# CHKRS, LLC v. City of Dublin

> District Court, S.D. Ohio · August 22, 2019

URL: https://www.frixlaw.com/law-library/cases/10373659

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 22, 2019
- **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/10373659

## How later opinions describe it (automated extraction)

- noting that a plaintiff must give specific, well-pleaded facts, not just conclusory allegations
- affirming district court’s disqualification of counsel from representing her husband and child because she would be “providing substantial factual testimony that is central to” the case

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHKRS, LLC,

Plaintiff,

v. Civil Action 2:18-cv-1366
Magistrate Judge Jolson
THE CITY OF DUBLIN, OHIO, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion to Dismiss (Doc. 10), Plaintiff’s
Motion for Leave to File Amended Complaint (Doc. 13), and Plaintiff’s Second Motion for Leave
to File Amended Complaint (Doc. 24). For the reasons that follow, Plaintiff’s Second Motion for
Leave to File Amended Complaint (Doc. 24) is GRANTED conditioned on the terms set forth in
this Opinion and Order. Further, Defendants’ Motion to Dismiss (Doc. 10) and Plaintiff’s First
Motion for Leave to File Amended Complaint (Doc. 13) are DENIED as moot.
I. BACKGROUND
This case concerns construction work performed by Defendants on Plaintiff’s driveway.
Plaintiff is the current owner and prior tenant of 6310 Riverside Drive in Dublin, Ohio. (Doc. 24,
Proposed Am. Compl., ¶ 2). Defendants are the City of Dublin, Ohio and Dana McDaniel,
Dublin’s City Manager. (Id. at 1).
In July 2015, Plaintiff entered into a three-year lease (the “Lease”) with an option to
purchase the property at 6310 Riverside Drive (the “Property”). (Id., ¶ 15). Riverside Drive is a
major road connecting Defendant Dublin to downtown Columbus, Ohio. In relevant part, it runs
North-South along the Scioto River. The Property abuts Riverside Drive on the east side and is
just south of the intersection of Riverside Drive and State Route 161. The Property’s driveway
runs East-West to provide ingress and egress to Riverside Drive.
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Several months later in September 2015, Defendant Dublin “sued to appropriate a
permanent bike path easement and a temporary construction easement” on the Property. (/d., 17).
The parties—along with the then current owner of the Property, Karen Friedman—litigated the
appropriation in the Franklin County Court of Common Pleas, Ohio Tenth District Court of
Appeals, and Ohio Supreme Court (the “State Court Action”). (Ud., □□□ 17-22, 34, 37-39).
While the State Court Action was pending, in November 2015, Defendant Dublin began
construction on the Property and “over several months, cleared and regraded the property;
constructed a wall separating the property from the bike path and the street that obstructed visibility
of pedestrians and bicycles on the bike path, and vehicles on Riverside Drive; and removed the
existing driveway access to Riverside Drive.” (d., 11). According to Plaintiff, the driveway
was not part of the appropriation litigated in the State Court Action. Ud., 4 12).

Relevant here is the portion of Plaintiff’s driveway and related improvements in between
Riverside Drive to the west and the bike path to the east (the “Driveway”). (See id., ¶ 2 (“The
section of driveway, at issue, is in the right of way granted for a highway easement.”)). A highway
easement on the Property encompasses the Driveway. (Id.). In removing the Driveway, Defendant

Dublin “relocated the driveway without notice or an opportunity to be heard” and “failed to comply
with its Codified Ordinances regarding driveway improvements and Ohio Department of
Transportation requirements regarding driveway access on State highways.” (Id., ¶ 12).
Defendant Dublin subsequently altered the Driveway on two additional occasions in 2016,
changing the grade of the land and moving the Driveway itself. (Id., ¶¶ 42–44).
As a result of Defendant Dublin’s actions, Plaintiff alleges, the Driveway “is unsafe.” (Id.,
¶ 48). And “[a] vehicle entering from Riverside Drive and ascending to the bike path cannot see
anyone approaching the driveway from the south.” (Id.). Plaintiff further alleges that the
Driveway’s slope does not meet ODOT’s maximum recommended driveway slope or
recommended maximum intersection angle. (Id., ¶ 49).

Plaintiff filed a four-count Complaint under 42 U.S.C. § 1983 on November 2, 2018. (Doc.
2). It alleged violations of its Fourth, Fifth, and Fourteenth Amendment rights based on
Defendants’ alleged seizure and removal of the Driveway. (See generally id.). Defendants
subsequently filed a Motion to Dismiss (Doc. 10), and Plaintiff filed a Motion for Leave to File
Amended Complaint (Doc. 13).
After the Supreme Court issued its decision in Knick v. Twp. of Scott, Pennsylvania, 139
S. Ct. 2162 (2019), Plaintiff filed its Second Motion for Leave to File Amended Complaint (Doc.
24). That Motion seeks to add a takings claims consistent with Knick in addition to its procedural
and substantive due process claims under the Fourteenth Amendment. (Doc. 24, ¶¶ 68–76). It
also drops two claims included in the original Complaint (Doc. 2) and the initial proposed
Amended Complaint (Doc. 13): a Fourth Amendment claim for illegal seizure of property and a
Fourteenth Amendment equal protection claim. The Motions are fully briefed and ripe for
resolution.

II. SECOND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (Doc. 24)
A. Standard of Review
Trial courts enjoy broad discretion in deciding motions for leave to amend. See Gen. Elec.
Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). When a party seeks leave of court
to amend a pleading, “[t]he court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). This rule “reinforce[s] the principle that cases ‘should be tried on their merits rather
than the technicalities of pleadings.’” Inge v. Rock Finan. Corp., 388 F.3d 930, 936 (6th Cir. 2004)
(quoting Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)). In interpreting this Rule,
“[i]t should be emphasized that the case law in this Circuit manifests liberality in allowing
amendments to a complaint.” Parchman v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018) (citation
and internal quotation marks omitted).
In the absence of any apparent or declared reason—such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.—the leave sought
should, as the rules require, be “freely given.”

Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 640–41 (6th Cir. 2018) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
However, “[o]nce a pleading deadline has passed, litigants must meet the higher threshold
for modifying a scheduling order found in Rule 16(b).” Shane v. Bunzl Distribution USA, Inc.,
275 F. App’x 535, 536 (6th Cir. 2008) (citing Leary v. Daeschner, 349 F.3d 888, 906–07 (6th Cir.
2003)). “[T]he touchstone of the good cause inquiry under Rule 16(b) is whether the moving party
acted diligently in attempting to meet the deadline set forth in the pretrial order.” Permasteelisa
CS Corp. v. Airolite Co., LLC, No. 2:06-cv-0569, 2007 WL 1683668, at *2 (S.D. Ohio June 8,
2007). The Court must also consider “the potential prejudice to the nonmovant.” Leary, 349 F.3d
at 909. Because the deadline for amending the pleadings has passed (see Doc. 18), the Court

considers both Rules 15 and 16 in ruling on Plaintiff’s Second Motion for Leave to File Amended
Complaint (Doc. 24).
B. Discussion
Plaintiff requests leave to file its proposed Amended Complaint. (See Doc. 24).
Defendants argue that Plaintiff’s Motion should be denied because: (1) Plaintiff’s proposed
amendments are futile; (2) Plaintiff has acted in bad faith; (3) Plaintiff has repeatedly failed to cure
deficiencies in the Complaint; and (4) Defendants will suffer undue prejudice if Plaintiff’s
amendments are permitted. The Court addresses each of these arguments in turn.
1. Good Cause
Although neither party addresses the Rule 16(b) good cause standard, (see generally Docs.

24–26), the Court finds that Plaintiff has satisfied it here. The deadline for motions to amend was
June 3, 2019. But on June 21, 2019, the Supreme Court issued its decision in Knick v. Township
of Scott, Pennsylvania, 139 S. Ct. 2162 (2019), authorizing property owners to bring takings claims
in federal court without first exhausting their state remedies. Two weeks later, Plaintiff filed the
instant Motion seeking to file the proposed Amended Complaint, which adds a takings claim in
light of Knick. Because Knick was not issued prior to the deadline for amendments, Plaintiff
demonstrated the necessary diligence to establish good cause by promptly filing the proposed
Amended Complaint within weeks of Knick’s issuance. The Court, therefore, turns to the Rule 15
analysis.
2. Futility
Although Rule 15 encourages leave to amend be freely granted, a court “need not give
leave to amend when doing so would be futile.” SFS Check, LLC v. First Bank of Del., 774 F.3d
351, 355 (6th Cir. 2014) (citing Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th

Cir. 2000)). “Amending would be futile if a proposed amendment would not survive a motion to
dismiss.” SFS Check, 774 F.3d at 355 (citing Riverview Health Inst. LLC v. Med. Mut. of Ohio,
601 F.3d 505, 512 (6th Cir. 2010)).
Rule 12(b)(6) of the Federal Rules of Civil Procedure requires that a complaint “state a
claim to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556
U.S. 662, 663–64, 678 (2009); Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). In reviewing
the complaint, a court must construe it in favor of the plaintiff and accept all well-pleaded factual
allegations as true. Twombly, 550 U.S. at 555–56. “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.” Iqbal, 556 U.S. at 678 (emphasis added) (citing

Twombly, 550 U.S. at 556).
On the other hand, a complaint that consists of “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555; see also
Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a plaintiff must give
specific, well-pleaded facts, not just conclusory allegations). In other words, while “detailed
factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain statement”
rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 677–78 (quoting Twombly, 550 U.S. at 555).
a. Preclusion
Defendants contend that Plaintiff’s claims are barred by the doctrine of res judicata. (See
Doc. 10 at 4–5; Doc. 16 at 8; Doc. 22 at 2–3; Doc. 25 at 7–8). Specifically, they argue that issue
preclusion prevents Plaintiff from relitigating the exact same facts and legal issues that were raised

in the State Court action. (See, e.g., Doc. 10 at 4–5).
Under the Constitution’s Full Faith and Credit Clause, and the Full Faith and Credit Statute,
28 U.S.C. § 1738, “a federal court must give to a state-court judgment the same preclusive effect
as would be given that judgment under the law of the State in which the judgment was rendered.”
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). When a party relies on a
prior state court action as the basis for its res judicata argument, courts “look to the state’s law to
assess the preclusive effect it would attach to that judgment.” Ohio ex rel. Boggs v. City of
Cleveland, 655 F.3d 516, 519 (6th Cir. 2011) (citation and internal quotations omitted).
In Ohio, “[t]he doctrine of res judicata encompasses the two related concepts of claim
preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also known

as collateral estoppel.” O’Nesti v. DeBartolo Realty Corp., 862 N.E.2d 803, 806 (Ohio 2007)
(citing Grava v. Parkman Twp., 653 N.E.2d 226, 228 (Ohio 1995)). “Issue preclusion … serves
to prevent relitigation of any fact or point that was determined by a court of competent jurisdiction
in a previous action between the same parties or their privies.” O’Nesti, 862 N.E.2d at 806 (citing
Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 692 N.E.2d 140, 144 (Ohio
1998)). It “applies even if the causes of action differ.” O’Nesti, 862 N.E.2d at 806 (citing Fort
Frye Teachers Assn., 692 N.E.2d at 144).
Issue preclusion has four elements under Ohio law:
(1) The party against whom estoppel is sought was a party or in privity with a party
to the prior action;
(2) There was a final judgment on the merits in the previous case after a full and
fair opportunity to litigate the issue;

(3) The issue must have been admitted or actually tried and decided and must be
necessary to the final judgment; and

(4) The issue must have been identical to the issue involved in the prior suit.

Bowman v. City of Olmsted Falls, 756 F. App’x 526, 531 (6th Cir. 2018) (citing Monahan v. Eagle
Picher Indus., Inc., 486 N.E.2d 1165, 1168 (Ohio Ct. App. 1984)). “The party asserting the
defense bears the burden of proof.” Boggs, 655 F.3d at 520 (citing ABS Indus., Inc. ex rel. ABS
Litig. Trust v. Fifth Third Bank, 333 F. App’x 994, 998 (6th Cir. 2009)).
Defendants have not met their burden of proof here. They maintain that Plaintiff is using
this case to relitigate the appropriation of the bike path easement, which was already deemed lawful
in the State Court Action. (See, e.g., Doc. 10 at 5 (“The facts, arguments, and legal issues CHKRS
continues to raise are all related to the same transaction and occurrence – the City’s lawful partial
appropriation of CHKRS’s property. Those facts, arguments, and legal issues were definitively
determined by the state trial court and appellate courts.”); Doc. 12 at 4 (“Despite CHKRS’s attempt
to improperly alter its claims to avoid dismissal, CHKRS spends almost the entirety of its
Memorandum in Opposition [Doc. 11] addressing the exact same facts, arguments, and legal issues
CHKRS raised in the City’s lawful partial appropriation of CHKRS’s property. And CHKRS does
not dispute that those facts, arguments, and legal issues were definitively determined by the state
trial court and appellate courts.”); Doc. 25 at 8 (“[U]nder Knick, CHKRS is still precluded from
re-litigating the state court appropriation action.”)).
But a fair reading of Plaintiff’s proposed Amended Complaint demonstrates otherwise.
According to Plaintiff, “Dublin illegally seized CHKRS driveway twice, and relocated it, in
violation of the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution.” (Doc. 24, ¶
1). The Driveway, Plaintiff alleges, “is not part of the property Dublin appropriated.” (Id., ¶ 12).
While Defendants initially “ripp[ed] out the existing driveway” in early November 2015, they
subsequently re-entered Plaintiff’s property on two separate occasions, once in late July 2016 and
once in November 2016. (Id., ¶¶ 42–44). On both of those occasions, Defendants performed

additional construction work on the Driveway, altering it to the point that it “is unsafe.” (Id., ¶¶
42–48). As a result, Plaintiff alleges that Defendants committed procedural and substantive due
process violations in violation of the Fifth and Fourteenth Amendments and a Takings Clause
violation under the Fifth Amendment. (Id., ¶¶ 68–76). In short, the proposed Amended Complaint
challenges Defendants’ alleged taking of Plaintiff’s Driveway, not the appropriation of the bike
path easement. (See id., ¶ 40 (“Dublin had no right to seize CHKRS driveway and/or to quick take
the driveway west of the bike path easement as it was not part of the appropriation action.”)).
In fairness to Defendants, Plaintiff’s allegations have changed over time. Compare
CHKRS, LLC v. City of Dublin, Ohio et al., 2:18-cv-00611-MHW-KAJ, Doc. 1, ¶ 1 (“The City of
Dublin seized the frontage of the property at 6310 Riverside Drive for a bike path, under a claim

of the right to quick take the property for road repairs. Dublin lacks the right to quick take property
for a bike path and has no right to appropriate property for a bike path under Ohio law.”) with
CHKRS, LLC v. City of Dublin, Ohio et al., 2:18-cv-1366-KAJ, Doc. 24, ¶ 1 (“CHKRS is before
this Court to obtain the return of its property. Dublin illegally seized CHKRS driveway twice, and
relocated it, in violation of the Fourth, Fifth, and Fourteenth Amendments of the U.S.
Constitution.”). And a reader who skimmed the proposed Amended Complaint could be forgiven
for thinking that the bike path easement was the subject of Plaintiff’s claims given the repeated
references to Defendants’ appropriation of the same and the related State Court Action. (See e.g.,
Doc. 24, ¶ 10, ¶¶ 16–25, ¶¶ 29–39). Yet, after a careful read, the Court finds that Plaintiff is not
attempting to relitigate those issues here.
The question then is whether Plaintiff is attempting to relitigate issues related to
Defendants’ alleged alteration of the Driveway. Defendants have not demonstrated as much.

Rather, they offer cursory arguments that the issues underlying this case “were definitively
determined by the state trial court and appellate courts,” (Doc. 10 at 5), based on stray references
to the Driveway in Plaintiff’s filings in the State Court Action, (see, e.g., id. (“CHKRS argued that
the City ‘severely altered the grade of the property and the driveway . . . .’”); Doc. 12 at 3 (“Below
is a direct quote from CHKRS’s Reply Brief in the Tenth District Court of Appeals,” which stated,
among other things, “[t]he City has come on to CHKRS property and has irreparably damaged the
land, the stone walls and pillars, and ingress and egress to the property.”)). Defendants have not
demonstrated that these issues were “admitted or actually tried and decided” and that they were
“necessary to the final judgment” in the State Court Action, Bowman, 756 F. App’x at 531 (citing
Monahan, 486 N.E.2d at 1168). Nor have they shown that the issues underlying the proposed

Amended Complaint were “identical to the issue[s] involved in the prior suit,” Bowman, 756 F.
App’x at 531 (citing Monahan, 486 N.E.2d at 1168). The Court declines to develop those
arguments on behalf of Defendants. They have, therefore, failed to meet their burden to support
the application of issue preclusion at this stage of the proceedings.
b. Due Process Claims
The Fourteenth Amendment prohibits “any State” from depriving “any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The clause has
both a substantive and a procedural component.” EJS Properties, LLC v. City of Toledo, 698 F.3d
845, 855 (6th Cir. 2012). “Procedural due process is traditionally viewed as the requirement that
the government provide a ‘fair procedure’ when depriving someone of life, liberty, or property;
substantive due process ‘protects individual liberty against certain government actions regardless
of the fairness of the procedures used to implement them.’” Id. (quoting Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992)). Plaintiff alleges that Defendants violated its procedural and

substantive due process rights, which Defendants dispute.
i. Procedural Due Process
Defendants challenge Plaintiff’s procedural due process claim on multiple grounds. First,
they argue that Plaintiff has not alleged sufficient facts to establish that it was deprived of a
property interest protected by the Due Process Clause of the Fourteenth Amendment. (Doc. 12 at
5–6; Doc. 22 at 3–5). Second, even assuming that Plaintiff was deprived of a protected interest,
they contend that Plaintiff was afforded adequate procedural rights before any deprivation
occurred. (Doc. 10 at 8–9; Doc. 22 at 5–6). Third, they assert, Plaintiff has failed to allege facts
demonstrating that the property deprivation resulted from either: (1) an established state procedure
that itself violates due process rights, or (2) a random and unauthorized act causing a loss for which

available state remedies would not adequately compensate the plaintiff. (Doc. 22 at 6–7).
To establish a procedural due process claim, a plaintiff must establish three elements: “(1)
that they have a property interest protected by the Due Process Clause; (2) that they were deprived
of this property interest; and (3) that the state did not afford them adequate pre-deprivation
procedural rights.” Cahoo v. SAS Analytics Inc., 912 F.3d 887, 900 (6th Cir. 2019) (citing
Chandler v. Vill. of Chagrin Falls, 296 F. App’x 463, 469 (6th Cir. 2008)). “[T]he Supreme Court
has held that the hallmark of due process is that a deprivation of a property interest must be
preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cahoo, 912
F.3d at 901 (citation and quotations omitted).
To start, Defendants argue that Plaintiff has failed to allege facts demonstrating that it was
deprived of a protected property interest. “Property interests … are not created by the
Constitution.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). “Rather they are
created and their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law—rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Id. “For example, ‘[a] property interest can be
created by a state statute, a formal contract, or a contract implied from the circumstances.’” Crosby
v. Univ. of Kentucky, 863 F.3d 545, 552 (6th Cir. 2017), cert. denied sub nom. Crosby v. Capilouto,
138 S. Ct. 741, 199 L. Ed. 2d 607 (2018) (quoting Singfield v. Akron Metro. Hous. Auth., 389 F.3d
555, 565 (6th Cir. 2004)).
Under Ohio law, “[a]n owner of property abutting on a public highway possesses … a
private right or easement for the purpose of ingress and egress to and from his property, which
latter right may not be taken away or destroyed or substantially impaired without compensation
therefor.” Warren v. City of Athens, Ohio, 411 F.3d 697, 708–09 (6th Cir. 2005) (quoting State ex

rel. Merritt v. Linzell, 126 N.E.2d 53, 54 (Ohio 1955)). “[T]he state may regulate a property
owner’s easement of access without compensation as long as there is no denial of ingress or
egress.” Warren, 411 F.3d at 709 (citing Castrataro v. City of Lyndhurst, No. 60901, 1992 WL
209578, *2 (Ohio Ct. App. Aug. 27, 1992)). “However, a landowner’s property interest is
infringed even when a government blocks off only part of the property’s access to public roads.”
Warren, 411 F.3d at 709 (collecting cases).
Two Sixth Circuit decisions offer guidance to the Court here. In Warren, the plaintiffs
operated a Dairy Queen near an intersection in Athens, Ohio. 411 F.3d at 700. After the plaintiffs
constructed a drive thru at their restaurant, the City of Athens received “numerous complaints …
about traffic congestion and noise.” Id. at 702. To address these complaints, the City placed a
barricade across one of the two entrances to the Dairy Queen, preventing customers from using
the drive thru and preventing garbage trucks from picking up trash, recycling, and waste grease.
Id. The plaintiffs argued, among other things, that the City’s actions constituted a procedural due

process violation because it failed to provide them with notice and a hearing before depriving it of
its protected interest in ingress and egress to their property.
The Sixth Circuit agreed. See id. at 708–10. Recognizing the plaintiffs’ well-established
interested in ingress and egress to their property under Ohio law, it emphasized that “a landowner’s
property interest is infringed even when a government blocks off only part of the property’s access
to public roads.” Id. at 709 (collecting cases). Because the City’s barriers blocked off “one of the
two means of access to the Dairy Queen,” and because the plaintiffs bore “the sole burden of the
barriers,” the Court concluded that the City “clearly deprived the Warrens of a property interest.”
Id. at 709.
In contrast, in Wayne Watson Enterprises, LLC v. City of Cambridge, the Sixth Circuit

concluded that the plaintiffs were not deprived of a protected property interest based on the City
of Cambridge’s construction of an access road near their property. 751 F. App’x 760 (6th Cir.
2018). The plaintiffs operated a car wash business next door to a Wendy’s restaurant, both of
which were fronted by a public right-of-way. Id. at 761. To improve customers’ access to
Wendy’s, its operators submitted a proposal connecting the public right-of-way to an access road,
which the City subsequently approved. Id. at 761–62. The plaintiffs moved to enjoin the
construction of the access road and sued the City for, among other things, violating its procedural
due process rights. Id. at 762. The district court rejected the plaintiffs’ procedural due process
claim, finding that the plaintiffs had failed to establish a protected property interest. See id. The
Sixth Circuit affirmed that finding. See id. at 763–64.
As in Warren, the Sixth Circuit began its analysis by recognizing the plaintiffs’ interest in
a private right of access, for the purposes of ingress and egress, from private property to a public

road. Id. at 764 (citing Merritt, 126 N.E.2d at 55–56). But the Court noted the limits of that
protected interest:
Mere circuity of travel, necessarily and newly created, to and from real property
does not of itself result in legal impairment of the right of ingress and egress to and
from such property, where any resulting interference is but an inconvenience shared
in common with the general public and is necessary in the public interest to make
travel safer and more efficient.

Wayne Watson Enterprises, 751 F. App’x at 764 (quoting Merritt, 126 N.E.2d at 56). In other
words, “if Watson’s and his customers’ access to and from his business via the public right-of-way
were ‘substantially impaired,’ he would have a property interest at stake; on the other hand, if the
access road merely made travel inconvenient, that would not trigger this property interest.” Wayne
Watson Enterprises, 751 F. App’x at 764. Because it was “undisputed” that the plaintiffs’
customers would “not be blocked from accessing his business from either State Route 209 or the
public right-of-way,” the Court concluded that the construction of the access road was a “possible
inconvenience, not an impairment of a property interest.” Id.
Warren controls the Court’s decision here. Like the plaintiffs in Warren, 411 F.3d at 701,
Plaintiff alleges that it has two ways of ingress and egress to the Property, (see Doc. 24, ¶¶ 1–2,
52, 69). Prior to Defendants’ actions, its primary means of ingress and egress was the driveway
connected to Riverside Drive. (See id., ¶¶ 1–2). Ingress and egress to the Property is also available
by “an approximately 800’ long rough dirt and stone easement to Martin Drive, which is limited
to a single household use.” (Id. ¶ 52). Plaintiff alleges that Defendants’ actions have deprived it
of “a safe useable access to Riverside Drive.” (Doc. 24, ¶ 1; see also id., ¶ 25 (“Since Dublin
entered the property in early November 2015, when it began ripping out the existing driveway it
has not been possible to safely enter or exit the property on the driveway.”); id., ¶ 69 (“CHKRS
had access to and from Riverside Drive before Dublin entered the property and removed the

driveway in late July 2016.”)). In other words, like the City in Warren, Defendants’ actions
blocked off “one of the two means of access to” the Property. 411 F.3d at 709. And, like Warren,
the burden of Defendants’ actions fell solely on Plaintiff, rather than the general public. Id.
Plaintiff has, therefore, alleged sufficient facts to establish that he was deprived of a protected
interest. See id. (“[T]he City of Athens clearly deprived the Warrens of a property interest by
erecting barricades across one of the two means of access to their Dairy Queen.”).
Defendants’ arguments to the contrary are unpersuasive. They contend that this case is
analogous to Wayne Watson Enterprises, not Warren, (Doc. 22 at 4–5), because Plaintiff does not
allege that Defendant “physically denied CHKRS access to its property nor erected physical
barriers as was the case in Warren,” (id. at 5). But at this stage of proceedings, the Court must

construe the proposed Amended Complaint in Plaintiff’s favor and accept all well-pleaded
allegations as true. Applying that standard, the proposed Amended Complaint alleges enough.
(See Doc. 24, ¶¶ 1, 25, 69).
Similarly unpersuasive is the argument that, “unlike the case in Warren,” Plaintiff “was
not the fee owner of the property at the time of the driveway construction.” (Doc. 22 at 5). The
upshot of Defendants’ argument is that Plaintiff lacks a protected interest in ingress and egress to
the Property because Plaintiff was a lessee, rather than the owner, of the Property. But Defendants
do not develop this argument, (see id.), and case law does not support it, see State ex rel. Hilltop
Basic Resources, Inc. v. Cincinnati, 886 N.E.2d 839, 845 (Ohio 2008) (“[T]he court of appeals
properly concluded that the city’s denial of the permit for a curb cut and driveway construction
substantially and unreasonably interfered with Queensgate’s [the lessor’s] right of access to the
abutting public road.”).
Defendants also argue that they afforded Plaintiff adequate procedural protections before

any alleged deprivation of Plaintiff’s protected interest. Initially, they argue that the State Court
Action provided Plaintiff with adequate notice and an opportunity to be heard about the issues
raised in this case. (Doc. 10 at 8–9). But that argument assumes the instant case is an attempt to
relitigate the State Court Action, and the Court has already concluded that this assumption is
erroneous. See supra Section II(B)(2)(a).
Defendants further contend that the highway easement to which the Driveway is subject
“undercuts CHKRS’s position that it was not provided with notice and an opportunity to be heard.”
(Doc. 22 at 6). Defendants appear to suggest, because of the highway easement, they were required
to provide Plaintiff little, if any, notice before they began work on the Driveway. That does not
strike the Court as implausible. But, again, Defendants do little to develop this argument. While

Defendants attach a copy of the relevant easement, (see Doc. 22-1), they fail to explain its legal
significance, (see Doc. 22 at 6). The Court declines to develop the argument for Defendants. See
Abdulsalaam v. Franklin Cty. Bd. of Comm’rs, 637 F. Supp. 2d 561, 576 (S.D. Ohio 2009), aff’d,
399 F. App’x 62 (6th Cir. 2010) (collecting cases) (holding that undeveloped arguments are
waived).
Finally, Defendants assert that Plaintiff’s procedural due process claim is futile because it
“makes absolutely no allegation in its Proposed Amended Complaint that the City either engaged
in a random and unauthorized act, or that CHKRS’s purported deprivation resulted from an
established state procedure that itself violates due process rights.” (Doc. 22 at 7 (internal
quotations omitted)).
“[A] § 1983 plaintiff can prevail on a procedural due process claim by demonstrating that
the property deprivation resulted from either: (1) an established state procedure that itself violates

due process rights, or (2) a ‘random and unauthorized act’ causing a loss for which available state
remedies would not adequately compensate the plaintiff.” Warren, 411 F.3d at 709 (quoting
Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991)). “A plaintiff alleging the first element
of this test would not need to demonstrate the inadequacy of state remedies.” Warren, 411 F.3d at
709 (citing Moore v. Bd. of Educ. of Johnson City Sch., 134 F.3d 781, 785 (6th Cir. 1998)). “If
the plaintiff pursues the second line of argument, he must navigate the rule of Parratt v. Taylor
… , which holds that a state may satisfy procedural due process with only an adequate
postdeprivation procedure when the state action was ‘random and unauthorized.’” Warren, 411
F.3d at 709 (citation omitted). “In this context, ‘unauthorized’ means that the official in question
did not have the power or authority to effect the deprivation, not that the act was contrary to law.”

Id. (citing Zinermon v. Burch, 494 U.S. 113, 138 (1990)).
The Sixth Circuit “has wisely noted, however, that not all due process challenges can be
easily categorized as a direct challenge to an established state procedure or a challenge to random
and unauthorized conduct.” Daily Servs., LLC v. Valentino, 756 F.3d 893, 907 (6th Cir. 2014)
(citing Mertik v. Blalock, 983 F.2d 1353, 1365 (6th Cir. 1993)).
Specifically, it is not necessarily the case that a due process challenge to state action
not involving an established state procedure must automatically come within the
Parratt and Hudson rule governing random and unauthorized acts. Where, as here,
a plaintiff claims that the conduct at issue was not random and unauthorized but
also does not challenge the adequacy of an established state procedure, we
undertake a careful scrutiny of the three Zinermon factors to determine whether the
Parratt doctrine applies.
Courts may dismiss a procedural due process claim if the state provides an adequate
postdeprivation remedy and (1) the deprivation was unpredictable or random; (2)
predeprivation process was impossible or impracticable; and (3) the state actor was
not authorized to take the action that deprived the plaintiff of property or liberty.
Valentino, 756 F.3d at 907 (internal citations and quotations omitted).
To the extent Defendants argue that Plaintiff failed to categorize its procedural due process
claim as a direct challenge to an established state procedure or a challenge to random and
unauthorized conduct, that is not fatal to its claim. See id. (citing Mertik, 983 F.2d at 1365).
Further, to the extent that Defendants argue that Plaintiff failed to allege facts establishing a claim
under either of those standards, they have not developed that argument. (See Doc. 22 at 7). Even
if they had not waived this argument, see Abdulsalaam, 637 F. Supp. 2d at 576 (collecting cases),
it fails on the merits. Plaintiff has alleged that it was deprived of a protected property interest
without pre-deprivation notice and a hearing. (Doc. 24, ¶¶ 12, 26, 43, 62). And it has explicitly
alleged that it has no adequate remedy at law to challenge that deprivation. (Id., ¶ 64). “Whether
seen as an attack on an established state procedure or as an attack on a ‘random and unauthorized’
act,” Plaintiff’s claim is “not subject to the Parratt rule.” Warren, 411 F.3d at 710. And on the
allegations before the Court, “[i]t clearly would not have been ‘impossible’ for the City to grant a
predeprivation hearing to” Plaintiff, id. (citation omitted). “Moreover, even if the Parratt rule did
apply, it is not clear that any state remedies were available to” Plaintiff. Id.
Defendants have, therefore, not demonstrated that Plaintiff’s procedural due process claim

is futile.
ii. Substantive Due Process
The substantive component of “the Due Process Clause . . . bars certain arbitrary, wrongful
government actions ‘regardless of the fairness of the procedures used to implement them.’”
Zinermon, 494 U.S. at 125 (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). A violation
of substantive due process “occurs when arbitrary and capricious government action deprives an
individual of a constitutionally protected property interest.” Warren, 411 F.3d at 707–08. A
plaintiff must show “arbitrary and capricious action in the strict sense,” meaning a decision that
either lacks a “rational basis” or is “willful and unreasoning, without consideration and in disregard

of the facts or circumstances of the case.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1221–
22 (6th Cir. 1992). “Under this deferential standard of review, it is extremely rare for a federal
court to vitiate the action of a [governmental entity] as a violation of substantive due process.”
Wayne Watson Enterprises, LLC v. City of Cambridge, 243 F. Supp. 3d 908, 925 (S.D. Ohio 2017),
aff’d, 751 F. App’x 760 (6th Cir. 2018) (citation, quotations, and alteration omitted); see also
Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 574 (6th Cir. 2008) (holding that “[a] court
should not interfere with local” land use “decisions unless the locality’s action has no foundation
in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to
the public health, the public morals, the public safety or the public welfare.” (citation and
quotations omitted)).

Construing the proposed Amended Complaint in Plaintiff’s favor, it alleges that
Defendants entered the Property on two separate occasions, (Doc. 24, ¶¶ 42–44), “ripped out the
existing driveway,” (id., ¶ 25), and made it impossible “to safely enter or exit the property on the
driveway,” (id.). As part of their construction work on the Driveway, Defendants “removed the
old stone wall which had been rebuilt by Smith, destroyed the old stone pillars, and removed stone
and dirt from the hill west of the bike path lowering the grade and destabilizing the hill.” (Id., ¶
42). Defendants “did not institute proceedings under state law” before destroying the Driveway,
and they “did not have council authorization to remove” it either. (Id., ¶ 43). Defendants’ actions
were not for the purpose of “road repairs.” (Id., ¶ 63).
Having already concluded that, as alleged, Plaintiff has pled a deprivation of a
constitutionally protected property interest, the remaining question is whether Defendants’ actions
were arbitrary and capricious. Warren, 411 F.3d at 707–08. And that is a close call, even under
Rule 8’s liberal standard. But accepting Plaintiff’s allegations as true (even if doubtful in fact),

Twombly, 550 U.S. at 555, the allegations meet that high bar at this stage of the proceedings.
According to Plaintiff, Defendants destroyed the Driveway and its related improvements without
legal authority and for a purpose unrelated to public welfare. In the Court’s view, as alleged, these
actions were “willful and unreasoning,” and therefore violative of Plaintiff’s substantive due
process rights.
The Court, however, notes what is not in the record at this point. Construction related to
the Driveway was presumably performed pursuant to some legal authority, whether it be a state
statute or an act of City Council. Further, Defendants presumably performed the construction
related to the Driveway for some purpose with a “substantial relation to the public health, the
public morals, the public safety or the public welfare,” Braun, 519 F.3d at 574 (citations and

quotations omitted). At this stage, Defendants could have presented the Court documents or
information subject to judicial notice that would have demonstrated as much. But, because they
have not, Plaintiff may proceed with its substantive due process claim. The Court, however, is
skeptical that Plaintiff’s claim will ultimately succeed considering the Sixth Circuit’s demanding
standard for such a claim. See id. (holding that “[a] court should not interfere with local” land use
“decisions unless the locality’s action has no foundation in reason and is a mere arbitrary or
irrational exercise of power having no substantial relation to the public health, the public morals,
the public safety or the public welfare” (citation and quotations omitted)).
c. Defendant McDaniel
Next, Defendants argue that Plaintiff’s claims against Defendant McDaniel in his
individual and official capacity should be dismissed because: (1) Plaintiff offers only conclusory
allegations to establish Defendant McDaniel’s liability; (2) Defendant McDaniel is entitled to

qualified immunity. (Doc. 10 at 11–13; Doc. 12 at 7–8).
Resolving these arguments is made difficult by the parties’ cursory briefing on these
issues. To be fair, Defendants briefed this issue in relation to their Motion to Dismiss, which
concerned the original Complaint (Doc. 2), rather than the proposed Amended Complaint (Doc.
24) before the Court now. (See Docs. 10, 12). Many of the limited allegations in the original
Complaint regarding Defendant McDaniel were, in fact, conclusory. (See, e.g., Doc. 2, ¶ 31
(“Dana McDaniel, Dublin’s City Manager, is its chief administrative officer and is responsible for
the unlawful seizure of CHKRS property.”). But the proposed Amended Complaint contains new,
non-conclusory allegations regarding Defendant McDaniel’s involvement in Defendant Dublin’s
misconduct. (See, e.g., Doc. 24, ¶ 51 (“McDaniel also approved the installation of the current

driveway”)). And Defendants have not addressed these additional allegations in their subsequent
briefing. The Court concludes that the allegations are sufficient to state a claim.
Nor is Defendant McDaniel entitled to qualified immunity at this stage of the proceedings.
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Watson v. Pearson, 928 F.3d 507, 510 (6th Cir.
2019) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances
two important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “To determine
whether an officer is entitled to qualified immunity,” courts “evaluate two independent prongs:
whether the officer’s conduct violated a constitutional right, and whether that right was clearly
established at the time of the incident.” Watson, 928 F.3d at 510 (citing Pearson, 555 U.S. at 232)

Of note, “it is generally inappropriate for a district court to grant a 12(b)(6) motion to
dismiss on the basis of qualified immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir.
2015). Defendants have not offered the Court any reason to depart from that general rule. The
Court has already concluded that the proposed Amended Complaint contains sufficient factual
allegations to establish that Defendants’ conduct violated Plaintiff’s constitutional rights. See
supra Section II(B)(2)(b). And while Defendants have baldly asserted that “the constitutional right
that was allegedly violated was ‘not clearly established,’” (Doc. 10 at 11–12), they have not
developed this argument or cited any authority to support it, (see id.). Qualified immunity does
not protect Defendant McDaniel at this stage of proceedings.
3. Bad faith

Whether or not Plaintiff’s claims are futile, Defendants insist that Plaintiff has acted in bad
faith by repeatedly changing its factual allegations and legal claims to avoid dismissal. (See Doc.
25 at 4–6). Bad faith is a fact-intensive inquiry and cannot be determined by reliance on bright-
line rules. To borrow from Justice Stewart, you know it when you see it. See Jacobellis v. State
of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). The Court does not see it here.
Three basic principles guide the Court’s decision. First, “case law in this Circuit manifests
liberality in allowing amendments to a complaint.” Parchman, 896 F.3d at 736 (citation and
internal quotation marks omitted). In this context, multiple amendments of the complaint do not,
by themselves, support a finding of bad faith. But the general rule in favor of liberal amendments
is not without limits, and further attempts at amendment by Plaintiff may lead the Court to reach
a different conclusion with respect to a finding of bad faith.
Second, a “plaintiff typically will not be precluded from amending a defective complaint
in order to state a claim on which relief can be granted.” 6 Charles Alan Wright and Arthur Miller,

Fed. Prac. & Proc. Civ. § 1487 (3d ed. 2019). Defendants argue that Plaintiff has engaged “in
tactical maneuvers to force the court to consider various theories seriatim . . . as demonstrated by
its pattern of seeking to change its allegations after reviewing the City’s legal argument.” (Doc.
25 at 4). But in the three different complaints filed in this action, Plaintiff has consistently alleged
that Defendants violated his constitutional rights by altering the Driveway. (See Doc. 2, ¶ 1
“CHKRS is before this Court to obtain the return of its property illegally seized by the City of
Dublin, Ohio in violation of the Fourth Amendment of the U.S. Constitution and the Fourteenth
Amendment of the U.S. Constitution. Dublin has twice seized CHKRS driveway and relocated
it.”); Doc. 13, ¶ 1 (“CHKRS is before this Court to obtain the return of its property. Dublin illegally
seized CHKRS driveway twice, and relocated it, in violation of the Fourth, Fifth, and Fourteenth

Amendments of the U.S. Constitution.”); Doc. 24, ¶ 1 (“CHKRS is before this Court to obtain the
return of its property. Dublin illegally seized CHKRS driveway twice, and relocated it, in violation
of the Fourth, Fifth, and Fourteenth Amendments of the U.S. Constitution.”). To the extent
Plaintiff has added substantive factual allegations in response to Defendants’ Motion to Dismiss,
the Court does not view those changes as evidence of bad faith. See 6 Charles Alan Wright and
Arthur Miller, Fed. Prac. & Proc. Civ. § 1487 (3d ed. 2019).
Finally, “[w]hen the court inquires into the good faith of the moving party, it typically will
take account of the movant’s delay in seeking the amendment.” Id. The initial Amended
Complaint was filed well in advance of the deadline for motions to amend, and the current
proposed Amended Complaint was promptly filed after the Supreme Court’s decision in Knick v.
Twp. of Scott, Pennsylvania, 139 S. Ct. 2162 (2019), which permits Plaintiff to proceed with a
takings claim in federal court. The lack of delay present here is in stark contrast to other cases in
which courts have made a finding of bad faith. See, e.g., Indus. Assets, Inc. v. Capital Equip. Sales

Co., 116 F.3d 1480, 1997 WL 359061, at *3–4 (6th Cir. 1997) (holding that a plaintiff, who moved
to amend in response to a summary judgment motion, acted in bad faith by failing to take advantage
of an earlier opportunity to amend and instead relying on a previous “claim that it knew was
improper, but which was more favorable than the appropriate cause of action”); Cotton Bros.
Baking Co., Inc. v. Industrial Risk Insurers, 941 F.2d 380 (5th Cir. 1991) (affirming district court’s
denial of amendment of complaint to change the name of defendant from the subsidiary
corporation to the parent corporation as an eleventh-hour ploy to defeat a compulsory counterclaim
by disclaiming the existence of a contract that the equipment supplier had spent three and a half
years relying on in litigation); Sandcrest Outpatient Servs. v. Cumberland Cnty. Hosp. Sys., Inc.,
853 F.2d 1139, 1148–49 (4th Cir. 1988) (affirming denial of motion to amend because amendment

would have forced the defendants to alter their litigation strategy and appeared “prompted only by
the concern that [the plaintiff] would lose on the summary judgment motion”); Trans Video
Electronics, Ltd. v. Sony Electronics, Inc., 278 F.R.D. 505 (N.D. Cal. 2011), aff’d per curiam, 475
F. App’x 334 (Fed. Cir. 2012) (denying leave to amend the complaint to add a new patent-
infringement claim because (i) the motion had been made only after an adverse claim-construction
order had been issued against the patentee and after briefing had closed on the competitor’s motion
for summary judgment on the patentee’s existing claim, (ii) the patentee had made a tactical
decision not to include the “new” claim at the outset of the litigation and shifted its strategy only
after the “writing was on the wall,” and (iii) the motion had been taken as a “last-ditch” attempt to
avoid dismissal of the action in its entirety). The timing of Plaintiff’s proposed amendments,
therefore, does not weigh in favor of a finding of bad faith.
Ultimately, where Defendants see evidence of Plaintiff’s alleged bad faith, the Court sees
evidence of careless drafting and a lack of attention to detail. An example illustrates as much. In

the original Complaint, Plaintiff’s claims were based on Defendants’ alleged actions in altering its
driveway to the east of the bike path easement. (See, e.g., Doc. 2, ¶ 2 (“Dublin also removed the
existing driveway access to Riverside Drive. This section of driveway, east of the bike path
easement, was not part of the property Dublin sought to appropriate.”); id., ¶ 7. (“The driveway
entrance on Riverside Drive is east of the property Dublin appropriated. CHKRs was not provided
notice and an opportunity to be heard before the City ripped out its entrance on Riverside Drive a
second time.”)). But these allegations make no sense—the existing driveway access to Riverside
Drive is the section of the driveway west of the bike path easement. Plaintiff corrected this mistake
in its initial Amended Complaint. (See, e.g., Doc. 13, ¶ 4 (alleging that Defendants “removed the
existing driveway access to Riverside Drive, including the section of driveway west of the bike

path easements in the right of way.”); id., ¶ 39 (“Dublin had no right to seize CHKRS driveway
and/or to quick take the driveway west of the bike path easement as it was not part of the
appropriation action.”)). To be sure, this mistake was careless, and the Court is sure that mistakes
like this made it difficult for Defendants to respond to Plaintiff’s allegations. But it is not evidence
of bad faith. Because other changes to Plaintiff’s complaints were similar in nature, or legitimate
attempts to support its claims with additional factual allegations, a finding of bad faith is not
justified here.
4. Failure to cure deficiencies
Defendants argue that Plaintiff has repeatedly failed to cure legal deficiencies in its
pleadings “despite having at least three proverbial bites at the apple.” (Doc. 25 at 6). As discussed
above, Defendants have not shown that the claims raised in Plaintiff’s proposed Amended

Complaint are futile. See supra Section II(B)(2). Although the original Complaint had several
significant legal deficiencies, see infra Section II(B)(6), the proposed Amended Complaint
addresses those. Defendants’ argument is, therefore, meritless.
5. Undue prejudice
Finally, Defendants argue that they will “be unduly prejudiced despite the fact the parties
have not engaged in any discovery because [they] will be forced to respond to yet another filing
and incur costs in doing so.” (Doc. 25 at 6).
In determining what constitutes prejudice, the court considers whether the assertion
of the new claim or defense would: require the opponent to expend significant
additional resources to conduct discovery and prepare for trial; significantly delay
the resolution of the dispute; or prevent the plaintiff from bringing a timely action
in another jurisdiction.

Rogers v. I.R.S., 822 F.3d 854, 857 (6th Cir. 2016) (quoting Phelps v. McClellan, 30 F.3d 658,
662–63 (6th Cir. 1994)).
These factors do not support a finding of undue prejudice here. First, Plaintiff’s claims in
the proposed Amended Complaint all center on Defendants’ alleged actions related to the alteration
of the Driveway. Regardless of the introduction of the takings claim and the removal of the Fourth
Amendment and Equal Protection claims, the scope of discovery and trial in this case would
essentially be the same for any of the complaints filed in this action. So granting leave to amend
will not “require [Defendants] to expend significant additional resources to conduct discovery and
prepare for trial,” Rogers, 822 F.3d at 857.
Second, as Defendants noted in their Response in Opposition, discovery has not yet begun
in this case. (Doc. 25 at 6). And, as the Court has concluded, the proposed Amended Complaint
will not significantly expand the scope of this case. As a result, granting leave to amend will not
significantly delay the resolution of this case.

Finally, no party has suggested that granting leave to amend will prevent them from filing
a timely action in another jurisdiction. This factor, too, weighs against a finding of undue
prejudice.
At base, Defendants’ concern is that they will “suffer the inherent prejudice of having to
defend against Plaintiff’s new claims.” Ashley Furniture Indus., Inc. v. Am. Signature, Inc., No.
2:11-CV-00427, 2012 WL 1031411, at *3 n.3 (S.D. Ohio Mar. 27, 2012). But “[t]his obligation
to defend is not the type of undue prejudice typically considered in deciding whether to allow
amendment.” Id. (citing Grant v. Target Corp., No. 2:10–cv–823, 2012 WL 871093, at *2–3 (S.D.
Ohio Mar. 14, 2012)). And Defendants have failed to demonstrate that Plaintiff’s amendments
will cause undue prejudice.

6. Attorney’s Fees
Although Defendants have not demonstrated undue prejudice, that does not mean they have
suffered no prejudice at all. As the Court has noted, Plaintiff’s pleadings reflect careless drafting
and a lack of attention to detail. That carelessness has made it difficult for the Court to resolve the
pending motions. But, more importantly, it has prejudiced Defendants by requiring them to brief
two claims that minimal legal research would have demonstrated are futile. (See Doc. 2, ¶¶ 46–
49, 56–58 (alleging Fourth Amendment and Equal Protection claims); Doc. 13, ¶¶ 53–57, 64–66
(same)).
Plaintiff’s leave to file the proposed Amended Complaint is, therefore, conditioned on
compensating Defendants for the attorney’s fees they incurred responding to those futile claims.
See Ruschel v. Nestle Holdings, Inc., 89 F. App’x 518, 521 (6th Cir. 2004) (citing Local 783 Allied
Indus. Workers of Am. v. Gen. Elec. Co., 471 F.2d 751, 756 (6th Cir. 1973)) (“To avoid prejudice

to the opposing party, courts are permitted to balance opposing parties’ interests by imposing
conditions on the applicant’s leave to amend.”). As detailed below, quick legal research would
have made clear that Plaintiff’s Fourth Amendment and Equal Protection claims were meritless.
And the fact that Plaintiff has dropped those claims from the proposed Amended Complaint does
not adequately compensate Defendants for the prejudice they suffered from the inclusion of those
claims in earlier complaints. The Court presents the analysis below to demonstrate the futility of
the earlier claims raised by Plaintiff.
a. Illegal Seizure – Fourth Amendment
Plaintiff previously asserted that Defendants illegally seized the Driveway in violation of
its Fourth Amendment rights. (Doc. 13, ¶¶ 53–57). That claim was futile.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects.” As the text makes clear, its protection encompasses certain real
property, namely the home. “A ‘house,’ for Fourth Amendment purposes, is not limited to the
structure in which a person lives, but by the same token, it also does not include all the real property
surrounding a dwelling.” Collins v. Virginia, 138 S. Ct. 1663, 1681 (2018) (citing Florida v.
Jardines, 569 U.S. 1, 6 (2013); United States v. Dunn, 480 U.S. 294, 300–301 (1987)). “Instead,
a person’s ‘house’ encompasses the dwelling and a circumscribed area of surrounding land that is
given the name ‘curtilage.’” Collins, 138 S. Ct. at 1681 (citing Oliver v. United States, 466 U.S.
170, 180 (1984)). Areas outside the curtilage are not governed by the Fourth Amendment. See
Collins, 138 S. Ct. at 1681 (“Land outside the curtilage is called an ‘open field,’ and a search
conducted in that area is not considered a search of a ‘house’ and is therefore not governed by the
Fourth Amendment.” (citing Oliver, 466 U.S. at 180)); see also Klemic v. Dominion Transmission,
Inc., 138 F. Supp. 3d 673, 695–96 (W.D. Va. 2015) (“The Fourth Amendment’s protections against

unreasonable seizures extend to real property … Those protections are, however, limited to the
home and its curtilage or the area immediately surrounding and associated with the home.”
(internal citations and quotations omitted)); Scott v. Garrard Cty. Fiscal Court, No. 5:08-CV-273-
JMH, 2012 WL 619230, at *1 (E.D. Ky. Feb. 24, 2012) (“Courts have recognized that the Fourth
Amendment’s protection does not extend to real property beyond a home and its surrounding
curtilage.” (citing Oliver, 466 U.S. at 173)).
“While the boundaries of the curtilage are generally ‘clearly marked,’ the ‘conception
defining the curtilage’ is at any rate familiar enough that it is ‘easily understood from our daily
experience.’” Jardines, 569 U.S. at 7 (quoting Oliver, 466 U.S. at 182 n.12). To determine
whether an area is curtilage, courts consider: “(1) the proximity of the area to the home, (2) whether

the area is within an enclosure around the home, (3) how that the area is used, and (4) what the
owner has done to protect the area from observation by passersby.” Morgan v. Fairfield Cty.,
Ohio, 903 F.3d 553, 561 (6th Cir. 2018), reh’g denied (Sept. 25, 2018), cert. denied, 139 S. Ct.
1377 (2019) (citing Dunn, 480 U.S. at 301). “But these factors are not to be applied mechanically:
they are ‘useful analytical tools only to the degree that, in any given case, they bear upon the
centrally relevant consideration—whether the area in question is so intimately tied to the home
itself that it should be placed under the home’s umbrella of Fourth Amendment protection.’”
Morgan, 903 F.3d at 561 (quoting Dunn, 480 U.S. at 301).
As the case law above demonstrates, Plaintiff’s Driveway is not protected by the Fourth
Amendment. First, Plaintiff does not allege that the Driveway is in close proximity to the house.
To the contrary, as alleged in the initial Amended Complaint, the Driveway is at the point furthest
from the Property’s home. (See Doc. 13 at 3, 11, 12 (images detailing the layout of the Property)).

Second, Plaintiff does not allege that the Driveway “is within an enclosure around the home,”
Morgan, 903 F.3d at 561 (citing Dunn, 480 U.S. at 301). Rather than being within an enclosure
around the house, the Driveway is an open area adjacent to a major public highway to the west and
a public bike path to the east. (See Doc. 13 at 3, 11, 12 (images detailing the layout of the
Property)). Third, Plaintiff’s allegations regarding the use of the Driveway indicate it has both
public and private uses. While the Driveway provides Plaintiff’s owner access to Riverside Drive,
it is also “in the right of way granted for a highway easement.” (Doc. 13, ¶ 2). Fourth, Plaintiff
does not allege that it has “protect[ed] the area from observation by passersby,” Morgan, 903 F.3d
at 561 (citing Dunn, 480 U.S. at 301). Nor can it since the Driveway is readily observable by the
public traveling on Riverside Drive or the adjacent bike path. (See Doc. 13 at 3, 11, 12 (images

detailing the layout of the Property)). In short, the Driveway is not “‘so intimately tied to the home
itself that it should be placed under the home’s umbrella of Fourth Amendment protection.’”
Morgan, 903 F.3d at 561 (quoting Dunn, 480 U.S. at 301).
Because the Driveway is outside the Fourth Amendment’s protection, Plaintiff’s Fourth
Amendment claim was futile.
Plaintiff offered limited legal authority in support of its position, citing Soldal v. Cook
County, 506 U.S. 56 (1992) and United States v. James Daniel Good Real Property, 510 U.S. 43
(1993). But that authority corroborates, rather than contradicts, the Court’s conclusion. In Soldal,
the Court concluded that the alleged seizure and removal of appellants’ mobile home under the
supervision of law enforcement officials constituted a seizure within the meaning of the Fourth
Amendment. 506 U.S. at 72. To reach that conclusion, the Court relied on the text of the
Amendment and its prior precedent, finding that “the Amendment protects property as well as
privacy.” Id. at 62. As prior decisions illustrated, that protection was limited to the home and

surrounding area. See id. at 62 n.7 (“In holding that the Fourth Amendment’s reach extends to
property as such, we are mindful that the Amendment does not protect possessory interests in all
kinds of property. This case, however, concerns a house, which the Amendment’s language
explicitly includes, as it does a person’s effects.” (internal citation omitted)). In short, because
Soldal concerned the seizure of a home, the Fourth Amendment was implicated. James Daniel
Good Real Property reinforces that conclusion. See 510 U.S. at 49–52 (holding that the seizure of
a home in civil forfeiture proceedings implicated the Fourth Amendment and Fifth Amendment
and that the home owner could seek vindication of his rights under both Amendments).
Here, Plaintiff’s claim was futile because, unlike Soldal and James Good Real Property,
this case does not concern the alleged seizure of a home or curtilage. Because basic legal research

would have demonstrated as much, an award of attorney’s fees is appropriate here.
b. Equal Protection – Fourteenth Amendment
Plaintiff also previously alleged that it “has been singled out for adverse, irrational
government action by the City of Dublin in violation of the Equal Protection Clause of the
Fourteenth Amendment” because Defendants “did not remove the driveways of the other
properties on Riverside Drive when it appropriated their land for a bike path.” (Doc. 13, ¶ 65(c)).
The Fourteenth Amendment provides, in relevant part, that “[n]o State shall ... deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
“[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every
person within the State’s jurisdiction against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper execution through duly constituted
agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citation and quotations omitted).
“Equal protection claims can be brought by a ‘class of one,’ where the plaintiff alleges that the

state treated the plaintiff differently from others similarly situated and that there is no rational basis
for such difference in treatment.” Warren, 411 F.3d at 710 (citing Olech, 528 U.S. at 564). “A
‘class of one’ plaintiff may demonstrate that government action lacks a rational basis either by
negativing every conceivable basis which might support the government action, or by showing
that the challenged action was motivated by animus or ill-will.” Cahoo, 912 F.3d at 905 (citation
and quotations omitted).
In articulating its Equal Protection claim, Plaintiff’s initial Amended Complaint relied on
a formulaic recitation of the elements rather than substantive factual allegations. (See, e.g., Doc.
13, ¶ 65(b) (“CHKRS has been deprived of those property interests, including a safe useable
driveway access to Riverside Drive and the ability to develop the property to its highest and best

use, by discriminatory treatment in comparison with other similarly situated persons because
Dublin seized CHKRS driveway, removed it and installed a driveway which does not comply with
its Codes or the laws of the State of Ohio for ingress and egress to a state highway and which is
dangerous because it fails to provide adequate sight distance”); id., ¶ 65 (c) (“CHKRS has been
singled out for adverse, irrational government action by the City of Dublin in violation of the Equal
Protection Clause of the Fourteenth Amendment.”); id., ¶ 65(d) (“Dublin has no rational basis for
the discriminatory treatment of CHKRS”). Plaintiff’s arguments in support of its claim were
similarly conclusory. (See, e.g., Doc. 11 at 9–10 (“Dublin did not move the driveway of any other
affected property after installing the bike path. . . . There was no legitimate purpose to remove the
driveway and replace it with an unsafe and unusable driveway. . . . There was no rational basis to
treat CHKRS’ property differently.”).
In short, Plaintiff did not allege facts showing that it was similarly situated to the other
property owners along Riverside Drive whose property was appropriated for the construction of

the bike path and whose driveways were not moved or altered by Defendants. Cf. Warren, 411
F.3d at 710 (“Equal protection claims can be brought by a ‘class of one,’ where the plaintiff alleges
that the state treated the plaintiff differently from others similarly situated and that there is no
rational basis for such difference in treatment.” (citing Olech, 528 U.S. at 564)). Nor did it
articulate facts that demonstrate that there was no rational basis for Defendants’ actions. Cf.
Warren, 411 F.3d at 710 (citing Olech, 528 U.S. at 564). Indeed, Plaintiff made no effort to
“negat[e] every conceivable basis which might support the government action, or by showing that
the challenged action was motivated by animus or ill-will.” Cahoo, 912 F.3d at 905 (citation and
quotations omitted). As such, Plaintiff’s proposed amendment was meritless.
In sum, seeking to add these two claims caused Defendants undue expense. Consequently,

Plaintiff’s leave to file the proposed Amended Complaint is conditioned on compensating
Defendants for the attorney’s fees they incurred responding to those claims. The parties are
ORDERED to meet and confer on a reasonable fee for Defendants’ briefing on these two issues.
Once compensation has been made, Plaintiff shall file a notice of compliance. The Clerk then will
docket Plaintiff’s Amended Complaint for Permanent Injunctive Relief, Declaratory Judgment,
and Damages (Doc. 24 at 6–32; Docs. 24-1–24-6) as the First Amended Complaint.
III. MOTION TO DISMISS (Doc. 10) AND FIRST MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT (Doc. 13)

In light of the Court granting Plaintiff’s Second Motion for Leave to File Amended
Complaint (Doc. 24), Defendants’ Motion to Dismiss (Doc. 10) and Plaintiff’s First Motion for
Leave to File Amended Complaint are DENIED as moot. As detailed above, the Court has,
nonetheless, considered the parties’ briefing on those Motions when ruling on Plaintiff’s Second
Motion for Leave to File Amended Complaint.
IV. POTENTIAL MEDIATION

Absent good cause, the Court will not permit further amendment of the complaint. The
parties, therefore, now know what this case is about and should be able to evaluate the costs and
benefits of continuing to litigate this action. The parties are ORDERED to consider whether
mediation would be productive. On or before September 6, 2019, the parties shall submit a joint
status report that: (1) informs the Court if they intend to mediate and whether the Court needs to
appoint a mediator for this case; and (2) includes a proposed scheduling order that will ensure the
prompt and efficient resolution of this case.
When preparing the joint status report, the parties may wish to consider the following
observations. First, Defendants have previously informed the Court of their intention to file a
motion to disqualify co-counsel for Plaintiff, Ms. Karen Lynn Edwards-Smith. As represented to

the Court, Ms. Edwards-Smith is the spouse of Mr. Robert G. Smith, the managing member of
Plaintiff and the driving force behind this lawsuit.
Generally, a lawyer may not act as an advocate in a matter in which the lawyer is
likely to be a “necessary witness.” Ohio Prof. Cond. R. 3.7(a). A necessary witness
is not simply one who provides relevant or even highly useful testimony. Akron v.
Carter, 942 N.E.2d 409, 416 (Ohio Ct. App. 2010) (citation omitted). Rather, a
necessary witness is one who provides testimony that is material and relevant to the
issues being litigated and that the evidence is unobtainable elsewhere. Id. The
Court should consider “the significance of the matters, weight of the testimony and
availability of other evidence. A party’s mere declaration of an intention to call
opposing counsel as a witness is an insufficient basis for disqualification even if
that counsel could give relevant testimony.” Id.

Whitacre v. Nations Lending Corp., No. 5:19CV809, 2019 WL 3458470, at *2 (N.D. Ohio July
30, 2019). Under the standard articulated above, Defendants have a plausible argument that Ms.
Edwards-Smith is subject to disqualification here. See, e.g., Glazer v. Reimer Law Co., No. 1:09-
cv-1262, Doc. 211 (N.D. Ohio Nov. 2, 2015) (disqualifying plaintiff’s attorney-wife from
representing him, in part, because she was a necessary fact witness); Reo v. University Hospitals
Health Systems, — N.E.3d —, 2019 WL 1601647, at *6–11 (Apr. 15, 2019) (affirming district

court order disqualifying counsel from representing a spouse in a civil action on the basis the
attorney is a “necessary trial witness” per Ohio Rule of Professional Conduct 3.7); Horen v. Toledo
Pub. Sch. Dist. Bd. of Educ., 882 N.E.2d 14, 18–20 (Ohio App. 6th Dist. 2007) (affirming district
court’s disqualification of counsel from representing her husband and child because she would be
“providing substantial factual testimony that is central to” the case). The Court considers this a
threshold issue. If the parties are unable to resolve this action through mediation, the Court will
set an expedited briefing schedule to address the disqualification issue.
Second, this case was filed in November 2018, and the current discovery deadline is
October 1, 2018, (Doc. 18). The Court understands that the parties have yet to begin discovery.
While the Court is willing to grant a reasonable extension of the discovery deadline, any such

extension will be limited given the length of time that this case has been pending.
Third, in their Response in Opposition to Plaintiff’s Second Motion for Leave to File
Amended Complaint, Defendants have attached communications from Mr. Smith to counsel for
Defendants. (See Doc. 25-1). Although Defendants cite these communications as evidence of
Plaintiff’s bad faith, the Court views them as evidence of a lack of civility. The Court, therefore,
reminds the parties and their respective counsel of their obligation to treat one another with respect
and common courtesy. Counsel and the parties shall conduct themselves accordingly.
V. CONCLUSION
For the foregoing reasons, Plaintiff’s Second Motion for Leave to File Amended Complaint
(Doc. 24) is GRANTED conditioned on the terms set forth in this Opinion and Order. Further,
Defendants’ Motion to Dismiss (Doc. 10) and Plaintiff’s First Motion for Leave to File Amended

Complaint (Doc. 13) are DENIED as moot. In addition, the parties are to notify the Court by
September 6, 2019, as to whether they intend to pursue mediation.
IT IS SO ORDERED.

Date: August 22, 2019 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10373659. Public record. Not legal advice.