Vision Real Estate Investment Corp. v. Metropolitan Government of Nashville & Davidson County

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

VISION REAL ESTATE INVESTMENT )

CORP., AUTUMN ASSISTED LIVING )

PARTNERS, INC., and MICHAEL )

HAMPTON ) NO. 3:18-cv-00014

)

Plaintiffs, ) JUDGE CAMPBELL

)

v. ) MAGISTRATE JUDGE NEWBERN

)

METROPOLITAN GOVERNMENT OF )

NASHVILLE & DAVIDSON COUNTY, )

et al., )

)

Defendants. )

MEMORANDUM

Pending before the Court is a Motion for Judgment on the Pleadings filed by Defendant

Metropolitan Government of Nashville and Davidson County (“Metro”). (Doc. No. 99). Plaintiffs

filed a Response (Doc. No. 119) and Metro filed a Reply (Doc. No. 122). Together with the

Response, Plaintiffs moved to Court to delay ruling on Defendant’s Motion and to allow limited

discovery to obtain evidence in support of their equal protection claim. (Doc. No. 120). Metro

filed a response in opposition to the motion for discovery. (Doc. No. 123).

For the reasons stated below, Plaintiffs’ motion to conduct discovery is DENIED and

Metro’s Motion for Judgment on the Pleadings is GRANTED.

I. BACKGROUND

Plaintiffs Vision Real Estate Investment Corporation (“Vision”) and Autumn Assisted

Living Partners, Inc. (“Autumn”) are Tennessee corporations owned by Plaintiff Michael

Hampton. (Doc. No. 45, ¶¶ 1-2). Hampton formed the companies in anticipation of purchasing

and developing a parcel of land in north Nashville known as the “Bordeaux Hospital Property”

from Metro Nashville. (Id. at ¶ 12).

The Court set forth a thorough description of the facts of this case in its September 30,

2019 Memorandum (Doc. No. 95), which are incorporated herein. For clarity and ease of

reference, the Court provides an abbreviated summary of the allegations relevant to the claims

against Metro.

On January 10, 2014, Plaintiffs Vision and Autumn entered into three separate agreements

with Metro relating to the Bordeaux Hospital Property. Two of these agreements related to the

operation and sale of a Metro-owned assisted living facility on the property. (Doc. Nos. 45-1 and

45-2). In what is referred to as the “Lease Purchase Agreement,” Autumn agreed to operate the

facility, make $300,000 in capital improvements during the first 18 months of the lease, and

purchase the facility for $500,000 no later than July 1, 2016. (Doc. No. 45-2).

To help offset the operating losses related to operation of the facility1, Metro agreed to sell

two tracts of land in the Bordeaux Hospital Property to Vision. (Doc. No. 45 at ¶¶ 14, 15). In what

will be referred to as the Second Contract,2 Vision made a non-refundable earnest money deposit

and Metro incurred an obligation “to support Vision’s application to rezone the subject Property

to allow construction of project specified in the Bordeaux Hills Redevelopment District.” (Doc.

No. 45-3). The contract included the following conditions precedent to the sale of Tract One: (1)

Autumn must complete the capital improvements to the Facility as required by the Lease Purchase

1 The Assisted Living Facility was losing more than $2,000,000 per year prior to Autumn taking over

the operation of the facility. (Doc. No. 45, ¶ 15).

2 Metro and Vision entered into two contracts regarding the sale and development of the Bordeaux

Hospital Property. The first agreement, which was contemporaneous with the agreements between Autumn

and Metro regarding the assisted living facility, was contingent on legislation which was never enacted.

(Doc. No. 45, ¶ 15). After the legislation failed, the parties negotiated a second agreement for two smaller

tracts of land. (Doc. No. 45-3). Only the second contract is relevant to the claims asserted.

Agreement; and (2) Autumn must have completed the purchase of the Facility and be operating

the Facility as “an assisted living facility fully licensed by the State of Tennessee.” (Id.). The sale

of Tract Two was conditioned upon the completion of the sale of Tract One and the construction

of at least 32 affordable, senior housing units on Tract One. (Id.).

In February 2016, Autumn (through a to-be-formed affiliate) applied to the Metropolitan

Development and Housing Agency (“MDHA”) for Tax Increment Financing (“TIF”) to purchase

the assisted living facility. (Id. at ¶¶ 36, 38, 69). Although review of the application was expected

to take four to six weeks, MDHA rejected the application three days after it was complete, telling

Autumn that the “existing currently operated assisted living facility is not considered a

redevelopment eligible for tax increment financing dollars as anticipated in the Bordeaux

redevelopment plan.” (Id. at ¶ 96). Autumn was later approved for tax-exempt bond financing,

but the bond measure was never signed by the mayor. (Id. at ¶¶ 54-61). Plaintiffs claim they were

discriminated against on the basis on race in consideration of the TIF application. They allege

Metro and MDHA do not approve TIF funds to African-American owned businesses or to be used

for development in the historic African-American neighborhoods of north Nashville / Bordeaux.

(Id. at ¶¶ 92-98).

In December 2017, after a series of renegotiations and delays, the sale contemplated in the

Second Contract remained incomplete and the Metro Council was considering a bill to rescind the

Lease Purchase Agreement and repeal the 2015 ordinance approving the Second Contract. (Id. at

¶ 46, 102). On January 6, 2017, while the bill was pending before the Metro Council, Autumn

delivered funds for the agreed purchase price to Metro and requested to close on the facility on

January 10, 2017. (Id. at ¶¶ 51, 111). A few hours later, Metro terminated the Lease Purchase

Agreement on grounds that Autumn had not completed the purchase of the facility by the specified

date and raising concerns about Facility operations. (Doc. No. 45-4). Shortly thereafter, the Metro

Council passed the bill rescinding the Lease Purchase Agreement and the Second Contract. (Doc.

No. 45 at ¶ 53). Plaintiffs allege they were not given adequate notice or opportunity to be heard

on the bill.

Thereafter, Metro transferred a portion of the Bordeaux Hospital Property to MDHA.

MDHA successfully rezoned the property and planned a $9.5 million development using federal

funding. (Id. at ¶¶ 70, 72). Plaintiffs allege Metro never intended to complete the sale to Vision

because MDHA needed to develop the property itself to avoid forfeiting $10 million in federal

disaster relief. (Id. at ¶¶ 81-82).

The operative Second Amended Complaint (Doc. No. 45) asserts claims against

Metropolitan Government of Nashville and Davidson County, the Metropolitan Development and

Housing Agency, and against former Metro City Councilmembers Jim Shulman and Dominick

Leonardo. The Complaint alleges constitutional claims for violation of procedural and substantive

due process and of the Equal Protection Clause and state law claims for breach of contract,

inducement to breach of contract, intentional interference with business relationship, civil

conspiracy, equitable estoppel, and fraudulent inducement. (Id.)

All of the Defendants except Metro filed motions to dismiss (Doc. Nos. 68 and 72). Upon

consideration of those motions, the Court dismissed all claims against Defendants Jim Shulman

and Dominick Leonardo and dismissed the constitutional claims against MDHA. (Doc. No. 95).

MDHA argued that the Court should decline to exercise supplemental jurisdiction over the

remaining state law claims and dismiss those claims as well, but because all of the claims against

Metro remained, the Court did not dismiss the state law claims against MDHA at that time. (Id.).

Shortly after the Court issued a ruling on the motions to dismiss, Metro filed the instant

Motion for Judgment on the Pleadings seeking judgment on all claims.

II. STANDARD OF REVIEW

“After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard for evaluating a motion for

judgment on the pleadings is the same as that applicable to a motion to dismiss under Rule 12(b)(6)

for failure to state a claim. Hayward v. Cleveland Clinic Found., 759 F.3d 601, 608 (6th Cir. 2014).

“In reviewing a motion for judgment on the pleadings, we construe the complaint in the light most

favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine

whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would

entitle relief.” Id. (internal quotation marks and citations omitted). “The factual allegations in the

complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and

the plaintiff must plead ‘sufficient factual matter’ to render the legal claims plausible, i.e., more

than merely possible.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)

(quoting Ashcroft v. Iqbol, 556 U.S. 662, 677 (2009)).

In ruling on a motion under Rule 12(c), the Court may look only at the “pleadings.” Doe v.

Belmont Univ., 334 F. Supp. 3d 877, 887 (M.D. Tenn. 2018). The term “pleadings” includes both

the complaint and the answer, Fed. R. Civ. P. 7(a), and “[a] copy of any written instrument which

is an exhibit to a pleading and is a part thereof for all purposes.” Fed. R. Civ. P. 10(c). “[M]atters

of public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint[ ] also may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.

2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)).

III. ANALYSIS

A. Motion to Delay Ruling and for Limited Discovery

Plaintiffs’ have moved for the Court to delay ruling on Defendant’s Motion for Judgment

on the Pleadings and permit limited discovery on their equal protection claim. (Doc. No. 120).

The Court finds no cause to delay ruling on Defendant’s motion. Moreover, discovery in this case

has proceeded according to the case management schedule set by the Magistrate Judge, thereby

obviating a need to allow “limited discovery” on the equal protection claim. Plaintiffs have had

ample time and opportunity to discover facts in support of their equal protection claims – the TIF

application that is the subject of the equal protection claim was denied more than four years ago

and because Metro and MDHA are public entities, the information sought was attainable outside

the confines of this litigation. Accordingly, the motion to delay ruling and to allow limited

discovery is DENIED.

B. Procedural Due Process

Plaintiffs bring a claim for violation of their right to procedural due process guaranteed by

the Fourteenth Amendment under 42 U.S.C. § 1983. Plaintiffs allege Defendants violated their

right to procedural due process on four occasions: (1) termination of the contract; (2) application

for a change of zoning; and (3) application for TIF funds. (Doc. No. 45 at ¶¶ 34, 38, 46, 56, 95-96,

125). In addition, Plaintiffs claim deprivation of their “constitutional right to earn a living through

the development of the contract property, the operation of the Assisted Living Facility, and other

activities that would have resulted in income and profits to the Plaintiffs.” (Id. at ¶ 129).

The Court has previously held that Plaintiffs do not have a property interest in the zoning

change or in tax increment financing and that Plaintiffs’ due process claims related to these issues

are not viable. (See Doc. No. 95 at 17-19). The Court also held that Plaintiffs’ have not stated a

due process claim based on deprivation of liberty interest. (Id.) Plaintiffs’ due process claims with

regard to these allegations against Metro fail for the same reasons.

With regard to the termination of the contracts, however, the Court dismissed the claim

against MDHA because Plaintiff did not allege facts to show that MDHA was responsible for the

alleged denial of due process related to the termination of the contract. (Doc. No. 95 at 16). The

Court noted that “[i]f any due process was required with regard to the termination of the contracts,

MDHA was not the party to provide such process.” (Id.) Accordingly, the question of whether

Metro’s termination of the contract gives rise to a procedural due process claim remains unresolved

and the Court considers it now.

The Fourteenth Amendment forbids a state from depriving any person of life, liberty, or

property without due process of law. U.S. Const. amend. XIV, § 1. The fundamental requirement

of due process is notice and the opportunity to be heard at a meaningful time and in a meaningful

manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). To establish a procedural due process

claim, a plaintiff must establish a constitutionally protected liberty or property interest and show

that such an interest was deprived without appropriate process. Midkiff v. Adams Cty. Reg. Water

Dist., 409 F.3d 758, 762 (6th Cir. 2005) (citing Board of Regents v. Roth, 408 U.S. 564, 569-70

(1972)).

Defendant Metro disputes that Plaintiffs had a protected property interest and argues that

even if there is a protected interest, Plaintiffs’ claim nevertheless fails because adequate state law

remedies exist to redress the alleged wrongful termination of the contract. (Doc. No. 100 at 6).

Not every deprivation of a constitutionally protected property interest is actionable in a

procedural due process suit. See Machisa v. Columbua City Bd. of Ed., 563 F. App’x 458, 462 (6th

Cir. 2014). That is the case here, where Plaintiffs have an adequate remedy for the alleged

wrongful termination of the Second Contract through a state breach of contract action. Indeed,

Courts have regularly rejected attempts to convert a breach of contract claim into a constitutional

due process claim, particularly when the “only basis for federal jurisdiction is that a state actor is

one of the contracting parties.” Ramsey v. Bd. of Ed. of Whitley Cty., 844 F.2d 1268, 1273 (6th Cir.

1988). The Ramsey court held that “when the deprivation is a simple breach of contract and there

is an adequate state breach of contract action available as a remedy,” a Section 1983 action is not

available. Id.

Under facts similar to those presented here, the Sixth Circuit held that a city’s termination

of a real estate purchase agreement without a hearing did not state a claim for violation of

procedural due process because a breach of contract action would provide an adequate procedural

protection for the city’s termination of the agreement. Taylor Acquisitions, L.L.C. v. City of

Taylor, 313 F. App’x 826, 830-32 (6th Cir. 2009) (“It is neither workable or it is neither workable

nor within the intent of section 1983 to convert every breach of contract claim against a state into

a federal claim.”); see also, Machisa, 563 F. App’x at 463 (plaintiff’s alleged property interest in

the contract not remediable in federal court because there was an adequate state breach of contract

action available as a remedy).

Plaintiffs argue that a breach of contract action is insufficient to provide a remedy because

“the deprivation constitutes a denial of a present entitlement.” (Doc. No. 119 at 17). In support of

the argument, Plaintiffs cite Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001). In

Lujan, the Supreme Court held that denial of payment due under a contract did not give rise to a

due process claim because the plaintiff could vindicate his rights in an ordinary breach of contract

suit. The Lujan Court suggested, however, that in some cases a plaintiff may have a constitutional

claim when he is “denied a right by virtue of which he was presently entitled either to exercise

ownership dominion over real or personal property, or to pursue a gainful occupation.” Id. The

Court listed examples of cases involving a “present entitlement”: Barry v. Barchi, 443 U.S. 55

(1979) (racetrack trainer suspended from employment); United States v. James Daniel Good Real

Property, 510 U.S. 43 (1993) (forfeiture of a homeowner’s house); FDIC v. Mallen, 486 U.S. 230

(1988) (bank president suspended from employment); Sniadach v. Family Fin. Corp. of Bay View,

395 U.S. 337 (1969) (wage garnishment).

Plaintiffs contingent interest in the Bordeaux Hospital Property is not comparable to the

examples of present entitlements cited in Lujan. Indeed, the Second Contract provides that Vision

would not obtain ownership of the Bordeaux Property until after the closing. (Doc. No. 45-3 at ¶

3.02) (“At the closing of each Sale Tract, Metro shall execute, acknowledge and deliver to

purchaser a Quitclaim Deed conveying to Vision title in fee simple to that particular Sale Tract.”).

Accordingly, the Court concludes that Plaintiffs claim, which is remediable as a breach of

contract action, does not state a constitutional claim for violation of procedural due process.

Defendant’s motion for judgment on the pleadings with regard to Plaintiffs’ procedural due process

claim will, therefore, be GRANTED.

C. Substantive Due Process

“The doctrine that governmental deprivations of life, liberty or property are subject to

limitations regardless of the adequacy of the procedures employed has come to be known as

substantive due process.” Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008) (quoting Bowers v.

City of Flint, 325 F.3d 758, 763 (6th Cir. 2003)). “It protects a narrow class of interests, including

those enumerated in the Constitution, those so rooted in the traditions of the people as to be ranked

fundamental, and the interest in freedom from government actions that ‘shock the conscience.’”

Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014) (citing Bell v. Ohio State Univ., 351 F.3d

240, 249-50 (6th Cir. 2003)). Some cases have characterized substantive due process as the right

to be free from “arbitrary and capricious” government action. The Sixth Circuit has made clear

that the “arbitrary and capricious” standard is merely another formulation of the “shocks the

conscience” standard and is no less stringent. See Bowers v. City of Flint, 325 F.3d 758, 764 (6th

Cir. 2003). To state a substantive due process claim, Plaintiffs must establish that (1) a

constitutionally protected property or liberty interest exists, and (2) the constitutionally protected

interest has been deprived through arbitrary and capricious or conscience shocking action. See

Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008) (referring to the arbitrary and

capricious standard).

As stated in the Memorandum considering Plaintiffs’ substantive due process claims

against MDHA, the Complaint makes no effort to tie the alleged facts to the substantive due

process claim. (See Compl., Doc. No. 45, ¶¶ 137-143) (alleging “Defendants’ action in the current

matter as set forth above have been arbitrary and tainted with improper motive which have resulted

in a deprivation of Plaintiff’s liberty and property rights.”). As before, Plaintiffs’ brief on this

issue provides no additional insight. (See Doc. No. 119 at 19-21 (arguing “Plaintiffs’ substantive

due process claims survive for the same reasons as previously presented addressing the procedural

due process claims and the relevant property interests at play”)). In fact, the Plaintiffs’ brief on

this issue is almost entirely identical to the previously filed brief addressing the claims against

MDHA, only adding the conclusory assertion that “the actions by Metro Council in proposing and

passing an emergency bill in a manner that can only be characterized as clandestine, cunning and

deceitful, in no way can be classified as legislative in nature, but rather was non-legislative and

was arbitrary, irrational, and tainted by improper motive.” (Doc. No. 119 at 21).

Although Plaintiffs do not specify which actions are alleged to constitute a substantive due

process violation by Metro, the Court has previously held that Plaintiffs do not have a

constitutionally protected property or liberty interest in their application for a zoning change, their

TIF application, or their ability to earn a living through the development of the property under

contract. Accordingly, to the extent Plaintiffs’ substantive due process claim rests on these

theories of liability, the claim fails. See Wayne Watson Enter., LLC v. City of Cambridge, 751 F.

App’x 760, 763 (6th Cir. 2018) (“Both procedural and substantive due process claims require

[plaintiff] to show that he has a property interest that was deprived.”).

Insofar as Plaintiffs’ substantive due process claim arises out of Metro’s termination of the

contracts, the claim meets the same end because contractual rights do not fall within the category

of interests protected by substantive due process. “Substantive due process affords only those

protections so rooted in the traditions and conscience of our people as to be ranked as

fundamental.” EJS Prop., LLC. v. City of Toledo, 698 F.3d 845, 862 (6th Cir. 2012) (quoting

Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir. 1990)). The Sixth Circuit has distinguished

between “constitutionally protected interests” and “garden variety interests.” Id. Contract interests

are accorded “garden variety” status and “while assuredly protected by procedural due process,

are not protected by substantive due process.” Id; see also, Bowers v. City of Flint, 325 F.3d 758,

764 (6th Cir. 2003) (holding that state-created contractual rights are “simply not a proper subject

of federal protection under the doctrine of substantive due process”). The Sixth Circuit has

specifically applied this rule to contracts such as those at issue here, holding that a real estate

purchase agreement is a state-created contractual right that is not “a proper subject of federal

protection under the doctrine of substantive due process.” Taylor Acquisitions, 313 F. App’x at

834 (quoting Bowers v. City of Flint, 325 F.3d 758, 764 (6th Cir. 2008)).

Furthermore, although Plaintiffs conclusively state Defendant’s actions “have been

arbitrary and tainted with improper motive” and are “so egregious as to shock the conscience of a

viewing party,” they have not pleaded facts to support these assertions. The standard of what

constitutes arbitrary and capricious or shocks the conscience so as to state a claim for violation of

substantive due process is high. For example, the Sixth Circuit has held that even solicitation of a

bribe by a public official “unfortunately” does not “shock the conscience” so as to raise a

substantive due process claim. EJS Prop., 698 F.3d at 862. The court noted that “although we can

condemn [the public official] for his misconduct, we simply cannot say that his behavior is so

shocking as to shake the foundations of this country.” Id.

The conduct alleged by Plaintiffs – that Defendants intentionally breached a real estate

purchase agreement – is not shocking or arbitrary and capricious. To the contrary, the Complaint

alleges Metro provided the following reason for terminating the contract: Autumn Hills failed to

close on the facility by August 1, 2016, and could not do so, and that there were concerns about

patient care. (Doc. No. 45 at ¶¶ 52, 59). Plaintiffs allege the stated reason was a pretext and that

Metro intentionally terminated the contract so that MDHA could develop and control the property

and thereby avoid forfeiting $10 million in federal grant funds. (Doc. No. 45 at ¶¶ 82, 83).

Defendant’s termination of the contracts, even if intentional and preplanned or clandestine and

deceitful, does not “shock the conscience” in a manner that raises a substantive due process claim.

For the reasons stated above, Defendant’s motion for judgment on the pleadings with

regard to Plaintiffs’ substantive due process claim will be GRANTED.

D. Equal Protection

Plaintiffs’ final constitutional claim is under the Equal Protection clause. The Equal

Protection Clause of the Constitution provides that “[n]o State shall … deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, S1. The Equal Protection

Clause prohibits discrimination by the government which either burdens a fundamental right,

targets a suspect class, or intentionally treats one differently than others similarly situated without

any rational basis for the difference. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th

Cir. 2005). When state action is alleged to target a suspect class, “proof of discriminatory intent

or purpose is required to show a violation of the Equal Protection Clause.” City of Cuyahoga Falls

v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003).

To allege a plausible claim Plaintiffs must raise an inference of discriminatory purpose.

To do so, they must demonstrate that the application of a facially neutral law or policy had a

discriminatory impact, and that sufficient evidence exists to suggest a discriminatory motive.

Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265-66 (1977).

Plaintiffs must demonstrate that a decisionmaker “selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon a particular

racial group.” Pers. Adm’r v. Feeny, 442 U.S. 256, 279 (1979).

Plaintiffs allege they were subject to unequal treatment in the consideration of their TIF

application because of discrimination based on race.3 As evidence of racial bias, Plaintiffs allege

Metro has never approved a TIF project in Bordeaux (a historic African-American community)

and there is “not one building standing in Nashville owned by an African-American that has been

approved for TIF financing.” (Doc. No. 45 at ¶¶ 93, 94, 97, 149). Plaintiffs, however, concede

3 The Complaint also alleges unequal treatment with regard to enforcement of health and safety

violations at heath case facilities and compensation to non-minority corporations. In response to the motion

for judgment on the pleadings, Plaintiffs set forth no arguments with regard to these allegations.

Accordingly, Plaintiffs have failed to oppose Defendant’s motion to for judgment on these claims and any

argument with regard to the viability of the equal protection claim based on these allegations is waived. See

Humphrey v. U.S. Att’y Gen., 279 F. Appx. 328, 331 (6th Cir. 2008).

that during the past five years no other African-American businesses have applied for TIF. (Id. at

¶ 67). Plaintiffs argue that MDHA has instead awarded TIF funds to development projects in non-

historically black areas of Nashville – Westin Hotel, Bellevue Mall, “projects in the Gulch,”

Rolling Hills, and a project by a Florida firm. (Id. at ¶ 91, 93). Plaintiffs also allege TIF funds

were awarded to Old Hickory Towers, “an existing and operating senior high rise,” while Plaintiffs

project was deemed ineligible. (Id. at ¶ 96).

The Court previously dismissed the equal protection claim against MDHA because

Plaintiffs did not plead facts to show that the projects awarded TIF finding were similarly situated

to the Vision project and did not provide evidence to raise an inference that racial discrimination

was a motivating factor in the denial of Plaintiffs’ TIF application. (Doc. No. 95 at 24). Plaintiffs’

equal protection claim against Metro fails for the same reasons.

Plaintiffs must plead sufficient facts from which it can be inferred that defendants treated

similarly situated individuals differently. Braun, 519 F.3d at 574-75. Plaintiffs have listed several

developments that received TIF funds and are not located in historic African-American

communities. Plaintiffs refer generally to some developments by their location without giving any

facts regarding the funded projects. It is evident from the project names, however, that the Westin

Hotel and the Bellevue Mall are not similar to the development for which Plaintiffs sought funding.

In fact, the only apparent similarity between the listed projects and the Vision project is that they

all involve real estate development, which standing alone is insufficient to establish that the

projects are similarly situated. Although exact correlation is not required, the projects must

evidence some relevant similarity. Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000). The Old

Hickory High Rise, which Plaintiffs allege to be similarly situated because it also houses seniors,

is the lone example with some modicum of similarity to the Vision project. However, this sole

congruence is not enough to show they are similarly situated in all material respects. See Silver v.

Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992) (dismissing equal

protection claim when plaintiff alleged only that other condominium units received approval but

presenting no evidence that these other developments were similarly situated).

Even assuming Plaintiffs showed that the Old Hickory High Rise is an appropriate

comparator, the facts alleged are insufficient to raise an inference of discriminatory intent. The

only evidence of discriminatory intent cited by Plaintiffs is that TIF funds have not financed

developments in the historically African-American neighborhoods of North Nashville/Bordeaux

and, in the past ten years, TIF funds have not been awarded to any African-American owned

businesses. At most, the facts alleged show that the failure to award TIF funds to African-

American businesses or projects in North Nashville/Bordeaux were made in spite of Plaintiffs’

race, not because of it. In fact, the allegations of the Complaint state that Vision is the only

African-American owned business to apply for TIF funds in the past five years.

Plaintiffs argue it is irrelevant that no other African-American businesses have recently

applied for TIF funds because there are no buildings in Nashville owned by an African-American

that have been approved for TIF funds. It is unclear whether Plaintiffs intend to assert that no

African-American owned business has ever received TIF funds or if the statement was

intentionally crafted to be ambiguous and leave open the possibility that African-American owned

business have been approved for TIF funds, but the buildings themselves are not currently so

owned. In either case, Plaintiffs’ assertion that a single African-American owned business was

denied funding is not sufficient evidence to support an inference of racial discrimination.

Moreover, given Plaintiffs’ contention that “Metro’s plan all along” was to build low to

moderate income multi-family housing on the property under contract to Vision so that it would

not have to return a $10 million grant to the federal government, an inference that race, rather a

desire to keep $10 million, was the motivating factor is unwarranted. Taken as a whole, the alleged

facts do not support an inference of discriminatory intent.

In sum, Plaintiffs have not pleaded facts sufficient to show they were treated differently

from similarly situated persons or to support an inference of discriminatory intent to sustain a claim

under the Equal Protection Clause. Accordingly, Defendant’s motion for judgment on the

pleadings will be GRANTED on this claim.

E. The Remaining State Claims

Because the Court has dismissed all of the federal claims, the Court declines to exercise

supplemental jurisdiction over the pendant state law claims. Accordingly, the state law claims

against Metro and MDHA are dismissed without prejudice. Landefield v. Marion Gen. Hosp., Inc.,

994 F.2d 1178, 1182 (6th Cir. 1993); Faughender v. City of N. Olmtead Ohio, 927 F.2d 909, 917

(6th Cir. 1991).

IV. CONCLUSION

For the foregoing reasons, Metro’s Motion for Judgment on the Pleadings (Doc. No. 99) is

GRANTED. Plaintiffs’ constitutional claims for violations of procedural due process, substantive

due process, and equal protection (Counts One, Two, and Three) are DISMISSED WITH

PREJUDICE. Plaintiffs pendant state law claims (Counts Four through Nine) against Metro and

MDHRA are DISMISSED WITHOUT PREJUDICE. Plaintiffs’ Motion to Conduct Limited

Discovery (Doc. No. 120) is DENIED.

An appropriate Order will enter.

UNITED STATES DISTRICT JUDGE

16