VJH Homes, LLC v. City of Cleveland

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

VJH HOMES, LLC, ) CASE NO. 1:23 CV 00740

Plaintiff,

v. ) JUDGE DONALD C. NUGENT

CITY OF CLEVELAND, et al.,

) MEMORANDUM OF OPINION

Defendants. ) AND ORDER

This matter is now before the Court on Motion of Defendant City of Cleveland to Dismiss

[Plaintiff's Amended Complaint] (ECF #4), filed on April 24, 2023. Plaintiff VJH Homes, LLC

(“VJH Homes”) filed an opposition to the motion on May 24, 2023 (ECF #6). Defendant City of

Cleveland (“City of Cleveland”) filed a reply on June 5, 2023 (ECF #8). This motion is now

ready for ruling.

This matter is also before the Court on Defendant Cuyahoga County Land Reutilization

Corp.’s Motion to Dismiss [Plaintiff's Amended Complaint] (ECF #12), filed on June 21, 2023.

Plaintiff VJH Homes filed an opposition to the motion on June 26, 2023 (ECF #13). Defendant

Cuyahoga County Land Reutilization Corp. (“Cuyahoga County Land Bank”) filed a reply on

July 10, 2023 (ECF #14). This motion too is ready for ruling.

For the reasons stated below:

(1) Defendant City of Cleveland’s Motion of Defendant City of Cleveland to Dismiss

(ECF #4) is GRANTED as to Plaintiff's VJH Homes’ federal claims, which are described more

fully later in this Memorandum of Opinion and Order. The remainder of Plaintiff's claims

against City of Cleveland, which are based on state law allegations of Conversion (ECF #1-2,

PageID #28-29, J 43-46), Negligence (ECF #1-2, PageID #30-31, 54-60), Tortious

Interference with Business Opportunities (ECF #1-2, PageID #31-32, J] 61-66), and a request for

declaratory judgment and injunctive relief based on these state law claims (ECF #1-2, PageID

#32-34, J] 67-79), are REMANDED to the Cuyahoga County Court of Common Pleas;

(2) Defendant Cuyahoga County Land Bank’s Defendant Cuyahoga County Land

Reutilization Corp.’s Motion to Dismiss (ECF #12) is GRANTED as to Plaintiff's VJH Homes’

federal claims, described later in this Memorandum of Opinion and Order. The remainder of

Plaintiff's claims against Defendant Cuyahoga County Land Bank, which are based on state law

allegations of Conversion (ECF #1-2, PageID #28-29, J] 43-46), Negligence (ECF #1-2, PageID

#30-31, 54-60), Tortious Interference with Business Opportunities (ECF #1-2, PageID #31-32,

{{ 61-66), and a request for declaratory judgment and injunctive relief based on these state law

claims (ECF #1-2, PageID #32-34, J] 67-79), are REMANDED to the Cuyahoga County Court of

Common Pleas; and

(3) The federal claims of the Amended Complaint (ECF #1-2), insofar as any federal

claims are in fact asserted against Defendant Great Lakes Deconstruction, Inc., are DISMISSED.

Any remaining claims of the Amended Complaint based on state law allegations against

Defendant Great Lakes Deconstruction, are REMANDED to the Cuyahoga County Court of

Common Pleas.

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FACTUAL AND PROCEDURAL BACKGROUND

On March 14, 2023, Plaintiff VJH Homes filed a Complaint in the Cuyahoga County

Court of Common Pleas against Defendant City of Cleveland alleging that the City of

Cleveland’s declaration of a residential property owned by VJH Homes (located at 3606 East □□□

Street in Cleveland, Ohio) as a “public nuisance,” and the City’s subsequent condemnation order

to demolish the property as an “[I]mminent Danger and Peril to Human Life and Public Health,

Safety, and Welfare,” constituted a violation of “Plaintiffs rights set forth in the Takings Clauses

in the federal and/or Ohio constitutions that protect against appropriation of property and/or

‘regulatory takings,’”! as well as violations of Ohio law pertinent to Conversion, Negligence, and

Tortious Interference with Business Opportunities (ECF #1-1, Complaint).

' Plaintiff's Complaint was accompanied by a Motion for Temporary Restraining Order

and for Preliminary Injunction (ECF #1-4, PageID #40) asking the Common Pleas Court to

prevent the condemnation and demolition. Four days later, on March 18, 2023, Plaintiff filed an

Amended Complaint (ECF #1-2) and a renewed Motion for Temporary Restraining Order and for

Preliminary Injunction (ECF #1-4, PageID #53) naming as additional Defendants Cuyahoga

County Land Bank and Great Lakes Deconstruction, Inc. (“Great Lakes Deconstruction”).

On March 24, 2023, Plaintiff VJH Homes and Defendants City of Cleveland and

Cuyahoga County Land Bank participated in a telephone conference with the Common Pleas

Court, from which the following Order was issued, in pertinent part:

IT IS AGREED THE CITY OF CLEVELAND AND CUYAHOGA COUNTY

LAND BANK SHALL NOT PROCEED WITH ANY DEMOLITION OR

OTHER ACTION THAT ALTERS THE STATUS QUO ON THE PROPERTY

U.S. CONST. amends V & XIV; OHIO CONST. art. I, § 19.

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AT 3606 E. 74™ STREET, CLEVELAND, OHIO 44105. PERMANENT

PARCEL NO. 133-03-049 UNTIL AFTER THE HEARING ON 04/11/2023 AT

2:00 PM AT THE EARLIEST. THE COURT WILL HEAR THE MOTION FOR

A TEMPORARY RESTRAINING ORDER AND FOR PRELIMINARY

INJUNCTION ON 04/11/2023 AT 2:00 PM, COURT-ROOM 17-A, JUSTICE

CENTER, 1200 ONTARIO STREET, CLEVELAND, OHIO. NOTICE ISSUED.

(ECF #1-3, Docket Report from Court of Common Pleas, PageID #37, Entry of 03/24/23)

On April 12, 2023, Defendant City of Cleveland removed the case to this Court pursuant

to 28 U.S.C. § 1441 (ECF #1, Notice of Removal). No hearing was ever held in the Common

Pleas Court on Plaintiff’s Motion for Temporary Restraining Order and for Preliminary

Injunction (ECF #1-4), as noted in Defendant City of Cleveland’s Notice of Removal (ECF #1,

PagelID #2, § 4).

The basic facts of the case are as follows. On or about July 14, 2021, Plaintiff VJH

Homes was the successful bidder on a parcel of land and accompanying residential structure

located at 3606 East 74 Street in Cleveland, Ohio, identified as Permanent Parcel No. 133-03-

049 in the Cuyahoga County land records, in connection with a foreclosure and Sheriff's sale in a

matter titled Treasurer of Cuyahoga County, Ohio v. Unknown Heirs, etc., of John R. Miller, et

al., Cuyahoga County Court of Common Pleas, Case No. CV-19-918078 (ECF #1-2, Amended

Complaint, PageID #23-24, § 12-14). Plaintiff's Amended Complaint describes the structure

located on the property as “a 4-6 unit apartment structure with approximately 3,300 square feet of

usable areas and full basement” (ECF #1-2, PageID #24, ¢ 16). The bid and purchase price for

the real property and structure was $11,828.84 at the time of Plaintiff's successful bid, and

according to the Amended Complaint, the current value of the land and structure, as of Valuation

Year 2022, was $14,900.00 (ECF #1-2, PageID # 24, JJ 14-15). VJH Homes acquired title to the

property via a Sheriff's Deed, dated July 29, 2021, which was recorded on March 8, 2022 with

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the Cuyahoga County Fiscal Officer as Instrument No. 202203080568 (ECF #1-2, PageID #24,

4 17 & ECF #16-1, PageID #344, Sheriff's Deed).

Nine months prior to the Sheriff's sale at which Plaintiff was the successful bidder, on

October 5, 2020, the City of Cleveland Department of Building & Housing, Division of Code

Enforcement had issued a “Notice of Violation of Building and Housing Ordinances” to the then

Owner of Record, John R. Miller, listing numerous significant defective conditions to the

structure located on the property, culminating in a finding that:

PURSUANT TO SECTION 3103.09, 367.04, 369.19 AND 369.21 OF THE

CODIFIED ORDINANCES OF THE CITY OF CLEVELAND, THE DIRECTOR

OF BUILDING AND HOUSING DOES HEREBY DECLARE THE

STRUCTURE KNOWN AS AND LOCATED AT: 3606 E 74 ST, CLEVELAND,

OH 44105 TO BE A PUBLIC NUISANCE IN THAT IT CONSTITUTES AN

[TJMMINENT DANGER AND PERIL TO HUMAN LIFE AND PUBLIC

HEALTH, SAFETY AND WELFARE, AND THAT THE AFORESAID

CONDITION CONSTITUTES AN EMERGENCY. THEREFORE, YOU ARE

HEREBY NOTIFIED THAT THE CITY OF CLEVELAND PURSUANT TO

SAID SECTIONJ[S] 3103.09, 367.04, 369.19 AND 369.21 OF THE CODIFIED

ORDINANCES WILL SUMMARILY ABATE SAID PUBLIC NUISANCE

CREATED AS A RESULT OF SAID EMERGENCY BY DEMOLITION OF

THE STRUCTURE IF THE VIOLATIONS LISTED IN THE ATTACHED

NOTICE ARE NOT ENTIRELY CORRECTED BY [THE COMPLY DATE]

SET FORTH IN SAID NOTICE.

(ECF #4-1, PageID #264, Notice of Violation, attached as Ex. A to City of Cleveland’s Motion to

Dismiss) (insert supplied).’

No immediate action to demolish the structure located on the property was taken by the

A court may take judicial notice of certain public records, for which the existence or

contents prove facts not subject to reasonable dispute. FED. R. Evip. 201(b)(2); New Eng.

Health Care Empl. Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6" Cir. 2003);

Passa v. City of Columbus, 123 F. App’x 694, 697 (6" Cir. 2005). There is no dispute as to the

existence or the substance of the public records related to Plaintiff VJH Homes’ acquisition of

the property and structure or the City of Cleveland’s findings of building code violations or

notices related to the condemnation and proposed demolition of the subject structure.

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City of Cleveland between the issuance of the Notice of Violation in October 2020 and later

transfer of the structure and property to VJH Homes on March 8, 2022. Nor is there any dispute

that the structure located on the property remains standing to this date.

After the transfer of the property and structure to VJH Homes, on March 16, 2022, the

City of Cleveland Department of Building and Housing sent VJH Homes a letter, sent by both

Certified and Regular U.S. Mail, titled “RE: Rehabilitation Plan required by New Owner of

Condemned Property located at (3606 E 74") Cleveland, OH,” noting that the subject structure

had been previously condemned and declared to be a public nuisance, and notifying VJH Homes,

as the new owner of the property and structure, that it must immediately begin correcting the

structural defects listed on the October 2020 condemnation notice, and that within ten (10) days it

must submit a written plan to the Director of Building and Housing listing the actions to be taken

to correct the numerous building code violations on the property. The letter also stated that

failure to comply with the requirements to begin correcting the violations and to submit a

rehabilitation plan would subject the property and structure to further enforcement actions to

abate the nuisance, including demolition of the structure, and that the owner or owners would be

required to “pay for all costs related to demolishing, repairing, altering, securing, boarding, or

otherwise abating the public nuisance at the Property.” (ECF #4-3, PageID #268, attached as Ex.

C to City of Cleveland’s Motion to Dismiss).

Over the course of the more than one-year following the issuance of the City of

Cleveland’s letter to VJH Homes, and despite Plaintiff VJH Homes’ assertions that it has an

“intention to repair, maintain, fix and free the Property of any violations,” (ECF #1-2, Amended

Complaint, PageID #25, J 21), and that “[t]he structure on the Property is able to be reasonably

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repaired, maintained, fixed, and freed of any violations alleged by the Defendant [City of

Cleveland] or otherwise,” (ECF #1-2, PageID #24, ¢ 20), Plaintiff VJH Homes has not identified

any repairs or other actions taken to address the numerous structural defects existing at the

structure, and has not disputed that the structure on the property has remained a public nuisance

for the entire time that it has owned the property and structure.’

On February 9, 2023, the City of Cleveland issued a Building Permit for the Cuyahoga

County Land Bank to raze the structure located at 3606 East 74" Street, in Cleveland, Ohio, and

to perform the work to bring the property to a safe condition:

PERMISSION IS HEREBY GRANTED TO: RAZE 3 STORY FRAME 2 DU

REMOVE ALL DEBRIS FROM SITE. FILL EXCAVATION TO GRADE.

CONTROL DUST PER 277.07 SEED LOT. REMOVE ALL FOUNDATIONS.

DISCONTINUE AND CAP UTILITY CONNECTIONS.

(ECF #16-1, Building Permit, PageID #348, referenced as Ex. B to the Amended Complaint, filed

with Plaintiff's Supplemental Exhibits in Support of Amended Complaint).

On March 14, 2023, Plaintiff VJH Homes filed its Complaint (ECF #1-1) and Motion for

Temporary Restraining Order and for Preliminary Injunction (ECF #1-4, PageID #40) in the

Cuyahoga County Court of Common Pleas, seeking money damages “in excess of Twenty-Five

Thousand Dollars ($25,000), including treble damages and attorneys’ fees, plus interest, costs,

and expenses,” as well as a declaratory judgment preventing the City of Cleveland from going

forward with the demolition of the structure located on the property. (ECF #1-1, PageID #35,

In fact, Plaintiff VJH Homes appears to take the remarkable position that it was the City

of Cleveland’s responsibility to abate the nuisance conditions of the structure: “To date, the

Defendants have failed and/or refused to fix and resolve the aforementioned problems, issues,

conditions, and damages.” (ECF #1-2, Amended Complaint, PageID #27, | 36; ECF #6,

Plaintiff's Brief in Opposition to Motion to Dismiss of Defendant City of Cleveland, PageID

#282).

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{{ 1-4). To date, no action has been taken to perform the demolition.

LEGAL ANALYSIS

A complaint filed in, or removed to, federal court is subject to dismissal under Federal

Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.”

FED. R. Civ. P. 12(b)(6). A “complaint must contain direct or inferential allegations respecting

all the material elements under some viable legal theory.” Red Zone 12, LLC v. City of

Columbus, 758 F. App’x 508, 512 (6 Cir. 2019), quoting Commercial Money Ctr. v. Illinois

Union Ins. Co., 508 F.3d 327, 336 (6™ Cir. 2007) (also noting that the standard is the same for

both motions to dismiss filed under Fed. R. Civ. P. 12(b)(6) and motions for judgment on the

pleadings under Fed. R. Civ. P. 12(c)). A trial court construes the complaint in the light most

favorable to the nonmoving party, accepts the well-pled factual allegations as true, and

determines whether the complaint contains enough facts to make the legal claims facially

plausible. Red Zone 12, 758 F. App’x at 512, citing Commercial Money, 508 F.3d at 336, in turn

citing United States v. Moriarty, 8 F.3d 329, 332 (6 Cir. 1993). “Conclusory allegations or legal

conclusions masquerading as factual allegations will not suffice.” Eidson v. Tennessee Dept. of

Children’s Servs., 510 F.3d 631, 635 (6" Cir. 2007); see also Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (explaining that complaint must contain something more than a statement

of facts that merely creates speculation or suspicion of a legally cognizable cause of action).

“A claim has facial plausibility when the plaintiff pleads 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 (2009), citing Bell Atl. Corp v. Twombly, 550 U.S. at 556.

The [plausibility standard “asks for more than a sheer possibility that a defendant has acted

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unlawfully,” but is “not akin to a probability requirement.” Ashcroft, 556 U.S. at 678. In

conducting this analysis, a court “need not accept the plaintiffs legal conclusions or unwarranted

factual allegations as true.” Red Zone 12,758 F. App’x at 513, citing Commercial Money, 508

F.3d at 336. Although a court primarily considers the allegations in the complaint, “matters of

public record, orders items appearing in the record of the case, and exhibits attached to the

complaint, also may be taken into account.” Red Zone 12,758 F. App’x at 513, citing Amini v.

Oberlin College, 259 F.3d 493, 502 (6 Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546,

1554 (6" Cir. 1971)).

The City of Cleveland’s Motion to Dismiss

The Court first addresses the motion to dismiss filed by Defendant City of Cleveland

(ECF #4). The City of Cleveland seeks dismissal of both Plaintiff VJH Homes’ claims

identifying federal law as a basis, specifically the “Takings Clause” of the Fifth Amendment of

the U.S. Constitution, as applicable to the States under the Fourteenth Amendment (ECF #1-2,

Amended Complaint, PageID #29, J§ 48-49), and inferentially under the Civil Rights Act, 42

U.S.C. § 1983, et seq., by its request for an award of “[r]easonable attorneys’ fees, fines, and/or

treble damages as mandated and/or permitted by statute,” (ECF 1-2, PageID # 35, { 4), as well as

dismissal of the claims identifying State law as a basis, specifically, Conversion (ECF #1-2,

PageID #28-29, 43-46), Negligence (ECF #1-2, PageID #30-31, J] 54-60), Tortious

Interference with Business Opportunities (ECF #1-2, PageID #31-32, {J 61-66), and Plaintiffs

request for declaratory judgment and injunctive relief, purportedly based on both federal and state

law (ECF #1-2, PageID #32-34, 67-79).

The Court begins by addressing Plaintiff's federal law claims, as specifically pled under

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the “Takings Clause” of the Fifth Amendment to the U.S. Constitution, and as inferentially pled

under 42 U.S. Code § 1983 by reference to the damages provisions of that statute in the prayer for

relief and claim for declaratory judgment and injunctive relief.

If the Court finds that dismissal of the federal claims over which it has original

jurisdiction in a case removed from state court is appropriate — which claims were the basis for

City of Cleveland’s Notice of Removal to this Court from the Cuyahoga County Court of

Common Pleas (ECF #1) in this case — it may exercise its discretion to decline exercise of its

supplemental jurisdiction under 28 U.S.C. § 1367 over any remaining state law claims and

remand those claims back to the state court. See 28 U.S.C. § 1367(c)(3) (“The district courts may

decline to exercise supplemental jurisdiction over a claim under subsection (a) if. . . (3) the

district court has dismissed all claims over which it has original jurisdiction”).

Plaintiff's Federal Law Claims

The gist of Defendant City of Cleveland’s motion to dismiss, as it applies to Plaintiff VJH

Homes’ federal “Takings Clause” claim under the Fifth Amendment to the U.S. Constitution,’ is

based on clearly established law that “Under the police power society may restrict the use of

property without making compensation thereof, if the restriction be reasonably necessary for the

preservation of the public health, morals, or safety.” See Davet v. City of Cleveland, 456 F.3d

549, 553 (6" Cir. 2006) (upholding the City of Cleveland’s condemnation and partial demolition

of building owned by defendant and affirming district court’s grant of summary judgment on

plaintiff's “takings” claim). As stated in Davet, “[dJemolition, compliant with local law and

Oo

The “Takings Clause” of the Fifth Amendment states, “[N]or shall private property be

taken for public use , without just compensation.” U.S. CONST. amend V.

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procedure, in order to enforce building codes or abate a public nuisance does not constitute a

taking as contemplated by the federal and Ohio constitutions.” Davet, 456 F.3d at 553 (quoting

and affirming decision of lower court). The reason such condemnation and demolition in the

interests of public health, morals, and safety is not a “taking” is because all property within the

state is held subject to the implied condition that it will be used so as to not injure the equal rights

of others to the use and benefit of their own property. Davet, 456 F.3d at 553 (“[T]he takings

clause does not require compensation when an owner is barred from putting land to a use that is

proscribed by [ ] existing rules or understandings”), quoting Lucas v. S.C. Coastal Council, 505

U.S. 1003, 1030 (1992); see also Williams v. City of Stanford, 533 F. Supp. 3d 512, 525 (E.D.

Ky. 2021) (“[Plaintiff’s] takings claim fails for a more fundamental reason: the defendants

demolished the home to abate a nuisance. ... [Takings attendant to the police power are not

compensable”). Thus, “compensation is not mandated when the state legitimately exercises

police power to abate a property nuisance.” Embassy Realty Invs., Inc. v. City of Cleveland, 572

F. App’x 339, 344 (6 Cir. 2014).

Accordingly, given that the structure located on the property has been a “public nuisance”

subject to demolition since at least October 2020, when the City of Cleveland issued the “Notice

of Violation of Building and Housing Ordinances” (ECF #4-1, PageID #264, Notice of Violation,

attached as Ex. A to City of Cleveland’s Motion to Dismiss), and that Plaintiff VJH Homes, since

March 2022, has been explicitly aware of and notified of both the “public nuisance” condition of

the structure and the need to immediately address the nuisance conditions subject to demolition if

such conditions are not addressed (ECF #4-3, New Owner Letter from City of Cleveland

Department of Building and Housing, PageID #268, attached as Ex. C to City of Cleveland’s

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Motion to Dismiss), and that there is no dispute that no meaningful remedial actions have been

taken in the over one year since that notice, the actual demolition of the structure would not

constitute a “taking” as a matter of law, even if it had occurred, which to date it has not.

Put simply, Plaintiff VJH Homes’ “Takings Clause” claim does not have the requisite

“facial plausibility” to survive a motion to dismiss for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6), as against City of Cleveland (or any other Defendant in this case).

Accordingly, the federal “Takings Clause” claim is dismissed.

In opposition to Defendant City of Cleveland’s motion, Plaintiff VJH Homes appears to

take the position that the well-established law that condemnation and demolition of “public

nuisance” properties creating an immediate danger to the public health, morals, or safety should

not apply to it because the declaration of public nuisance, and designation for demolition if the

nuisance conditions are not corrected, were made before it acquired the property, and that it

should have been given “proper notice or hearing” on the public nuisance conditions and the

possibility of demolition. (ECF #6, PageID #287-288). Plaintiff attempts to cast this as a federal

“Due Process” violation. No such “subsequent purchaser” exception exists, and Plaintiff has not

identified any support for this argument. Moreover, public record documents show that VJH

Homes was given explicit notice of the public nuisance condition and the condemnation notice

with demolition order in March 2022 (one year prior to filing its initial complaint), and was given

explicit direction as to how to communicate with the City in response to the notice and prior

findings of public nuisance, condemnation, and possibility of demolition to abate the public

nuisance conditions, in effect a “hearing.”

All of these “due process” elements were explicitly provided and explained in the “New

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Owner” notice sent to VJH Homes by certified and regular U.S. mail in March 2022. As stated in

that notice, the full text of which merits quotation here:

Dear VJH Homes LLC:

The City of Cleveland Department of Building and Housing previously

condemned the structure(s) at the above listed property address and determined it

to be a public nuisance for the code violations at the property. You are receiving

the enclosed condemnation violation notice and demolition order because you

have recently obtained title to the property or an interest in this property.

Cleveland Codified Ord. §§ 3103.09(e)(4)(C) and 367.04(d) require you, as the

buyer of this property, to begin correcting the items on the condemnation notice

on the transfer date. These sections also require you to notify the Director of

Building and Housing in writing within 10 days after transfer of the actions

that you will take to correct and abate all of the violations at this property.

Once the Director receives your written plan, the Director may establish a

reasonable time for you to comply with the condemnation notice.

You must submit your written plan and obtain all of the required permits to

abate these cited violations from the City’s Building Department, Room 505,

City Hall, 5“ Floor, 601 Lakeside Avenue, Cleveland, Ohio.

As the property owner, if you fail to comply with the above requirement, you will

be subject to further enforcement action to abate the nuisance incurred by the

Department of Building and Housing. Cleveland Codified Ord. § 3103.09(k)(1)

requires the owner or owners of the property to pay for all costs related to

demolishing, repairing, altering, securing, boarding, or otherwise abating the

public nuisance at the Property. Under Cleveland Codified Ord. § 3103.09(k)(2),

any and all owners of the property who appear in the chain of title from the time

of receipt of the condemnation notice until demolition of the building or structure

are jointly and severally responsible for all costs and expenses incurred by the

Department of Building and Housing.

Revised Code § 5301.253 states that any violation notice of the Department of

Building and Housing that appears on the Department’s public records is

notice to all subsequent purchasers, transferees, or other person who acquire

any interest in the real property in which the violations exist and may be

enforced against their interest in the real property without further notice or

order to them.

Sincerely,

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Ayonna Blue Donald

Director, City of Cleveland Department of Building & Housing

(ECF #4-3, New Owner Letter from City of Cleveland Department of Building and Housing,

PagelD #268, attached as Ex. C to City of Cleveland’s Motion to Dismiss)

Plaintiff VJH Homes’ “Due Process” claim, to the extent that it has actually made such a

claim in its Amended Complaint, does not have the requisite “facial plausibility” to survive a

motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), as

against City of Cleveland (or any other Defendant in this case). Accordingly, any federal “Due

Process” claims are dismissed.

Finally, Plaintiff's attempt to assert a claim of either a “regulatory taking” under the

federal constitution, or some other deprivation of a federal civil right under 42 U.S.C. § 1983, et

seq., or other federal statute, also do not state a claim on which relief can be granted.

At the outset, a municipality cannot be held liable on a claim under 42 U.S.C. § 1983 ona

respondeat superior theory merely because it employs an alleged tortfeasor. Red Zone 12, LLC v.

City of Columbus, 758 F. App’x 508, 515 (6" Cir. 2019), citing Monell v. Dept. of Soc. Servs.,

436 U.S. 658, 691 (1978). “Local governing bodies are ‘liable under § 1983 only if the

challenged conduct occurs pursuant to a municipality’s “official policy,” such that the

municipality’s promulgation or adoption of the policy can be said to have “caused one of its

Plaintiffs Amended Complaint does not actually include any cause of action identifying

“Due Process” as a basis. This is further indicated by Plaintiff's own description of the claims of

the Amended Complaint, as stated in its brief in opposition to the City’s motion: “The □□□□□□□□□□

Amended Complaint sufficiently sets forth five viable causes of action against Defendant City:

(1) Conversion; (2) Unconstitutional and Illegal Taking; (3) Negligence; (4) Tortious Interference

with Business Opportunities; and (5) Declaratory Judgment/Injunction.” (ECF #6, PageID #

284).

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employees to violate the plaintiffs constitutional rights.’” Red Zone 12,758 F. App’x at 515,

citing D’Ambrosio v. Marino, 747 F.3d 378, 386 (6 Cir. 2014), in turn quoting Monell, 436 U.S.

at 692.

In making a Section 1983 claim, a plaintiff can look to: “(1) the municipality’s legislative

enactments or official agency policies; (2) actions taken by officials with final decision-making

authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or

acquiescence of federal rights violations.” Red Zone 12,758 F. App’x at 515, quoting Thomas v.

City of Chattanooga, 398 F.3d 426, 429 (6™ Cir. 2005), in turn citing Monell, 436 U.S. at 694.

The official policy must be the “moving force” behind the constitutional violation. Red Zone 12,

758 F. App’x at 515, citing City of Canton v. Harris, 489 U.S. 378, 389 (1989), in turn quoting

Monell, 436 U.S. at 694. Where a plaintiff merely makes conclusory allegations about the

customs surrounding a nuisance abatement in an unconstitutional manner, it has only asserted a

“sheer possibility” of a Section 1983 violation in a fashion that does not meet the motion to

dismiss standards of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). See Red Zone 12,758 F. App’x at 516.

Here, in neither the Amended Complaint nor in its opposition to the City of Cleveland’s

Motion to Dismiss, does Plaintiff identify any legislative enactment or official policy that was a

“moving force” behind any alleged deprivation of constitutional rights. There is no facial

challenge to a City of Cleveland ordinance or any challenge of the City’s right to abate a public

nuisance under state (or federal) law. Plaintiff does not identify an improper action of a final

decision maker taken by the City. Plaintiff simply claims that the City of Cleveland’s actions

were “unreasonable and/or arbitrary” (ECF #1-2, PageID #30, 4 51).

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Plaintiff VJH Homes’ 42 U.S.C. § 1983 claim does not have the requisite “facial

plausibility” to survive a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), as against City of Cleveland (or any other Defendant in this case).

Accordingly, its federal “Section 1983” claims are dismissed.

Plaintiff's State Law Claims

This Court has dismissed all the federal claims pled in the Amended Complaint over

which it has original jurisdiction. The Court finds that the interests of economy, convenience,

fairness, and comity are best served by remanding the remaining state law claims back to the

Cuyahoga County Court of Common Pleas under 28 U.S.C. § 1367(c)(3), especially where

resolution of those state law claims is based essentially, if not entirely, on the three-tiered factual

balancing analysis of statutory immunity under Ohio’s Political Subdivision Tort Liability Act,

Ohio Rev. Code § 2744.01, et seq., as it may relate to each of the Defendants and the allegations

made against them. See Hortman v. Miamisburg, 110 Ohio St. 3d 194 (2006) (describing the

initial step of the analysis as including a determination of whether a party is a “political

subdivision” and whether it was exercising a governmental or proprietary function, followed by

an analysis of whether a statutory exception may apply, and finally determining, if necessary,

whether an exception set forth in the statute may be overcome by a statutory defense set forth

elsewhere in the statute), See Rouster v. County of Saginaw, 749 F.3d 437, 454 (6" Cir. 2014)

(“We have held that ‘a federal court that has dismissed a plaintiffs federal-law claims should not

ordinarily reach plaintiff's state-law claims’”), quoting Moon v. Harrison Piping Supply, 465

F.3d 719, 728 (6" Cir. 2006); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988) (“The

discretion to remand enables district courts to deal with cases involving pendent claims in a

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manner that best serves the principles of economy, convenience, fairness, and comity which

underlie the pendent jurisdiction doctrine”); McCoy v. MV Residential Prop. Mgmt., Inc., No.

2:14-CV-2642, 2016 U.S. Dist LEXIS 47733, at *27-29, 2016 WL 1392483, at *9-10 (S.D. Ohio

Apr. 8, 2016) (taking into consideration “that Plaintiff originally sought to pursue her claims in

state court” in deciding to remand state law claims to state court rather than dismissing claims

without prejudice).

While the analysis of whether City of Cleveland and Cuyahoga County Land Bank are

“political subdivisions” may not be difficult, as both are explicitly named as such in the

“Definitions” section of Ohio’s Political Subdivision Tort Liability Act, OHIO REV. CODE

§ 2744.01(F) (identifying “municipal corporations” and “county land reutilization corporations”),

nor would there be any real dispute that government action to abate dangerous conditions created

by “public nuisance” properties is a “governmental function,” state law determinations of whether

an exception to immunity may apply, and if so whether a defense to the exception exists, are

evaluations likely best addressed on remand to the state court. There is also a potential state law

question whether the Act would apply to state law claims asserted against Great Lakes

Deconstruction, either independently or as a contractor acting on behalf of the City of Cleveland

(or Cuyahoga County Land Bank). As Great Lakes Deconstruction has neither filed an answer to

the Amended Complaint nor filed any motion before the state court or this Court regarding the

claims asserted against it, the best course of action is for this Court to exercise its discretion not

to rule upon the supplemental state law claims and remand them to the state court from which

they were removed.

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Cuyahoga Land Bank’s Motion to Dismiss .

The only role allegedly played by Cuyahoga County Land Bank in the facts of this case

was to be named as “Owner” on the Building Permit granting permission for the subject structure

to be demolished. (ECF #1-2, Amended Complaint, PageID #24, | 19). There is no claim that

Cuyahoga Land Bank had any role in declaring the property or structure a “public nuisance,” any

role in condemning the property, or any role in a “taking” of the property for public use. Thus,

for each of these reasons, as well as for the reasons stated above in connection with the City of

Cleveland’s Motion to Dismiss if Cuyahoga Land Bank had in fact been involved in any of these

roles, Plaintiff VJH Homes’ federal claims do not have the requisite “facial plausibility” to

survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Accordingly, any federal claims asserted against Cuyahoga Land Bank are dismissed.

Similar to this Court’s ruling on the City of Cleveland’s motion to dismiss in connection

with any state law claims raised in the Amended Complaint, given that all the federal claims pled

in the Amended Complaint against Cuyahoga County Land Bank over which this Court has

original jurisdiction have been dismissed, the Court finds that the interests of economy,

convenience, fairness, and comity are best served by remanding the remaining state law claims

back to the Cuyahoga County Court of Common Pleas under 28 U.S.C. § 1367(c)(3).

The Claims Against Defendant Great Lakes Deconstruction

Plaintiff VJH Homes’ Amended Complaint (ECF #1-2), also names Great Lakes

Deconstruction as a Defendant, whose only role in the case was being named as the demolition

contractor on a building permit obtained from the City of Cleveland by Defendant Cuyahoga

County Land Bank to raze the structure located at 3606 East 74" Street, in Cleveland, Ohio

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owned by VJH Homes. (ECF #1-2, Amended Complaint, § 19 & ECF #16-1, Plaintiff's

Supplemental Exhibits in Support of Amended Complaint, PageID #348). Although Defendant

Great Lakes Deconstruction did not file a motion to dismiss (or enter an appearance in the case),

because there is no factual or legal basis asserted in the amended complaint identifying any

alleged wrongdoing by Great Lakes Deconstruction (in fact, the structure is still standing), and it

is patently obvious that plaintiff cannot prevail on its “federal claims” against Great Lakes

Deconstruction (in fact, no identifiable federal claim is even asserted against it), any federal law

claims against Great Lakes Deconstruction are DISMISSED. See Fontaine v. JPMorgan Chase

Bank, N.A., 42 F. Supp. 3d 102, 106-07 (D.D.C. 2014) (Courts may dismiss complaint sua sponte

when there is simply no factual or legal basis for alleged wrongdoing by defendants, such that it

is patently obvious that plaintiff cannot prevail on claims); State ex rel. Allen v. Goulding, 156

Ohio St. 3d 337, 338 (2019) (“A court ‘may dismiss a complaint sua sponte and without notice

when the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in

the complaint’”).

Plaintiff’s Motion for Temporary Restraining Order and Permanent Injunction

At the time this case was removed from the Cuyahoga County Court of Common Pleas to

this Court (ECF #1, Notice of Removal), there was still on the Common Pleas Court’s docket a

date set for hearing Plaintiff VJH Homes’ Motion for Temporary Restraining Order and for

Preliminary Injunction (ECF #1-4, PageID #53). (See ECF #1-3, Docket Report from Court of

Common Pleas, PageID #37, Entry of 03/24/23). This Court has dismissed each of Plaintiff VJH

Homes’ federal law claims. Thus, Plaintiff's claim for declaratory and injunctive relief, insofar

as such claim may be based on federal law, is now moot. To the extent this Count of the

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Amended Complaint may be based on state law claims, such claims may be addressed on remand

to the Cuyahoga County Court of Common Pleas.

CONCLUSION

For the foregoing reasons, Motion of Defendant City of Cleveland to Dismiss (ECF #4) is

GRANTED as to the federal law claims of the Amended Complaint asserted against Defendant

City of Cleveland (ECF #1-2), specifically any and all claims asserted under the “Takings

Clause” of the Fifth Amendment to the U.S. Constitution and any and all claims alleging a

deprivation of “due process” or federal civil rights under 42 U.S.C. § 1983, et. seq., or any other

statutory provision of federal law.* The state law claims asserted against Defendant City of

Cleveland are hereby REMANDED to the Cuyahoga County Court of Common Pleas for

disposition in that court.

Defendant Cuyahoga County Land Reutilization Corp. Motion to Dismiss (ECF #12) is

also GRANTED as to the federal claims of the Amended Complaint asserted against Defendant

Cuyahoga County Land Bank, specifically any and all claims asserted under the “Takings Clause”

of the Fifth Amendment to the U.S. Constitution and any and all claims alleging a deprivation of

“due process” or federal civil rights under 42 U.S.C. § 1983, et. seq., or any other statutory

provision of federal law’ The state law claims asserted against Defendant Cuyahoga County

The Amended Complaint does not plead any specific cause of action under either 42

U.S.C. § 1983, et seq., or other federal statute against Defendant City of Cleveland, but appears

to possibly do so inferentially by seeking “attorneys” fees, fines, and/or treble damages as

mandated and/or permitted by statute,” in possible reference to a claim for the deprivation of

federal civil rights under 42 U.S.C. § 1983, et seq, or other provision of federal statutory law.

The Amended Complaint does not plead any specific cause of action under either 42

U.S.C. § 1983, et seq., or other federal statute against Defendant Cuyahoga County Land Bank,

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Land Bank are hereby REMANDED to the Cuyahoga County Court of Common Pleas for

disposition in that court.

Any federal claims of the Amended Complaint (ECF #1-2) asserted against Defendant

Great Lakes Deconstruction, Inc., insofar as any federal claims are asserted against it, are

DISMISSED. Any remaining state law claims against Defendant Great Lakes Deconstruction are

hereby REMANDED to the Cuyahoga County Court of Common Pleas for disposition in that

court.

And, to the extent that Count Five of the Amended Complaint, seeking a declaratory

judgment and injunctive relief against all Defendants, is based on federal law claims, the federal

law claims of that Count are DISMISSED as moot. Any remaining state law claims intended to

be addressed in that Count are hereby REMANDED to the Cuyahoga County Court of Common

Pleas for disposition in that court.

Accordingly, the Clerk of Court is directed to REMAND the remaining claims of this

matter to the Cuyahoga County Court of Common Pleas. .

but appears to possibly do so inferentially by seeking “attorneys’ fees, fines, and/or treble

damages as mandated and/or permitted by statute,” in possible reference to a claim for the

deprivation of federal civil rights under 42 U.S.C. § 1983, et seq, or other provision of federal

statutory law.

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IT IS SO ORDERED.

DONALD C. NUGENT

United States District Jud

DATED: / tay 28, 2023

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