Bench Billboard Company v. City Of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BENCH BILLBOARD COMPANY Civil Action No. 1: 19-cv-701

Plaintiff, McFarland, J.

Bowman, M.J.

vs.

CITY OF CINCINNATI, et al.,

Defendants.

REPORT AND RECOMMENDATION

This civil action is now before the Court on Defendants’ motions to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Docs. 8 and 10) and

the parties’ responsive memoranda. (Docs. 14, 15, 18, and 19). 1

I. Background and Facts

A. Amended Complaint

In its Amended Complaint (Doc. 4), Plaintiff Bench Billboard Company ("BBC")

asserts nine claims against the City of Cincinnati and the Southwest Ohio Regional

Transit Authority ("SORTA"), alleging violations of its free speech rights under the First

Amendment and Ohio Constitution (First, Second, Fourth Claims for Relief), equal

protection rights under the Fourteenth Amendment and Ohio Constitution (Fifth Claim for

Relief), and due process rights under the Fourteenth Amendment and Ohio Constitution

(Fifth and Eighth Claims for Relief). BBC raises a nonconforming use claim (Third Claim

for Relief) and a conversion claim (Ninth Claim for Relief) as well. BBC also seeks

1 The Court notes that the pending motions have been ripe for consideration for three years.

Unfortunately, an assignment error in the court’s CM/ECF filing system caused the pending motions to

not be assigned to either the undersigned or the district judge. The Court sincerely regrets the delay in

addressing the motions.

declaratory relief (Sixth Claim for Relief), injunctive relief (Seventh Claim for Relief), and

damages.

B. Prior Lawsuits

The allegations in the Amended Complaint are nearly identical to those that were

previously litigated by BBC and the City in Bench Billboard Co. v. City of Cincinnati, 675

F.3d 974 (6th Cir. 2012) (“Bench Billboard I”), Bench Billboard Co. v. City of Cincinnati,

2016-Ohio1040 (Ct. App.) (“Bench Billboard II”), and City of Cincinnati v. Bench Billboard

Co., 2019-Ohio362 (Ct. App.) (“Bench Billboard III”) (collectively, the “Prior Proceedings”).

1. Bench Billboard I

In Bench Billboard I, BBC commenced litigation against the City in this Court in

2007 under Case No. 1:07cv589. In that 2007 lawsuit, BBC asserted violations of its First

Amendment and Fourteenth Amendment Equal Protection Rights arising from its desire

to place its advertising benches in the City's public right-of-way notwithstanding the

restrictions contained in Chapter 723 of the Cincinnati Municipal Code ("Streets and

Sidewalks, Use Regulations"). Both parties moved for summary judgment. During the

pendency of those motions, the City enacted Ordinance No. 363-2009 amending the

challenged regulatory framework contained in Chapter 723, and then moved to dismiss

on mootness grounds. In ruling on the summary judgment motions and the City's motion

to dismiss, this Court determined that the passage of Ordinance No. 363-2009 nullified

BBC's challenge to Chapter 723, that BBC lacked standing to bring its First Amendment

claims, that BBC was not similarly-situated for purposes of its equal protection claim, and

that BBC's nonconforming use claim had not been properly raised. This Court specifically

found that BBC's lack of a contractual relationship with SORTA rendered it unable to show

it was similarly situated "in all material respects" as required, and that, in addition, the City

had "a rational basis for treating Bench Billboard differently from the other entities that

place items on City sidewalks." Billboard Co. v. City of Cincinnati, 717 F. Supp. 2d 771,

787-788 (S.D. Ohio 2010). The Sixth Circuit Court of Appeals affirmed this Court's

judgment "in all respects." Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 977

(6th Cir. 2012). BBC did not further appeal.

2. Bench Billboard II

In Bench Billboard II, after the City began citing BBC's benches under Ordinance

No. 363-2009 (the same ordinance this Court and the Sixth Circuit had determined had

mooted BBC's 2007 federal action), BBC filed an O.R.C. Chapter 2506 administrative

appeal in state court under Hamilton County Common Pleas Case No. A1400557. The

state trial court upheld the citations; found the City's actions did not violate BBC's rights

under the First Amendment or Fourteenth Amendment Equal Protection Clause; and

found that BBC's benches did not qualify as nonconforming uses. BBC appealed, and

the First District Court of Appeals affirmed in all respects. Bench Billboard v. City of

Cincinnati, 2016- Ohio-1040 (Ohio Ct. App. 2016). BBC again did not appeal further.

3. Bench Billboard III

In Bench Billboard III, the City filed a state court collection action under Hamilton

County Common Pleas Case No. A1604872 against BBC following its refusal to pay the

fines associated with the City’s citations for BBC’s bench violations. BBC counterclaimed.

The state trial court granted the City's summary judgment motions, denied BBC's

counterclaims, and entered a final judgment of $68,000 plus costs. BBC appealed and

the First District Court of Appeals affirmed in all respects. City of Cincinnati v. Bench

Billboard Co., 2019-Ohio-362 (Ohio Ct. App. 2019). The First District Court of Appeals

noted that the ordinance that BBC had been cited under was intended to, among other

things, "regulate the placement of structures in the right-of-way to protect public safety

and to ensure adequate clearance for pedestrian traffic." Id. at ¶ 2. It further noted the

following:

Amended Cincinnati Municipal Code 723-7 requires owners of benches in

the rights-of-way, like BBC, to apply for revocable street privileges from the

city, secure the benches to the ground, comply with the city's design

standards, refrain from placing advertising on the benches, and provide

proof of liability insurance of at least $1 million with the city named as an

additional insured. BBC did not comply with any of these requirements. In

October 2013, after receiving citizen complaints, the city issued 55 citations

to BBC for violating the ordinance and removed the benches from the rights-

of-way. This court held in Bench Billboard [I]I [Bench Billboard v. City of

Cincinnati, 2016-Ohio-1040 (Ohio Ct. App. 2016)2] that BBC's permits did

not relieve it of its obligation to comply with the regulations in Cincinnati

Municipal Code 723-7.

Id. at ¶ 3.

The First District Court of Appeals noted that three of BBC's arguments had

already been litigated under Bench Billboard II. Id. at ¶¶ 8-11. Those arguments included

BBC's contentions concerning its permits, and its arguments that removal of its benches

violated its free speech and equal-protection rights. The First District Court of Appeals

held that claim preclusion barred those claims. Id. The First District Court of Appeals also

held that four of BBC's other arguments could have been litigated in Bench Billboard II.

Id. at ¶ 12. Those arguments included BBC's arguments that the City had the burden of

proof to establish there was no First Amendment violation, that the City's removal of

BBC's benches constituted conversion, that the City was tortiously interfering with BBC's

2 The First District Court of Appeals referred to Bench Billboard v. City of Cincinnati, 2016-Ohio-1040

(Ohio Ct. App. 2016 as "Bench Billboard I" in its opinion. However, for clarity, the undersign will refer to it

as Bench Billboard II.

contracts, and that the City did not have immunity from these claims against it. The First

District Court of Appeals found that res judicata barred those claims as well. Id. The First

District Court of Appeals also upheld the trial court's finding that BBC lacked standing to

assert its free-speech, equal-protection, and vested-property-rights claims. Id. at ¶¶ 13-

14. The First District Court of Appeals noted that, in Bench Billboard II, it had determined

that BBC was a licensee with no vested property rights. Id. at ¶ 13. It also noted that, in

Ohio, standing to bring a constitutional claim requires a plaintiff to show, among other

things, that its claimed injury could be redressed by the requested relief. Id. at ¶ 13. It

noted the trial court's finding that BBC had not complied with any of the requirements set

forth under Chapter 723 of the City's Municipal Code—specifically that it had not secured

its benches to the ground, complied with bench design requirements, or provided the

necessary proof of insurance. Id. at ¶ 14. BBC yet again did not appeal. To the

undersigned’s knowledge, BBC has not satisfied the judgment awarding the City $68,000

plus costs that was entered by the trial court and upheld by the First District Court of

Appeals in Bench Billboard III.

Six months after Bench Billboard III was decided, this case was filed.

II. Analysis

A. Standard of Review

Motions to dismiss under Rule 12(b)(1) can assert either facial attacks or factual

attacks on a court's subject matter jurisdiction. Ohio Nat'l Life Ins. Co. v. United States,

922 F.2d 320, 325 (6th Cir. 1990). Where a facial attack on the subject matter jurisdiction

alleged by the complaint is made, the moving party merely questions the sufficiency of

the pleading. Id. In reviewing such a facial attack, a trial court takes the allegations in the

complaint as true. Id. On the other hand, when a court reviews a complaint under a factual

attack, no presumptive truthfulness applies to the factual allegations. Id. The court must

"weigh the conflicting evidence to arrive at the factual predicate that subject matter

jurisdiction exists or does not exist." Id.

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), plaintiffs’ 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, 129 S.Ct. 1937, 1949 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing

Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual allegations as

true but need not “accept as true a legal conclusion couched as a factual allegation.”

Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). While

a complaint need not contain “detailed factual allegations,” it must provide “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678(citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or

“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.

at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further

factual enhancement.” Id. at 557.

B. Defendants’ Motions to Dismiss are Well-Taken

Defendants both argue that this case should be dismissed based upon the

application of the Rooker-Feldman doctrine, the doctrine of res judicata and because the

Plaintiff lacks standing (Doc. 8). Defendant SORTA also contends that BBC fails to state

any valid claim for relief against SORTA. Upon careful review, the undersigned finds that

Defendants’ contentions are well-taken and their motions should be granted for the

reasons stated therein.

1. Rooker-Feldman

The Rooker-Feldman doctrine "bars lower federal courts from conducting

appellate review of final state-court judgments." Berry v. Schmitt, 688 F.3d 290, 298 (6th

Cir. 2012). The doctrine, established by two U.S. Supreme Court rulings issued 60 years

apart, draws its support from 28 U.S.C. § 1257 and the principle that only the U.S.

Supreme Court has appellate jurisdiction over the civil judgments of state courts. See

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462 (1983). To determine the applicability of the Rooker-Feldman

doctrine, the district court "must determine the source of the plaintiff's alleged injury."

McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). Where a plaintiff complains

not of a state court decision but of a third party's actions—but where that "third party's

actions are the product of a state court judgment, then a plaintiff's challenge to those

actions [is] in fact a challenge to the judgment itself." Abbott v. Michigan, 474 F.3d 324,

329 (6th Cir. 2007), citing McCormick v. Braverman, 451 F.3d 382 (6th Cir. 2006). In

addition, the applicability of the Rooker-Feldman doctrine must be decided before

considering res judicata and collateral estoppel issues. See Hake v. Simpson, 770 Fed.

Appx. 733, 736 (6th Cir. 2019) ("We hold that the Rooker-Feldman doctrine prevents the

district court from exercising subject matter jurisdiction over Plaintiff's substantive due

process claim, and as a result, we need not address the applicability of the doctrine of res

judicata.").

Here, BBC and the City were parties to prior state-court proceedings as described

above. The complained-of code enforcement against BBC's benches was specifically

upheld twice by the First District Court of Appeals, once in 2016, then again in 2019. To

the extent that BBC complains of further code enforcement (i.e., citation, removal of its

benches in the right-of-way), that enforcement has been "a product of" two prior state-

court judgments, making BBC's instant lawsuit an impermissible challenge to those

judgments themselves in violation of the Rooker-Feldman doctrine. Abbott, 474 F.3d at

329 (affirming lack of jurisdiction on Rooker-Feldman grounds where plaintiff inmates'

complained-of conversion of pension benefits by state officials "were the direct and

immediate products" of the state-court judgments authorizing reimbursement for the costs

of incarceration from plaintiffs' pensions).

Thus, as noted by SORTA, BBC’s purported injuries —whether allegedly caused

by either the City or SORTA— are identical to those that were specifically addressed by

the Ohio courts in the prior state actions. As detailed above, the Rooker-Feldman doctrine

prevents non-prevailing parties in state courts from appealing those courts’ final decisions

in federal court, as only the United States Supreme Court has appellate jurisdiction over

state court judgments. McCormick v. Braverman, 451 F.3d 382, 396 (6th Cir. 2006) (citing

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005)). Defendants

contend that Plaintiff is essentially seeking appellate review of the state courts’ decisions

in the instant case.

Plaintiff, however, argues that previous court decisions did not precisely address

the version of the Code that BBC now purports to challenge, and that therefore BBC

should be allowed to raise free-speech, equal protection, and due process claims in this

lawsuit. However, as noted by Defendants, BBC did not appeal the 2019 First District

Court of Appeal’s ruling adopting, among other things, the trial court’s finding that BBC

had not complied with any Code requirements with respect to any of its benches in the

right-of-way—i.e., had not secured any of them to the ground, had not complied with

design requirements, had not provided proof of insurance. (Doc. 8-2, PageID 88). As

such, the undersigned agrees that Plaintiff’s claims are barred by Rooker-Feldman.

2. Res judicata/Collateral Estoppel

In the alternative, Defendants argue that Plaintiff’s claims are also precluded by

the doctrine of res judicata. As outlined by Defendants, the full faith and credit statute,

28 U.S.C. § 1738, requires a federal court to give a state court judgment the same

preclusive effect that the judgment would have in a state court. Corzin v. Fordu, 201 F.3d

693, 703 (6th Cir. 1999), citing Marrese v. American Academy of Orthopaedic Surgeons,

470 U.S. 373, 384 (1985). This is done by applying the law of the state in which the prior

judgment was rendered. Id.

Under Ohio law, "[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.,

113 Ohio St.3d 59, 61 (2007), citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 381

(1995). Claim preclusion "prevents subsequent actions, by the same parties or their

privies, based upon any claim arising out of a transaction that was the subject matter of

a previous action." Id. Furthermore, "[w]here a claim could have been litigated in the

previous suit, claim preclusion also bars subsequent actions on that matter." Id. Issue

preclusion, also known as collateral estoppel, "holds that a fact or a point that was actually

and directly at issue in a previous action, and was passed upon and determined by a

court of competent jurisdiction, may not be drawn into question in a subsequent action

between the same parties or their privies, whether the cause of action in the two actions

be identical or different." Fort Frye Teachers Ass'n v. State Empl. Rels. Bd., 81 Ohio St.3d

392, 395 (1998) (citations omitted).

Here, Defendants argue that claim preclusion bars BBC's First, Second, Fourth,

Fifth, and Eighth Claims for Relief alleging violations of its free speech, equal protection,

and due process rights. Notably, BBC litigated them or could have litigated them in the

previous state cases. As BBC is acutely aware, the First District Court of Appeals applied

the claim preclusion doctrine in its 2019 affirmance. See City of Cincinnati v. Bench

Billboard Co., 2019-Ohio362 (Ohio Ct. App. 2019), ¶¶ 6-12.

Defendants further argue that claim preclusion bars BBC's Third Claim for Relief

asserting a nonconforming use claim since the 2016 First District Court of Appeals’

decision disposed of that claim. See Bench Billboard v. City of Cincinnati, 2016-Ohio-

1040 (Ohio Ct. App. 2016), ¶¶ 22-26. Claim preclusion also bars BBC's Ninth Claim for

Relief asserting a conversion claim for the same reason, i.e., the 2019 First District Court

of Appeals’ decision disposed of that claim. See City of Cincinnati v. Bench Billboard Co.,

2019-Ohio-362 (Ohio Ct. App. 2019), ¶ 12. Additionally, to the extent that BBC seeks to

relitigate the finding by the state trial court adopting its magistrate's conclusion that BBC's

permits were for "the construction of the benches and nothing more", issue preclusion

bars BBC from doing that. See Bench Billboard v. City of Cincinnati, 2016-Ohio-1040

(Ohio Ct. App. 2016), ¶ 16.

Plaintiff again argues that the instant complaint involves the constitutionality of

certain ordinances that were not in existence when the previous cases were litigated,

ordinances which materially changed the law, and therefore, this action cannot be barred

by Rooker-Feldman or collateral estoppel because the scope and the impact of the law

has changed. (Doc.15). As noted above, the sections in question were enacted by the

same ordinance that was in question in the previous cases and have been a part of the

code since 2010. While changes have been made to the code, the impact – removal of

Plaintiff’s benches – remains the same. The injuries Plaintiff complains of result from the

continued enforcement of the City’s municipal code following prior state actions and

therefore both Rooker-Feldman and collateral estoppel bar this action.

3. Standing

Last, Defendants argue that Plaintiff lacks standing. The issue of standing is a

“threshold question” in federal courts. Fieger v. Mich. Supreme Court, 553 F.3d 955, 961

(6th Cir. 2009). Article III of the Constitution limits the judicial authority of the United

States Courts. If a claimant does not have a “sufficiently concrete and redressable interest

in [a] dispute,” then that claimant lacks standing and the court does not have jurisdiction

to hear that case. Id. To establish standing, a plaintiff must show that (1) he or she has

suffered an injury; (2) the injury is fairly traceable to the alleged action of the defendant;

and (3) that it is likely that the injury will be redressed by a judgment in his or her favor.

Id. at 962 (citing Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006)).

Here, Defendants argue that BBC has alleged no injury likely to be redressed by

the requested relief. As the First District Court of Appeals found on two prior occasions,

BBC’s benches are in violation of the City's Municipal Code for reasons having to do with

its failure to comply with any of the requirements set forth under Chapter 723. City of

Cincinnati v. Bench Billboard Co., 2019-Ohio-362 (Ohio Ct. App. 2019), ¶ 14. It bears

repeating, the First District Court of Appeals emphasized that the trial court had found

that BBC had not secured any of its benches to the ground, complied with bench design

requirements, or provided the necessary proof of insurance. Id. BBC's benches would

remain in violation of the Code irrespective of any relief BBC could obtain here. As the

First District Court of Appeals observed in its 2019 decision, BBC has evidenced no effort

to comply with the requirements of Chapter 723. Rather, BBC has simply ignored the

decisions of this Court, the Sixth Circuit Court of Appeals, the Hamilton Court of Common

Pleas, and the First District Court of Appeals.

In sum, the undersigned finds that Plaintiff’s federal law claims are barred by the

Rooker Feldman doctrine and also precluded by res judicata. Because Plaintiff’s federal

claims should be dismissed, this court should also decline to exercise supplemental

jurisdiction over any pendant state claims. 28 U.S.C. § 1367(c)(3); see Musson Theatrical

v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (“When all federal claims

are dismissed before trial, the balance of considerations usually will point to dismissing

the state law claims . . .”).3

3 SORTA also argues that BBC fails to state any valid claim for relief against SORTA. In this regard,

SORTA contends that every allegation asserted in the Amended Complaint stems from the City’s

enforcement of the City Code, City Ordinances, and the City’s Public Right of Way Outdoor Furniture Design

Guidelines (the “City Guidelines”). Notably, BBC does not allege that SORTA is responsible for drafting,

enforcing, or waiving the enforcement of the City Code, City Ordinances, or City Guidelines. As such,

SORTA contends that BBC’s unsupported claims that SORTA has somehow prohibited BBC from placing

advertising benches on City rights-of-way, provided more favorable treatment to similarly situated third

parties, and illegally removed BBC’s advertising benches fail to state a claim as a matter of law. The

undersigned agrees.

III. Conclusion

For the reasons stated herein, IT IS THEREFORE RECOMMENDED that

Defendants’ motions to dismiss (Docs. 8, 10) be GRANTED and this case be CLOSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BENCH BILLBOARD COMPANY Civil Action No. 1: 19-cv-701

Plaintiff McFarland, J.

Bowman, M.J.

vs.

CITY OF CINCINNATI, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).