CHKRS, LLC v. City of Dublin

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 Kimberly A. Jolson

THE CITY OF DUBLIN, OHIO, et al.,

Defendants.

OPINION AND ORDER

This matter, in which the parties consented to the jurisdiction of the Undersigned pursuant

to 28 U.S.C. § 636(c), (Doc. 17), is before the Court on Defendants City of Dublin and Dublin

City Manager Dana McDaniel’s Motion for Summary Judgment (Doc. 67) and Request to Strike

Robert Smith’s Affidavit (Doc. 76 at 2–5), as well as Plaintiff CHKRS, LLC’s Cross Motion for

Summary Judgment (Doc. 75). For the reasons that follow, Defendants’ Request to Strike Robert

Smith’s Affidavit is DENIED, but their Motion for Summary Judgment is GRANTED. Plaintiff’s

Cross Motion for Summary Judgment is DENIED. The Clerk is directed to enter judgment in

favor of Defendants.

I. BACKGROUND

The question before the Court is narrow: If the parties to a residential lease agree that only

the property owner—not the tenant—shall be compensated in the event of an eminent domain

proceeding, does the tenant have a compensable interest in that property for purposes of a Fifth

Amendment takings claim? As explained, the answer is no.

* * *

In July 2015, Plaintiff CHKRS, LLC (“CHKRS”) leased non-party Karen Friedman’s

residential property (the “Property”) in Dublin, Ohio (the “Lease”). (Doc. 2-1). The Lease was

for a three-year term and included an option to purchase the Property. (Id.). Roughly three months

later, Defendant the City of Dublin, Ohio (“Dublin”) sued Friedman for an easement on the

Property. City of Dublin v Friedman, et al., Case No. 15 CV 008664, Am. Compl. for

Appropriation, ¶ 8 (Ohio Com. Pl. Oct. 21, 2015). Dublin planned to construct a permanent bike

path that would run through a portion of the Property. (Id.). As required by Ohio law, Dublin

deposited the appraised value of the easement, $25,080, into an escrow account (the “Funds”). Id.,

¶¶ 10–11.

Importantly, the Lease between CHKRS and Friedman provided who was entitled to the

Funds:

¶ 31 FUNDS ISSUED FROM CITY OF DUBLIN AND/OR ODOT

Any monies dispersed by the City of Dublin or ODOT are payable to Karen

Michelle Friedman until the Lessee has procured on the purchase option.

(Doc. 2-1 at 4). Thus, Friedman moved to withdraw the Funds. Friedman, Case No. 15 CV

008664, Mot. to Withdraw Deposit (Ohio Com. Pl. Nov. 30, 2015).

Still, CHKRS wanted a share, and brought suit in state court. See id., Br. in Resp. to Mot.

for Disbursement at 3 (Ohio Com. Pl. Dec. 9, 2015) (asserting an “interest in the property” and

requesting to share in the Funds). The parties briefed the issue and, on March 3, 2016, stipulated

that CHKRS had “not exercised the option to purchase.” See id., Hr’g Br. at 1. So to Friedman,

the answer was clear: She—and she alone—was entitled to the Funds. See id., Hr’g Br. at 2 (Ohio

Com. Pl. Mar. 11, 2016).

Then a wrinkle emerged. CHKRS asserted it had exercised its purchase option earlier that

month. Id., Hr’g Br. and Br. in Opp. at 3–4 (Ohio Com. Pl. Mar. 18, 2016). But the state court

said otherwise. CHKRS had only notified Friedman that it intended to purchase the Property but

had not “procured on the purchase option”—making Friedman entitled to the Funds. Thus, the

trial court granted Friedman’s motion to withdraw the Funds. City of Dublin v. Friedman, et al.,

No. 15CV0908664, 2016 WL 11513379 (Ohio Com. Pl. June 16, 2016).

CHKRS appealed. It argued—as it does now—that the Lease entitled it to a share in the

compensation. See City of Dublin v. Friedman, 101 N.E.3d 1137, 1148 (Ohio Ct. App. 2017).

The state appellate court disagreed. It noted that, as a general matter, tenants like CHKRS have

“a property right in the leasehold” and are “entitled to compensation if it is appropriated by eminent

domain.” Id. at 1151 (quotation marks and citation omitted). But, as with any contract, “there is

nothing to prevent the parties from changing their respective rights by agreement.” Id. (quotation

marks and citation omitted). And the court found that was precisely what Friedman and CHKRS

did. Id. Specifically, CHKRS, as a tenant, would not be entitled to compensation from Dublin in

the event of an eminent domain proceeding. Id. Rather, any such money would go to Friedman.

Id. Like the trial court, the state appellate court concluded that CHKRS never “procured” on the

purchase option, despite notifying Friedman of its intent to do so. Id. So “CHKRS was not eligible

to receive money from Dublin.” Id.

Again, CHKRS appealed. The Ohio Supreme Court declined jurisdiction. See City of

Dublin v. Karen Michelle R. Friedman, et al., Case No. 2018-0164, Entry (Ohio May 23, 2018)

(declining jurisdiction); id., CHKRS’ Mem. in Support of Jurisdiction at 10–12 (Ohio Jan. 31,

2018) (challenging the lower court’s interpretation of ¶ 31 of the Lease); id., Notice of Appeal

(Ohio Jan. 31, 2018).

While this case worked its way through the state courts, Dublin began construction on the

Property. In November 2015, it removed the Property’s driveway and constructed a wall

separating the Property from the new bike path and street. (Doc. 2-2). The following summer, in

July 2016, Dublin performed additional construction on the Property, including building a new

driveway. (Doc. 75 at 5). CHKRS asserts that Dublin neither had permission nor compensated it

for this second round of work. (Id.). It also says that the new driveway on the Property is unsafe.

(Doc. 77 at 1).

Two years later, in July 2018, CHKRS exercised its option and purchased the Property.

(Doc. 66). It filed this action shortly thereafter. (Doc. 2). CHKRS alleged that Dublin violated

its substantive and procedural due process rights, in addition to the Fifth Amendment Takings

Clause. (See generally Doc. 38). Dublin, relying largely on the state court proceedings discussed

above, moved for judgment on the pleadings. (Doc. 42). The Court granted its motion. It found,

like the state courts, that CHKRS did not have a compensable interest in the Property at the time

of the alleged takings. (See generally Doc. 49). So it dismissed CHKRS’ takings claim for lack

of standing and also dismissed CHKRS’ due process claims, which CHKRS forfeited by failing to

respond to Dublin’s arguments on the pleadings. (See id.).

CHKRS appealed again. (Doc. 51). On January 4, 2021, the Sixth Circuit affirmed in part

and reversed in part the Court’s ruling. (Doc. 53). Specifically, it affirmed the Court’s decision

dismissing CHKRS’ due process claims but reversed the Court’s takings holding and remanded

CHKRs’ takings claim for further proceedings. (See generally id.). The Sixth Circuit’s decision

was narrow. It held only that CHKRS’ takings claim, as pled, was not “frivolous.” (Id. at 10–12).

Thus, CHKRS had standing to bring the claim. (Id.). Yet, the Circuit declined to reach the merits

of CHKRS’ takings claim, leaving that decision to the Undersigned. (See id.).

Following the mandate, the Court held a status conference with the parties to discuss next

steps. (Doc. 56). As agreed, the parties moved to supplement the record for purposes of summary

judgment briefing, and the Court added several relevant documents to the record. (Id.; see also

Doc. 66). Dublin moved for summary judgment on March 31, 2021 (Doc. 67), and CHKRS filed

a cross summary judgment motion on May 21, 2021 (Doc. 75). CHKRS attached to its Motion

the affidavit of its managing member, Robert Smith (the “Smith Affidavit”). (Doc. 75-1). Dublin

has moved to strike the Smith Affidavit. (Doc. 76 at 2–5). Both the parties’ summary judgment

motions and Dublin’s request to strike are fully briefed and ripe for resolution.

II. MOTION TO STRIKE (Doc. 76 at 2–5)

Before turning to the merits of the case, the Court first addresses Dublin’s request to strike

the Smith Affidavit from the record. (Doc. 76 at 2–5).

By way of background, Dublin drops a footnote in its summary judgment motion that

“there has been no unlawful taking of the Property and all driveway work was conducted with the

express permitted [sic] and consent of the fee owner at the time, Karen Michelle Friedman.” (Doc.

67 at 1 n.1). CHKRS responds to this assertion in its brief. Specifically, CHKRS asserts that,

when Dublin re-entered the Property in July 2016 to perform additional construction, Smith “told

Dublin it was trespassing on the property” and, before closing on the purchase option, “specifically

inquired . . . whether there was a driveway construction agreement” with Friedman. (Doc. 75 at

6). CHKRS attaches the Smith Affidavit to support these representations, in addition to an email

suggesting that Friedman did not consent to the July 2016 construction. (See id.).

Dublin asserts that CHKRS violated this Court’s directives on supplementing the record.

(Doc. 76 at 3). More substantively, Dublin challenges Smith’s “false claim” that it never “had an

agreement” with Friedman to re-enter the property in 2016 to reconstruct the driveway on the

Property. (Doc. 76 at 4). And Dublin attaches an email purporting to show that Friedman, through

her lawyer, expressly consented to the 2016 construction. (Doc. 76-1).

Up front, the Court notes that these documents are irrelevant to whether CHKRS had a

compensable interest in the Property at the time of the alleged takings. Rather, they pertain to

whether Dublin’s 2016 construction constituted a taking. The parties did not brief that issue, and

it is not before the Court now. In any event, while the Court has the inherent authority to strike

the Smith Affidavit as procedurally or substantively improper, it will not do so. Both parties have

now introduced material to the record regarding whether Friedman agreed to the 2016

construction. While the documents are irrelevant to the pertinent issues in this case, they are not

harassing or otherwise inappropriate. Thus, they may remain a part of the public record, and

Dublin’s request to strike is DENIED.

III. SUMMARY JUDGMENT MOTIONS (Docs. 67, 75)

A. Standard of Review

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking

summary judgment bears the initial “responsibility of informing the district court of the basis for

its motion, and identifying those portions” of the record that demonstrate “the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts

to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The evidence of the nonmovant is to

be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citing Adickes

v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). A genuine issue of material fact exists if a

reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; see

also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (defining

“genuine” as more than “some metaphysical doubt as to the material facts”). Consequently, the

central issue is “whether the evidence presents a sufficient disagreement to require submission to

a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477

U.S. at 251–52.

B. Discussion

The parties seek summary judgment on a single issue—whether the Lease entitled CHKRS

to a compensable interest in the Property. To resolve that issue, the Court must answer a few

threshold questions. To start, what is a compensable property interest? Moreover, at what point

in time is that interest assessed? For example, does the Court look to when the alleged takings

occurred in 2015 and 2016, as Defendants assert, or when CHKRS bought the Property in 2018,

as CHKRS contends? Finally, how does the Lease change the parties’ respective interests? The

Court addresses each question in turn.

1. Compensable Property Interest

Before the Court can define CHKRS’ interest in the Property, it must narrow its focus to

the relevant time period. CHKRS directs the Court to July 2018, when it purchased the Property.

(Doc. 75 at 9). It says that is when it “regained” its right to compensation. (Id.). Defendants, on

the other hand, say what matters is whether CHKRS had the right to compensation in 2015 and

2016—when the alleged takings occurred. (Doc. 67 at 11–12 (collecting authorities)).

Defendants are correct. The Court applies Ohio law to determine whether CHKRS had a

compensable property interest. See Kerns v. Chesapeake Expl., L.L.C., 762 F. App’x 289, 296

(6th Cir.), cert. denied, 139 S. Ct. 2033, 204 L. Ed. 2d 218 (2019) (citation omitted) (“A taking

requires a property interest, and for that we look to state law.”). And in Ohio, “‘[t]he general rule

is that the right to damages for the taking of land . . . is in’” only the individuals or entities with a

property interest “when the taking or injury occurs, and does not ordinarily pass to a subsequent

grantee.’” Hatfield v. Wray, 748 N.E.2d 612, 616 (Ohio Ct. App. 2000) (alteration in original)

(quoting Steinle v. Cincinnati, 53 N.E.2d 800, 803 (Ohio 1944)) (citing Nichols on Eminent

Domain (Rev. 3 Ed.), § 5.02(5)(d) at 5–38 (noting that “[i]t is well settled that when there is a

taking of property by eminent domain in compliance with law,” only those with a property interest

“at the time of the taking” are “entitled to compensation”)).

Thus, “‘if the parcel of land from which the taking is made changes hands after the taking

has occurred but before the compensation has been paid, the right to receive the compensation

does not run with the land.’” Hatfield, 748 N.E.2d at 616 (quoting Steinle, 53 N.E.2d at 803). So

CHKRS’ position that it “regained” its right to receive compensation when it purchased the

property is without merit.

This means that the Court must decide whether CHKRS had a compensable interest in the

Property in 2015 and 2016 when the alleged takings occurred. During that time, CHKRS was a

tenant and, in Ohio, tenants generally have a compensable interest in a leased property. See

Heffner Inv., Ltd. v. Piper, Nos. 10-07-09, 10-07-10, 2008 WL 2168781, at *9 (Ohio Ct. App. May

27, 2008) (citing City of Cincinnati v. Spangenberg, 300 N.E.2d 457, 459 (Ohio Ct. App. 1973)).

So “in an appropriation proceeding[,] both the owner and [the tenant] may assert claims for

damages and be compensated for whatever loss directly results from the appropriation.” Heffner

Inv., 2008 WL 2168781, at *9 (citing Spangenberg, 300 N.E.2d at 459).

Yet, it is a “‘general legal principle’” that the parties to a lease may ‘“chang[e] their

respective rights by agreement.’” Jackson v. McMillen, No. 77AP-474, 1977 WL 200629, at *4

(Ohio Ct. App. Dec. 8, 1977) (quoting Funeral Home v. Miller, 207 N.E.2d 757, 749 (Ohio 1965)).

For example, and pertinent here, “the lessee may be precluded from compensation for an

appropriation based upon the terms of the lease.” Heffner Inv., 2008 WL 2168781, at *9 (citing

Spangenberg, 300 N.E.2d at 459). And such an ‘“agreement . . . controls whether the lessee has a

compensable property interest in the appropriated property.’” City of Dayton v. Steiner, No.

10497, 1998 WL 53892, at *1 (Ohio Ct. App. May 20, 1988) (quoting Spangenberg, 300 N.E.2d

at 459); see also Columbus v. Huntington Nat. Bank, 143 N.E.2d 874, 877 (Ohio Ct. App. 1956)

(“We think it is not to be controverted that a landlord and tenant may, by a properly worded

contract, provide that the tenant shall receive no compensation when the leased premises are taken

by right of eminent domain.”). As one Ohio appellate court has said, “these rules are so elementary

that they need no citation of authority to support them.” Id.

As discussed below, that is what occurred here.

2. The Lease

The parties offer competing interpretations of Paragraph 31 of the Lease. As noted, that

provision provides:

FUNDS ISSUED FROM CITY OF DUBLIN AND/OR ODOT

Any monies dispersed by the City of Dublin or ODOT are payable to Karen

Michelle Friedman until the Lessee has procured on the purchase option.

(Doc. 2-1 at 4).

The parties agree that the Court applies Ohio law in interpreting this provision. (See

generally Docs. 67, 75). “Ohio courts assess leases through ‘traditional rules of contract

interpretation.’” Popa v. CNX Gas Co. LLC, No. 4:14cv143, 2014 WL 3749415, at *3 (N.D. Ohio

July 30, 2014) (quoting Mark-It Place Foods, Inc. v. New Plan Excel Realty Trust, 804 N.E.2d

979, 992 (Ohio Ct. App. 2004)). If the court finds the “contract clear and unambiguous, then its

interpretation is a matter of law and there is no issue of fact to be determined.” Inland Refuse

Transfer Co. v. Browning–Ferris Ind., Inc., 474 N.E.2d 271, 272 (Ohio 1984) (citation omitted).

If, however “a term cannot be determined from the four corners of a contract, factual determination

of intent or reasonableness may be necessary to supply the missing term.” Id. at 273.

The Court has a unique advantage in interpreting Paragraph 31 of the Lease—two Ohio

courts have already done so. Both found that CHKRS contracted away its right to compensation

under the Lease. See Friedman, Case No. 15 CV 008664, Op. and Journal Entry at 9 (Ohio Com.

Pl. June 3, 2016); Friedman, 101 N.E.3d at 1151. And because CHKRS did so, it did not have a

compensable interest in the Property. See Friedman, Case No. 15 CV 008664, Op. and Journal

Entry at 9 (Ohio Com. Pl. June 3, 2016) (concluding that, because CHKRS had not “procured” on

the Property under the Lease, it was not entitled to compensation from Dublin); Friedman, 101

N.E.3d at 1151 (finding that the Lease expressly “provided that CHKRS, as a lessee, would not

have a compensable interest if the property was appropriated by Dublin or Ohio Department of

Transportation”).

As explained, it is state law—not the Constitution that “define[s]” a compensable property

interest. See Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). And two Ohio courts already have

defined that interest here—they found, under the Lease, that CHKRS’ had none. Principles of

federalism and comity urge this Court not to re-define CHKRS’ property interest. See, e.g.,

Catanese v. City of Trussville, No. 2:19-CV-01517-CLM, 2021 WL 24624, at *3 (N.D. Ala. Jan.

4, 2021) (applying principles of federalism where state court held that liquor licenses do not carry

property interests and thus, declining to “create[e] a distinction in state-law property interests that

state courts have not”).

Nevertheless, the Court, on its own, reaches the same interpretation. Paragraph 31 plainly

provides that CHKRS, as a tenant, is not entitled to receive compensation in the event of an

eminent domain proceeding. This clause is unambiguous, so the Court need not look to evidence

submitted by the parties regarding contractual intent. Inland Refuse Transfer Co., 474 N.E.2d at

272.

It is worth noting that there is nothing unusual about this provision. For example, in City

of Dayton v. Steiner, the parties to a commercial lease agreed that, in the event of a government

taking, the lessee could share in the owner’s compensation for certain losses, including relocation

damages, inventory, signs, machinery, equipment, fixtures, and alterations. No. 10497, 1998 WL

53892, at *1 (Ohio Ct. App. May 20, 1988). But the government’s eminent domain did not result

in any of those losses. Id. So the lessee was not entitled to any other compensation awarded. Id.

at *2. In ruling for the property owner, the court acknowledged that, generally, a lessee is entitled

to share in the compensation—but the parties agreed otherwise. Id. And “‘[i]t is the agreement of

the parties that controls whether the lessee has a compensable property interest in the appropriated

property.’” Id. (quoting Spangenberg, 300 N.E.2d at 459); see also Barjul Realty, Inc. v. Joy

Stores, Inc., No. NOS. CA76-02-0008, C, 1977 WL 199671, at *6 (Ohio Ct. App. Dec. 14, 1977)

(“Conclusive of the matter is the fact that by the terms of its lease, [lessee] agreed that all

compensation for a partial or complete taking of its interest in the property was to belong to

[lessor][.]”).

That is what happened here. The parties agreed that CHKRS, as a tenant, would not be

entitled to compensation from Dublin in the event of an eminent domain proceeding. When Dublin

sued for an easement in July 2015, Friedman—not CHKRS—owned the property. Thus, Dublin

properly deposited the Funds with Friedman. And, in July 2016, when Dublin performed

additional work on the Property, CHKRS still was a tenant under the Lease. Importantly, CHKRS

does not dispute this fact. (See Doc. 75 at 9 (acknowledging that “CHKRS procured on the

purchase option” when it “completed the sale and purchase of the property” in July 2018)). Thus,

even assuming Dublin should have paid for that second round of work, which it contests, CHKRS

would not be entitled to that money, either.

Briefly, CHKRS makes one final attempt to assert an interest over the Property. It contends

that, because it had a purchase option under the Lease, it “was [ ] an equitable owner of the land

under the law in Ohio.” (Doc. 75 at 15). The doctrine of equitable ownership “is not a favored

doctrine and is applied only when the refusal to do so would create or perpetuate an injustice.” In

re Cardinal Indus., Inc., 105 B.R. 834, 853–54 (Bankr. S.D. Ohio), supplemented, 109 B.R. 743

(Bankr. S.D. Ohio 1989) (declining to apply the doctrine of equitable ownership where it would

result in a “perversion” of the doctrine).

Importantly, the state appellate court rejected CHKRS’ theory. Friedman, 101 N.E.3d at

1151. It considered the 91-year-old case upon which CHKRS continues to rely. Id. (citing Cullen

& Vaughn Co. v. Bender Co., 170 N.E.633 (Ohio 1930)). In that case, the government

compensated the defendant landlord $6,000 for the appropriation of waterpower rights. 170 N.E.

at 635. Two years later, the plaintiff tenant exercised its option to purchase the property and paid

the full price for the property. Id. The Supreme Court of Ohio concluded that the tenant was

equitably entitled to a $6,000 credit for the diminished value of the property. Id. at 637.

CHKRS asserts it, too, should be entitled to compensation now that it owns the Property.

(Doc. 75 at 15–16). But the state appellate court, quoting Cullen noted that, “[p]ursuant to the

‘doctrine of equitable conversion,’ the compensation ‘paid for the land taken by the exercise of the

power of eminent domain in equity represents the land and is subject to all rights of persons who

had rights in the land.’” Friedman, 101 N.E.3d at 1151 (quoting Cullen & Vaughn Co., 170 N.E.

at 633). And, said the state appellate court, CHKRS did not have a compensable right in the

Property because it had contracted that right away. Friedman, 101 N.E.3d at 1151.

CHKRS is not the first plaintiff to rely unsuccessfully upon Cullen. For instance, in ISHA,

Inc. v. Risser, a commercial tenant sought compensation after the Ohio Department of

Transportation appropriated the property for highway improvements. No. 1-12-47, 2013 WL

2316248, at *1 (Ohio Ct. App. May 28, 2013). The state trial court found that the tenant had

“negotiated away that right” under the lease, and, moreover, the tenant’s “attempt to exercise the

option was ineffective since the taking had already occurred.” Id. at *4. On appeal, the tenant

relied “exclusively upon” Cullen. Id. at *6. The state appellate court found that decision to be a

non sequitur because “[i]t [did not] contain[] a provision specifying the parties’ respective rights

in the event of an appropriations action.” Id. at *7. This distinction was “significant” since “the

default rule” generally entitles a lessee to compensation if the property is appropriated. Id. (citation

omitted). But the parties had elected to change the default rule. They agreed that “tenant-made

improvements were part of the realty belonging to the landlord, and the landlord’s compensation

for the fee estate was not to be reduced thereby.” Id. Thus, the tenant was not entitled to

compensation from the state for its improvements to the property. Id. at **8–9.

The same is true here. CHKRS and Friedman agreed that CHKRS, as a tenant, would not

receive compensation in the event of an eminent domain proceeding. (Doc. 2-1 at 4). Faced with

similarly clear contract language, the court in ISHA did not apply the doctrine of equitable

ownership to rewrite the parties’ contract. 2013 WL 2316248, at *9. Nor will the Court do so in

this case. See also Mun. of the City of Lorain v. Ross, No. 2265, 1975 WL 180471, at *3 (Ohio

Ct. App. Apr. 2, 1975) (distinguishing Cullen and finding that, “[w]hile [it] admire[d] the trial

court’s efforts to do equity by application of a general principle, we feel that neither he, nor we, .

. . can remake the agreement,” thus honoring the parties’ agreement “to a formula for distribution

of a condemnation award”) (internal quotation marks omitted).

* * *

In sum, CHKRS did not have a compensable interest in the Property at the time of the

alleged takings, and it was not an equitable owner under Ohio law at the time. So CHKRS is not

entitled to compensation; the Court need not reach the question of whether Dublin’s second round

of construction on the Property in July 2016 constituted a taking; and Defendants are entitled to

summary judgment.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Request to Strike Robert Smith’s Affidavit is

DENIED. Defendants’ Motion for Summary Judgment is GRANTED, and Plaintiff’s Cross

Motion for Summary Judgment is DENIED. The Clerk is directed to enter judgment in favor of

Defendants.

IT IS SO ORDERED.

Date: July 21, 2021 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE