# Fambrough v. City of East Cleveland, Ohio

> District Court, N.D. Ohio · October 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10372657

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** October 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10372657

## How later opinions describe it (automated extraction)

- holding that “the absence of an independent analysis by the district court of the competing factors relevant to Rule 54(b) certification nullifies any deference due the district court's Rule 54(b) order”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM FAMBROUGH, et al., )
) CASE NO. 1:22-cv-992
Plaintiffs, )
) JUDGE BRIDGET MEEHAN BRENNAN
v. )
)
CITY OF EAST CLEVELAND, et al. ) ORDER
)
Defendants. )

Before the Court is Plaintiffs’ Motion for Entry of a Final Judgment Under Rule 54(b) or,
in the Alternative, Certification for Interlocutory Appeal Under 28 U.S.C. § 1292(b). (Doc. No.
74.) Defendants (not including Scott Gardner) filed a brief in opposition (Doc. No. 79), and
Plaintiff replied (Doc. No. 81).
I. Background
This Court’s prior opinions in this matter set forth the factual and procedural background
of this litigation as well as the Court’s determinations about the plausibility of certain causes of
action brought against some of the named defendants. (Doc. Nos. 56, 71.) The Court will not
restate the background here.
II. Analysis
A. Rule 54(b)
Rule 54(b) is intended “to strike a balance between the undesirability of more than one
appeal in a single action and the need for making review available in multiple-party or multiple-
claim situations at a time that best serves the needs of the litigants.” Day v. NLO, Inc., 3 F.3d
153, 155 (6th Cir. 1993) (quoting Wright, Miller & Kane, Federal Practice and Procedure: Civil
2d § 2654 (1983)). In striking this balance the court should consider relevant factors including,
(1) the closeness of the relationship among the causes of action,
(2) the possibility that the need for review might or might not be mooted by
future developments in the district court,
(3) the possibility that the reviewing court might be obliged to consider the
same issue a second time; . . .
(4) delay,
(5) expense, and
(6) the relative frivolity of the claims.
Id. (quoting Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975))
(numerals added).
1. Commonality
Here, the interlocutory appeal issues would be substantially similar to the issues in any
appeal after judgment. “A similarity of legal or factual issues will weigh heavily against entry of
judgment under Rule 54(b).” Novacor Chemicals Inc. v. GAF Corp., 164 F.R.D. 640, 647 (E.D.
Tenn. 1996) (quoting Morrison–Knudsen Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981)).
This Court dismissed the First Amendment retaliation claim in Count One brought
against the individual employees of East Cleveland. However, the Court did not dismiss the
virtually identical retaliation claim against the City in Count Two. (Compare Doc. No. 44 at ¶¶
224-47) with id. ¶¶ 248-50.) To illustrate the overlap of the factual and legal issues, one need
only review Plaintiffs’ allegations:
251. This scheme was part of an official policy or custom that was deliberate,
executed over the course of several months, and pervasive throughout the police
department and law department. It was not like an on-the-spot decision to arrest
sometimes made by individual officers in split-second situations.

252. The actions of the Individual Defendants are attributable to the City.
Several of the Individual Defendants were final policymakers with final
authority, or were delegated final authority, and made a deliberate choice to
adopt a course of action that retaliated against William.
253. At the very least, City policymakers condoned and ratified the retaliatory
scheme, which took place over several months and across the police department
and law department.
(Doc. No. 44 at ¶¶ 251-53.) Plaintiffs pleaded one-by one how the dismissed policymaking
defendants’ actions should be ascribed to the City. (Id. ¶¶ 254-57.) In addition to their own
conduct, Count Two asserts that those policymakers ratified the police officers’ retaliatory
conduct and adopted it as City policy. (Id. ¶ 258.) “Through the Individual Defendants, East
Cleveland adopted and enforced an official policy or custom to retaliate’ against Plaintiff based
on his support for a mayoral challenger. (Id. ¶ 249.) In sum, the fact matters and legal issues
that Plaintiffs seek to appeal in Count One are the same as what Plaintiffs say they will rely upon
at trial to prove their Monell claim in Count Two.
As for the Fourteenth Amendment selective enforcement claim in Count Four, Plaintiffs
explicitly pleaded that the basis is the same as the claim in Count One. (See id. ¶¶ 281-82.)
Although the Court dismissed the other individual defendants from Count Four, the Court did not
dismiss the mayor’s chief of staff Michael Smedley. The Complaint alleges that the dismissed
individual defendants were acting at the direction or suggestion of Smedley, who purportedly
selected and targeted Plaintiff William Fambrough. (See id. ¶¶ 38, 112-29.) Even though the
other individual defendants were dismissed as parties, their respective actions still may be
introduced as grounds for the claim against Smedley, who allegedly instigated them. (See id.)

Moreover, evidence of those dismissed individual defendants’ actions may be introduced by
Plaintiffs in support of their Monell claim against the City in Count Four. (See id. ¶¶ 208-20
(detailing the relationship between the individual defendants’ selective enforcement and a
coordinated City policy).)1
In sum, the similarity of the fact matters and legal issues between the dismissed claims
and the still-pending claims weighs against certification under Rule 54(b).
2. Potential Mootness

Given the overlap described above, there is a considerable possibility that the upcoming
trial could moot issues that Plaintiffs seek to appeal now. For example, individual police officer
defendants might testify at trial that they had no personal animosity against Plaintiffs and merely
acted pursuant to a directive from superiors to enforce the parking and permit ordinances against
Plaintiffs. In that event, although such testimony might bolster the Monell claim, it may also rule
out liability for the dismissed individual defendant. See generally Bishop v. Hackel, 636 F.3d
757, 767 (6th Cir. 2011); Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 542 (6th Cir. 2008)
(“Where . . . the district court is faced with multiple defendants asserting qualified immunity
defenses, the court should consider whether each individual defendant had a sufficiently culpable

state of mind.”); Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005)
(“[The] subjective component must be addressed for each officer individually.”).
Because the dismissed defendants still may be called as witnesses, it is possible that a
trial in this matter could render moot some of the individual claims that Plaintiffs seek to appeal.
This factor weighs against certification under Rule 54(b).
3. Repetition
The dismissed individual defendants all were employed by the City. Their respective
actions likely will be introduced at trial as evidence to show the existence of a retaliatory City

1 The motion does not discuss the property seizure claim in Count Five.
policy and selective enforcement of local laws. Accordingly, the Sixth Circuit would be required
to address the same factual matters and evidence in two appeals. This factor weighs against
certification under Rule 54(b).
4. Delay
Granting relief would result in delay because Plaintiffs admit that if such an appeal were

granted, they would then seek to stay proceedings in this court. (Doc. No. 74 at 1158.) This
factor weighs against certification under Rule 54(b).
5. Expense
Granting relief would add to defense costs because the City would be forced to litigate
the same subjects in two courts at the same time. This factor weighs against certification under
Rule 54(b).
6. Frivolity
It does not appear that there would be a good faith basis to maintain the First Amendment
facial attack on East Cleveland’s permit rules and parking laws in Count Three.

If the Sixth Circuit analyzes the merits of the constitutional claims and reaches
conclusions different from this Court, Plaintiffs’ motion does not show how that would change
the qualified immunity defense. Plaintiffs never assert that a decision in an interlocutory appeal
now would change the clearly established law as of 2021, when the events at issue occurred. In
fact, Plaintiffs argue that reasonable jurists today can and do disagree on the legal questions that
would be raised in the proposed interlocutory appeal. (See Doc. 74 at 1158, 1162, 1169, 1171.)
This factor weighs against certification under Rule 54(b).
B. Section 1292(b)
“Review under § 1292(b) is granted sparingly and only in exceptional cases.” In re City
of Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
The Court recognizes that the United States Supreme Court recently granted certiorari on
the issue of probable cause in First Amendment retaliation claims and evidentiary proofs related

thereto. See Gonzalez v. Trevino, No. 22-1025, 2023 WL 6780371 (U.S. Oct. 13, 2023). By
June 2024 when the Court terms ends, the questions of law that Plaintiffs’ motion addresses
could be reframed by a new Supreme Court decision. But as of now, the Plaintiffs have not
carried their burden to show that an immediate appeal would materially advance the ultimate
termination of the litigation.
C. District Court Discretion
“By utilizing Rule 54(b), a district court may, by the exercise of its discretion in the
interest of sound judicial administration, release for appeal final decisions upon one or more, but
less than all, claims . . . .” Corrosioneering, Inc. v. Thyssen Env’t Sys., Inc., 807 F.2d 1279, 1282

(6th Cir. 1986) (quotation omitted). This Court has considered the factors prescribed by the
Sixth Circuit, which recognizes this Court’s discretion. See id. at 1284 (holding that “the
absence of an independent analysis by the district court of the competing factors relevant to Rule
54(b) certification nullifies any deference due the district court's Rule 54(b) order”).
This Court takes guidance from the Sixth Circuit’s discussion in Corrosioneering of the
factors for certification of an immediate appeal . On balance, those factors do not justify
certification here under either Rule 54(b) or Section 1292(b).
III. Conclusion
For the reasons stated herein, Plaintiffs’ Motion for Entry of a Final Judgment Under
Rule 54(b) or, in the Alternative, Certification for Interlocutory Appeal Under 28 U.S.C. §
1292(b) is DENIED.

IT IS SO ORDERED.

Date: October 23, 2023 ________________________________
BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10372657. Public record. Not legal advice.