Ohio Midland, Inc. et al v. Proctor et al

Filing 185

ORDER granting 184 Motion to Substitute Party, because KDC is in the best position to carry out the order of demolition. Signed by Judge Algenon L. Marbley on 7/25/2011. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OHIO MIDLAND, INC., et al.,
Plaintiffs,
v.
GORDON PROCTOR, et al.,
Defendants.

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Case No. 2:05-cv-1097
JUDGE ALGENON L. MARBLEY
Magistrate Judge Mark R. Abel

ORDER
This matter is before the Court on the motion of KDC Investments, LLC for Leave of
Court to Substitute as a Party or Alternatively to Intervene in the Captioned Case (Doc. 184).
On December 23, 2009, this Court ordered Plaintiffs to demolish the Bellaire Bridge (“the
Bridge”) (Doc. 180). On December 8, 2010, the Court granted the Plaintiffs’ Motion to
Substitute Advanced Explosives Demolition, Inc. (“AED”), which, the Parties represented to the
Court, had assumed ownership of the Bridge (Doc. 183).
KDN now moves for substitution of the parties because AED sold the Bridge to KDN on
May 20, 2010, as memoralized in a Purchase Agreement stating that KDC “assume[d] all
responsibilities associated with the Bridge, including its proper demolition and removal.”1 The
ownership of the Bridge was the subject of litigation in Idaho state court between AED and
KDC. On February 8, 2011, the First Judicial District Court in Idaho quieted title to the Bridge in
favor of KDC (Doc. 183-4). Under the doctrine of collateral estoppel, AED is now estopped

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KDN claims it was not served with the prior motion for substitution and therefore had no
knowledge that the motion was before the Court.

from claiming in this Court that it, and not KDC, owns the Bridge. See Cobbins v. Tenn. Dep’t of
Transp., 566 F.3d 582, 589 (6th Cir. 2009); Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644,
650 (6th Cir. 2007).
Under Federal Rule of Civil Procedure 25(c), “[i]f an interest is transferred, the action
may be continued by or against the original party unless the court, on motion, orders the
transferee to be substituted in the action or joined with the original party.” A district court has
discretion in deciding whether to allow substitution after a transfer of interest. Bamerilease
Capital Corp. v. Nearburg, 958 F.2d 150, 154 (6th Cir. 1992). Neither AED nor any other Party
to this case has opposed KDC’s motion within the twenty-one days allotted for responsive
memoranda, and the Court may therefore treat the motion as unopposed. See S.D. Ohio Civ.
7.2(a)(2). For that reason, and because KDC is in the best position to carry out the order of
demolition, the Court GRANTS the motion for substitution.

IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: July 25, 2011