Deem et al v. Village of Pomeroy, Ohio et al

Filing 38

REPORT AND RECOMMENDATIONS: The Magistrate Judge RECOMMENDS that this case be REMANDED to the Meigs County Court of Common Pleas - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 03/25/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
David L. Deem & Jaime L. Deem,
Plaintiffs

:
:

Civil Action 2:13-cv-01160

:

Judge Watson

Village of Pomeroy, Ohio, et al.,

:

Magistrate Judge Abel

Defendants

:

v.

Report and Recommendation
This matter is before the Magistrate Judge on plaintiffs David L. Deem and Jamie
L. Deem’s December 18, 2013 motion to remand their claim for a petition for a writ of
mandamus, which seeks to compel the commencement of an appropriations proceeding
under Ohio law to provide reasonable compensation for defendants’ taking of their real
property and residence, and their claim seeking compensation for the deprivation of
their real property and residence without being afforded procedural due process
required by the Fourth Amendment (doc. 12).
I.

Allegations in the Amended Complaint

The amended complaint makes the following allegations. Plaintiffs David and
Jaime Deem own the real property and residence at 148 Butternut Avenue, Pomeroy,
Ohio. In October 2011, the residence suffered damage when a water line leak caused a
mud slide to run downhill and strike it. The Pomeroy water department had been

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notified about the leak several days before, but ignored it. When the mud slides began,
the water department was unsuccessful for a number of hours in turning off the water.
The water department also refused to repair and stabilize the hillside or to remove trees
that caused further damage to the residence. Another hill slide took place in late
November 2011, causing major damage to the residence and making it uninhabitable.
Among the claims pleaded is a claim under 42 U.S.C. § 1983 for deprivation of property
without due process, deprivation of substantive due process, and denial of equal
protection.
Plaintiffs’ claim for deprivation of property without due process alleges that
Laurie O’Malley, Hylant and The Ohio Plan acted under color of state law by
usurping from the Village its authority and obligations to govern and provide for its
citizens, and making or directing decisions for the Village officials and employees with
respect to the governance of its citizens. This included the Village’s ultimate decision to
deny the claim of plaintiffs, which Laurie O’Malley, Hylant, The Ohio Plan and the
Does Defendants orchestrated.
Plaintiffs’ claim for deprivation of substantive due process alleges that the
Village, Laurie O’Malley, Hylant and The Ohio Plan and the Does acted in a way that
shocks the conscience by conspiring to withhold consent for repair and stabilization of
the hillside thereby forcing plaintiffs from their home, refusing to pay for their
damages, causing loss to the value and use of the Butternut Residence, causing
plaintiffs to be deprived of the use and enjoyment of their real property and the home
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they had established, inflicting mental suffering and distress upon them, thereby
depriving the Deems of substantive due process guaranteed by the Fourteenth
Amendment.
Plaintiffs’ claim for denial of equal protection of the laws alleges that the Village,
Laurie O’Malley, Hylant and The Ohio Plan and the Does violated the Deems’ right to
equal protection by conspiring to withhold consent for repair and stabilization of the
hillside thereby forcing plaintiffs from their home, refusing to pay for their damages,
causing loss to the value and use of the Butternut Residence, causing plaintiffs to be
deprived of the use and enjoyment of their real property and the home they had
established, inflicting mental suffering and distress upon them while choosing to pay
and indemnify in full the Museum Annex located next door to the real property and
home of plaintiffs.
II.

Procedural history

On October 18, 2013, plaintiffs filed a petition for writ of mandamus and
complaint in the Meigs County Court of Common Pleas. On November 18, 2013,
defendants removed this action based on plaintiffs’ Section 1983 claims. Plaintiff argues,
however, that their complaint contains two claims for which this Court lacks original
and supplemental jurisdiction. Plaintiffs maintain that under 28 U.S.C. § 1441(c)(2), the
Court should sever the claims and remand them to the state court from which the action
was removed.

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III.

Discussion

Plaintiffs argue that this Court lacks subject matter jurisdiction over their petition
for writ of mandamus to compel the Village of Pomeroy to pay them just compensation
for the taking of their property. Because they have not yet adjudicated the mandamus
action, their procedural due process claim is not ripe. Coles v. Granville, 448 F.3d 853,
860-61 and 864 (6th Cir. 2006).
Defendants agree that plaintiffs’ procedural due process claim is not ripe; and
they further argue that all of plaintiffs’ claims under 42 U.S.C. § 1983 are not ripe
because they are all derived from the alleged unconstitutional taking of plaintiffs’
property without compensation.
In Williams County Regional Planning Commission v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985), the Supreme Court held that takings claims are not ripe until (1) the
municipality reached a final decision regarding the application of the property at issue;
and (2) the owner has sought redress of the alleged constitutional deprivation through
available state remedies. The Fifth Amendment “does not proscribe the taking of
property; it proscribes taking without just compensation. . . . if a State provides an
adequate procedure for seeking just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has used the procedure and been
denied just compensation.” Id. at 194–95.
Here, plaintiffs have not met the second prong of the Williamson County test.
Rather, plaintiff sought to avail himself of the state remedy by filing an action for a writ
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of mandamus. “Procedural due process and equal protection claims that are ancillary to
taking claims are subject to the same Williamson ripeness requirements.” McNamara v.
City of Rittman, 473 F.3d 633, 639 (6th Cir. 2007)(citing Arnett v. Myers, 281 F.3d 552, 562
(6th Cir. 2002) and Bigelow v. Michigan Dep’t of Natural Res., 970 F.2d 154, 159-60(6th Cir.
1992)). Because plaintiffs’ claims for equal protection and substantive due process are
not independent of their underlying takings claim, they are subject to the same ripeness
analysis as the procedural due process claim. See Hensley v. City of Columbus, 557 F.3d
693 (6th Cir. 2009)(citing McNamara, 473 F.3d at 639 n. 2).
“If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Ripeness is
determinative of jurisdiction. Bigelow, 970 F.2d at 157 (“Ripeness is more than a mere
procedural question; it is determinative of jurisdiction. If a claim is unripe, federal
courts lack subject matter jurisdiction and the complaint must be dismissed.”) Because
the federal questions are not ripe, this Courts lack subject matter jurisdiction over
plaintiffs’ claims, and this case should be remanded:
Although it appears counterintuitive to remand federal claims to state
court, Plaintiff is correct. Under 28 U.S.C. § 1447(c), this court “shall”
remand the case if the court lacks subject matter jurisdiction; and ripeness
is a jurisdictional requirement. See Bigelow, 970 F.2d at 157. See, e.g., Smith
v. Wisconsin Dept. of Agriculture, 23 F.3d 1134, 1142 (7th Cir.2004)
(“Because Lundeen's claim is not yet ripe, the district court lacked
subject-matter jurisdiction and was required under § 1447(c) to remand
the claim to the state court from which it was removed.”); Coyne v.
American Tobacco Co., 183 F.3d 488, 496 (6th Cir.1999) (holding district
court must remand case to state court where it determined that the
plaintiff lacked standing). The Seventh Circuit has explained:
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While some consider it odd that a state court might have the
authority to hear a federal constitutional claim in a setting where a
federal court would not, it is clear that Article III's “case or
controversy” limitations apply only to the federal courts. Perhaps,
were the claim remanded to Wisconsin state court, it would there
be dismissed on state ripeness or standing grounds. But again, §
1447(c) says that a case removed to federal court “shall be
remanded” to the state court if it is discovered that the federal court
lacks subject matter jurisdiction. Wisconsin's doctrines of standing
and ripeness are the business of the Wisconsin courts, and it is not
for us to venture how the case would there be resolved.
Smith, 23 F.3d at 1142 (citations omitted).
Oakland 40, LLC v. City of South Lyon, No. 10-1446, 2011 WL 1884188, at * 2-3 (E.D. Mich.,
May 18, 2011).
IV.

Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that this case
be REMANDED to the Meigs County Court of Common Pleas.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result 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. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
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United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

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