Cotton et al v. Cincinnati City of et al

Filing 40

OPINION AND ORDER granting 30 City of Cincinnati Defendants' Motion to Dismiss. This matter is DISMISSED from the Court's docket. Signed by Judge S Arthur Spiegel on 4/9/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
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ALFORD COTTON, et al.,
Plaintiffs,
v.
CITY OF CINCINNATI,
et al.,
Defendants.

NO:

1:11-CV-00389

OPINION AND ORDER

This matter is before the Court on City of Cincinnati
Defendants’ Motion to Dismiss (doc. 30), Plaintiffs’ Response in
Opposition (doc. 33), and Defendants’ Reply (doc. 38).

For the

reasons indicated herein, the Court GRANTS Defendants’ Motion to
Dismiss.
I.

Background
The Court summarized the basic facts of this case in its

previous Order granting Defendants’ motion to dismiss (doc. 14).
Essentially,

the

City

Defendants

condemned

and

demolished

Plaintiffs’ blighted property, which constituted a public nuisance.
Plaintiffs brought claims complaining they received inadequate
notice

in

violation

of

their

due

process

rights,

seeking

declaratory judgment that they do not owe demolition costs to the
City, seeking mandamus to institute eminent domain proceedings on
the blighted property, and asserting a trespass claim arising from
the demolition of the property.

The Court found no basis for any

of Plaintiffs’ claims, taking judicial notice of public records
establishing the property was a public nuisance, and finding
Defendants’ actions entirely justified (doc. 14).

Specifically as

to the question of notice, the Court found adequate record evidence
in the certified letters sent to the blighted address notifying
Plaintiffs of the public-nuisance hearing aimed at the building,
and noted the City posted notice at the property and published
notice in the City Bulletin (Id.).
On appeal, Plaintiffs contended it was inappropriate for
the Court to take judicial notice of the mailings.

In the

alternative, Plaintiffs contended if it is appropriate to take
judicial notice of the mailings, the Court should further take
notice of records not previously before the Court showing the
certified mailings were never delivered.

The appeals court found

the latter contention persuasive in the light of Jones v. Flowers,
547 U.S. 220, 225 (2006)(where mailed notice returned unclaimed,
the state must take additional reasonable steps to attempt to
provide notice to the property owner before disposing of the
property).

The appeals court therefore vacated this Court’s order

“in view of the reality that the district court had no opportunity
to consider the relevance of this new information,” and remanded
the matter to give this Court “the first shot at resolving the
Cottons’ claims in the light cast by all of these public records”
(doc. 21).

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II.

Applicable Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) requires the Court to determine whether a
cognizable claim has been pled in the complaint. The basic federal
pleading requirement is contained in Fed. R. Civ. P. 8(a), which
requires that a pleading "contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief."
Westlake v. Lucas, 537 F.2d 857, 858 (6th
Pardus, 551 U.S. 89 (2007).

Cir. 1976); Erickson v.

In its scrutiny of the complaint, the

Court must construe all well-pleaded facts liberally in favor of
the party opposing the motion.
236 (1974).

Scheuer v. Rhodes, 416 U.S. 232,

A complaint survives a motion to dismiss if it

“contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”

Courie v. Alcoa

Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009),
quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
A motion to dismiss is therefore a vehicle to screen out
those

cases

implausible.

that

are

impossible

as

well

as

those

that

are

Courie, 577 F.3d at 629-30, citing Robert G. Bone,

Twombly, Pleading Rules, and the Regulation of Court Access, 94
IOWA L. REV. 873, 887-90 (2009).

A claim is facially plausible

when the plaintiff pleads facts that allow the court to draw the
reasonable inference that the defendant is liable for the conduct

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alleged.

Iqbal, 129 S.Ct. at 1949.

Plausibility falls somewhere

between probability and possibility. Id., citing Twombly, 550 U.S.
at 557.

As the Supreme Court explained,

“In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to
the assumption of truth. While legal conclusions can provide
the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. at 1950.
The

admonishment

to

construe

the

plaintiff's

claim

liberally when evaluating a motion to dismiss does not relieve a
plaintiff of his obligation to satisfy federal notice pleading
requirements
conclusions.

and

allege

Wright,

more

Miller

than
&

Procedure: § 1357 at 596 (1969).

bare

Cooper,

assertions
Federal

of

legal

Practice

and

"In practice, a complaint . . .

must contain either direct or inferential allegations respecting
all of the material elements [in order] to sustain a recovery under
some viable legal theory."

Car Carriers, Inc. v. Ford Motor Co.,

745 F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood
Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981); Wright,
Miller & Cooper, Federal Practice and Procedure, § 1216 at 121-23
(1969).

The United States Court of Appeals for the Sixth Circuit

clarified the threshold set for a Rule 12(b)(6) dismissal:
[W]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind Rule 8 and the
concept of notice pleading.
A plaintiff will not be
thrown out of court for failing to plead facts in support
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of every arcane element of his claim.
But when a
complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th
Cir. 1988).
III.

Discussion
On remand, the City Defendants move to dismiss this

matter yet again, contending that each of Plaintiffs’ claims fail
as a matter of law, and further, that Plaintiff Alford Cotton
should be judicially estopped from pursuing his claims, or the
Court should dismiss the claims as a result of Mr. Cotton’s fraud
on the Court (doc. 30).

In its consideration of this matter, the

Court again takes judicial notice of the public records pertaining
to the condemned property.

Jackson v. City of Columbus, 194 F.3d

737, 745 (6th Cir. 1999)(Court can consider public records attached
to a motion to dismiss without converting the motion to one for
summary judgment under Rule 56).

The Court will address the

contentions seriatum.
A.

The Constitutional Claims

Plaintiffs’ due process claim is grounded in the theory
that such right was violated because Defendants failed to take
adequate reasonable steps to notify them of the pendency of the
demolition action.

The Court initially rejected such claim, and

does so again, even with the benefit of the new evidence.
The additional information before the Court at this time
is that though the City sent notice by certified mail to the
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nuisance property, Plaintiffs never signed for or received such
mail.

Under the facts of this case, the Court finds no difference

in outcome.

Although the parties dispute whether publication in

the City Bulletin served as actual notice, there is no question
that under the applicable ordinance at the time, publication in the
City Bulletin was required.
such requirement.

The City published notice and met

Dispositive of the question is the fact that

the City posted notice at the property itself.

In Jones v.

Flowers, 547 U.S. 220, 235 (2006), the Supreme Court indicated that
when certified mail notice fails, the government could take “other
reasonable followup measures. . .[like] post[ing] notice on the
front door.”

The City satisfied due process by virtue of posting

notice at the property.
The

Court’s

conclusion

is

consistent

as

well

with

Karkouli’s Inc. v. Dohany, 409 F.3d 279 (6th Cir. 2005) in which the
county

made

efforts

to

notify

plaintiff,

including

postings at the property, and publication.

mailings,

Plaintiff in such

case, as here, thought the county could have done more.

The court

found however that “while [the proposition that the defendant could
have done even more than it did] may be correct,” there will always
be “something more that could have been done.”

Karkouli’s Inc.,

409 F.3d at 285. The Karkouli’s Inc. court stated the Constitution
“does not require such heroic efforts by the Government; it
requires

only

that

the

Government’s

effort

be

“reasonably

calculated” to apprise a party of the pendency of the action.

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Id.

Finally, the Court notes a distinction in this case from
both Jones and Karkouli’s Inc., that militates even more in the
favor

of

Defendants.

Jones

and

Karkouli’s

Inc.

involved

foreclosures on properties as a result of delinquent taxes.

This

matter, in contrast, involves a much more open and obvious problem.
Plaintiffs’ property was a public nuisance, and as the Court noted
in its previous order, any one with common sense could have seen
the property would rightfully be the target of municipal action.
Plaintiffs had no reason to be surprised about the demolition when
they created a hazard inviting the City to act.
Plaintiffs’ claim for unreasonable seizure similarly
fails.

The City acted reasonably and followed its ordinances and

procedures before abating Plaintiffs’ nuisance property.

Freeman

v. City of Dallas, 242 F.3d 642, 647 (5th Cir. 2001).
B.

The Mandamus Claim

Plaintiffs’ mandamus claim seeks to force the City into
eminent domain proceedings so as to compensate Plaintiffs for the
taking of property interests.

Defendants correctly respond that

the demolition of a dangerous property is an exercise of the City’s
police power.

Keystone Bituminous Coal Ass’n. v. Benedictis, 480

U.S. 470, 492 n.22 (1987)(the exercise of police power does not
require any compensation for the affected property owners).

There

is no question that Plaintiffs’ property constituted a public
nuisance, and they have no viable claim for compensation against
the City.

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029

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(1992), Bowditch v. Boston, 101 U.S. 16, 18 (1880).
C.

The Trespass Claim

Plaintiffs’ trespass claim is that City agents entered
their property without privilege.
entry

here.

Defendants’

However, there was no unlawful

actions

were

both

authorized

and

necessary. Entries onto private land by public officers authorized
to abate public nuisances are privileged against trespass actions.
Castanza v. Town of Brookhaven, 700 F.Supp. 2d 277, 294 (E.D.N.Y.
2010); Restatement (Second) Torts §202. Plaintiffs’ trespass claim
fails as a matter of law.

The Court further agrees that, in any

event, the City is entitled to statutory immunity under Ohio
Revised Code §2744.02 as to such claim.
D.

Qualified Immunity

The City Defendants invoke qualified immunity, which
turns

on

whether

the

facts

alleged

plausibly

constitute

the

violation of a constitutional right and whether such right was
clearly established.

Chappell v. City of Cleveland, 585 F.3d 901,

907 (6th Cir. 2009).

The Court finds no question that Plaintiffs’

complaint involves a claim for a clearly established due process
right to notice before the deprivation of property rights. However
the complaint, taken along with the public documents of which the
Court has taken judicial notice, show there was no plausible
violation of Plaintiffs’ rights. As noted above, the City provided
notice by posting it on the property, by publication, and by making
reasonable attempts by certified mail. Defendants’ conduct was not

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unconstitutional and they are entitled to qualified immunity.
E.

Judicial Estoppel and Allegations of Fraud

Defendants

contend

Plaintiffs

should

be

judicially

estopped from pursuing this matter based on Plaintiffs’ failure to
disclose this lawsuit or their ownership of the blighted property,
and

another

Cincinnati

property,

in

two

separate

bankruptcy

petitions in the United States Bankruptcy Court for the Eastern
District of Louisiana.

The Court finds well-taken Plaintiff’s

position that judicial estoppel is an affirmative defense that in
most cases is not appropriate for consideration in the context of
a motion to dismiss.

Goodman v. Praxair, Inc., 494 F.3d 458, 464

(4th Cir. 2007)(a motion to dismiss tests the sufficiency of the
Complaint and generally cannot reach the merits of an affirmative
defense unless the facts necessary to the affirmative defense
appear on the face of the Complaint).

For essentially the same

reason, the Court finds the City overreaches with allegations of
fraud against Plaintiffs when there is no evidence before this
Court of an active misrepresentation on the part of Plaintiffs, who
claim their failure to report assets before another Court was an
inadvertent omission.
IV.

Conclusion
Having reviewed this matter, the Court finds Defendants’

motion to dismiss well-taken. Plaintiffs received constitutionally
adequate notice reasonably calculated to apprise them that their
property was a public nuisance when Defendants attempted to notify

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them by their address of record, published notice, and posted
notice at the property.

Defendants could have done more but were

not constitutionally required to do so. Karkouli’s Inc. v. Dohany,
409 F.3d 279, 285 (6th Cir. 2005).

Plaintiffs’ remaining claims

are without merit as Defendants’ actions were completely justified
and necessary.

Plaintiffs are responsible for the property they

failed to maintain and should be liable for the costs to clean up
the mess they allowed to get out of control.
Accordingly, the Court GRANTS the City of Cincinnati
Defendants’ Motion to Dismiss (doc. 30), and DISMISSES this matter
from the Court’s docket.
SO ORDERED.

Dated: April 9, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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