Thompson et al v. City of Oakwood et al

Filing 20

ENTRY AND ORDER granting in part Plaintiffs' Motion for Partial Consolidation 5 and vacating the Court's prior scheduling order 16 . The Court hereby VACATES its prior Scheduling Order 16 and ORDERS the parties to comply with the follo wing schedule: 1. Defendants shall file an Answer to the Complaint by no later than June 30, 2016, 2. The parties shall have until August 1, 2016 to complete discovery relevant to the determination of Defendants' liability on Plaintiffs' cl aims, 3. The parties shall file dispositive motions, including motions for summary judgment, regarding Defendants' liability on Plaintiffs' claims by no later than August 19, 2016, 4. The Court will determine Defendants' liability on P laintiffs' claims based on the briefing on the dispositive motions, unless one or both of the parties move for a hearing on a dispositive motion and the Court determines that a hearing would assist it in making its determination on that motion, 5. The Court will enter a schedule for discovery and briefing on the issues of damages and attorneys' fees and costs, if necessary, following its ruling on the parties' dispositive motions.Signed by Judge Thomas M. Rose on 6-20-2016. (de)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JASON THOMPSON, et al.,
Plaintiffs,
v.
CITY OF OAKWOOD, OHIO, et al.,
Defendants.

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Case No. 3:16-cv-169
Judge Thomas M. Rose

______________________________________________________________________________
ENTRY AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION
FOR PARTIAL CONSOLIDATION (DOC. 5) AND VACATING THE
COURT’S PRIOR SCHEDULING ORDER (DOC. 16)
______________________________________________________________________________
This case is before the Court on Plaintiffs’ Motion for Partial Consolidation of Motion for
Temporary Restraining Order and Preliminary Injunction with Trial on the Merits as to
Declaratory and Injunctive Relief Only (“Motion for Partial Consolidation”) (Doc. 5).
Defendants responded to the Motion for Partial Consolidation on June 3, 2016, in response to
which Plaintiffs filed a reply on June 9, 2016. (Docs. 17, 19.) For the reasons below, the Court
GRANTS IN PART the Motion for Partial Consolidation (Doc. 5) and VACATES its prior
Scheduling Order (Doc. 16).
I.

PLAINTIFFS’ POSITION

Pursuant to Fed. R. Civ. P. 65(a)(2), Plaintiffs move to consolidate trial on the issues of
declaratory and injunctive relief in Counts I, II, V, and VI of the Complaint. Those claims seek
the following relief:


A declaration that the City of Oakwood’s Pre-sale Search Requirement,
authorizing warrantless searches without probable cause, is unconstitutional, both
facially and as applied to Plaintiffs;



A declaration that provisions of the Pre-sale Search Requirement scheme wholly
reliant upon the unconstitutional search, including but not limited to the monetary
extraction for inspections and the permit requirement, violate Plaintiffs’ Fourth
Amendment rights;



An injunction barring Defendants from directly enforcing the Pre-sale Search
Scheme’s warrantless search requirement; and



An injunction barring Defendants from indirectly enforcing the Pre-sale Search
Scheme's warrantless search requirement by criminally prosecuting Plaintiffs,
stripping them of the right to occupy or rent their property, or otherwise.

(Doc. 1 at 17-18.)
Plaintiffs argue that the Court “need not simultaneously determine the issues raised
through remaining prayers for relief in Plaintiffs’ Complaint:

liability through restitution,

nominal damages, individual liability, and attorneys[’] fees and costs, or the amount of any of the
aforementioned, on an expedited basis.”

(Doc. 5 at 3.)

Plaintiffs suggest that the Court

essentially stay the case as to those issues and consider them, if necessary, after its ruling on the
constitutionality of Defendants’ pre-sale inspection requirements in Counts I, II, V, and VI.
II.

DEFENDANTS’ POSITION

Defendants ask the Court to determine all issues in the case on briefs, with the exception
of damages and attorneys’ fees and costs. (Doc. 17 at 1.) Defendants would treat the Complaint
as Plaintiff’s motion on the issues to be tried, in response to which Defendants would file a
response pursuant to the Court’s current Scheduling Order. (Id.) Defendants also request an
opportunity to move for summary judgment to assert qualified immunity and other defenses. (Id.
at 2.) Finally, Defendants ask the Court to order the parties to participate in an early mediation.
In reply, Plaintiffs argue that it would be premature to participate in mediation at this
time. Plaintiffs contend that, before any mediation could take place, the parties need a ruling on
the constitutionality of the pre-sale inspection requirement. Plaintiffs also argue that, until a

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class is certified, they do not have authority to represent the interests of their proposed class at
mediation. Plaintiffs have brought a motion for class certification, but it is not ripe for review.
Plaintiffs also object to any discovery in the case before Defendants file an Answer to the
Complaint.

As a result, the case currently appears to be at a standstill, with Defendants

requesting discovery and Plaintiffs insisting that Defendants file an Answer first. Plaintiffs also
maintain their position that litigation of “ancillary issues” such as damages should be stayed until
after the Court rules on the constitutionality of the pre-sale inspection requirement. Plaintiffs
further argue that there is no reason for the Court to determine Plaintiffs’ as-applied claim at the
same time as the facial claim because, if the facial claim is meritorious, the as-applied claim
becomes moot.
III.

ANALYSIS AND DECISION

The Court previously entered a Scheduling Order that provided for an approximately onemonth discovery period and expedited briefing on the claims in the Complaint. (Doc. 16.) The
Court would then hold a hearing on August 1, 2016, at which the parties could present argument
and any additional evidence. (Id.) Based on the parties’ above positions, however, that schedule
is no longer workable.
The parties agree, at least to some degree, on a bifurcation of issues concerning liability
from issues relating to damages and attorneys’ fees and costs. The one difference is that
Plaintiffs would also defer ruling on liability on their as-applied claims, whereas Defendants ask
the Court to determine liability on both the facial and as-applied claims simultaneously.
Defendants’ position is more reasonable. Deferring determination of liability on Plaintiffs’ asapplied claims would only insert unnecessary delay into the case. The Court will bifurcate its

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determination of issues relating to liability and damages—as to both Plaintiffs’ facial and asapplied claims.
Plaintiffs’ demand that Defendants file an Answer before discovery and Defendants’
request to file a motion for summary judgment demonstrate that additional time and briefing are
necessary to prepare this case for the Court’s determination.
The Court will not order the parties to mediation.

Plaintiffs are not amenable to

mediation; consequently, ordering the parties to attend mediation would be futile.
Based on the above considerations, the Court hereby VACATES its prior Scheduling
Order (Doc. 16) and ORDERS the parties to comply with the following schedule:
1. Defendants shall file an Answer to the Complaint by no later than June 30,
2016;
2. The parties shall have until August 1, 2016 to complete discovery relevant to
the determination of Defendants’ liability on Plaintiffs’ claims;
3. The parties shall file dispositive motions, including motions for summary
judgment, regarding Defendants’ liability on Plaintiffs’ claims by no later than
August 19, 2016;1
4. The Court will determine Defendants’ liability on Plaintiffs’ claims based on
the briefing on the dispositive motions, unless one or both of the parties move
for a hearing on a dispositive motion and the Court determines that a hearing
would assist it in making its determination on that motion;
5. The Court will enter a schedule for discovery and briefing on the issues of
damages and attorneys’ fees and costs, if necessary, following its ruling on the
parties’ dispositive motions.
DONE and ORDERED in Dayton, Ohio, this Friday, June 17, 2016.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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The parties are permitted to file response and reply memoranda pursuant to S.D. Ohio Civ. R. 7.2(a).

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