Burk v. Bubp et al

Filing 33

ORDER granting 24 Motion to Dismiss for Failure to State a Claim and granting 25 Motion for Judgment on the Pleadings. Signed by Judge Susan J. Dlott. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
James L. Burk,
Plaintiff,
v.
Danny R. Bubp, et al.,
Defendants.

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Case No. 1:14-cv-835
Judge Susan J. Dlott
Order Granting Motion to Dismiss and
Motion for Judgment on the Pleadings

This matter is before the Court on Defendant Danny R. Bubp’s Rule 12(b)(6) Motion to
Dismiss Plaintiff’s Amended Complaint (Doc. 24) and Defendants William C. Foster’s, Jayme
Eldridge’s, Greg Caudill’s, David Benjamin’s, and the Village of Winchester, Ohio’s Motion for
Judgment on the Pleadings (Doc. 25). For the reasons that follow, the Court will GRANT the
Motion to Dismiss and Motion for Judgment on the Pleadings.
I.

BACKGROUND
The well-pleaded allegations of the Amended Complaint are taken as true for purposes of

the pending motions. Plaintiff James L. Burk is a resident of Clermont County, Ohio. (Doc. 22
at PageID 166.) Defendant Village of Winchester is a municipal corporation located in Adams
County, Ohio. (Id. at PageID 167.) At all times relevant hereto, Defendant Danny R. Bubp
served as the magistrate in the Winchester Mayor’s Court, Defendant William C. Foster served
as the mayor of the Village, Jayme Eldridge served as a clerk for the Village, Defendant Greg
Caudill served as the police chief for the Village, and Defendant David Benjamin served as a
police officer for the Village.1 (Id. at PageID 166–67.)

1

For ease of identification, the Court will refer to Defendants using the job titles they held at the time of the
relevant events.
1

The Winchester Mayor’s Court has jurisdiction over cases involving violations of local
ordinances and state traffic laws. (Id. at PageID 168; Ohio Rev. Code § 1905.01.) Persons
convicted in the Mayor’s Court may appeal the conviction to a municipal court or county court
having jurisdiction within the municipal corporation. (Id. at PageID 168; Ohio Rev. Code
§ 1905.22.)
A.

Allegations Specific to Burk
On May 8, 2009, Officer Benjamin pulled over Plaintiff Burk while he was driving and

issued him a citation for speeding and operating a motor vehicle under the influence of alcohol
(“OMVI”). (Doc. 22 at PageID 169; Doc. 22-1 at PageID 205.) Officer Benjamin arrested Burk
and impounded his vehicle, a 1991 Honda sedan. (Doc. 22 at PageID 169; Doc. 22-1 at PageID
205.) Officer Benjamin administered a breathalyzer examination to Burk, the result of which
indicated that Burk was not legally intoxicated. (Id.) Burk refused to consent to testing of his
urine sample. (Id. at PageID 169–70.) Officer Benjamin then completed and signed an Ohio
BMV Form 2255 which stated in relevant part:
I certify I arrested the person, having had reasonable grounds to believe the
person was operating a vehicle upon a highway, or upon public or private
property used by the public for vehicular travel or parking in the State of Ohio,
under the influence of alcohol and/or drugs of abuse, in physical control of a
vehicle while under the influence of alcohol and/or drugs of abuse, or with a
prohibited concentration of alcohol in the whole blood, blood serum, blood
plasma, breath, or urine. I advised the person in the prescribed manner of the
consequences of a refusal or a test. The person either refused the test, or was
under arrest for OVI and took the test and had a prohibited concentration of
alcohol in the whole blood, blood serum, blood plasma, breath, or urine (all as
described above). . . . The information contained on this form is true to the best
of my knowledge and belief.
(Doc. 22-2 at PageID 206.) The Form 2255 listed potential vehicle sanctions, including seizure
of the vehicle or license plate and forfeiture of the vehicle, but Officer Benjamin did not indicate
that any of the vehicle sanctions were applicable. (Id.)
2

Burk appeared before the Winchester Mayor’s Court on May 21, 2009 on the speeding
and OMVI charges. (Doc. 22 at PageID 171.) Burk alleges upon information and belief that
Magistrate Bubp, Mayor Foster, Clerk Eldridge, Chief Caudill, and Officer Benjamin were
present at the Mayor’s Court when his case was called and considered. (Id. at 171–74.)
Magistrate Bubp directed police officers to discuss Burk’s options with him outside of the
courtroom after Burk’s case was called and discussed. Officer Benjamin and an officer believed
to be Chief Caudill “proceeded to threaten and intimidate [Burk] that if he did not sign the title
and motor vehicle over to [the Village], then he would be taken to jail, but that if he did agree to
sign title over to [the Village], then the whole matter would be resolved.” (Id. at PageID 172–
73.) Burk agreed to sign over vehicle title. (Id. at PageID 173.) Burk returned to the courtroom
where Magistrate Bubp directed him to bring his certificate of title to the Mayor’s Court the next
day. (Id.) The judgment entry signed by Magistrate Bubp states that Burk was found guilty of
“DUI” and sanctioned a $1000 fine plus $80 costs to be paid by “Defendant to transfer title of
1991 Honda Accord as if and for payment of fine.” (Doc. 22-3 at PageID 207.) The judgment
entry further imposed a 90 days period of incarceration in the Adams County Jail with “credit for
time served, one day, all jail time suspended if Defendant transfer [sic] title to 1991 Honda
Accord on 5/22/09.” (Id.)
Burk brought his vehicle certificate of title to the Mayor’s Court on May 22, 2009. (Doc.
22 at PageID 175.) Burk assigned the certificate of title to the Village of Winchester. (Doc. 224 at PageID 209.) Chief Caudill and Burk then proceeded to a local bank to have the assignment
of the certificate of title notarized. (Doc. 22 at PageID 175; Doc. 22-4 at PageID 208–09.)
Mayor Foster signed the acknowledgment of the odometer reading on the back of the certificate
of title. (Id.)

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More than three years later, on November 4, 2012, Mayor Foster applied for a new
certificate of title in the name of the Village for the vehicle previously owned by Burk. (Doc. 22
at PageID 189; Doc. 22-15 at PageID 232.) The new certificate of title was issued in the name of
the Village on November 15, 2012. (Doc. 22-15 at PageID 233.) The Village then transferred
title on the vehicle to a third party for the sum of $450 on February 14, 2013. (Id. at 233–34.)
B.

Allegations Regarding Similar Instances of Misconduct
Burk alleges that Mark Kiser was similarly threatened or intimidated into transferring his

motor vehicle title to the Village during or ancillary to proceedings at the Mayor’s Court. (Doc.
22 at PageID 176–85.) Kiser initially protested that he did not want to turn over his vehicle to
the Village, but he ultimately agreed to do so after a police officer threatened to increase the
charges against him to felonies and take him to jail. (Id. at PageID 178–81.) Similarly, Burk
alleges upon information and belief that Candi Gilbert turned over her vehicle to the Village
because she was threatened or coerced. (Id. at PageID 184–85.) The Kiser proceedings occurred
in or around April 2009, while the Gilbert proceedings occurred in or around July 2009. (Id.;
Doc. 22-7 at PageID 213; Doc. 22-16 at PageID 235–36.) Burk alleges that discovery would
establish that other individuals also transferred their motor vehicles to the Village following
intimidation or threats. (Doc. 22 at PageID 185.)
In a letter dated August 13, 2009, the Village solicitor, Dana Whalen, informed Mayor
Foster that the Mayor’s Court did not have legal authority under Ohio law to take the title of
seized vehicles in lieu of payment or reduction in fines. (Doc. 22 at PageID 187–88; Doc. 22-13
at PageID 229–30.) She stated that the forfeiture of vehicles or contraband could only be
conducted in common pleas court proceedings following strict procedures. (Id.) She made the
following recommendation to Mayor Foster:

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It is therefore my recommendation that you advise the Magistrate and your police
officers to cease acceptance of vehicles in lieu of payment of fines. Additionally,
I recommend that you reconcile where this has occurred and return the vehicles to
their owners. I believe the village and the Magistrate does [sic] not have
governmental or judicial immunity in the event a §1983 federal action is brought
for seizure of vehicles in lieu of a fine. I have federal case law that clearly
indicates that a Magistrate does not have judicial immunity where he exceeds that
which is permitted by him under the law.
(Doc. 22-13 at PageID 230.)
The Village did not return the surrendered vehicles to their previous owners. (Doc. 22 at
PageID 188.) The Village still retains possession of and title to the vehicle previously owned by
Mark Kiser. (Doc. 22 at PageID 190–91.) Mayor Foster sought issuance of a certificate of title
in the name of the Village as to the vehicle previously owned by Candi Gilbert on November 14,
2012. (Doc. 22 at PageID 191; Doc. 22-16 at PageID 235–37.) A new certificate of title was
issued in the name of the Village on November 15, 2012. (Doc. 22-17 at PageID 237.) The
Village then transferred title to the vehicle to a third party for the sum of $280 on February 27,
2013. (Id. at 237–38.)
The Ohio Bureau of Criminal Identification and Investigation (“BCI”) conducted an
investigation of the Winchester Police Department and the Winchester Mayor’s Court from 2010
to 2013. (Doc. 22 at PageID 185.) Burk alleges that the BCI determined that Defendants
operated an enterprise in which individuals cited by the Police Department and/or brought before
the Mayor’s Court were threatened or intimidated into transferring title of their motor vehicles to
the Village. (Id. at PageID 186–87.)
C.

Procedural Posture
Burk initiated this suit against Magistrate Bubp, Mayor Foster, Clerk Eldridge, Chief

Caudill, Officer Benjamin, and the Village on October 27, 2014. (Doc. 1.) He filed an Amended
Complaint (Doc. 22) on February 27, 2015. Burk asserts a claim for a violation of his right to
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due process pursuant to 42 U.S.C. § 1983 and a claim for “civil RICO” pursuant to Ohio Revised
Code § 2923.34. (Id. at PageID 192–203.) Defendants now move to dismiss both claims on the
basis of the statute of limitations, absolute or qualified immunity, and failure to state a claim
upon which relief can be granted.
II.

STANDARDS GOVERNING RULE 12 MOTIONS
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint

for “failure to state a claim upon which relief can be granted.” Rule 12(c) permits a party to
move for judgment on the pleadings. The legal standard for adjudicating a Rule 12(c) motion is
the same as that for adjudicating a Rule 12(b)(6) motion. Lindsay v. Yates, 498 F.3d 434, 437
n.5 (6th Cir. 2007). A complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A district court “must read all wellpleaded allegations of the complaint as true” on a Rule 12(b)(6) or Rule 12(c) motion. Weiner v.
Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997). However, this tenet is inapplicable to legal
conclusions, or legal conclusions couched as factual allegations, which are not entitled to an
assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To withstand a dismissal motion, a complaint “does not need detailed factual
allegations,” but it must contain “more than labels and conclusions [or] a formulaic recitation of
the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“[T]he complaint must contain either direct or inferential allegations respecting all material
elements to sustain a recovery under some viable legal theory.” Harvard v. Wayne Cty., 436 F.
App’x 451, 457 (6th Cir. 2011) (internal quotation and citation omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
The Court does not require “heightened fact pleading of specifics, but only enough facts to state

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a claim for relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
III.

ANALYSIS

A.

Claim for Federal Civil Rights Violation Pursuant to 42 U.S.C. § 1983
Burk alleges in his first cause of action that Defendants deprived him of his motor vehicle

without due process. Section 1983 creates a cause of action to remedy constitutional violations
as follows:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
Section 1983 actions arising in Ohio are governed by the two-year statute of limitations
set forth in Ohio Revised Code § 2305.10. See Hunt v. City of Cleveland, 563 F. App’x 404, 407
(6th Cir. 2014); Browning v. Pendleton, 869 F.2d 989, 990 (6th Cir. 1989) (en banc). The statute
of limitations runs from the date that the plaintiff knew or should have known about his injury.
Hunt, 563 Fed. App’x at 407. A complaint is subject to dismissal pursuant to Rule 12, despite
the fact that the statute of limitations is an affirmative defense, if the allegations “show that relief
is barred by the applicable statute of limitations.” Jones v. Bock, 549 U.S. 199, 215 (2007); see
also Perdue v. Ohio State Highway Patrol, No. 1:14-cv-967, 2015 WL 457789, at *4 (S.D. Ohio
Feb. 3, 2015) (citing Jones for the same principle).

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Plaintiff Burk filed the Complaint in this action on October 27, 2014. Defendants argue
that the § 1983 claim is untimely because Burk’s alleged injury occurred in May 2009 when he
transferred title to his vehicle to the Village. Burk responds that the statute of limitations did not
begin to run until November 14, 2012, when the Village applied for a certificate of title in its
own name for the vehicle, or on February 14, 2013, when the Village transferred title on the
vehicle to a third party.
The Court must first decide what law is relevant to determine when Burk suffered an
injury regarding the loss of his vehicle. Burk contends that he was not fully divested of his legal
right, title, and interest in the vehicle until the Village received a certificate of title in its name in
November 2012. He cites the Ohio Certificate of Title Act for the proposition that “[n]o person
acquiring a motor vehicle from its owner . . . shall acquire any right, title, claim, or interest in or
to the motor vehicle until there is issued to the person a certificate of title to the motor vehicle.”
Ohio Rev. Code Ann. § 4505.04(A). Defendants respond that Burk is misconstruing the
Certificate of Title Act, but also that the Act is not controlling in any event.
The Certificate of Title Act was enacted to create an instrument proving title to protect
innocent purchasers of motor vehicles. Saturn of Kings Auotmall, Inc. v. Mike Albert Leasing,
Inc., 92 Ohio St. 3d 513, 516, 751 N.E.2d 1019 (2001). The Ohio Supreme Court explained in
Kings of Saturn Automall that § 4505.04(A) controls to resolve competing claims of ownership
by rival claimants to title to a motor vehicle. Id. at 519. Here, however, Burk is not bringing this
action as a claimant to rightful ownership of the vehicle. Rather, he asserts a claim for the
alleged denial of due process when the Village threatened and intimidated him into surrendering
possession of and the certificate of title to his vehicle. Burk is suing to recover damages for the
violation of his rights, not to regain possession of his vehicle.

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The Ohio Supreme Court stated in an earlier case that § 4505.04 is “irrelevant to all
issues of ownership except those regarding the importation of vehicles, rights as between
lienholders, rights of bona-fide purchasers, and instruments evidencing title and ownership.”
Smith v. Nationwide Mut. Ins. Co., 37 Ohio St. 3d 150, 153, 24 N.E.2d 507 (1988). The Ohio
Supreme Court in Smith applied the Ohio codification of the Uniform Commercial Code
(“UCC”), Ohio Revised Code § 1302.42(B), to identify ownership of a vehicle for purposes of
determining insurance coverage in the case of an accident. Id. The Ohio codification of the
UCC provides in relevant part that “title passes to the buyer at the time and place at which the
seller completes performance with reference to the physical delivery of the goods” unless
otherwise explicitly agreed. Ohio Rev. Code. § 1302.42(B). The UCC, and not the Certificate of
Title Act, should apply in this case because Burk is seeking damages for a due process violation
arising from his loss of ownership of the motor vehicle, not seeking to prove a superior claim to
ownership of the vehicle. Therefore, Burk was divested of his ownership rights, and suffered his
constitutional injury, if any, in May 2009 when he surrendered his vehicle and assigned the
certificate of title to the Village.
This holding is consistent with Ohio forfeiture law. Ohio recognizes “an equitable
interest in vehicles apart from that of the certificate of title.” United States v. Davis, No. 13-1DLB-CJS, 2014 WL 7236997, at *6 n. 6 (E.D. Ky. Dec. 17, 2014) (interpreting Ohio law). The
equitable ownership interest in a vehicle can be subject to forfeiture even if the equitable owner
is not the title owner. Ohio v. Wegmiller, 88 Ohio App. 3d 68, 72, 623 N.E.2d 131 (1993).
Courts have found that claims for wrongful forfeiture accrue at the time of the forfeiture
proceedings. See Kripp v. Luton, 466 F.3d 1171, 1177 (10th Cir. 2006) (“[A] claim challenging
a forfeiture proceeding accrues only at the time of that proceeding.”); Blakely v. U.S., 276 F.3d

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853, 856 (6th Cir. 2002) (“Plaintiffs[’] claim accrued when they discovered or had reason to
discover that their property allegedly had been fraudulently forfeited.”); Polanco v. U.S. DEA,
158 F.3d 647, 654 (2d Cir. 1998) (stating that a cause of action for wrongful forfeiture accrues at
the close of the forfeiture proceedings). The forfeiture-type proceedings here occurred in May
2009 in the Mayor’s Court.
Finally, even if the Certificate of Title Act was controlling, the Court would still find that
the statute of limitations began to run in May 2009. The Ohio Supreme Court in Saturn of Kings
Automall interpreted § 4505.04(A) to mean that “title to and, thus, ownership of a motor vehicle
in this context does not pass without issuance or delivery of the certificate of title.” 92 Ohio St.
3d at 520 (emphasis added). The choice of words “issuance or delivery” is significant because
the Ohio Supreme Court did not state the Certificate of Title Act required the recipient to obtain
a new certificate of title issued in its name. This interpretation of the Certificate of Title Act is
consistent with an earlier Ohio Supreme Court holding that a vehicle title passed to the transferee
upon receipt of endorsement and delivery of the certificate of title to the transferee. See Garlick
v. McFarland, 159 Ohio St. 539, 549, 113 N.E.2d 92 (1953) (“The cases establish the rule in
Ohio that where the endorsement and delivery of a certificate of title for an automobile is made,
title passes even if there is a failure on the part of the recipient to secure the issuance of a new
certificate in his name.”);2 In re Roberto, No. 96-60616, 1996 WL 374114, at *2 (N.D. Ohio
May 29, 1996) (“[T]here is authority for the proposition that when endorsement and delivery of a

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Garlick appeared to be implicitly contradicted by Brewer v. DeCant, 167 Ohio St. 411, 149 N.W.2d 166 (1958),
wherein the Ohio Supreme Court stated that “a change in ownership of an automobile is not consummated until a
certificate of title is issued in the name of the purchaser.” Brewer, 167 Ohio St. at 411. However, the Ohio Supreme
Court again approved the Garlick approach with its holding in Saturn of Kings Automall. The Sixth Circuit referred
to the Garlick and Brewer decisions as “alternative rule[s]” in dicta in McCaughey v. Garlyn Shelton, Inc., 208 F.
App’x 427, 434 (6th Cir. 2006). Some courts have concluded that Brewer applies if the seller is an auto dealer, but
Garlick applies if the seller is an individual. See Burns v. Star Bank N.A. (Dayton), No. 12677, 1992 WL 15210, at
*2–3 (Ohio App. Jan. 31, 1992); Lavinder v. Motorists Mut. Ins. Co., No. L-86-075, 1986 WL 14371, at *3–4 (Ohio
App. Dec. 12, 1986).
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certificate of title are made, title passes even though there is a failure on the part of the recipient
to secure the issuance of a new certificate of title in his name.”). Conversely, transfer of
possession of a vehicle without the assignment and delivery of the certificate of title is not
sufficient to vest legal title in the transferee. See First Merit Bank v. Angelini, 159 Ohio App. 3d
179, 186, 823 N.E.2d 485 (2004); Morris v. Erieway, Inc., 93 Ohio App. 3d 239, 245, 638
N.E.2d 142 (1994). In the instant case, Burk agreed on May 21, 2009 to transfer title of his
seized vehicle to the Village to pay his fine. Then on May 22, 2009 he assigned and gave
physical possession of the certificate of title to his vehicle to the Village. These acts were
sufficient to transfer title to the Village under the Certificate of Title Act as interpreted by the
Ohio Supreme Court.
In conclusion, Burk’s § 1983 claim for denial of due process is untimely and must be
dismissed.
B.

Claim for Violation of Ohio Revised Code § 2923.34
Plaintiff Burk has also asserted a claim for violation of the Ohio Corrupt Activities Act

(“OCAA”), Ohio Revised Code § 2923.34, against Defendants. Burk brought the OCAA claim
in this Court under the doctrine of supplemental jurisdiction. 28 U.S.C. § 1367(a). However, the
Court declines to exercise supplemental jurisdiction over this OCAA claim because the Court
has dismissed the only claim upon which it has had original jurisdiction. 28 U.S.C. § 1367(c)(3).
IV.

CONCLUSION
For the foregoing reasons, Defendant Danny R. Bubp’s Rule 12(b)(6) Motion to Dismiss

Plaintiff’s Amended Complaint (Doc. 24) and Defendants William C. Foster’s, Jayme
Eldridge’s, Greg Caudill’s, David Benjamin’s, and the Village of Winchester, Ohio’s Motion for
Judgment on the Pleadings (Doc. 25) are GRANTED. The Court dismisses with prejudice the

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due proces claim asserted pursuant to 42 U.S.C. § 1983. The Court declines jurisdiction over
and dismisses without prejudice the OCAA claim.
IT IS SO ORDERED.

S/Susan J. Dlott________________
Judge Susan J. Dlott
United States District Court

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