Jones et al v. Allen, et al

Filing 55

ORDER adopting 50 the Report and Recommendation; denying 21 Defendants' Motion to Dismiss for Failure to State a Claim; denying 33 Plaintiffs' Motion to Strike; denying 51 Defendants' Motion to Convert. Signed by Judge Michael H. Watson on 9/13/12. (jk1)

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

Craig S. Jones, et al.,
Plaintiffs,

v.

Case No. 2:11-cv-380

Kerry A. Allen, et al.,

Judge Michael H. Watson
Magistrate Judge Kemp

Defendants.
ORDER
On July 17, 2012, United States Magistrate Judge Kemp, to whom this case was
referred pursuant to 28 U.S.C. § 636(b), issued a Report and Recommendation, ECF
No. 50, on Defendants' motion to dismiss, ECF No. 21. Judge Kemp recommended
that the Court deny Defendants' motion. In addition, Judge Kemp recommended that
Plaintiffs' motion to strike argument in reply, ECF No. 33, be denied as moot.
The Report and Recommendation specifically advises parties that the failure to
object to the Report and Recommendation within fourteen days of the Report results in
a "waiver of the right to de novo review ... by the District Judge and waiver of the right
to appeal the judgment of the District Court." Report and Recommendation 5-6, ECF
No. 50. The time period for filing objections to the Report and Recommendation has
expired. Noting that no objections have been filed and that the time for filing such
objections expired, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge, ECF No. 50, DENIES Defendants' Motion to Dismiss, ECF No. 21,
and DENIES as moot Plaintiffs' motion to strike, ECF No. 33.

Defendants now move to convert the motion to dismiss into a motion for
judgment on the administrative record, ECF No. 51. Defendants argue that by
attaching the entire administrative record to the motion to convert, Defendants have
addressed Judge Kemp's concerns and the entire matter can proceed to disposition.
Plaintiffs respond that such a conversion would prejudice them because their response
to the motion to dismiss was not what they would have submitted in response to a
motion for judgment on the administrative record. The Court agrees. While
Defendants are free to make the same arguments that they made in the motion to
dismiss, Plaintiffs should have the opportunity to address the issues in light of the entire
administrative record. In addition, both parties need to address the issue of the
standard of review that should apply to the Committee's determination of whether the
amendment to the 2005 National City Plan was valid and effective. Accordingly, the
Court denies Defendants' motion to convert, ECF No. 51. Defendants remain free to
file a motion for judgment on the administrative record.
For the reasons stated above the Court ADOPTS the Report and
Recommendation, ECF No. 50, DENIES Defendants' motion to dismiss, ECF No. 21,
DENIES Plaintiffs' motion to strike, ECF No. 33, and DENIES Defendants' motion to
convert, ECF No. 51.
IT IS SO ORDERED.

Ml HAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:11-cv-380

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