The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LISA HADDON, ET AL., ) CASE NO.1:18CV2574
)
Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO
)
Vs. )
)
CITY OF CLEVELAND, ET AL., ) OPINION AND ORDER
)
Defendant. )
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on the Motions for Reconsideration by Defendants City of
Cleveland (ECF # 47) and Obon, Inc. (ECF # 46). For the following reasons, the Court grants,
in part, the Motions.
Background Facts
Plaintiffs Lisa Haddon, (“Haddon”) titled owner of the subject property, Haddon’s son
Dominique King, her sister Pamela Haddon and ex-boyfriend Cy Rabb, bring their Complaint
against Defendants City of Cleveland and Obon, Inc. for the destruction of Lisa Haddon’s house,
located at 156 E. 156th Street, Cleveland, Ohio, without adequate notice, causing injury to
Plaintiffs. Plaintiffs allege violations of their Due Process rights under the Fourteenth
Amendment to the United States and Ohio Constitutions, Trespass, Negligence and Conversion
under Ohio law and seek Declaratory Judgment against Defendants.
According to their Complaint, Plaintiffs allege that on or about May 15, 2017, there was a
fire at the subject property, resulting in substantial damage to the structure and loss of personal
property of each Plaintiff. Plaintiffs boxed their respective personal property, including clothes,
shoes, furniture and other personal effects that were not destroyed in the fire for removal.
Plaintiffs allege the personal property totaled approximately $70,000.
Plaintiffs contend that after the fire, the subject property was still sound, could be
repaired with reasonable notice and did not require condemnation. However, shortly after the
fire, the City of Cleveland conducted an exterior inspection and posted a notice of condemnation
on the property door. After failing to contact Haddon after multiple attempts, the City obtained a
search warrant to enter the premises for an interior inspection which occurred on June 26, 2017.
On June 27, 2017, the City of Cleveland (“The City”) issued a Notice of Violation of Building
and Housing Ordinances, finding the property was damaged and required Lisa Haddon to abate
the damage that same day or the property would be demolished. The Notice instructed Haddon
she could appeal within thirty days of the Notice.
On June 29, 2017, the City condemned the subject property and hired Defendant Obon,
Inc. to demolish the home. Obon proceeded to demolish the home on July 15, 2017, which was
prior to the running of the thirty day appeal time.
Notice was only achieved on Haddon by certified mail on August 5, 2017, after
demolition occurred and the appeal and abatement times had run. As a result, Plaintiffs lost the
value of their personal property and Haddon incurred costs for the demolition totaling
approximately $10,000.00.
Procedural History
Plaintiffs originally filed their Complaint with the Cuyahoga County Court of Common
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Pleas on October 12, 2018. Defendants removed the case to United States District Court on
November 8, 2018, under the District Court’s federal question jurisdiction and supplemental
jurisdiction over related state law claims. Pamela Haddon was subsequently dismissed without
prejudice.
After discovery was complete, Defendants City of Cleveland and Obon, Inc moved for
summary judgment. The Court found that Plaintiffs’ Due Process claim against the City of
Cleveland survived summary judgment because there were genuine issues of fact whether
Haddon’s home presented a public hazard that required emergency demolition and whether the
City of Cleveland failed to provide sufficient pre-demolition notice.
The Court further found that Plaintiffs abandoned their state law tort claims against the
City of Cleveland and granted summary judgment for the City on the state law claims.
Regarding Obon’s summary judgment motion, Obon relied on its status as an agent of the
City of Cleveland but the Court denied its Motion, finding genuine issues of material fact
regarding Obon’s status as an agent or independent contractor. The Court dismissed Plaintiffs’
Due Process claim against Obon.
The Intervening Sixth Circuit Decision in Keene
On May 21, 2021, the Sixth Circuit issued its Opinion in The Keene Group, Inc. v. City of
Cincinnati, et al, 998 F.3d 306 (6th Cir. 2021). In Keene, plaintiff property owner sued the City
of Cincinnati along with several employees of the City under § 1983 for violations of her due
process rights, right to be free from a warrantless seizure and state law trespass. The district
court dismissed the case, holding that the City of Cincinnati did not violate plaintiffs’
constitutional rights because its attempts to notice plaintiff of the condemnation action provided
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her adequate due process. It further held that entry onto the property did not constitute a trespass
under Ohio law.
On appeal, the Sixth Circuit first examined what process the state actor must afford a
plaintiff before taking property. It held, “due process requires notice reasonably calculated under
all circumstances to apprise interested parties of pendency of action before the government may
take property.” Id at 311. It further held that “mere gestures” that are not reasonably calculated
to notify plaintiff of the taking do not satisfy due process. “The means employed must be such as
one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id.
quoting Mullane. v. Cent Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). Perhaps most
relevant to our discussion, the Sixth Circuit held, “actual notice is not required.” Keene, 998
F.3d at 311 citing Dusenbery v. United States, 534 U.S. 161 (2002).
In affirming the dismissal by the district court, the Sixth Circuit relied on certain
undisputed facts. First, plaintiff purchased the property with the full knowledge of the
condemnation proceedings that resulted in the demolition. Second, despite admitting it knew of
the public nuisance action against the property, plaintiff took no action to remediate the property
or work with the City on a solution. Third, the City was not required to search all databases
available to it in order to locate contact information for plaintiff. See Jones v. Flowers, 547 U.S.
220 (2006).
In Keene, plaintiff primarily argued that merely sending a certified letter noticing a
property owner of a condemnation action that is subsequently returned unclaimed fails to satisfy
due process as it does not meet the “desirous of actually informing” standard. Acknowledging
that the City knew or should have known that its attempts at notice failed when the certified letter
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was returned unclaimed, the Sixth Circuit still held that its notice attempts satisfied due process.
Noting that adequate notice for due process purposes “must be reasonably calculated, under all
circumstances,” the Sixth Circuit found that because plaintiff knew of the pending condemnation
proceedings before purchasing the property and failed to take advantage of the opportunity to
object, due process was satisfied. It did not matter that plaintiff was not informed of the actual
demolition order because it could have objected prior to the order being issued. Condemnation
proceedings had begun and this was with the full knowledge of the plaintiff.
Even if plaintiff were entitled to notice of the demolition, the Sixth Circuit held that the
City’s notice attempts satisfied due process. The Sixth Circuit quoted the Supreme Court in
Jones for the proposition that posting notice on the property itself is a reasonable followup
measure for apprising a property owner of pending proceedings. In fact, the United States
Supreme Court in Jones expressly held that posting notice on real property is a singularly
appropriate and effective way of ensuring that a person is actually apprised of proceedings
against him.” Jones, 547 U.S. at 236. Because the City of Cincinnati sent a certified letter and
posted notice on the property in full compliance with the relevant ordinances, they satisfied due
process.
Finally, the Sixth Circuit in Keene rejected plaintiff’s argument that the City should have
searched city databases for additional contact information once the certified letter was returned
unclaimed. Citing to Jones, the Sixth Circuit said such a requirement would place an undue
burden on the state than several relatively easy options. The Sixth Circuit agreed with the district
court that sending certified mail and posting notice on the property were sufficient to satisfy their
due process obligations.
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Plaintiffs’ Position on Reconsideration
According to Plaintiffs, the Keene opinion changes nothing with regards to the Court’s
holding in this case. The facts of Keene were substantially different than those before the Court.
Keene did not involve an emergency demolition as does this case. While the City of Cincinnati
made numerous attempts to notify the plaintiff of the condemnation action, here the City of
Cleveland made very minimal attempts to notify Haddon before demolishing her home.
Moreover, unlike the plaintiff in Keene, Haddon disputes that an emergency even existed
such that the house had to be demolished. Haddon relied on the Cleveland Fire Department
report after the fire which noted that there was no structural damage to the home and she attests
that most of her personal belongings survived the fire. Unlike the plaintiff in Keene who
admitted to having knowledge of the condemnation proceeding prior to demolition, Haddon had
no prior knowledge of the condemnation proceeding or order to demolish until after demolition
occurred.
Because she didn’t reside at the subject property, posting notice at the property was
insufficient to apprise her of the pendency of the condemnation action. But the City of
Cleveland actually had her California address because they sent her notice at that address five
days after demolition occurred. There was no need to search obscure records because Haddon
had provided her current address to the Cleveland Fire Department, which included it in their
Report.
Lastly, unlike the facts in Keene where the process of notice to demolition took ten
months, in this case, demolition occurred just nineteen days after the order to demolish and only
thirty days from the date of the original inspection. Under these facts, Keene is not relevant and
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the Court should not reconsider its prior order.
City of Cleveland’s Reconsideration Arguments
According to Defendant City of Cleveland, the Sixth Circuit’s holding in Keene militates
in favor of summary judgment on Plaintiffs’ Due Process claim. Like the plaintiff in Keene,
Haddon had actual notice and/or knowledge that the City of Cleveland had begun condemnation
and violation process on her house more than thirty days prior to the July 15, 2017 demolition as
Haddon’s sister scanned and electronically sent her the condemnation paperwork that was posted
to the property on May 17, 2017. Moreover, the City’s condemnation process for the property
was posted on the City’s publicly available Citizen Action Site on May 18, 2017. Haddon failed
to act within thirty days as required by C.C.O. § 3103.20(e) similar to the plaintiff in Keene.
Haddon could have had a hearing before the date of demolition but failed to act.
Similar to the facts in Keene, the City of Cleveland asserts that Haddon had actual
knowledge of the condemnation proceedings from her sister. Cleveland sent Haddon a certified
letter that went unclaimed as Haddon failed to update the City of Cleveland that she no longer
resided at the subject property and left no forwarding address. The City of Cleveland posted a
notice at the subject property like the City of Cincinnati in Keene. These attempts were sufficient
to satisfy due process and the City of Cleveland is entitled to judgment in its favor.
In fact, Haddon failed to provide a forwarding address and failed to request a hearing
after she had notice. She knew the state of the property required remediation and obtained an
estimate from a contractor for the repairs. She was aware the house was boarded up after the fire.
Thus, Haddon had the opportunity to object but never took advantage of the opportunity.
The City of Cleveland further contends it went further than Cincinnati in attempting to
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apprise Haddon of the condemnation action. Not only did it send the certified letter and post
notice at the subject property, but Cleveland further made several attempts to contact Haddon to
gain consent to inspect the property, including attempting to contact Haddon via phone numbers
obtained through “ZABA search” and “Addresses.com,” but both numbers were disconnected.
Searches of White and Yellow Pages failed to produce any results for Haddon’s number. A
request for address information from the Cleveland Water Department revealed the water to the
property was turned off as of January 17, 2017 and the number the Water Department had for
Haddon was disconnected.
Cleveland then obtained a search warrant and determined the house was a hazard, posing
a danger to life and health and ordered the house demolished on an emergency basis. In such
circumstances notice is not required, yet the City of Cleveland attempted to notice Haddon the
day after the inspection. On June 30, 2017, two weeks before demolition, Cleveland sent the
emergency demolition notice by certified mail to Haddon’s tax mailing address but this was the
same address as the subject property and Haddon did not update the address even though she
knew that the post office had stopped delivering mail to the subject property after the fire. As the
Sixth Circuit in Keene wrote, “ the law expects at least some diligence from the property owner
as well as local officials.”
Obon, Inc. Arguments for Reconsideration
According to Obon, Keene supports the proposition that Obon had authority to enter the
property due to condemnation proceedings. In Keene, the district court dismissed claims of
trespass because the City of Cincinnati provided sufficient notice of condemnation proceedings.
Mirroring the arguments made by the City of Cleveland, Obon contends the house was vacant for
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an extended period of time after Haddon moved to California and she did not receive the notice
prior to demolition due to her own failure to provide new contact information or provide a
forwarding address. Also, Haddon cannot reasonably claim lack of knowledge since she
admitted she knew of the condemnation action when her sister sent her the scanned notice
electronically.
LAW AND ANALYSIS
Reconsideration
“District courts possess the authority and discretion to reconsider and modify
interlocutory judgments any time before final judgment.” Rodriguez v. Tenn. Laborers Health &
Welfare Fund, 89 F.App’x 949, 952 (6th Cir.2004). See also Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp., 460 U.S.1, 12 (1983) (“every order short of a final decree is subject to
reopening at the discretion of the district judge”). “District courts have authority both under
common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case
before entry of final judgment.” Rodriguez, 89 F.App’x at 959.
“Traditionally, courts will find justification for reconsidering interlocutory orders when
there is (1) an intervening change of controlling law; (2) new evidence available; or, (3) a need to
correct a clear error or prevent manifest injustice.” Id. (citing Reich v. Hall Holding Co., 990
F.Supp. 955, 965 (N.D.Ohio 1998)). However, as announced in Davie v. Mitchell, 291 F. Supp.
2d 573 (N.D. Ohio 2003): “Motions for reconsideration are disfavored, and a motion for
reconsideration is unfounded unless it either calls ... attention to an argument or controlling
authority that was overlooked or disregarded in the original ruling, presents evidence or argument
that could not previously have been submitted, or successfully points out a manifest error of fact
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or law.” Id. at 634.
Notice
In light of Keene, the Court finds the notice provided by the City of Cleveland or
attempted by the City of Cleveland satisfied due process requirements. The City sent Notice to
the last known address of Haddon via certified mail and posted the notice at the property.
According to Keene, this was reasonable notice. It was only due to Haddon’s failure to provide
the City with an updated California address, or provide it to the City Auditor’s department that
she did not receive notice. Keene is clear that the City of Cleveland was not obligated to search
all branches of the City services for Haddon’s address so long as its attempts to locate her were
reasonable. Furthermore, Keene affirms that actual notice is not required. Finally, the evidence
shows Haddon was ultimately provided a copy of the notice by her sister prior to the demolition
of her house. Moreover, it is undisputed that the property was vacant for more than six months
prior to the fire and Haddon had not lived at the house for some time. Therefore, the Court does
find Keene requires the Court to modify its prior summary judgment holding and finds that the
City of Cleveland did provide constitutionally sufficient Notice.
However, there still persists the question whether the City of Cleveland provided Haddon
with a meaningful opportunity to be heard either pre-deprivation or post-deprivation. Pre-
deprivation, Haddon had notice that her house was condemned. While the City argues this
occurred on May 17 or 18, the record is unclear when the condemnation notice was posted to her
house or when her sister electronically sent her the notice. Gilyard’s affidavit does not place a
date on the posting of the Notice and Haddon could not recall when she received the Notice from
her sister. Finally, the Court has not been provided the contents of the posted notice and cannot
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say if it provided Haddon an opportunity to appeal or even warned her that the house was subject
to demolition. The home was not demolished until July 15, 2017, and the City sent Haddon the
Notice of Violation somewhere around June 28-30, 2017, via certified mail. Had Haddon
properly updated the City of her new address she would have had two weeks within which she
could have appealed the decision to demolish or sought a restraining order. She did not reach out
to the City nor did she attempt any legal action.
But there are issues as well with the notice from the City dated June 27, 2017. On one
hand, it informed Haddon that she could appeal within thirty days of the notice. It also reads in
bold letters “Failure to comply with this letter shall result in the demolition of the building(s).”
On page two of the notice it reads: “ The dangerous conditions presented by this structure shall
be abated demolishing the structure and removing all debris from the premises or correcting the
violations set out below...” The notice gives a lengthy description of the violations to be abated
and the process by which Haddon had to comply. This process required Haddon to submit plans
for approval, obtain necessary permits and board the property. The notice then informs Haddon
failure to obtain the necessary permits within thirty days of boarding will result in her house
being scheduled for demolition.
On the following page of the notice it informs Haddon that the City intends to demolish
the property forthwith if the property is not abated. Confusingly, the notice then gives a
compliance date of June 27, 2017, the date the notice was issued. This presents clear concerns as
to the time frame given Haddon to attempt to abate or appeal the decision.
Regardless, the City argues the decision to demolish was made under its emergency
authority which did not require a pre-deprivation hearing but only requires an adequate post-
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deprivation remedy.
Nothing in the City's Ordinances authorizes the Board to grant monetary relief and the
City does not argue, nor did the court find, that the Board had the ability to grant monetary relief.
See AMM Peric Property Invest., Inc. V. City of Cleveland, 2014 WL 888424, 2014-Ohio-821, ¶
16. But as the dissent stated in AMM, a Plaintiff could establish in a post-deprivation hearing
that the City acted in violation of his or her due process rights. Such a showing would
necessarily result in the City’s actions constituting an unlawful taking, which the plaintiff could
then file a Writ under Ohio law for recompense. See also generally Collins v. City of Cleveland,
N.D.Ohio No. 1:11CV221, 2012 WL 5304092 (Oct. 24, 2012); Babandi v. Allstate Indemn. Ins.
Co., N.D. Ohio No. 1:07CV329, 2008 U.S. Dist. LEXIS 27222, *13–14, 2008 WL 906116
(March 31, 2008).
Haddon never availed herself of any pre-deprivation hearing nor post-deprivation hearing,
but under Ohio law “parties need not pursue their administrative remedies if doing so would be
futile or a vain act.” State ex rel. Teamsters Local Union 436 v. Cuyahoga Cty. Bd. of Commrs.,
132 Ohio St.3d 47 (2012). In Parratt v. Taylor, the Court quoted from two earlier opinions the
rule that “[w]here only property rights are involved, mere postponement of the judicial enquiry is
not a denial of due process, if the opportunity given for ultimate judicial determination of
liability is adequate.” 451 U.S. at 540, 101 S.Ct. at 1915.
The City never addresses this issue of adequate post-deprivation remedies squarely and
this issue is potentially dispositive of the claims and presents a legal question ripe for ruling.
Therefore, the Court will hear oral arguments on this issue. In particular, the Court wants the
parties to address the following questions:
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1) Does the City of Cleveland’s Codified Ordinances provide adequate post-deprivation
remedies under the United States Constitution?
2) Does the Due Process Clause of the United States Constitution require that the City of
Cleveland provide post-deprivation remedies or is Due Process satisfied so long as there
is a post-deprivation remedy available to Plaintiff through state law or state courts?
3) Despite a search of the record, the Court is unable to locate the Notice posted to
Haddon’s house according to the City, on May 17, 2017 and scanned by Haddon’s sister
prior to demolition. Therefore, the Court orders the City to point to its location in the
record or provide an authenticated copy of the Notice prior to the hearing.
The Court orders the parties to confer and submit to the Court agreed upon dates for oral
arguments, to be held within forty-five days of the date of this Order.
Therefore, for the foregoing reasons, the Court grants, in part, Defendants’ Motions for
Reconsideration.
IT IS SO ORDERED.
/s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
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