3799 Mill Run Partners, LLC v. The City of Hilliard

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

3799 MILL RUN PARTNERS, LLC,

Plaintiff, : Case No. 2:19-cv-3655

-vs- Judge Sarah D. Morrison

Magistrate Judge Kimberly A. Jolson

CITY OF HILLIARD,

:

Defendant.

OPINION AND ORDER

This matter is before the Court upon Defendant City of Hilliard’s Motion to Dismiss the

Complaint (ECF No. 8), Plaintiff 3799 Mill Run Partners, LLC’s Memorandum in Opposition

(ECF No. 10), and Defendant’s Reply (ECF No. 11). For the reasons that follow, the Court

GRANTS Defendant’s Motion.

I. FACTUAL ALLEGATIONS

In late 2015 and early 2016, Plaintiff 3799 Mill Run Partners, LLC (“Plaintiff”) began

putting together plans for the construction of a shooting range at 3799 Mill Run Drive in

Hilliard, Ohio. (Compl. ¶¶ 9–12, ECF No. 1). As part of that process, Plaintiff sought an

amendment to the Mill Run Planned Unit Development (“PUD”) to allow a shooting range at the

planned location. (Id. ¶¶ 10, 14).

On April 14, 2016, the Planning and Zoning Commission met and voted against the

proposed modification to the Mill Run PUD. (Id. ¶¶ 15, 16). According to Plaintiff, the “Record

of Action” identified that the requested modification fell under Hilliard City Code Chapter 1117.

(Id. ¶ 16). Pursuant to City rules, Plaintiff then requested a determination from the Hilliard City

Council. (Id. ¶ 18).

On May 23, 2016, the Hilliard City Council met to consider Resolution 16-R-41, which

would “amend the Mill Run PUD to add ‘indoor shooting range’ as a permitted use for the 3799

Mill Run Drive property.” (Id. ¶ 19). The City Council voted 4-3 in favor of overturning the

Planning and Zoning Commission’s negative recommendation as to the proposed modification to

the Mill Run PUD. (Id. ¶ 22). However, Resolution 16-R-41 failed because according to then-

City Law Director Tracy Bradford, a supermajority vote was needed to overturn a negative

recommendation of the Planning and Zoning Commission. (Id. ¶¶ 23–24). Plaintiff claims that

the Hilliard City Council applied the wrong voting requirement to Resolution 16-R-41. (Id. ¶ 25).

Plaintiff alleges that in early 2019, Ms. Bradford confirmed that while city officials were

researching another zoning application to determine how many votes were required to overturn a

negative recommendation from the Planning and Zoning Commission, “they discovered

inconsistent requirements for City Council to approve PUD rezoning applications that differed

from the requirements for Council to approve other types of rezoning cases.” (Id. ¶ 28).

Correspondingly, on January 11, 2019, Hilliard Clerk of Council Lynne Fasone wrote to Hilliard

City Councilmembers:

[T]here is inconsistency in our code between rezoning property to a PUD (Chapter

1117) and rezoning property from one classification or district to another (i.e.,

straight rezoning), in Chapter 1139. Chapter 1117 does not require a super majority

vote of Council to vote differently than what was recommended by P&Z. But for

straight rezonings in Chapter 1139, a super majority is required for Council to vote

differently than what was recommended by P&Z.

(Id. ¶ 29).

According to Plaintiff, “[o]n February 25, 2019, the City amended Chapters 1117 and

113[9] of the codified ordinances to resolve the issue that led to the improper application of a

supermajority requirement.” (Id. ¶ 31). Plaintiff alleges that had the simple majority requirement

been correctly applied on May 23, 2016, as required by Chapter 1117, Plaintiff would have been

approved to move forward with its shooting range development as planned at 3799 Mill Run

Drive. (Id. ¶¶ 30, 32–34). Plaintiff also claims that the City’s actions “were pursuant to a custom,

policy, and/or custom of applying the incorrect voting standard to Chapter 1117 modifications.”

(Id. ¶ 38).

On August 22, 2019, Plaintiff filed a Complaint alleging two counts of violation of 42

U.S.C. § 1983, deprivation of property and liberty interests without due process of law, against

the City of Hilliard (“Defendant”). (ECF No. 1). On October 29, Defendant filed a Motion to

Dismiss the Complaint for failure to state a claim. (ECF No. 8). Plaintiff responded on

November 19 (ECF No. 10), and Defendant filed a reply brief on December 2 (ECF No. 11). The

Motion is now ripe for review.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with

sufficient specificity to “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations

omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to

state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. 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. The plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted unlawfully. Where

a complaint pleads facts that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations omitted). The

complaint need not contain detailed factual allegations, but it must include more than labels,

conclusions, and formulaic recitations of the elements of a cause of action. Directv, Inc. v.

Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555).

III. ANALYSIS

Defendant argues that Plaintiff’s Complaint should be dismissed for three reasons: (1) it

was filed beyond the two-year statute of limitations; (2) it does not allege an actionable Monell

claim;1 and (3) misinterpretation of a local ordinance is not a due process violation. Defendant’s

first argument is dispositive.

Ohio’s two-year general statute of limitations contained in Ohio Revised Code § 2305.10

applies to 42 U.S.C. § 1983 actions arising in Ohio. Banks v. City of Whitehall, 344 F.3d 550,

553–54 (6th Cir. 2003); Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996). “Since Ohio’s

statute of limitations applies to section 1983 claims, so does its tolling statute, unless the result is

inconsistent with federal law.” Michelle R. v. Village of Middleport, No. 2:19-cv-2272, 2019 WL

4452678, at *4 (S.D. Ohio Sep. 17, 2019). “Under Ohio law, the statute of limitations for section

1983 claims may only be tolled when—at the time the cause of action accrued—the plaintiff was

either a minor or was ‘of unsound mind.’” Id. (citing Ohio Rev. Code § 2305.16). Yet, federal

law governs when a cause of action accrues and the statutory period begins to run. Bishop v.

Children’s Ctr. for Developmental Enrichment, 618 F.3d 533, 536 (6th Cir. 2010).

Plaintiff does not dispute that Ohio’s two-year general statute of limitations applies in

this case. Nor does Plaintiff suggest that either of the tolling circumstances explicitly delineated

in Ohio’s tolling statute apply here. Instead, Plaintiff requests that the Court apply the federal

1 A Monell claim is a claim against a municipality that its policy or custom caused a

constitutional violation first recognized in Monell v. Dept. of Soc. Services of the City of New

York, 436 U.S. 658 (1978).

doctrine of equitable tolling to save its claims. That is, Plaintiff asserts that its claims should be

viewed as undiscoverable until Defendant amended its City Code on February 25, 2019 to

remove the inconsistency in voting requirements for modifications to different types of zoning.

Plaintiff does not cite any Ohio equitable tolling rules, so it waives an argument it may

have under those rules. Simmons v. Sigler, No. 2:19-cv-4108, 2020 WL 2557051, at *5 (S.D.

Ohio May 20, 2020). Similarly, Plaintiff does not suggest that Ohio’s tolling rules clash with

federal law. Thus, Plaintiff “forfeits any argument [it] might have had regarding the federal

equitable tolling rules, since asserting inconsistency is ‘the only circumstance in which [the

Court] could apply the federal rules.’” Watkins v. Columbus City Schools, No. 2:19-cv-394, 2020

WL 1290298, at *6 (S.D. Ohio Mar. 18, 2020) (quoting Roberson v. Macnicol, 698 F. App’x

248, 250–51 (6th Cir. 2017)). However, even if Plaintiff could rely on federal tolling rules here,

its argument is not persuasive.

The equitable tolling doctrine “permits courts to extend the statute of limitations on a

case-by-case basis to prevent inequity.” Baden-Winterwood v. Life Time Fitness, 484 F. Supp.

2d 822, 826 (S.D. Ohio 2007). It should be invoked sparingly. Id. Under the doctrine of equitable

tolling, “the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did

not discover the injury until after the limitations period had expired.” Barry v. Mukasey, 524

F.3d 721, 724 (6th Cir. 2008). The Sixth Circuit has set out five factors that courts may consider

in determining whether the doctrine applies: “1) plaintiff’s lack of notice of the filing

requirement; 2) plaintiff’s lack of constructive knowledge of the filing requirement; 3) diligence

in pursuing one’s legal rights; 4) absence of prejudice to the defendant; and 5) the plaintiff’s

reasonableness in remaining ignorant of the particular legal requirement for filing his claim.”

Baden-Winterwood, 484 F. Supp. 2d at 826–27 (citing Allen v. Yukins, 366 F.3d 396, 401 (6th

Cir. 2004)). The Court need not consider each factor nor is the list exhaustive. Id. at 827.

Moreover, absence of prejudice to the defendant is to be considered only after a factor that might

justify tolling is identified. Id. at 827 n.1.

According to the Complaint, it was clear at the time of the May 23, 2016 City Council

vote that Chapter 1117 applied to Plaintiff’s modification request. (Compl. ¶ 16). Similarly,

Plaintiff alleges that Chapter 1117 only required a simple majority vote to overturn a negative

recommendation regarding PUD rezoning applications. (Id. ¶¶ 25–26, 29–30). Thus, reasonable

diligence in reading the applicable City Code Chapter at that time would have provided

immediate notice of the injury now complained of and the cause of that injury.

Although Defendant later amended the Chapters to resolve the inconsistency between the

voting requirements for different zoning modifications, such resolution does not negate that the

Complaint itself alleges that Chapter 1117 applied on May 23, 2016 and that Chapter 1117 only

required a simple majority vote. (Id.). Moreover, the fact that “[t]he individuals involved with

3799 Mill Run Partners are not attorneys” and “the City told them repeatedly that a

supermajority was required” does not save the action. (Memo. Opp., 8, ECF No. 10).

“[I]gnorance of the law alone is not sufficient to warrant equitable tolling.” Graham-Humphreys

v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000) (internal quotations

omitted) (noting that the Supreme Court has “‘never suggested that procedural rules in ordinary

civil litigation should be interpreted so as to excuse mistakes by those who proceed without

counsel’”) (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)); see also Cobas v.

Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (reiterating that a plaintiff’s “lack of legal training,

his poor education, or even his illiteracy does not give a court reason to toll the statute of

limitations”). This is far from a case where Plaintiff’s “failure to meet a legally-mandated

deadline unavoidably arose from circumstances beyond that litigant’s control.” Graham-

Humphreys, 209 F.3d at 561–62; see also Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147,

151–52 (1984) (“One who fails to act diligently cannot invoke equitable principles to excuse that

lack of diligence.”). The alleged injury was discoverable with reasonable diligence on May 23,

2016. Thus, even if federal tolling rules applied, Plaintiff is not entitled to equitable tolling of the

applicable two-year statute of limitations. Plaintiff’s claims are time-barred.

Accordingly, Defendant’s Motion to Dismiss the Complaint is GRANTED.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss (ECF No.

8). The Complaint is DISMISSED. (ECF No. 1). The Clerk is DIRECTED to TERMINATE

this case from the docket records of the United States District Court for the Southern District of

Ohio, Eastern Division.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE