The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Doug Oppenheimer,
Plaintiff, Case No. 1:20cv371
v. Judge Michael R. Barrett
City of Madeira, Ohio, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon the Motion to Dismiss filed by Defendant City
of Madeira, Ohio. (Doc. 7). Plaintiffs filed a Response in Opposition (Doc. 9). Defendant
did not file a reply.
I. BACKGROUND
Plaintiff explains that he serves as a “governmental watchdog” over the City of
Madeira. (Doc. 1, ¶ 12). Plaintiff claims that in order to silence his criticism, in 2018, city
officials filed a lawsuit to declare him a vexatious litigator in the Hamilton County Court of
Common Pleas pursuant to Ohio Revised Code § 2323.52. (Id., ¶ 43, 51). Plaintiff claims
that the state court action was filed in retaliation for the exercise of his First Amendment
rights and to intimidate him from continuing to exercise his First Amendment rights.
Plaintiff commenced this federal lawsuit to bring claims pursuant to 42 U.S.C. § 1983
based on a violation of his First Amendment rights; and pursuant to 28 U.S.C. § 2201
seeking a declaration that Ohio Revised Code § 2323.52 is unconstitutional as applied to
him. Plaintiff brings his claims against the City of Madeira and ten unnamed City of
Madeira officials.
Defendant maintains that Plaintiff’s claims should have been brought as a
counterclaim in the state court case, and are barred by the doctrine of collateral estoppel.
Defendant moves to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil Procedure
12(b)(6).
II. ANALYSIS
A. Standard of Review
In order 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.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A plaintiff’s claim has this baseline plausibility if the facts stated therein
“allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The standard set forth by the Supreme Court in Twombly and
Iqbal requires “more than a sheer possibility” that the defendant is liable, but a claim need
not rise to the level of probability. Id.
B. Compulsory counterclaim
Defendant argues that pursuant to Ohio Rule of Civil Procedure 13(A), Plaintiff’s
federal claims were compulsory counterclaims in the state court action brought against
him.
Ohio Rule of Civil Procedure 13(A) states “[a] pleading shall state as a
counterclaim any claim which at the time of serving the pleading the pleader has against
any opposing party, if it arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim and does not require for its adjudication the presence
of third parties of whom the court cannot acquire jurisdiction.” Ohio R. Civ. P. 13(A). As
this Court has previously explained:
Ohio courts use a two-pronged test when applying Rule 13(A): (1) does the
claim exist at the time of serving the pleading; and (2) does the claim arise
out of the transaction or occurrence that is the subject matter of the
opposing claim. Rettig Enterprises, Inc. v. Koehler, 68 Ohio St. 3d 274, 277,
626 N.E.2d 99, 102 (Ohio 1994) (citing Geauga Truck & Implement Co. v.
Juskiewicz, 9 Ohio St.3d 12, 14, 457 N.E.2d 827, 829 (Ohio 1984)). “If both
prongs are met, then the present claim was a compulsory counterclaim in
the earlier action and is barred by virtue of Civ.R. 13(A).” Id.
Bell v. Weltman, Weinberg & Reis Co., L.P.A., No. 1:16CV685, 2020 WL 2099924, at *3
(S.D. Ohio May 1, 2020).
However, Plaintiff questions whether this rule can be enforced here. In Quality
Assocs., Inc. v. Procter & Gamble Distributing, LLC, the Sixth Circuit held that “a federal
court cannot enforce a state compulsory counterclaim rule against a federal litigant while
the relevant state litigation is still pending.” 949 F.3d 283, 285 (6th Cir. 2020) (emphasis
in original). The Sixth Circuit explained that it had only “enforced” state compulsory-
counterclaims by way of preclusion doctrine. Id. at 288. Therefore, Ohio Rule of Civil
Procedure 13(A) is not grounds for dismissal.
C. Collateral estoppel
The United States Supreme Court has explained that “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 School
District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984).1 As
long as the party against whom the doctrine is invoked had a full and fair opportunity to
1The Court notes that Defendant relies on the requirements for collateral estoppel under
federal law which were set forth in Cobbins v. Tenn. Dep't of Tramp., 566 F.3d 582, 589-90 (6th
Cir. 2009) (citing N.A.A.C.P., Detroit Branch v. Detroit Police Officers Ass'n, 821 F.2d 328, 330
(6th Cir. 1987)).
litigate the issue, a federal court can collaterally estop a party from re-litigating a
constitutional matter in a 42 U.S.C. § 1983 action. Allen v. McCurry, 449 U.S. at 101,
103-104, 101 S.Ct. 411 (1980).
In Ohio, collateral estoppel applies “when the fact or issue (1) was actually and
directly litigated in the prior action, (2) was passed upon and determined by a court of
competent jurisdiction, and (3) when the party against whom collateral estoppel is
asserted was a party in privity with a party to the prior action.” Daubenmire v. City of
Columbus, 507 F.3d 383, 389 (6th Cir. 2007) (quoting Thompson v. Wing, 70 Ohio St.3d
176, 637 N.E.2d 917, 923 (Ohio 1994)).
Since the parties briefed the issue, there has been a final judgment in state court
vexatious litigator action. The Hamilton County Court of Common Pleas granted
summary judgment in favor of Plaintiff, finding that the City had not established that
Plaintiff “habitually, persistently, and without reasonable grounds engaged in vexatious
conduct” pursuant to Ohio Revised Code § 2323.52(A)(3). City of Madeira v. Philip
Douglas Oppenheimer, Case No. A-18-02415 (Oct. 28, 2020).2 The decision says
nothing with regard to whether the state court proceeding was brought by Defendant in
2The grant of summary judgment constitutes a final judgment on the merits of the City’s
claim. Hapgood v. City of Warren, 127 F.3d 490, 493-94 (6th Cir. 1997). While the City filed an
appeal on December 28, 2020, the “prior state court judgment remains ‘final’ for preclusion
purposes, unless or until overturned by the appellate court.” Hapgood, 127 F.3d at 494, n.3.
(citing Cully v. Lutheran Med. Ctr., 37 Ohio App.3d 64, 523 N.E.2d 531, 532 (Ohio Ct. App.
1987)). While Defendant did not raise it here, under Ohio’s doctrine of claim preclusion “[a]
valid, final judgment rendered upon the merits bars all subsequent actions based upon any
claim arising out of the transaction or occurrence that was the subject matter of the previous
action.” Id. at 493 (citing Grava v. Parkman Township, 73 Ohio St.3d 379, 653 N.E.2d 226, 229
(Ohio 1995) The elements of claim preclusion in Ohio are: “(1) a prior final, valid decision on
the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or
their privies, as the first; (3) a second action raising claims that were or could have been
litigated in the first action; and (4) a second action arising out of the transaction or occurrence
that was the subject matter of the previous action.” Id. at 493 (citing Felder v. Community Mut.
Ins. Co., No. 96–3320, 1997 WL 160373, at **3-4 (6th Cir. April 4, 1997)).
retaliation for Plaintiff’s exercise of his First Amendment rights.
However, Defendant chooses a different decision to serve as the basis for
collateral estoppel: the Common Pleas decision denying Plaintiff’s First Motion for
Sanctions. Based on the record currently before the Court, the Court is unable to make
a determination regarding the applicability of collateral estoppel in this matter. Plaintiff
certainly argued in his First Motion for Sanctions, filed on February 4, 2019, that: “The
improper purpose of the City of Madeira (and the individual councilmembers and/or public
officials of the City of Madeira) in bringing this SLAPP3 Lawsuit is clearly to retaliate
against Mr. Oppenheimer for the full exercise of his fundamental First Amendment rights
of freedom of speech, freedom to petition government for redress of grievances, freedom
of association and freedom of the press; and, in so retaliating, causing him to incur
significant expense to defend against this SLAPP Lawsuit and to stifle himself through
self-censorship so as to inhibit the full and robust exercise of his First Amendment rights.”
While the publicly available docket shows that on October 28, 2019, the Court of Common
Peas denied the sanctions motion, the entry does not provide any basis for the denial.
Therefore, to the extent that Defendant moves for the application of issue preclusion,
Defendant’s Motion is Dismiss is DENIED.
III. CONCLUSION
Based on the foregoing, the Motion to Dismiss filed by Defendant City of Madeira,
Ohio (Doc. 7) is DENIED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT
3This term stands for “Strategic Lawsuit Against Public Participation.”