Rettig v. Henry County Board of Commissioners

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Todd Rettig, et al, Case No. 3:18-cv-02894

Plaintiffs,

v. MEMORANDUM OPINION

AND ORDER

Henry County Board of Commissioners, et al,

Defendants.

I. INTRODUCTION

Before me are motions to dismiss filed by Defendants Campbell Soup Supply Company,

LLC, (Doc. No. 12), and Henry County Board of Commissioners, (Doc. No. 13). Plaintiffs Todd

Rettig, Paula Rettig, and Kyle Rettig filed a motion for leave to file a first amended complaint. (Doc.

No. 20). Defendants filed motions in opposition to Plaintiffs’ request, (Doc. Nos. 22 & 23), and

Plaintiffs replied. (Doc. No. 24).

II. BACKGROUND

Plaintiffs are the owners of real property located at the intersection of Industrial Drive and

State Route 424, Henry County, Ohio 43545. (Doc. No. 21 at 2). Defendant Campbell Soup Supply

Company has a facility located at 12773 OH-110, Napoleon, Ohio 43545.

On November 6, 2018, the Henry County Board of County Commissioners passed a

resolution authorizing the use of Henry County’s eminent domain power to acquire a portion of

Plaintiffs’ land1 to construct a bridge across the Maumee River. (Doc. No. 21-4). According to the

resolution, the bridge would “improve the traffic flow, public safety, and aesthetic appearance in

[the] area.” Id.

Henry County then filed a petition for appropriation in the Henry County Court of

Common Pleas on November 16, 2018 (Doc. No. 12-2 at 4). Plaintiffs filed an answer to the

petition and a counterclaim requesting injunctive relief and asserting Henry County and Campbell

Soup Supply Company conspired to use Henry County’s eminent domain power to acquire

Plaintiffs’ property for the sole benefit of Campbell. (Doc. No. 12 at 13). Plaintiffs went on to file a

notice of appeal of the resolution in the Henry County Court of Common Pleas. (Id.). On

September 10, 2019, the state court denied Plaintiffs’ request for injunctive relief, finding that

because there was a public use for the bridge project, it did not violate the Fifth Amendment. (Doc.

No. 25). On May 4, 2020, the Ohio Court of Appeals affirmed the trial court, finding there was no

support in the record for the Plaintiffs claim that Campbell and the Henry County Board of

Commissioners were engaged in a conspiracy to build a bridge solely for Campbell’s benefit. Board of

Henry Cnty. Board of Comm’rs v. Rettig, et al, No. 7-19-11, 2020 WL 2119384, *10 (Ohio Ct. App. 2020).

III. DISCUSSION

A. Younger Abstention

I begin with Henry County’s argument that this court should abstain from exercising

jurisdiction in this case pursuant to Younger v. Harris, 401 U.S. 37 (1971). “Younger abstention derives

from a desire to prevent federal courts from interfering with the functions of state criminal

prosecutions and to preserve equity and comity.” Doe v. University of Kentucky, 860 F.3d 365, 368

(2017) (citing Younger, 401 U.S. at 44). While Younger abstention may apply to cases outside of the

1 The specific portion of Plaintiffs’ property at issue is described as: E. Riverview Avenue,

Napoleon, Henry County, Ohio (Permanent Parcel NO. 28-070064.0000). (Doc. No. 21-4 at 2).

criminal context, “such applications are narrow and exist only in a few exceptional circumstances.”

Doe, 860 F.3d at 369 (citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350,

368 (1989)). The Sixth Circuit has identified three categories of cases where Younger abstention may

be appropriate:

[F]irst, Younger permits abstention when there is an ongoing state criminal

prosecution. Next, Younger precludes federal involvement in certain civil

enforcement proceedings. These are proceedings that are akin to criminal

prosecutions. Finally, Younger pertains to civil proceedings involving certain orders

that are uniquely in furtherance of the state courts' ability to perform their judicial

functions, such as contempt orders.

Doe, 860 F.3d at 369 (internal quotations and citations omitted). This case does not fall within any

of these categories.

Henry County’s petition for appropriation sought to gain possession of Plaintiffs’ land, not

charge Plaintiffs’ with violating any criminal or civil code. Nor do the appropriation proceedings

qualify as civil proceedings uniquely in furtherance of the state courts’ ability to perform their

judicial functions. Unlike a contempt order, through which a state “vindicates the regular operation

of its judicial system,” Juidice v Vail, 430 U.S. 327, 335 (1977), appropriation proceedings do not

uniquely further state judicial systems. And while the state has an interest in the outcome of

appropriation proceedings, it is not the type of interest sufficient to justify abstention under Younger.

See New Orleans Pub. Serv., Inc., 491 U.S. at 368 (“[I]t has never been suggested that Younger requires

abstention in deference to a state judicial proceeding reviewing legislative or executive action.”)

Because Henry County fails to demonstrate how the present litigation falls into any of the

categories where Younger abstention may be appropriate, this court will exercise jurisdiction over

Plaintiffs’ claims.

B. Plaintiffs’ Motion for Leave to Amend the Complaint

On April 26, 2019, Plaintiffs sought leave to amend their complaint, (Doc. No. 20), and

attempted to file their first amended complaint, (Doc. No. 21), with the court. Plaintiffs advance

two arguments in support of their motion: First, Plaintiffs are entitled to amend as a matter of

course pursuant to Fed. R. Civ. P. 15(a)(1)(B); Second, even if Rule 15(a)(1)(B) is not applicable,

Plaintiffs should be granted leave to amend under Rule 15(a)(2).

1. Rule 15(a)(1)(B) Analysis

A party may amend its pleadings as a matter of course “if the pleading is one to which a

responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service

of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). On

February 25, 2019, both Henry County and Campbell filed motions to dismiss the Plaintiffs’

complaint and served those motions on Plaintiffs that same day. (Doc. Nos. 12 & 13). Because

these are motions under Rule 12(b), Plaintiffs would have been able to amend as a matter of course

within 21 days of their filings. Plaintiffs did not do so.

Plaintiffs now argue that the Court’s April 11, 2019 order, (Doc. No. 19), which gave

Plaintiffs until April 26, 2019, to respond to the defendants motions to dismiss, extended the time

within which Plaintiffs could invoke Rule 15(a)(1) to amend their complaint as a matter of course.

Plaintiffs’ argument is not well-taken. In granting Plaintiffs an extension of time, I did not make any

finding as to whether it would be appropriate to extend Plaintiffs’ deadline for amending the

complaint beyond the time allowed by Rule 15(a)(1). Instead, I issued Plaintiffs’ proposed order

granting them leave to respond to the Defendants’ motions. While Plaintiffs’ response could

certainly include a motion to amend, I did not open the door for Plaintiff’s to file an amended

complaint without making the showing required by Rule 15(a)(2).

I agree with my colleagues who have found that an order extending the amount of time a

party has to respond to a motion to dismiss does not affect the time permitted by Rule 15(a)(1) to

amend a complaint as a matter of course. See, e.g., Webb v. Republic Bank & Trust Co., 2012 WL

2254205, at *2 (W.D. Ky. June 15, 2012) (collecting cases).

2. Rule 15(a)(2) Analysis

Pursuant to Rule 15(a)(2), “a party may amend its pleading only with the opposing party’s

written consent or the court’s leave. The court should freely give leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2). Rule 15 sets forth a liberal policy of permitting amendments. Springs v. U.S.

Dept. of Treasury, 567 F. App’x. 438, 443 (6th Cir. 2014). But a motion for leave to amend may be

denied when: it is the product of undue delay, bad faith, or dilatory motive; there would be unfair

prejudice to the opposing party; or amendment of the complaint would be futile. Id.

“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6)

motion to dismiss.” Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010)

(quoting Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)). Thus, whether

Plaintiffs should be granted leave to amend turns on whether their amended complaint can survive

the attacks Defendants raise in their respective motions to dismiss. Accordingly, the analysis below

examines the arguments that Defendants raised in their motions to dismiss while taking account of

the additional facts Plaintiffs included in their proposed amended complaint.

C. Amendment Futility & Defendants’ Motions to Dismiss

In ruling on a motion to dismiss under Rule 12(b)(6), “[c]ourts must construe the complaint

in the light most favorable to [the] plaintiff.” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010)

(citation omitted). To survive a motion to dismiss under Rule 12(b)(6), “even though a complaint

need not contain ‘detailed’ factual allegations, its ‘factual allegations must be enough to raise a right

to relief above the speculative level on the assumption that all the allegations in the complaint are

true.’” Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Conclusory allegations or legal conclusions masquerading as factual allegations will not

suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain something more than “a

formulaic recitation of the elements of a cause of action”). A complaint must state sufficient facts

which, when accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (explaining that the plausibility standard “asks for more than a sheer possibility that

a defendant has acted unlawfully” and requires the complaint to allow the court to draw the

reasonable inference that the defendant is liable for the alleged misconduct).

“[A] court may consider exhibits attached to the complaint, public records, items appearing

in the record of the case, and exhibits attached to defendant's motion to dismiss, so long as they are

referred to in the complaint and are central to the claims contained therein.” Stein v HHGREGG

Inc., 873 F.3d 523, 528 (6th Cir. 2017). If such an exhibit contradicts allegations in the complaint,

the exhibit prevails over the complaint. Cates v. Crystal Clear Techs., LLC, 874 F.3d 530, 536 (6th Cir.

2017).

1. Subject Matter Jurisdiction

I begin with Henry County’s argument that amendment would be futile because the court

would lack subject matter jurisdiction over Plaintiffs’ claims for two reasons: (1) Plaintiffs do not

allege a federal cause of action in their complaint; and (2) Plaintiffs’ claims are not ripe.

First, Henry County is wrong about whether the Plaintiffs have alleged a federal cause of

action in their amended complaint. Although Plaintiffs’ original complaint only contained

references to violations of Ohio law, Plaintiffs’ proposed amended complaint alleges that

Defendants’ actions “violate the Plaintiffs’ rights under the Fifth and Fourteenth Amendments to

the United States Constitution and give rise to the causes of action pursuant to 42 U.S.C. § 1983.”

(Doc. No. 21 at 2).

Second, the ripeness rule that Henry County relies on has since been overruled by the

Supreme Court. In Knick v. Twp. Of Scott, Pennsylvania, --- U.S. ---, 139 S. Ct. 2162 (2019), the United

States Supreme Court overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985), and in doing so, abolished the rule that property owners must seek just

compensation in state court before bringing a federal takings claim under § 1983. The Court

explained the Fifth Amendment right to just compensation occurs at the moment of the taking,

regardless of whether remedies are subsequently made available to the property owner. Knick, 139 S.

Ct. at 2172-73.

Because these are the only two arguments Henry County raised in their motions to dismiss,

nothing in Henry County’s motion entitles them to dismissal of Plaintiffs’ claims, nor to the denial

of Plaintiffs’ request for leave to amend. I turn now to arguments Campbell raised in their motion

to dismiss to determine if Plaintiffs’ proposed amendment would be futile.

2. Conspiracy Claims

Plaintiffs bring claims for a civil conspiracy in violation of § 1983 against both Henry County

and Campbell.2 To state a claim for civil conspiracy under § 1983, a plaintiff must show a

deprivation of an underlying constitutional right. Bartlett v. Washington, 793 F. App’x 403, 408 (6th

Cir. 2019). This brings into focus the crux of the parties’ dispute: whether Plaintiffs have included

sufficient facts to state a claim that Henry County took their property in violation of the Fifth

Amendment.

The Fifth Amendment provides, in relevant part, “nor shall private property be taken for

public use, without just compensation.” U.S. Const. amend. V. While “[a] purely private taking

2 Although Plaintiffs do not make it entirely clear whether their conspiracy claims are based on state

or federal law, I treat them as claims for a conspiracy in violation of § 1983 because both Plaintiffs’

original complaint, (Doc. No. 1), and Plaintiffs’ proposed amended complaint, (Doc. No. 21), in

describing the “nature of the action,” alleged Defendants conduct gave rise to causes of action

pursuant to 42 U.S.C. § 1983. (Doc. No. 1 at 3; Doc No. 21 at 2).

could not withstand the scrutiny of the public use requirement,” Hawaii Housing Authority v. Midkiff,

467 U.S. 229, 245 (1984), a taking done for a “public purpose” satisfies the public use requirement,

even if the property is not open to use by the public. Kelo v. City of New London, Conn., 545 U.S. 469,

480 (2005).

The Supreme Court has explained, “our cases have defined [the] concept [of public purpose]

broadly, reflecting our longstanding policy of deference to legislative judgments in this field.” Id. A

taking will satisfy the public use clause as long as it is “rationally related to a conceivable public

purpose.” Midkiff, 467 U.S. at 241 (collecting cases). Thus, although there is a role for courts to

play in reviewing whether the legislature’s purpose constitutes a public use, it is an “extremely

narrow” one. Midkiff, 467 U.S. at 240 (quoting Berman v. Parker, 348 U.S. 26, 32 (1954)).

Campbell argues the bridge serves public purposes in many ways, most notably by

connecting two public roads and being open for use by the public. (Doc. No. 12-1 at 15-17).

Plaintiffs do not dispute that the bridge will be open to the public for use, and a taking for this

purpose would clearly satisfy the public use clause. See Kelo, 545 U.S. at 478-79.

Campbell further claims the bridge will serve other public purposes beyond use for

transportation, including generating public safety benefits as less traffic travels through downtown

Napoleon, decreasing commuting times, and improving the local economy by providing greater

access to the industrial area in Napoleon. (Doc. No. 12-1 at 15-17). Because each of these other

goals is rationally related to a public purpose, taking private property to serve these goals would

satisfy the public use clause as well. Thus, even taking the facts as Plaintiffs allege them to be in

their complaint, there can be no dispute the bridge project would serve public purposes consistent

with the public use clause.

But in their proposed amended complaint, Plaintiffs bring a slightly distinct challenge under

the public use clause, arguing that the taking is unlawful because Henry County was not motivated

by any of the public purposes they identify. (Doc. No. 21 at 8). Plaintiffs’ challenge relies on a

portion of Kelo where the Court acknowledged the Fifth Amendment prohibits taking property

“under the mere pretext of a public purpose.” Kelo, 545 U.S. at 477-78. Plaintiffs claim Henry

County’s sole motivation for constructing a bridge at the chosen location was to confer a benefit on

Campbell.

Although courts have recognized a pretext claim like the one Plaintiffs’ attempt to bring

here, a plaintiff bringing these claims must plead specific facts—justifying the inference that the

governmental entity acted with an impermissible intent—to survive a motion to dismiss. Compare

Goldstein v. Pataki, 516 F.3d 50, 62 (2d Cir. 2008) (rejecting a pretext claim “founded only on mere

suspicion”) with Franco v. National Capital Revitalization Corp., 930 A.2d 160, 169 (D.C.App. 2007)

(finding landowner pled facts sufficient to support affirmative defense of pretext). The question is

whether Plaintiffs sufficiently allege facts which support a plausible inference that Henry County

acted with impermissible intentions.

Plaintiffs allege the following to show Henry County’s sole motivation for the bridge project

was to confer a benefit on Campbell: (1) the bridge will create what Plaintiffs claim is a driveway for

the Campbell factory in Napoleon; (2) Plaintiffs’ property was marked as the site of a future bridge

in the City of Napoleon’s master plan as long ago as 2003, prior to the Henry County defendants

preparing any studies, reports, or data to support the location of the bridge project; (3) Henry

County Commissioners made multiple presentations to Campbell regarding the bridge project and

offered to name the new roadway and bridge after Campbell in exchange for Campbell’s support; (4)

Campbell has committed to provide at least $400,000 in funds to the bridge project; (5) Henry

County and Campbell have entered into a public-private partnership to construct the bridge; (6)

Campbell, which employs approximately 1,500 people in the area, is the largest employer in Henry

County; (7) Commissioner Hasterdt testified the loss of Campbell’s presence in Henry County

would have a negative effect on the local economy; and (8) three other bridges that cross the

Maumee River in Henry County have been renovated in the last twelve years. (Doc. No. 21 at 4-8).

Some of Plaintiffs’ allegations are contradicted by the exhibits attached to their complaint.

For example, Plaintiffs’ contention that the bridge will create a driveway for the Campbell factory is

demonstrably false. The bridge would link two public roads, State Route 110 and Industrial Drive.

(Doc. No. 21-1 at 4; Doc. No. 21-4 at 2). Plaintiffs’ allegation that their property was targeted as the

site of the bridge project prior to any studies to justify the necessity of it is also not supported by the

complaint and accompanying exhibits. Even if I assume the 2003 designation marked the beginning

of a decades-long conspiracy to deprive Plaintiffs of their land, Henry County hiring an engineering

firm prior to finalizing the bridge project’s location demonstrates it considered the effects the

project would have on the public.3

At most, the prior designation might show that Henry County previously considered

building a bridge in a location advantageous to Campbell prior to conducting any studies to confirm

the location was appropriate, but even if that were true, the fact that Henry County eventually

conducted those studies is evidence that it considered public purposes before taking Plaintiffs’

property.

For example, Plaintiffs allege Henry County was motivated by a desire to prevent Campbell

from reducing its economic presence in the community. (Doc. No. 21 at 5). But even if it were true

3 In their proposed amended complaint, Plaintiffs allege Henry County retained engineers “to,

ostensibly, assess the potential advantages and disadvantages/damages to the community and the

abnormalities in Defendants’ plans.” (Doc. No. 21 at 4) (emphasis added). If Plaintiffs mean to

imply that Henry County retaining engineers to study the project was itself pretextual, that

allegation, without “further factual enhancement,” see Twombly, 550 U.S. at 557, is little more than a

conclusory allegation that Defendants violated the law. For example, Plaintiffs do not allege facts to

explain why Henry County would wait more than five years to implement a plan it allegedly

concocted as early as 2003. Without more specific allegations to support a theory that Henry

County retaining an engineering group was part of a sham effort, I cannot find Plaintiffs have

“state[d] a claim to relief that is plausible on its face.” See Twombly, 550 U.S. at 570.

this was Henry County’s only consideration, it would still qualify as a public purpose. See Kelo, 545

U.S. at 485 (“Clearly there is no basis for exempting economic development from our traditionally

broad understanding of public purpose.”). For this same reason, the allegations concerning

Campbell’s role in the local economy—the fact that it is the largest employer, and Hasterdt’s

testimony that losing Campbell’s presence would have a negative effect on the local economy—do

not support Plaintiffs’ efforts to state a claim against Defendants.

I turn now to Plaintiffs’ allegations concerning Henry County’s presentations to Campbell,

and Campbell’s eventual pledge to contribute money to the project. Plaintiffs attached to their

complaint what they allege is one of multiple presentations Henry County made to Campbell, (Doc.

No. 21-1), but the presentation itself contradicts many of Plaintiffs’ allegations in the complaint.

For example, the presentation indicates Henry County did not approach Campbell until the

project was “very close to a shovel ready phase” and needed to overcome a funding gap. (Doc. No.

21-1 at 3). It also indicates Henry County attempted to overcome part of this funding gap by

requesting $470,000 from Campbell, in exchange for, among other things, certain naming rights to

both the bridge and Industrial Drive. (Id. at 9-10). That Henry County sought to convince

Campbell to fund the project demonstrates Henry County intended to realize some benefits beyond

those Campbell might. It would make little sense to request funding from Campbell if the sole

purpose of the project was to aid Campbell. While Campbell stood to gain from the arrangement as

well, this is irrelevant to the analysis under the public use clause. See Kelo, 545 U.S. at 485 (“[T]he

government's pursuit of a public purpose will often benefit individual private parties.”). Campbell’s

eventual pledge of at least $400,000 is similarly unpersuasive because it sheds no light on Henry

County’s intentions for the project in the first place.

Finally, that three other bridges in the county have been renovated in the last twelve years

provides no material support for Plaintiffs’ claims. The existence of these other bridges does

nothing to undermine the Henry County Commissioner’s belief that an additional bridge would

further alleviate traffic concerns in downtown Napoleon. In fact, Commissioner Hasterdt’s

deposition, which Plaintiffs attach to their proposed amended complaint, makes clear one of the

purposes of the proposed bridge was to redirect traffic from one of these other bridges.

In sum, even if the allegations in the proposed amended complaint are taken into

consideration, Plaintiffs have failed to show the underlying constitutional deprivation required for a

§ 1983 conspiracy claim. In other words, Plaintiffs’ proposed amended complaint could not survive

Campbell’s motion to dismiss, leave to amend would be futile and therefore inappropriate as to

Plaintiffs’ claims against Campbell. This renders amendment futile and granting leave to amend

inappropriate as to Plaintiffs’ claims against Campbell.

Plaintiffs’ motion for leave to amend its complaint is denied with prejudice as to its claims

against Campbell. Campbell is also entitled to dismissal of Plaintiffs’ claims against it.4 Because

Henry County did not move to dismiss Plaintiffs’ complaint for failure to state a claim, I cannot

grant Henry County the same relief. See Morrison v. Tomano, 755 F.2d 515, 517 (6th Cir. 1985)

(explaining district court should not dismiss complaint sua sponte without giving plaintiff a chance

to amend the complaint or respond to notice of impending dismissal). Instead, I will hold in

abeyance the portion of Plaintiffs’ motion for leave to amend its complaint seeking to amend its

claims against Henry County. Plaintiffs must show cause why dismissal of its claims against Henry

County is not appropriate.

D. Sanctions

Henry County’s motion to dismiss included a section asserting that Plaintiffs’ complaint

violated Rule 11 of the Federal Rules of Civil Procedure. (Doc. No. 13 at 9). I disagree. Contrary

4 In their original complaint, Plaintiffs also included a claim for unjust enrichment against Campbell.

Plaintiffs omitted this claim when filing their proposed amended complaint so I will deem it waived.

to Henry County’s contention, Plaintiffs’ complaint does include factual allegations sufficient to

invoke federal subject matter jurisdiction, because Plaintiffs allege claims for the violation for their

constitutional rights, made actionable under § 1983. Accordingly, I find sanctions are not

appropriate.

IV. CONCLUSION

Plaintiffs’ motion for leave to file an amended complaint, (Doc. No. 20), is denied as to

Plaintiffs’ claims against Campbell. The motion is held in abeyance as to Plaintiffs’ claims against

Henry County. Campbell’s motions to dismiss, (Doc. No. 12), is granted. Henry County’s motion

to dismiss, (Doc. No. 13), is denied. Plaintiffs shall show cause within 30 days of the date of this

opinion why its claims against Henry County should not be dismissed.

So Ordered.

s/ Jeffrey J. Helmick

United States District Judge