Andwan v. Greenhills, Village of et al

Filing 114

ORDER granting 110 Defendant Village of Greenhills & Andrew Moore' Motion for Partial Judgment on the Pleadings and enters judgment in their favor on plaintiff's claim for common law assault and batters. The Village of Greenhills is also entitled to judgment on the claim of intentional infliction of emotional distress. The case remains pending on the claims against the Village of Greenhills, Officer Moore, and Gregory Lester. Signed by Judge Sandra S Beckwith on 4/15/15. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Patricia A. Andwan,
Plaintiff,
vs.
Village of Greenhills, Ohio, et al,
Defendants.

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Case No. 1:13-cv-624

ORDER
Before the Court is the motion for partial judgment on the pleadings filed by the
Village of Greenhills and Andrew D. Moore, a Greenhills Village police officer. (Doc.
110) Plaintiff opposes the motion (Doc. 112), and Defendants have filed a reply. (Doc.
113) The Village seeks entry of judgment on Plaintiff’s claim for intentional infliction of
emotional distress, arguing that it is immune from such a claim under Ohio law. Both
Defendants move for judgment on Plaintiff’s assault and battery claim, arguing that it is
untimely and barred by the applicable statute of limitations.
Plaintiff, Patricia Andwan, filed her original complaint in this case on September
9, 2013. (Doc. 1) She was represented by counsel at that time, and asserted several
claims against the Village of Greenhills and several individual defendants for malicious
prosecution, false arrest, and abuse of process. Andwan’s first attorney was granted
leave to withdraw, and she appeared pro se from April 30, 2014 until January 9, 2015,
when new counsel filed a notice of appearance. (Doc. 99) At that time, Andwan had
filed a lengthy complaint that joined many additional parties and claims, and several
motions to dismiss were being briefed. Her new lawyer filed a motion to stay along with

a proposed second amended complaint, which considerably narrowed her claims and
the number of defendants. At a subsequent telephone conference conducted by the
Magistrate Judge, Andwan’s counsel orally moved for leave to file a second amended
complaint, which was granted without opposition from the defendants.
The second amended complaint includes four claims for relief against the Village
of Greenhills, Police Officer Andrew D. Moore, and Gregory Lester, a private contractor
for the Village. She alleges a claim for assault and battery against the Village and
Officer Moore, arising from an incident that took place on November 2, 2011; a claim for
excessive use of force under 42 U.S.C. §1983 based on the same incident: a claim
against the Village and Moore for intentional infliction of emotional distress; and a claim
against Lester for malicious prosecution and/or abuse of process. The Defendants filed
answers (Docs. 106, 107), and on March 11, 2015, the Village and Moore filed their
pending motion under Fed. R. Civ. Proc. 12(c).
The motion contends that Andwan’s assault and battery claim contained in Count
One is time-barred. Under Ohio law, the applicable statute of limitations for such claims
is one year from the date of the incident; see Ohio Rev. Code 2305.111. Andwan
alleges that the incident occurred on November 2, 2011, and Andwan’s second
amended complaint was not filed until January 2015. Even if the claim relates back to
Andwan’s original complaint filed on September 9, 2013, it would be untimely under
Ohio law. The Village of Greenhills also seeks dismissal of the intentional infliction of
emotional distress claim, relying on the Ohio statute providing for political subdivision
immunity from such intentional torts.
Andwan opposes Defendants’ motion with respect to her assault and battery
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claim. She contends that the motion is untimely, and that Defendants should have filed
their motion under Rule 12(b)(6), before they answered the complaint. She notes that
her assault and battery claim is related to her excessive force claim brought pursuant to
Section 1983. And she cites the fact that Defendants did not oppose her earlier motion
to amend her complaint to allege an assault and battery claim. She suggests that their
failure to oppose leave to amend should be treated as the “law of the case,” and that
judgment on the pleadings is therefore not proper. (Andwan concedes that her IIED
claim against the Village must be dismissed “at some point,” even if the Court should
find that Defendants’ Rule 12(c) motion was improperly filed.)
A motion for judgment on the pleadings is reviewed under the same standards as
those applicable to a motion to dismiss under Rule 12(b)(6). HDC, LLC v. City of Ann
Arbor, 675 F.3d 608, 611 (6th Cir. 2012). The Court must construe the well-pleaded
allegations of the complaint in the light most favorable to the plaintiff, and must
determine if those allegations plausibly state a claim for relief. Id. (internal citations
omitted). Andwan does not dispute that a one-year statute of limitations applies to
claims for assault and battery in Ohio. And she does not dispute that her claim,
measured by that statute, is untimely. She argues that Defendants should have filed a
motion under Rule 12(b)(6), rather than waiting until after their answer was filed to raise
the limitations defense. But since the same legal standards apply to both motions, the
Court can discern no error in Defendants’ decision to seek judgment on the pleadings,
and no discernable prejudice to Andwan that resulted. Moreover, Rule 12(h)(2)
specifically states that the defenses of failure to state a claim upon which relief can be
granted, or any legal defense to a claim, may be raised in a pleading, a Rule 12(c)
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motion, or at trial. Defendants raised their defenses in their answer and also in their
Rule 12(c) motion, as permitted by the Rule.
With regard to Andwan’s suggestion that “law of the case” or some sort of waiver
applies to Defendants’ lack of opposition to a prior amended complaint: Andwan cites
no cases holding or suggesting that such a rule should apply in these circumstances.
Motions to amend under Rule 15 are reviewed under liberal standards and generally
should be freely granted, while Rule 12(c) motions are reviewed under the standards
articulated above. In addition, the Court notes that Andwan filed her prior proposed
amended complaint on June 23, 2014, and proposed to add 26 additional defendants
and include thirteen separate claims for relief. The Magistrate Judge’s Report and
Recommendation regarding that amendment notes that the Defendants did not oppose
amendment of her claim for assault and battery and excessive force against Defendant
Moore. But the Magistrate Judge specifically held: “Contrary to Plaintiff’s position,
however, Defendants’ failure to object to the proposed amended claim is not tantamount
to an ‘admission of liability,’ but reflects nothing more than that the amendment of that
single claim is unopposed.” (Doc. 68 at 8-9) Defendants state that when new counsel
appeared in January 2015 and sought leave to file another amended complaint - which
greatly simplified the parties and the claims - they did not object, and chose to address
the claims after filing rather than under Rule 15.
The Court concludes that the Defendants are entitled to judgment on the
pleadings on Andwan’s assault and battery claim under Ohio law. While she notes that
this claim is “related” to her excessive force claim, the latter is not affected by the
dismissal of her common law claim. The face of her complaint establishes beyond
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dispute that the assault and battery claim was filed well beyond the one-year statute of
limitations, and it therefore shall be dismissed.
For all of these reasons, the Court grants the motion filed by the Village of
Greenhills and Andrew D. Moore, and enters partial judgment in their favor on Plaintiff’s
claim for common law assault and battery raised in Count One of her Second Amended
Complaint. The Village of Greenhills is also entitled to judgment on Plaintiff’s claim for
intentional infliction of emotional distress.
The case remains pending on the balance of Plaintiff’s claims against the Village,
Officer Moore, and Gregory Lester.
SO ORDERED.
DATED: April 15, 2015

s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court

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