delay,
and that, under the circumstances, he has made (barely) a reasonable inquiry into
the legal basis for his pleading.
A district court has inherent authority to sanction a party for litigation
conduct. Smith v. ABN AMRO Mortgage Group, 2011 WL 3268122, fn. 5 (6th Cir.
2011); Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). To impose sanctions, the
court must find “bad faith or conduct tantamount to bad faith." BDT Prods., Inc. v.
Lexmark Int'l, Inc., 602 F.3d 742, 752 (6th Cir. 2010).
“[T]he court must find
something more than that a party knowingly pursued a meritless claim or action at
any stage of the proceedings." Id. at 753; Moross Ltd. P'ship v. Fleckenstein Capital,
Inc., 466 F.3d 508, 520 (6th Cir. 2006).
Although leave to file the third-party complaint has been denied, the Court is
not persuaded that sanctions for bad faith are appropriate here. The mere fact that
a motion is denied is not a basis for sanctions. Smith, 2011 WL 3268122 ("the mere
fact that an action is without merit does not amount to bad faith”). While the motion
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for leave has resulted in some delay, nothing of record suggests at this time that it
was filed for the purpose of delay. No bad faith is now apparent.
III, Conclusion
Based on the foregoing, the Court concludes that the proposed third-party
complaint would unduly complicate and delay this § 1983 action, and thereby
prejudice the plaintiffs. Additionally, it would “foster obviously unmeritorious
claims’ because the Township defendants committed no acts that would subject
them to “primary liability” and there is no right of contribution for violations of §
1983 or for intentional torts under Ohio state law. The Court need not elaborate on
any other tenuous theories of recovery, as they merely seek contribution couched
in other words. With respect to sanctions, the Court will decline to impose them at
this time, as no bad faith is apparent here and counsel is deemed to have made at
least a reasonable effort to ascertain grounds for his proposed pleading.
Accordingly, the “Motion to Intervene” (doc. no. 11) is GRANTED; the “Motion
for Leave to File Third Party Complaint” (doc. no. 9) is DENIED; and the “Motion for
Sanctions” (doc. no. 18) is DENIED.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court
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