Beech et al v. Franklin, Tennessee, City of

Filing 13

MEMORANDUM AND ORDER: The City's Motion to Dismiss (Docket No. 7 ) is GRANTED and its Motion for Sanctions (Docket No. 8 ) is DENIED. The Beeches' claims are DISMISSED. Entry of this Order shall constitute final judgment in this case pursuant to Federal Rule of Civil Procedure 58. Signed by District Judge Aleta A. Trauger on 1/16/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
FLOYD BEECH and MARION BEECH,
Plaintiffs,
v.
CITY OF FRANKLIN,
Defendant.

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Case No. 3:17-cv-1144
Judge Aleta A. Trauger

MEMORANDUM AND ORDER
The City of Franklin, Tennessee (“City”) has filed a Motion to Dismiss (Docket No. 7),
to which Floyd and Marion Beech have filed a Response (Docket No. 9), and the City has filed a
Reply (Docket No. 11). The City has also filed a Motion for Sanctions (Docket No. 8), to which
the Beeches have filed a Response (Docket No. 10). For the reasons herein, the court will grant
the Motion to Dismiss and deny the Motion for Sanctions.
I. BACKGROUND AND PROCEDURAL HISTORY 1
This is the second federal lawsuit and third lawsuit that the Beeches have filed based on
the City of Franklin’s failure to stop Calvin Malone, who is not a defendant in this case, from
operating a barbershop out of his home at or near the corner of Park Street and 11th Avenue
South in Franklin (“Malone Property”). The Beeches formerly owned a home at the same corner,
across the street from the Malone Property (“Former Beech Property”). The Malone Property has
a street address and approved driveway outlet on Park Street, and the Former Beech Property has
a street address and approved driveway outlet on 11th Avenue. Although they no longer own the
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The underlying facts of the case are taken primarily from the Complaint. (Docket No. 1.) Except where
otherwise noted, the facts are accepted as true for purposes of the Motion to Dismiss. The court takes
judicial notice of the relevant filings in the prior federal case between these parties arising out of the same
facts. See Fed. R. Evid. 201(b)(2).

Former Beech Property, the Beeches continue to own other 11th Avenue property. (Docket No.
1 ¶¶ 3–5.)
The Malone Property and Former Beech Property have historically been zoned GR
[General Residential] and are now located within the City’s R-6 Historic Core Residential
district. (Id. ¶ 6.) The Beeches claim that Malone’s operation of a home barbershop on a general
residential/historic core residential property is unlawful. (Id. ¶¶ 23–24.) At some point, Malone
added to his property a concrete parking area that extended to an outlet onto 11th Avenue. The
Beeches maintain that the parking area and 11th Avenue outlet are, like the barbershop,
unlawful. (Id. ¶¶ 27–28.) The Beeches have identified some additional alleged violations related
to the operation of Malone’s business in a residential area, including improper signage, use of
improper outdoor lighting, and the lack of an applicable permit. (Id. ¶ 29.)
The Beeches have repeatedly urged the City to enforce its zoning laws against Malone,
and, while those efforts have yielded some minor successes—such as a notice of violation
against Malone in 2010 and the City’s forcing Malone to remove a portion of his parking area—
the Beeches’ efforts have not been enough to induce the City to end or significantly curtail
Malone’s operation of the barbershop or his maintenance of an unauthorized outlet onto 11th
Avenue. (Id. ¶¶ 30–37, 41.)
Unable to convince the City to take their preferred course of action, the Beeches resorted
to the courts—the plural, in this instance, being quite literal. The details of the prior litigation
between the parties are summarized by the Sixth Circuit in Beech v. City of Franklin, Tennessee,
687 F. App’x 454, 455–56 (6th Cir. 2017) (“Beech I”). On November 5, 2012, the Beeches filed
a suit for abatement of a nuisance and a writ of mandamus in Williamson County Chancery
Court, naming both the City and Malone as defendants. Id. at 455. They sought damages from

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Malone, an injunction requiring Malone to shut down his home barbershop, and a writ of
mandamus requiring the City to enforce its laws in the Beeches’ preferred manner. Id. On
August 7, 2014, the Beeches moved to amend their complaint in that case to request damages
from the City and to include allegations that the city unconstitutionally denied them due process
and equal protection. Id. The Beeches did not, however, request just compensation for an
unconstitutional taking under the Fifth Amendment. Id. The Chancery Court did not permit the
Beeches to amend their complaint and granted summary judgment to Malone and the City. Id.
On June 12, 2015, the Beeches filed their first complaint in this court pursuant to 42
U.S.C. § 1983, naming only the City as a defendant. Beech v. City of Franklin, Tenn., No. 3:15cv-00657, Docket No. 1 (M.D. Tenn. June 12, 2015). That complaint purported to plead one
count, under the heading “CONTINUING VIOLATION BY THE CITY OF FRANKLIN OF
PETITIONERS’ CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION OF THE LAW
AND TO DUE PROCESS OF LAW.” That count, however, cited three alleged constitutional
violations. First, the Beeches alleged that the City, by failing to “properly, regularly, evenhandedly and impartially enforce” its laws, had violated the Equal Protection Clause of the
Fourteenth Amendment. Id. ¶ 61. The Beeches next alleged that the City, through the same
conduct, denied the Beeches’ “federal rights guaranteed under the Due Process Clause of the
Fourteenth Amendment.” Id. ¶ 62. Finally, the Beeches alleged that the City’s “actions
constituted a deliberate taking, under color of law, in violation of the [Beeches’] federal rights
guaranteed under the [Fifth] Amendment.” Id. ¶ 63.
On August 8, 2016, Judge Todd J. Campbell granted summary judgment to the City,
citing several alternative grounds, namely that the Beeches’ claims were time-barred; they had
failed to establish an unconstitutional policy, practice or custom; they had failed to establish that

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Malone’s barbershop was unlawful under the relevant zoning laws; they had failed to establish
any economic impact of the City’s toleration of Malone’s business; and the City was immune to
liability under the Tennessee Governmental Tort Liability Act. Beech v. City of Franklin, Tenn.,
No. 3:15-cv-00657, Docket No. 42 at 4–6 (M.D. Tenn. June 12, 2015).
The Beeches appealed. Instead of ruling on the grounds for summary judgment that Judge
Campbell had identified, the Sixth Circuit concluded that the Beeches’ claims were not ripe
because (1) their takings claim was unripe pursuant to Williamson County Regional Planning
Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), because the Beeches had
not sought compensation through Tennessee’s procedures and (2) their due process and equal
protection claims were “ancillary to the takings claim.” Beech, 67 F. App’x at 456 (citing Peters
v. Fair, 427 F.3d 1035, 1037 (6th Cir. 2005); Bigelow v. Mich. Dep’t of Nat. Res., 970 F.2d 154,
158–59 (6th Cir. 1992)). The Sixth Circuit remanded the case to this court with instructions to
dismiss, which the court did on May 18, 2017. Beech v. City of Franklin, Tenn., No. 3:15-cv00657, Docket No. 51 (M.D. Tenn. May 18, 2017).
The Beeches filed their Complaint in this case on August 11, 2017. (Docket No. 1.) The
Complaint is mostly identical to the prior federal complaint. The Beeches again plead one count
under § 1983 for “CONTINUING VIOLATION BY THE CITY OF FRANKLIN OF
PETITIONERS’ CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION OF THE LAW
AND TO DUE PROCESS OF LAW.” (Id. at 22.) That count again cites three constitutional
provisions: first the Equal Protection Clause, then the Due Process Clause, then the Takings
Clause, recycling the prior complaint’s language for each. (Id. ¶¶ 62–64.) The only meaningful
differences between the new complaint and the prior complaint that either the court or the parties
have been able to identify are that (1) the Beeches now purport, in the caption, to be asserting

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their claims both on their own behalf and on the behalf of all other similarly situated persons;
and (2) the Beeches have added some historical, political, and demographic background
information about the City and their neighborhood’s place within it. (Id. ¶ 2.) The new
information provides an account of why the City’s alleged decision to enforce its zoning laws
more stringently in some neighborhoods than in others should be understood in the context of the
broader history and current realities of race relations in Franklin. (Id.)
The City moved to dismiss the Beeches’ claims on September 6, 2017. (Docket No. 7.)
The next day, the City filed a motion seeking Rule 11 sanctions against the Beeches and their
counsel, Scott Williams. (Docket No. 8.) Specifically, the City asks the court to award the City
reasonable expenses and attorney’s fees that it has incurred in this suit and enjoin the Beeches
and Williams from filing any additional suits against the City arising from the same core facts.
(Id. at 6–7.)
II. LEGAL STANDARD
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement
of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must
determine only whether “the claimant is entitled to offer evidence to support the claims,” not
whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the
plaintiff must plead “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. at 679; Twombly, 550 U.S. at 556.
III. ANALYSIS
A. Ripeness
The City argues first that the Beeches’ claims are not ripe, just as the Sixth Circuit held
they were not ripe in the prior case. The City does not rely explicitly on any argument based on
issue preclusion or collateral estoppel, but instead argues for the claims’ unripeness on the merits
pursuant to the same reasoning adopted by the Sixth Circuit in the prior proceedings.
Challenges to local land use decisions are not ripe if the government entity being
challenged has not issued a “final, definitive position regarding how it will apply the regulations
at issue to the particular land in question.” Williamson Cty., 473 U.S. at 191. When the plaintiff’s
claim is premised on an alleged taking without just compensation, Williamson County further
requires that the plaintiff “s[eek] ‘compensation through the procedures the State has provided
for doing so’” before filing suit. Wilkins v. Daniels, 744 F.3d 409, 417 (6th Cir. 2014) (quoting
Williamson Cty., 473 U.S. at 194).
Although Williamson County addressed only regulatory takings and due process claims,
the Sixth Circuit has held that the finality requirement extends to other constitutional claims

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based on land use decisions, including equal protection claims. See Insomnia Inc. v. City of
Memphis, Tennessee, 278 F. App’x 609, 614 (6th Cir. 2008) (“While we have not addressed the
ripeness issue in the context of a First Amendment challenge to land use, we have done so in
cases raising other challenges to land use, including procedural due process claims, takings
claims, substantive due process claims, and equal protection claims.”); see also Miles Christi
Religious Order v. Twp. of Northville, 629 F.3d 533, 537 (6th Cir. 2010) (“In addition to takings
claims, we have applied the finality requirement to other constitutional and statutory challenges
to local land use requirements.”); Grace Community Church v. Lenox Twp., 544 F.3d 609, 617
(6th Cir. 2008) (applying the finality requirement to an equal protection claim and finding it
unripe). In Beech I, the Sixth Circuit explained that, based on its prior precedents, the second
component of the Williamson County ripeness analysis—that the plaintiff must seek just
compensation through state procedures—also applies to substantive due process and equal
protection claims if those claims are “ancillary to a takings claim.” 687 F. App’x at 456–57
(citing Peters, 427 F.3d at 1037; Bigelow, 970 F.2d at 158–59).
Applying these principles, the Sixth Circuit held, in Beech I, that none of the Beeches’
claims were ripe because they had never sought just compensation. Id. The Beeches have now
asserted the same claims, supplemented only with additional background that, illuminating as it
may be of the dynamics underlying this conflict, is irrelevant to the question of ripeness. The
court, accordingly, will hold, as the Sixth Circuit did, that the claims are unripe. The Beeches
have advanced no argument that they have satisfied, or qualify for an exception from, the
ripeness requirements for a takings claim, nor have they advanced any argument that their equal
protection and due process claims are not ancillary to that claim. 2 Nor do the Beeches suggest

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The court notes, as the Sixth Circuit did in Beech I, that there has been some disagreement and
confusion in this circuit regarding when and whether equal protection claims should be considered

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that the newly added bare allegation that they represent the interests of unnamed, similarly
situated others can solve their ripeness problem. The court, accordingly, will dismiss the
Beeches’ claims, just as it did before.
B. Rule 11 Sanctions
The City asks the court to assess Rule 11 sanctions against the Beeches and their counsel
for having filed what is essentially a slightly adorned version of their prior federal case, without
rectifying the ripeness defect that had proven fatal before. The Beeches respond that such
sanctions are uncalled-for and that the City, moreover, has failed to follow the procedures
required for the imposition of sanctions under Rule 11.
Rule 11 includes a “safe harbor” provision providing that a motion for Rule 11 sanctions
“must be served under Rule 5, but it must not be filed or be presented to the court if the
challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected
within 21 days after service or within another time the court sets.” The Advisory Committee
comments to the 1993 amendments to Rule 11, which added the “safe harbor” provision, state, in
part, “To stress the seriousness of a motion for sanctions and to define precisely the conduct
claimed to violate the rule, the revision provides that the ‘safe harbor’ period begins to run only
upon service of the motion.” The Sixth Circuit has construed the “safe harbor” provision to
establish that “sanctions under Rule 11 are unavailable unless the motion for sanctions is served
on the opposing party for the full twenty-one day ‘safe harbor’ period before it is filed with or
presented to the court.” Ridder v. City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997), quoted
in Uszak v. Yellow Transp., Inc., 343 F. App’x 102, 107 (6th Cir. 2009).
ancillary to simultaneously pled takings claims. See Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 574
(6th Cir. 2008) (discussing “conflicting case law” regarding treatment of equal protection claims as
ancillary to takings claims). This case—where the exact same claim, pled in virtually the exact same
form, has already been held to be ancillary and unripe—is no occasion to delve into the full range of
possible applications of the Sixth Circuit’s cases on that point.

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The Certificate of Service to the City’s Motion for Sanctions states that the Motion was
served, via the court’s electronic filing system, on the day it was filed. (Docket No. 8 at 7.) The
City has, moreover, filed no reply to contradict the Beeches’ assertion in their Response that they
were not served with the motion twenty-one days prior to filing. (See Docket No. 10 at 7.) The
City has therefore failed to establish, or even make any efforts to establish, that it complied with
Rule 11, and its motion will be denied.
IV. CONCLUSION
For the foregoing reasons, the City’s Motion to Dismiss (Docket No. 7) is GRANTED
and its Motion for Sanctions (Docket No. 8) is DENIED. The Beeches’ claims are
DISMISSED.
Entry of this Order shall constitute final judgment in this case pursuant to Federal Rule of
Civil Procedure 58.
It is so ORDERED.
Enter this 16th day of January 2018.

______________________________
ALETA A. TRAUGER
United States District Judge

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