Dunning et al v. Varnau et al
Filing
110
ORDER granting 107 Motion to Dismiss. Plaintiffs' claims for defamation and civil conspiracy are dismissed without prejudice. All remaining motions are denied as moot. Signed by Judge Michael R. Barrett on 7/7/2022. (kkz)
Case: 1:14-cv-00932-MRB Doc #: 110 Filed: 07/07/22 Page: 1 of 7 PAGEID #: 1570
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
George Dunning, Jr., et al.,
Case No. 1:14cv932
Plaintiffs,
Judge Michael R. Barrett
v.
Judith A. Varnau, et al.,
Defendants.
ORDER
This matter is before the Court upon Plaintiffs’ Motion for Voluntary Dismissal
without Prejudice under Rule 41(a)(2). (Doc. 107).
Defendants Judith and Dennis
Varnau have filed a Memorandum in Opposition. (Doc. 109).
I.
BACKGROUND
This case arises from the death of Zachary Goldson, who was found in his cell at
the Brown County Jail hanging from sheet tied to a part of the sprinkler system in the
ceiling. (Doc. 10). Plaintiffs filed their original complaint on December 4, 2014. (Doc.
1). Plaintiffs were officers employed by the Brown County Sheriff’s Office at the time of
Goldson’s death.
Defendant Dr. Varnau is the former Brown County Coroner.
Defendant Dennis Varnau is the husband of Dr. Varnau and was authorized by her to
assist her in her duties as coroner. The following excerpt from a related state court case
summarizes the background of this case:
Goldson had a history of suicidal behavior, including swallowing pens,
toothbrushes, and staples, as well as discussing his preferred burial
clothing. Goldson's sister and girlfriend both stated that Goldson was
suicidal and had threatened to harm himself on multiple occasions.
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On the night of Goldson's suicide, he was transported to the hospital after
he swallowed several items. During the transport, Goldson assaulted a
police officer by grabbing him from behind, trying to reach the officer's
weapon, and ultimately causing serious cuts on the officer's face. The
officer struggled with Goldson, and four bystanders aided the officer in
subduing Goldson. Goldson was quickly returned to the jail, and left alone
in his cell for 23 minutes and 42 seconds before officers discovered
Goldson's body hanging from the sprinkler system.
An investigation by the Ohio Bureau of Criminal Investigation (“BCI”)
confirmed that Goldson's death was suicide. As part of the investigation,
the prison provided BCI with video surveillance of the hallway outside of
Goldson's cell. No one is seen on the video coming or going from
Goldson's cell for the 21 minutes prior to his suicide. Even so, Varnau and
her husband, Dennis, espoused the belief that members of the Brown
County Sheriff's Office killed Goldson by strangling him with a ligature and
staging the hanging to look like a suicide. Varnau alleged that police killed
Goldson in retaliation for Goldson's assault on the officer during his
transport to the hospital. In her official capacity as Brown County Coroner,
Varnau indicated on Goldson's death certificate that his death was caused
by strangulation and that the death was a homicide.
Varnau created a slide presentation, which included allegations and
“evidence” regarding Goldson's death. The presentation was shown to the
grand jury, who decided not to indict anyone in connection with Goldson's
death. Nevertheless, Varnau announced her plans to conduct a second
inquiry into Goldson's death to “clarify” her finding of homicide.
The allegations made by Varnau against the Brown County Sheriff's Office
were publicized on local news channels and the internet, and Varnau's
allegations against the sheriff's office became widely known.
Varnau and her husband have a history of dispute with the Brown County
Sheriff's Office. Dating back to 2008 when Dennis ran against the current
sheriff, Dwayne Wenninger, the Varnaus and the sheriff's office have been
engaged in a very public feud. See Adamson v. Coroner, 12th Dist. Brown
No. CA2014-07-016, 2014-Ohio-5739, 2014 WL 7390121.
Dennis
claimed that Sheriff Wenninger was not qualified to be sheriff, and filed suit
to oust Wenninger from office. This court denied Dennis' attempt to oust
Wenninger, and the feud between the parties continued. State ex rel.
Varnau v. Wenninger, 12th Dist. Brown No. CA2009-02-010,
2011-Ohio-3904, 2011 WL 3433024.
Dunning v. Varnau, 95 N.E.3d 587, 590–91 (Ohio Ct. App. 2017).
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Following this Court’s ruling on Defendants’ Motion to Dismiss (Doc. 30), Plaintiffs’
only remaining claims were claims for defamation and civil conspiracy. The parties
began conducting discovery on these claims, but had multiple disputes which required
the Court’s intervention. (See, e.g., Docs. 39, 57). In March of 2018, this Court stayed
discovery in order to await the trial in a related case: Ashley Bard v. Brown County, et al.,
Case No. 1:15cv643.
The Bard case was brought by Ashely Bard, the sister of Zachary Goldson. Bard
brought claims for excessive force pursuant to 42 U.S.C. § 1983 against the same officers
who are the plaintiffs in this case. Bard maintained that the officers staged the cell to
make it look like Goldson’s death was a suicide. This Court granted summary judgment
in favor of the officers, but the Sixth Circuit reversed, finding that there was a genuine
issue of material fact regarding whether Goldson could have physically hanged himself;
and also ruling that it was error for this Court to discount Dr. Varnau’s testimony because
“[h]er testimony contributes to the genuine dispute of fact over whether Goldson strangled
himself after the officers left him in a hobble strap.” Bard v. Brown Cnty., Ohio, 970 F.3d
738, 757, 761 (6th Cir. 2020). Following remand, this Court held a four-day jury trial in
June of 2021. The jury found no liability on the part of the officers. (Doc. 198, PAGEID
6396).
On September 3, 2021, Defendants filed a motion to lift the stay in this case.
(Doc. 106). The Court held several telephone conferences to discuss the status of the
case. Counsel for Plaintiffs indicated that given the outcome of the Bard case, Plaintiffs
intended to dismiss their claims. Defendants opposed dismissal, which gave rise to the
present matter being brought before the Court.
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II.
ANALYSIS
Plaintiffs move for dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2),
which provides that after an answer or motion for summary judgment has been filed:
. . . an action may be dismissed at the plaintiff's request only by court order,
on terms that the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff's motion to dismiss, the
action may be dismissed over the defendant's objection only if the
counterclaim can remain pending for independent adjudication. Unless the
order states otherwise, a dismissal under this paragraph (2) is without
prejudice.
Fed. R. Civ. P. 41 (a)(2). “Whether dismissal should be granted under the authority of
Rule 41(a)(2) is within the sound discretion of the district court.” Grover by Grover v. Eli
Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). An abuse of discretion may be found where
dismissal without prejudice would cause the defendant “plain legal prejudice.” Id. “In
determining whether a defendant will suffer plain legal prejudice, a court should consider
such factors as the defendant's effort and expense of preparation for trial, excessive
delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient
explanation for the need to take a dismissal, and whether a motion for summary judgment
has been filed by the defendant.” Id. However, “there is no requirement that each of the
Grover factors be resolved in favor of the moving party before dismissal is appropriate.
The factors are ‘simply a guide for the trial judge, in whom the discretion ultimately rests.’”
Rosenthal v. Bridgestone/Firestone, Inc., 217 F. App'x 498, 502 (6th Cir. 2007) (quoting
Kovalic v. DEC Int'l, Inc., 855 F.2d 471, 474 (7th Cir. 1988)).
Defendants maintain that if Plaintiffs’ claims were dismissed, they would be barred
from their only opportunity to vindicate themselves. Defendants renew their request to
file a motion for leave to amend their Answer in order to add a counterclaim, which was
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initially made the day after this Court stayed the case. (See Doc. 94). Defendants cite
the factors used to determine whether a defendant would suffer legal prejudice—albeit
from courts outside of the Sixth Circuit—but do not articulate how these factors apply in
the instant case. Therefore, the Court is left to make this determination on its own.
Turning to the Grover factors, the Court notes that Defendants have not suggested
that their effort and expense of preparation for trial was substantial. Before this case was
stayed, the parties had conducted some initial discovery. However, because several
side issues had been raised, discovery had not been completed and this case was still in
the early stages of litigation. 1
A review of the docket does not demonstrate any
excessive delay on the part of Plaintiffs in prosecuting the action. Instead, Plaintiffs were
pursuing their claims diligently, as demonstrated by the filing of their Supplemental
Complaint. (See Doc. 58). Defendants point to the delay caused by the stay of these
proceedings (see Doc. 102, PAGEID 1490), but in ordering the stay, this Court found that
the stay would not result in hardship or prejudice to Defendants. (Doc. 93, PAGEID
1459). Next, the Court finds that the basis for dismissal is clear given the finding of no
liability on the part of these Plaintiffs in the Bard case. Finally, Defendants did not file a
1For
instance, Defendants withdrew the submission of this case for defense and indemnity
by County Risk Sharing Authority, Inc. (“CORSA”). (Doc. 71). This prompted Plaintiffs to
request that the Court order Defendants to post a bond in the same amount as the CORSA
coverage being waived. (Doc. 74). Defendants also sought to enter and inspect the cell in the
Brown County Jail where Goldson died. (Doc. 83). Defendants argued that the inspection
ordered in the Bard case was insufficient. (Doc. 83, PAGEID 1084). Defendants had also filed
a motion requesting that this Court order the investigator for Ohio’s Bureau of Criminal
Investigation “to appear at and cooperate with a re-enactment of what he previously reported and
testified that he did: an attempt at demonstrating how Zachary Goldson could have actually
hanged himself in cell 15 of the Brown County Jail.” (Doc. 84, PAGEID 1091). Through a series
of telephone status conferences, the Court was attempting to address these issues. The Court
had also directed the parties to confer and agree on dates to be incorporated into an amended
calendar order, but this had not yet been accomplished when the Court ordered that the case be
stayed.
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motion for summary judgment.
To the extent that Defendants argue that they will not have their “day in court,”
“[c]ourts readily find plain legal prejudice where dismissal results in stripping a defendant
of an absolute defense.” Rosenthal, 217 F. App'x 498 at 500. However, Defendants do
not assert that they would be stripped of an absolute legal defense if the Court dismissed
the case. Instead, Defendants seek to file unspecified counterclaims against Plaintiffs.
Under the facts and circumstances of this case, the Court concludes that the Grover
factors weigh in favor of allowing Plaintiffs to dismiss the case without prejudice.
Defendants maintain that if Plaintiffs’ motion is granted, they are entitled to
attorney’s fees and costs. As the Sixth Circuit has explained:
Though defense costs are frequently awarded as a condition of a grant of
voluntary dismissal, such costs are not mandatory. DWG Corp. v.
Granada Invs., Inc., 962 F.2d 1201, 1202 (6th Cir. 1992). Relevant factors
in evaluating whether to award attorney's fees and costs include “whether
the plaintiff acted in good faith in bringing the action, extensive discovery
costs were involved, and extraordinary expenses were incurred in
defending the action.” Malibu Media LLC, 705 F. App'x at 410.
Walther v. Fla. Tile, Inc., 776 F. App'x 310, 318 (6th Cir. 2019) (footnote omitted).
The Court finds the factors warranting an award of attorney’s fees and costs are
not present here. There is nothing in the record indicating that Plaintiffs brought this
action in bad faith. Because discovery was only partially completed, extensive discovery
costs were not involved. Based on the entries contained in the docket, a total of seven
depositions were taken by the parties. (Docs. 40-46). Finally, Defendants have not
identified any extraordinary expenses incurred in defending the action.
For these
reasons, the Court concludes that Defendants are not entitled to an award of attorney’s
fees and costs.
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III.
CONCLUSION
Based on the foregoing, Plaintiffs’ Motion for Voluntary Dismissal without
Prejudice under Rule 41(a)(2) (Doc. 107) is GRANTED. Plaintiffs’ claims for defamation
and civil conspiracy are DISMISSED without PREJUDICE. This matter is CLOSED
and TERMINATED from the active docket of this Court. All remaining motions are
DENIED as MOOT.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge
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