Wyartt v. The Municipality of Zanesville Ohio et al

Filing 25

ORDER granting 9 Motion to Dismiss; denying 14 Motion to Amend/Correct; denying 19 Motion for Disposition of Original Complaint; finding as moot 20 Report and Recommendations; denying 23 Motion for Service of Process. Signed by Judge Algenon L. Marbley on 3/10/2014. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL L. WYATT

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Plaintiff,
v.
THE MUNICIPALITY OF
ZANESVILLE, OHIO, et al.,
Defendants.

Case No. 2:13-CV-00117
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
I.

INTRODUCTION

This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff Michael L.
Wyatt’s Complaint and Amended Complaint (Doc. 9). Defendants argue for dismissal on the
grounds that the Court lacks subject matter jurisdiction, that Plaintiff lacks standing, and that the
Complaint and Amended Complaint fail to state claims upon which relief can be granted.
II.

BACKGROUND

Plaintiff filed his Complaint with the Court on February 8, 2013. (Doc. 2). Plaintiff
never served Defendants with process, but filed an Amended Complaint on March 29, 2013,
(Doc. 3), after which Plaintiff successfully served 12 of 13 Defendants with a summons
containing the Amended Complaint. (Doc. 8; see Doc. 9 at 2). Both the original and amended
complaints contain materially identical claims that Defendants violated various provisions of the
Ohio Revised Code and Ohio Constitution, as well as unidentified provisions of the United
States Constitution. (Doc. 2 at 5-7; Doc. 3 at 6-9).
On July 19, 2013, Defendants filed the current Motion to Dismiss (Doc. 9), at the same
time that they timely filed answers to Plaintiff’s complaints (Docs. 10 & 11). Defendants argue
that federal diversity jurisdiction is unavailable to Plaintiff because all named parties are Ohio
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residents, and that federal question jurisdiction is unavailable because the complaints on their
face fail to state a cause of action arising under the Constitution, laws, or treaties of the United
States. (Doc. 9 at 3). Defendants further argue that even if it is established that Plaintiff has
raised a federal question, his complaints fail to provide adequate notice supporting his assertions,
as required by Fed. R. Civ. P. 8(a)(1). (Id.). Defendants therefore move to dismiss the
complaints pursuant to Fed. R. Civ. P. 12(b)(6). (Id. at 6). Finally, Defendants move to dismiss
Plaintiff’s complaints for lack of standing, characterizing the complaints as a taxpayer suit that
fails for lack of injury in fact and redressability, under the tests set out in Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992) and ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007). (Doc. 9 at 4-5).
Plaintiff responded in opposition on August 21, 2013 (Doc. 13), and on November 1,
2013, also moved to file a Second Amended Complaint (Doc. 14, 15). Defendants opposed, on
the grounds that the Second Amended Complaint was inadequate for the same reasons as the
First. (Doc. 16). Plaintiff replied in support of his Motion to File Second Amended Complaint
on November 14 (Doc. 17). On January 16, 2014, Plaintiff filed a new motion, urging the Court
to rule on this matter. (Doc. 19).
On January 29, 2014 the Magistrate Court issued a Report and Recommendation
recommending that this matter be dismissed without prejudice for failure to comply with Fed. R.
Civ. P. 4(a)-(c) and S.D. Ohio Civ. R. 4.1 & 4.2, governing service of process. (Doc. 20 at 1-2).
Plaintiff objected on February 11, 2014, that he had complied with the spirit of the rules by
informing Defendants of the pending action, which resulted in their retention of counsel and
timely response to Plaintiff’s complaint. (Doc. 22 at 2). On February 28, 2014, Plaintiff moved
the Court to respond to his previous filing and renewed his prayer for recognition of sufficient
service of process. (Doc. 23 at 2).

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III.

STANDARD OF REVIEW
A. Service of Process

Fed. R. Civ. P. 4 establishes the requirements for serving a complaint and summons on a
defendant. Service of process in a federal court case may be made by a method allowed by state
law by a “person who is at least 18 years old and not a party.” Fed R. Civ. P. 4(c)(2). Ohio law
allows service of process via certified mail by the Clerk of Court, as set out in S.D. Ohio Civ. R.
4.2. Additionally, Fed. R. Civ. P. 4(m) requires that a complaint and summons be served on each
named defendant within 120 days of the date the complaint is filed with the Court.
B. Subject Matter Jurisdiction
As a threshold matter, the Court must decide whether it has subject matter jurisdiction.
City of Heath, Ohio v. Ashland Oil, Inc., 834 F. Supp. 971, 975 (S.D. Ohio 1993) (citing Moir v.
Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). Rule 12(b)(1)
provides that the defendant may file a motion to dismiss based on a “lack of jurisdiction over the
subject matter.” Fed. R. Civ. P. 12(b)(1). Federal diversity jurisdiction exists in a civil action
when the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is litigated between citizens of different states. See 28 U.S.C. § 1332. Federal
question jurisdiction exists in a civil action arising under the Constitution, laws, or treaties of the
United States. See 28 U.S.C. § 1331.
Plaintiff bears the burden of proving jurisdiction when subject matter jurisdiction is
challenged under 12(b)(1). Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). In the
context of a Rule 12(b)(1) motion, “[a] court may dismiss a complaint only if it is clear that no
relief could be granted under any set of facts that could be proved consistent with the
allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). A Rule 12(b)(1) motion to

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dismiss will be granted only if, taking as true all facts alleged by the plaintiff, the court is without
subject matter jurisdiction to hear the claim. See id.
The Court must liberally construe Plaintiff's pro se pleadings. Pro se complaints are held
to “less stringent standards than formal pleadings drafted by lawyers.” West v. Adecco
Employment Agency, 124 F. App’x. 991, 992 (6th Cir. 2005) (quoting Haines v. Kerner, 404
U.S. 519, 520 (1972)). The Supreme Court, however, has “never suggested procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel.” Id. (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)). A pro se
litigant “must conduct enough investigation to draft pleadings that meet the requirements of the
federal rules.” Id. (quoting Burnett v. Grattan, 468 U.S. 42, 50 (1984)).
C. Pleading Requirements
Under Fed. R. Civ. P. 12(b)(6), Plaintiff's Amended Complaint should be dismissed only
if it “fail[s] to state a claim upon which relief can be granted.” Generally, a complaint must
merely contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The district court, in turn, “must read all well-pleaded
allegations of the complaint as true.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir.
1997). This “tenet is inapplicable to legal conclusions, or legal conclusions couched as factual
allegations.” McCormick v. Miami Univ., No. 1:10–CV–345, 2011 WL 1740018, at * 4 (S.D.
Ohio May 5, 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The plaintiff's ground for
relief must entail more than “a formulaic recitation of the elements” of a cause of action. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A well-pleaded complaint must “give the defendant fair notice of what the claim is, and
the grounds upon which it rests.” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008). The
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
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Twombly, 550 U.S. at 570. To “survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the
‘complaint must contain either direct or inferential allegations respecting all the material
elements to sustain a recovery under some viable legal theory.’” Noble v. Genco I, Inc., No.
2:10–CV–648, 2010 WL 5541046, at *2 (S.D. Ohio Dec.30, 2010) (quoting Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). Finally, the Complaint must be
construed in a light most favorable to the party opposing the motion to dismiss. Davis H. Elliot
Co. v. Caribbean Utils. Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975).
D. Standing
It is well settled that in order for a federal court to have jurisdiction over an action, the
plaintiff must establish standing, as standing is a core component of the case-or-controversy
requirement of Article III of the United States Constitution. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992). Three elements are required: (1) an injury-in-fact that is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal
connection between the injury and the conduct complained of; and (3) it must be likely that the
injury will be redressed by a favorable decision. Id. (internal citations omitted). Finally, it is the
party invoking federal jurisdiction that bears the burden of establishing standing, as the standing
requirements “are not mere pleading requirements but rather an indispensable part of the
plaintiff's case.” Id. at 561; see also Airline Prof'l Ass'n of Int'l. Broth. of Teamsters, Local
Union No. 1224, AFL–CIO v. Airborne, Inc., 332 F.3d 983, 987–89 (6th Cir. 2003) (upholding
the district court's dismissal where plaintiff was unable to meet burden of establishing an injuryin-fact and therefore lacked Article III standing). On a motion to dismiss, however, “general
factual allegations of injury resulting from the defendant's conduct may suffice,” since at this
early stage the Court presumes that “general allegations embrace those specific facts that are

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necessary to support the claim.” Id. (internal citations omitted); see also Sutton v. St. Jude
Medical S.C., Inc., 419 F.3d 568, 575 (6th Cir. 2005).
In this Circuit, an “[i]njury-in-fact means that the plaintiff has sustained or is in
immediate danger of sustaining some direct injury. The injury must be both real and immediate,
not conjectural or hypothetical.” Airline Pro'l Ass'n, 332 F.3d at 987 (internal citations omitted).
A plaintiff is required to establish that the injury-in-fact is concrete and particularized, meaning
that it must affect the plaintiff in a personal and individual way. American Civil Liberties Union
v. Nat'l Sec. Agency, 493 F.3d 644, 660 (6th Cir. 2007) (citing Steel Co. v. Citizens for a Better
Env't, 423 U.S. 83, 108 (1998); Kardules v. City of Columbus, 95 F.3d 1335, 1347 (6th Cir.
1996). A generally available grievance about the government is not enough to establish an
injury-in-fact to confer individual standing. Joelson v. United States, 86 F.3d 1413, 1423 (6th
Cir. 1996). Where “the harm at issue is not only widely shared, but is also of an abstract and
indefinite nature,” a court is unlikely to find that a plaintiff has established an injury-in-fact for
standing purposes. Fed. Election Comm'n v. Akins, 524 U.S. 11, 23 (1998).
IV.

LAW AND ANALYSIS

Plaintiff’s Complaint contemplates three categories of claims based on Defendants’
alleged violations of the Ohio Constitution, the Ohio Revised Code, and the United States
Constitution. (See generally Doc. 3). Although Plaintiff did not identify precise causes of action
or what elements might comprise them, liberally construing Plaintiff’s complaints establishes at
least the outlines of several possible claims.
A. Service of Process
As the Magistrate Court noted in its Report and Recommendation, on July 16, 2013
Plaintiff attempted to serve process on Defendants via certified mail. (Doc. 20 at 1). This form
of service falls short of both the Fed. R. Civ. P. 4(c)(2) requirement that a non-party serve
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process, as well as the requirement of S.D. Ohio Civ. R. 4.2 that the Clerk of Court is the only
person authorized to serve process via certified mail. Plaintiff, while maintaining that he
complied with the spirit of the rules, has moved the Court to direct such service of process as
complies fully with both rules. (Doc. 23 at 2). Even if the Court were to grant Plaintiff’s
requested relief, thus curing any deficiencies of process and avoiding a procedural dismissal
without prejudice, his complaints fail for the substantive reasons discussed below.
B. Subject Matter Jurisdiction
Although Plaintiff’s Amended Complaint refers only to certain articles of the Ohio
Constitution (see Doc. 3 at 6), it frames causes of action based on alleged violations of the
following provisions of the Ohio Constitution: (1) general provisions regarding the
incorporation and governance of cities and villages, Ohio Const. art. XVIII, § 2; (2) municipal
self-government of police, sanitary, and similar regulations, Ohio Const. art. XVIII, § 3; (3) Ohio
county and township organization, Ohio Const. art. X; (4) limitations on the ability of cities and
villages to tax, assess, borrow money, contract debts, and loan credit, Ohio Const. art. XIII, § 6;
oaths of municipal officers in support of the Constitution of Ohio and of the United States, Ohio
Const. art. XV, § 7.
Plaintiff’s complaints provide few factual predicates to support these causes of action.
(See Docs. 2 & 3). Plaintiff’s Amended Complaint identifies Defendants’ establishment of joint
economic development districts with neighboring localities as a violation of at least some of the
above constitutional provisions (Doc. 3 at 6). In his Response in Opposition to Defendants’
motion, Plaintiff further identifies additional facts, including alleged municipal collection of
income tax outside the jurisdiction, as well as budget allocations for Port Authority
administration.

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Even granting the existence of sufficient factual predicates to support these claims,
however, none of Plaintiff’s claims arising under the Ohio Constitution touches on a federal
question. None of the listed provisions implicates the United States Constitution or a federal
statute. The Plaintiff has provided neither a statutorily-created private right of action nor a
statute conferring jurisdiction over any of these questions to the federal courts. Plaintiff’s
complaints under the Ohio Constitution focus generally on what he considers to be abuses of
municipal self-rule. To the extent that these complaints are not wholly political in nature, they
are questions of Ohio state law. Over the last one hundred years the Ohio courts have developed
a significant body of case law interpreting the nature and extent of municipal self-rule in Ohio.
See, e.g., State ex rel. City of Toledo v. Lynch 102 N.E. 670 (Ohio 1913) (disapproved of by Vill.
of Perrysburg v. Ridgway 140 N.E. 595 (Ohio 1923) (an early interpretation of Ohio Const. art.
XVIII)); Springfield v. All Am. Food Specialists, Inc. 620 N.E.2d 120 (Ohio App. 1993) (city
does not have police power to compel employer to withhold city income tax of city residents
who worked for employer outside territory of city). Ohio courts are the proper setting, if one
exists, in which to vindicate Plaintiff’s state constitutional claims.
Plaintiff also frames at least one cause of action based on Defendants’ alleged violation
of Ohio Revised Code §715.77(B)(1), which authorizes a municipality and township to form a
joint economic development district. (Doc. 3 at 6). Plaintiff claims that municipal expenditures
of funds and exercise of municipal powers in support of the joint economic development district
violate the Ohio Revised Code. (Doc. 3 at 7; Doc. 13 at 2). As with the state constitutional
claims, Plaintiff has provided little factual support for his claim that Defendants have violated
Ohio statutory law. Plaintiff’s claims here also sound entirely in Ohio state law. Ohio Revised
Code §733.59 provides for the filing of a taxpayer suit similar to a shareholder derivative action,

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pursuant to compliance with other sections of the code. See Ohio Rev. Code § 733.56, et seq.
The code specifically provides for suits that allege “misapplication of funds of the municipal
corporation” and “abuse of its corporate powers.” Ohio Rev. Code § 733.56. Without regard to
their merit, Plaintiff has been provided a potential forum under these provisions. See State ex
rel. Fisher v. Cleveland, 845 N.E.2d 500, 503 (Ohio 2006) (explaining the requirements for
bringing a taxpayer suit). They do not, however, raise a federal question.
Finally, Plaintiff asserts in both the original and amended complaints unspecified causes
of action based on Defendants’ alleged violations of the United States Constitution. (Doc. 2 at 67; Doc. 3 at 7-8). Plaintiff claims that Defendants’ alleged enforcement of municipal laws
“outside the Municipality borders” is unconstitutional. (Doc. 3 at 7). Plaintiff implies in his
original Complaint, although he does not repeat the same language in his Amended Complaint,
that Defendants’ actions had violated the Fourteenth Amendment’s guarantee of “due process of
law.” (Doc. 2 at 5). Analysis of a procedural due process claim involves a two-step inquiry:
“the first asks whether there exists a liberty or property interest which has been interfered with
by the State,” Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citing Board of
Regents of State Colls. v. Roth, 408 U.S. 564, (1972)); “the second examines whether the
procedures attendant upon that deprivation were constitutionally sufficient.” Id.
Plaintiff does not identify any liberty or property interest interfered with by Defendants.
Although he alleges improper income tax collection outside the municipal boundaries,
unwarranted municipal expenditures, and the exercise of jurisdiction outside of municipal
boundaries, the Plaintiff has failed to identify any liberty or property interest personal to him.
(Doc. 3 at 7). Furthermore, even conceding a liberty or property interest, Plaintiff has not
alleged constitutionally insufficient procedures. Plaintiff’s complaints instead dwell entirely

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upon the use of valid municipal procedures to achieve objectionable ends. Although Plaintiff
adopts due process language to clothe his claims, the body of his complaint supports the
conclusion that his objection is to Defendants’ use of municipal power for purposes allegedly
unauthorized by Ohio law. His claims, therefore, do not raise a federal question.
C. Failure to State a Claim
At the pleading stage, Plaintiff is required only to allege the statutory basis for his claims
and set forth the factual predicate of those claims that is sufficient to meet the threshold of
plausibility. Twombly, 550 U.S. at 570. Plaintiff not only fails to allege a sufficient statutory
basis for his claims, but he has also failed to set forth sufficient factual predicates amounting to
more than mere “legal conclusions couched as factual allegations.” McCormick, 2011 WL
1740018 at * 4.
Plaintiff’s complaints concern municipal government actions that Plaintiff contends
violate state law and various constitutional provisions. Chief among these government actions
are: (1) expenditures outside the city’s geographical boundaries to establish and administer joint
economic development districts and port authorities; and (2) annexation of land to the
municipality. Plaintiff has not alleged any facts that suggest a plausible basis for finding that the
Defendants are liable for misconduct. Plaintiff’s complaint lists various articles of the Ohio
Constitution, unspecified provisions of the United States Constitution, and unspecified
provisions of the Ohio Revised Code as the legal bases for his complaint. (See Doc. 3 at 6 &
Doc. 13). Even assuming that Plaintiff has thus given effective notice of the legal bases for his
claims, his complaint sets forth a series of legal conclusions styled as statements of fact. (Doc 2
at 6-7; Doc. 3 at 7; Doc 13). Where the well-pleaded facts “do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotations
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omitted). From Plaintiff’s recitations, the Court cannot infer even the possibility of misconduct.
Plaintiff, therefore, has failed to state a valid claim upon which the Court may grant relief.
D. Standing
Plaintiff bears the burden of demonstrating that he has suffered or is about to suffer a
concrete and particularized injury that was caused by Defendants’ conduct and is likely to be
redressed by the Court’s favorable decision. Plaintiff’s complaint, however, alleges conduct that
could only result in either: (1) injury-in-fact to third parties; or (2) generalized and abstract
injuries to Plaintiff and every other city resident. Neither satisfies the requirements for standing.
Plaintiff takes issue with Defendants’ use of resources and exercise of city authority
outside the geographical boundaries of the city. (Doc. 3 at 7). But Plaintiff cannot demonstrate
any injury resulting from municipal action that exceeds its jurisdiction, because he does not
reside in the affected areas lying outside the city’s territory. (See Doc. 1 at 1). Only a resident in
the affected areas outside the city could demonstrate an injury-in-fact that would confer standing
to bring such a claim.
Plaintiff also alleges that Defendants have violated their oaths of office and harmed city
residents by misuse of city resources generally. (Id.; see Doc. 13). These claims fail to
demonstrate a concrete and particularized injury. Although Ohio state law may or may not
provide a basis for Plaintiff to bring a taxpayer suit against Defendants, to demonstrate a
particularized injury, a plaintiff must allege something more than a “generally available
grievance about the government.” Joelson, 86 F.3d at 1423. Plaintiff, however, has alleged
wholly abstract and generalized injuries suffered equally by every resident. Plaintiff’s complaint
therefore fails to allege an injury-in-fact and likewise fails to establish constitutional standing.

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V.

CONCLUSION

For the reasons stated above, Plaintiff has failed to establish subject matter jurisdiction,
has failed to state a claim upon which relief may be granted, and has failed to demonstrate
standing. Defendants’ Motion to Dismiss (Doc. 9) is hereby GRANTED. Moreover, because
his Proposed Second Amended Complaint fails to cure any of the stated deficiencies, and would
therefore be futile, Plaintiff’s Motion to File Second Amended Complaint (Doc. 14) is DENIED.
Plaintiff’s Motion for Disposition of Original Complaint (Doc. 19) is DENIED AS MOOT. The
Magistrate Court’s Report and Recommendation is likewise MOOT. Plaintiff’s Motion of
Objections to the Report and Recommendation (Doc. 22) and Motion for Service of Process
(Doc. 23) are therefore DENIED AS MOOT. The matter is hereby DISMISSED.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 10, 2014

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