Gracey General Partnership v. City of Clarksville, Tennessee

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GRACEY GENERAL PARTNERSHIP, )

A Tennessee General Partnership, )

)

Plaintiff, )

) Case No. 3:23-cv-01189

v. ) Judge Aleta A. Trauger

)

CITY OF CLARKSVILLE, )

TENNESSEE; JOE PITTS, Mayor of the )

City of Clarksville, Tennessee; DAVID )

SMITH, Interim Head of the Department )

of Building and Codes of the City of )

Clarksville, Tennessee; and DEIDRE )

WARD, Director of the Department of )

Building and Codes of the City of )

Clarksville, Tennessee, )

)

Defendants. )

MEMORANDUM

This case concerns a land developer’s demolition permit application. For the reasons set

forth herein, the court will grant the defendants’ Motion to Dismiss (Doc. No. 11).

I. FACTS

This dispute is about the plaintiff’s attempt to obtain a permit to demolish a house (the

“House”) located on approximately one acre of land at 517 Madison Street, Clarksville, Tennessee

(collectively, the “Property”).1 (Doc. No. 1 ¶¶ 10–11.)

1 The plaintiff also complains about the defendants’ denial of a Disconnect Order that would have

allowed CDE Light Band to disconnect electrical services at the Property. (See Doc. No. 1 ¶ 5.)

The failure to approve disconnection of electrical services seems entirely dependent on the denial

of the demolition permit and does not merit separate consideration. (See Doc. No. 39 at 12 n.3

(“The City purportedly denied the issuance of the CDE Lightband ‘Utility Disconnect Order’ on

the basis that the demolition permit had not been issued.”).)

The plaintiff, Gracey General Partnership (“Gracey”), has sued the City of Clarksville (the

“City”) and three Clarksville officials, in both their individual and official capacities: Joe Pitts,

Mayor of Clarksville; David Smith, Interim Head of the City of Clarksville Department of

Buildings and Codes; and Deidre Ward, Director of the City of Clarksville Department of

Buildings and Codes (collectively, the “individual defendants”). (Doc. No. 1 ¶¶ 3–6.) The parties

disagree about the requirements, under municipal law,2 to demolish a building within the zoning

“overlay district” in which the Property sits. The plaintiff alleges that, in denying its demolition

permit application, the defendants violated municipal law and the United States Constitution.

For over a decade, non-party George Terrell owned the Property, which he used as a single-

family residence. (Doc. No. 1 ¶¶ 10–11.) By an August 29, 2023 deed, Gracey acquired the

Property from Terrell.3 (Doc. No. 1 ¶ 10.) Gracey is a Tennessee general partnership, the members

of which are two Tennessee Investment Services Trusts—JDW II and JPW II. (Doc. No. 1 ¶ 2;

Doc. No. 6.) Gracey’s managing partner is Jennifer Willoughby.4 (Doc. No. 1 ¶ 21.) Willoughby

and her husband are the “beneficial owners of various affiliated business entities,” including

Gracey. (Doc. No. 16-1 ¶ 2.) They are also the beneficial owners of JPW LLC, which was Gracey’s

agent in the purchase of the Property and for which Willoughby is a real estate agent. (Id.; see also

Doc. No. 39 at 9.) Gracey’s sole business is the “acquisition of distressed real estate” within

2 The defendants have filed the relevant portions of Clarksville Zoning Ordinance (Doc. No. 12-

11) and Clarksville Property Maintenance Code (Doc. Nos. 12-12 through 12-15).

3 The defendants say that the plaintiff’s purchase of the Property was contractually contingent on

securing a demolition permit for the House. (See Doc. No. 13-1 (citing Doc. 12-10 at 35:13–17,

39:22–23); Doc. No. 47 at 9.) The plaintiff does not contest this. If the defendants are correct, it is

unclear why the sale went through.

4 The Complaint and the plaintiff’s Business Entity Disclosure Statement state that Gracey has

only two members, neither of which are Jennifer Willoughby. (Doc. No. 1 ¶ 2; Doc. No. 6.) So,

while the Complaint identifies Willoughby as Gracey’s “managing partner” (Doc. No. 1 ¶ 21), it

appears that she acts as Gracey’s agent. (Accord Doc. No. 32 at 2 n.1.)

Clarksville’s central business zone for development—either by demolishing and building multi-

family housing or by converting existing buildings for mixed residential and commercial use.

(Doc. No. 16-1 ¶¶ 3–4.)

Part of downtown Clarksville, including the Property, is zoned within the Central Business

District. (Doc. No. 1 ¶ 12.) In addition to zoning districts, Clarksville has several “overlay

districts,” which are subsets of zoning districts that impose additional requirements on property

within them—building standards rather than property use.5 One overlay district is the Downtown

Urban Design Overlay District (the “Downtown District”), the purpose of which is “to enhance

the quality, image, and economic vitality of Downtown Clarksville” and therefore “imposes urban

design guidelines.” Clarksville Zoning Ordinance § 9.5.1(1). The Downtown Urban Design

Standards and Guidelines (the “Guidelines”) “are intended to preserve and enhance the special

character of the Downtown Overlay District by encouraging rehabilitation and new construction

that is sensitive to the existing urban form and historic character.” Id. § 9.5.3(1)(A)(2). At great

length and detail, the Guidelines suggest or mandate design features for property within the

Downtown District.6 The Property at issue in this case is within the Downtown District. (Doc. No.

1 ¶ 14.)

5 See, e.g., Clarksville Zoning Ordinance § 9.5.1(2) (“This overlay zoning district is placed ‘over’

the base zoning in an area in order to modify the base zoning’s regulatory standards. The overlay

district alters such standards as building placement, size and height, parking and access, and

landscaping and buffering, but does not determine the use of the property. The use of property

(both land and structures) is governed by the underlying base zoning.”).

6 For instance, the Guidelines provide that awnings on commercial and mixed-use buildings within

the Downtown District need not be retractable, but they should “appear to be.” Id. §

9.5.3(1)(D)(4)(b).

Relevant to this case are provisions of the City Property Maintenance Code and Clarksville

Zoning Ordinance regarding the Downtown District. The provision of the Property Maintenance

Code on which the plaintiff relies states:

Permits. Any owner, authorized agent, or contractor who desires to construct,

enlarge, alter, repair, move, demolish, or change a residential building or structure

or to cause any such work to be done, shall first make application to the housing

official and obtain the required permit therefor. Ordinary minor repairs may be

made with the approval of the housing official without a permit, provided that

such repairs shall not violate any of the provisions of this code.

Clarksville Code Tit. 4 Ch. 6 § 4-601(j).

The two applicable Zoning Ordinance sections are as follows:

Government officials, property owners, developers, design consultants and other

stakeholders will use this section to prepare improvement plans that are consistent

with the Downtown Design Standards and Guidelines. The standards and

guidelines apply to private nonresidential and multiple-family residential

(excluding single-family and duplex structures) new construction, exterior

remodeling or repainting; window and awning changes or improvements; signing

changes and improvements; sidewalk changes and improvements; exterior

lighting changes and improvements; and landscaping and parking lot

construction, changes and improvements.

§ 9.5.1(3) (“Scope of Review”).

To ensure consistency with the Downtown Urban Design Standards and

Guidelines, the Common Design Review Board and the Clarksville-Montgomery

Regional Planning Commission staff will review all private projects in the

Downtown Urban Design Overlay District that require demolition and building

permits and that make modifications to the exterior appearance of buildings,

signing, landscaping and parking. Existing nonconforming structures, unforeseen

physical conditions and subsequent architectural programmatic constraints may

warrant exceptions to the guidelines.

§ 9.5.4(1) (“Project Approval Process” - Overview).

On June 30, 2023—when Terrell still owned the property—Jennifer Willoughby, as

Terrell’s “authorized agent,” submitted to the Regional Planning Commission and Design Review

Coordinator an “Application for Appropriateness” to demolish the House. (See Doc. No. 13-1 at

2; Doc. No. 12-2.)7 The Common Design Review Board held a public meeting on July 24, 2023,

during which it took up Terrell’s application. (Doc. No. 13-1 at 3; Doc. No. 12-5 at 1–3.) After

public comment, as well as comments from Willoughby, her husband, and members of the Board,

the Board voted unanimously to reject the application for demolition. (Doc. No. 13-1 at 3–4.) A

week later, Willoughby appealed the Common Design Review Board’s denial by email to Brent

Clemmons, the Design Review Coordinator/Planner of the Regional Planning Commission. (Doc.

No. 13-1 at 4 (citing Doc. No. 12-6).) Two weeks after that, Willoughby withdrew the appeal.

(Doc. No. 13-1 at 4 (citing Doc. No. 12-8; Doc. No. 12-9 at 12).)8

The Complaint begins the story on August 29, 2023—the day the plaintiff acquired the

Property. On August 30, 2023, Willoughby—this time on behalf of the plaintiff, the Property’s

new owner—submitted an online demolition permit application to the Clarksville Department of

Buildings and Codes. (Doc. No. 1 ¶ 20.) In response, by email, defendant Ward informed

Willoughby that the City could not issue a demolition permit because Zoning Code § 9.5.4(1)

requires the Regional Planning Commission and Common Design Review Board to review any

such permit. (Doc. No. 1 ¶¶ 22–23; Doc. No. 1-6 at 1–2.) Ward wrote: “I am not denying your

application. I am just advising of what would be required upon submission of your Demolition

Permit.” (Doc. No. 1-6 at 1.) In addition, Ward wrote that the plaintiff would have to “make a new

application to the RPC, as current owner of the property, and present your case and future plans to

the Common Design Review Board and the RPC.” (Id.)

7 The plaintiff states that, at the time of Terrell’s application, “Jennifer Willoughby, a real estate

agent of JPW LLC, the buyer’s [Gracey’s] agent, was not an applicant or owner of the property.”

(Doc. No. 39 at 9.)

8 The Complaint omits this history. The court considers the facts presented in documents appended

to the Motion to Dismiss, as discussed in this court’s Order (Doc. No. 21) granting the plaintiff’s

Motion to Clarify (Doc. No. 18).

Over the next several weeks, Willoughby exchanged emails with various city officials. (See

Doc. 1 ¶¶ 24–31.) In a September 26, 2023 letter, defendant Smith informed Willoughby that “at

this time” the City would not issue a demolition permit. (Doc. No. 1-12 (emphasis in original);

Doc. No. 1 ¶ 32.) Citing City of Clarksville Zoning Regulation § 9.5.4, Smith wrote that any project

in the Downtown District that requires demolition needs to be reviewed by the Regional Planning

Commission and the Common Design Review Board. (Doc. No. 1-12.) Defendant Smith

“encourage[d]” Willoughby to go before the Common Design Review Board to present her case

so that the City could “make a final decision on the demo permit.” (Id.)

The parties’ main dispute is about the requirements to acquire a demolition permit for the

House. The plaintiff argues that § 9.5.1(3) exempts single-family structures from the Downtown

District’s requirements, and its demolition permit application is therefore exempt from § 9.5.4(1)’s

requirement for review by either the Common Design Review Board or the Regional Planning

Commission. (Doc. No. 1 ¶¶ 16, 24.) Further, the plaintiff argues that the only requirement to

receive a demolition permit for a structure exempt from the Downtown District’s scope, per

Clarksville Code Tit. 4 Ch. 6 § 4-601(j), is to apply for one. (Doc. No. 1 ¶ 19; Doc. No. 39 at 31–

32.) The defendants argue that § 9.5.1(3) exempts structures only from the Guidelines—contained

wholly within subsection 3—and therefore subsection 4’s requirement for review by the Common

Design Review Board applies to the plaintiff’s demolition permit application. (Doc. No. 13-1 at

15–16.)

Moreover, the parties put forward different narratives. The plaintiff describes a

“conspir[acy]” between historical-preservation activists and municipal officials to delay and deny

its demolition permit application, which should have been ministerially granted, in violation of

municipal ordinances and the United States Constitution. (Doc. No. 1 ¶ 1.) The defendants describe

a plaintiff which, dissatisfied with a decision by a municipal board when the Property had a

different owner, tried to bypass the demolition-permit application process on a second attempt and

then cry foul when that did not yield the plaintiff’s desired result. (Doc. No. 13-1 at 4–5.)

In the background of this case is the House’s history and character and a citizen-led effort

to stop the House’s demolition. (It is uncontested that the House is not in any historic zoning

district or on any historic register. (Doc. No. 1 ¶ 13.)) At the public meeting of the Common Design

Review Board, for example, Design Review Coordinator Brent Clemmons noted that before the

members were emails from roughly a dozen concerned citizens—including a “Council Person”

and the chairman of the Tennessee State Historic Zoning Commission—all opposed to the House’s

demolition. (Doc. No. 12-10 at 5:21–6:9.) In addition, construing the facts in the light most

favorable to the plaintiff, the House’s history and appearance prompted at least some Common

Design Review Board members to deny Terrell’s “Application for Appropriateness” to demolish

the House, when Willoughby submitted it on his behalf, before the plaintiff acquired the Property.

(See, e.g., Doc. No. 12-10 at 3:3–5:16; id. at 51:8–52:21 (“I [Board member John Gannon] think

[the House] should be on the historic zone. And I will not vote for that to be demolished.”).)

The plaintiff alleges that the City believes that the House is a “structure contributing to the

historic downtown.” (Doc. No. 1 ¶ 17.) And, construing the facts in the light most favorable to the

plaintiff, the court finds this allegation to be supported by the public meeting minutes the

defendants filed. Jeffrey Tyndall, Director of the Regional Planning Commission (Doc. No. 12-1),

for example, noted during a Common Design Review Board meeting that the House is a

“contributing building” because it “contribut[es] to the overall downtown historic feel.” (Doc. No.

12-10 at 48:25–50:2.)

II. PROCEDURAL HISTORY

On November 13, 2023, Gracey filed its Complaint (Doc. No. 1) along with exhibits (Doc.

Nos. 1-1 through 1-13), asserting claims under 42 U.S.C. § 1983. Specifically, Gracey contends

that the City and the individual defendants—in their official and personal capacities—improperly

denied the plaintiff’s application for a demolition permit (Doc. No. 1 ¶¶ 19–38), which constitutes

1) a violation of Clarkson Zoning Code and entitles the plaintiff to declaratory relief (Count I) (id.

¶¶ 39–41); 2) an unconstitutional deprivation of property and liberty interests pursuant to an

unconstitutionally vague ordinance (Count II) (id. ¶¶ 42–46); 3) denial of substantive due process

under the Fourteenth Amendment (Count III) (id. ¶¶ 47–49); 4) and denial of equal protection of

the laws under the Fourteenth Amendment (Count IV) (id. ¶¶ 47–49). Gracey seeks a declaration

that Clarksville Zoning Ordinance § 9.5.1(3) exempts the demolition and electrical disconnection

permits it seeks from Common Design Review Board review, an injunction compelling the

Defendants to issue the permits, compensatory and punitive damages, and costs and fees. (Id. at

16–17.)

In response to the Complaint, the defendants filed a Motion to Dismiss (Doc. No. 11),

supporting documents (Doc. Nos. 12, 12-1 through 12-15), and an accompanying Memorandum

(Doc. No. 13-1). The defendants move for dismissal of the Complaint under Rule 12(b)(1), (2),

(4), (5), (6), and (7). (Doc. No. 11 at 1.) Gracey has filed a Response (Doc No. 39) along with

exhibits (Doc. Nos. 39-1 through 39-6),9 and the defendants have filed a Reply (Doc. No. 47).

9 The court will address below why it will not consider the exhibits filed with the Response.

Inexplicably, one of the exhibits is Plaintiff’s Rule 26(a)(1) Initial Disclosures, which states—

falsely so far as this court knows—that “[f]act investigation and discovery of the Defendants is

ongoing in this matter.” (Doc. No. 39-3 at 1.)

Meanwhile, the court has already decided two other issues. First, the court granted the

plaintiff’s Motion to Disqualify Batson Nolan (Doc. No. 16), the law firm that originally

represented the defendants. (Doc. No. 33.) Second, the court granted the plaintiff’s Motion to

Clarify (Doc. No. 18) and held that the documents the defendants appended to their Motion to

Dismiss did not thereby convert it to a Rule 56 motion for summary judgment. (Doc. No. 21.)

III. LEGAL STANDARDS10

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) governs dismissal for lack of subject matter

jurisdiction. “Rule 12(b)(1) motions to dismiss . . . generally come in two varieties: a facial attack

or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th

Cir. 2007). The defendants here bring a factual attack. When the court is presented with a factual

attack on its jurisdiction, “no presumption of truth applies to the plaintiff’s factual allegations, and

the court is free to weigh the evidence and resolve factual disputes so as to satisfy itself as to the

existence of its power to hear the case.” Dunn v. Spivey, No. 2:09-0007, 2009 WL 1322600, at *3

(M.D. Tenn. May 11, 2009) (internal citation and quotation marks omitted). “In its review, the

district court has wide discretion to allow affidavits, documents, and even a limited evidentiary

hearing to resolve jurisdictional facts.” Gentek, 491 F.3d at 330.

B. Rule 12(b)(2)

A defendant may move to dismiss a complaint for lack of personal jurisdiction. Fed. R.

Civ. P. 12(b)(2). “Personal jurisdiction is ‘[a]n essential element of the jurisdiction of a district . . .

court’ and without personal jurisdiction the court is ‘powerless to proceed to an adjudication.’”

10 The court does not reach the defendants’ motions under Rules 12(b)(4), (5), or (7), and therefore

does not describe their standards of review.

Mgmt. Registry, Inc. v. Cloud Consulting Partners, No. 3:19-CV-00340-JHM, 2019 WL 4478860,

at *3 (W.D. Ky. Sept. 18, 2019) (quoting Emps. Reinsurance Corp. v. Bryant, 299 U.S. 374, 382

(1937)). The party asserting personal jurisdiction bears the burden of demonstrating that such

jurisdiction exists. See Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002). “[I]n the face of a

properly supported motion for dismissal, the plaintiff may not stand on his pleading but must, by

affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.” Carrier

Corp. v. Outokumpu Oyj, 673 F.3d 430, 449–50 (6th Cir. 2012) (citing Theunissen v.

Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)).

C. Rule 12(b)(6)

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A Rule 12(b)(6) motion to

dismiss tests the legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp.,

78 F.3d 1125, 1134 (6th Cir. 1996). Such a motion is properly granted if the plaintiff has “fail[ed]

to state a claim upon which relief can be granted.” Marvaso v. Sanchez, 971 F.3d 599, 605 (6th

Cir. 2020) (quoting Fed. R. Civ. P. 12(b)(6)). To survive a motion to dismiss, a complaint must

allege facts that, if accepted as true, are sufficient to state a claim for relief that is plausible on its

face. Twombly, 550 U.S. at 555–57. The court must “construe the complaint in the light most

favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as true, and

draw all reasonable inferences in favor of the plaintiff.” Courtright v. City of Battle Creek, 839

F.3d 513, 518 (6th Cir. 2016).

A complaint 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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A complaint that

“tenders ‘naked assertions’ devoid of ‘further factual enhancement’” will not suffice. Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 557). This standard does not require detailed factual

allegations, but it does require “more than labels[,] conclusions, [or] a formulaic recitation” of the

elements of a cause of action. Ryan v. Blackwell, 979 F.3d 519, 524 (6th Cir. 2020) (quoting

Twombly, 550 U.S. at 555). “Specific facts are not necessary,” as the statement need only provide

the defendant fair notice of the nature of the claim and upon what grounds it rests. Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). And, while Rule 8 does not

require details, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678. “[T]he complaint must ‘contain either direct or inferential

allegations respecting all the material elements [of a claim] to sustain a recovery under some viable

legal theory.’” Hollowell v. Cincinnati Ventilating Co., 711 F. Supp. 2d 751, 758 (E.D. Ky. 2010)

(quoting Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 992 (6th Cir. 2009)).

IV. DISCUSSION

A. Documents Appended to the Response

The plaintiff has appended to its Response a website screenshot showing a denied permit

application (Doc. No. 39-1); an affidavit by Jennifer Willoughby to which are appended emails

between Willoughby and city officials, marked as Exhibits A through H (Doc. No. 39-2); and

Plaintiff’s Rule 26(a)(1) Initial Disclosures. (Doc. No. 39-3.) The plaintiff also includes exhibits

in support of its response to the defendant’s Rule 12(b)(4) and 12(b)(5) arguments. (Doc. Nos. 39-

4 through 39-6.)

Federal Rule 12(d) requires that a Rule 12(b)(6) motion be converted into a motion for

summary judgment whenever matters outside the pleadings are presented to and accepted by the

court. The court has “complete discretion” to consider extrinsic evidence presented with a Rule

12(b) motion—and thereby convert the motion to dismiss into a motion for summary judgment—

or reject it or not consider it. 5C Charles Alan Wright & Arthur R. Miller, Fed. Practice &

Procedure § 1366 (3d ed. updated June 2024). But the court “may consider the Complaint and any

exhibits attached thereto, public records, items appearing in the record of the case and exhibits

attached to defendant’s motion to dismiss so long as they are referred to in the Complaint and are

central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,

430 (6th Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). This court

previously determined that the defendants included exhibits with its 12(b)(6) motion that were

“central to claims made in the Complaint and . . . the same sorts of documents that the plaintiff . . .

attached to the Complaint.” (Doc. No. 21 at 2.)

1. Screenshot

The plaintiff includes a screenshot of a website (Doc. No. 39-1), which it says shows the

permit denial at issue. (Doc. No. 39 at 4, 24, 26–27.) Although in a slightly different format, it is

similar to the screenshot the plaintiff submitted with the Complaint. (Compare Doc. No. 39-1

(showing “Denied” status of Demolition Permit Number DEMO-2023-000034 and little other

information), with Doc. No. 1-5 (showing “Denied” status of Demolition Permit Number DEMO-

2023-000034 and listing the “[a]pplied date” as August 30, 2023).) Because the application-status

screenshot adds no new information, the court has no need to consider it.

2. Affidavit and supporting exhibits; Initial Disclosures

The plaintiff includes the affidavit and supporting documents “to provide the full picture

of the prior event which the Defendants now interject.” (Doc. No. 39 at 4–5.) Put another way, the

plaintiff is attempting to amend the Complaint’s factual allegations by including new information,

supported by affidavit and non-public records, in its Response. Similarly, the plaintiff cites its Rule

26(a) Initial Disclosures in support of its equal protection argument that it has identified better-

treated similarly situated entities. (Doc. No. 39 at 22 (“Although Gracey is not required to name

similarly situated persons to survive a motion to dismiss, Gracey had provided the Defendants a

list of seven similarly situated entities in its initial disclosures.” (citing Doc. No. 39-3 ¶¶ 28–34)).)

The plaintiff has used the affidavit and other documents to improperly amplify the facts

alleged in the Complaint. Accord Orea Energy Grp., LLC v. E. Tenn. Consultants, Inc., No. 3:09-

CV-041, 2009 WL 3246853, at *3 (E.D. Tenn. Oct. 6, 2009) (“[T[hese allegations are nowhere to

be found in the Complaint. They are present only in plaintiff’s briefing, and ‘[i]t is a basic principle

that the complaint may not be amended by the briefs in opposition to a motion to dismiss . . . .’”

(quoting Roulhac v. Sw. Reg’l Transit Auth., No. 1:07-cv-408, 2008 WL 920354, at *4 (S.D. Ohio

Mar.31, 2008))). A party may not “submit . . . an affidavit[] to defeat a motion to dismiss.” Knowles

v. Chase Home Fin., LLC, No. 1:11-cv-01051-JDB-EGB, 2012 WL 13018539, at *9 (W.D. Tenn.

Aug. 2, 2012) (citing Riggs Drug Co. v. Amerisourcebergen Drug Corp., No. 3:09-CV-538, 2010

WL 3630123, at *1–2 (E.D. Tenn. Sept. 13, 2010)). The court will not consider the affidavit or its

exhibits or the Initial Disclosures.

3. Exhibits relating to service

For the reasons explained below, the court will not discuss the defendants’ Rule 12(b)(4)

or (5) arguments and therefore will not consider supplementary material related to them.

B. Rule 12(b)(1) Motion

The defendants make two arguments in support of their Motion to Dismiss for lack of

subject matter jurisdiction. Because neither argument succeeds, the court will deny the defendants’

12(b)(1) motion.

1. No Case or Controversy

First, the defendants argue that this court lacks subject matter jurisdiction over any claim

for declaratory relief because, without a final denial on the plaintiff’s demolition permit

application, there is no Article III case or controversy. (Doc. No. 13-1 at 23.) In support of this

argument, the defendants note that, in multiple emails, two of the individual defendants stated that

they were not denying the plaintiff’s application, but rather informing the plaintiff, via

Willoughby, that all such applications must first be presented to the Common Design Review

Board. (Id. at 22–23.) In response, the plaintiff argues that the permit application was denied—

notwithstanding contrary municipal statements—and, furthermore, that the thrust of its case is that

no further review is required. (Doc. No. 39 at 24–27.)

Whether Clarksville “denied” the application or merely failed to grant it, it is uncontested

that the plaintiff applied for a demolition permit, the City has not granted it, and it has said that the

plaintiff must submit its application to the Common Design Review Board before the City could

grant it. Further, as the plaintiff argues, its whole case rests on the argument that no further review

of its permit application is necessary. The defendants’ argument that this court lacks subject matter

jurisdiction to determine whether the defendants violated the plaintiff’s constitutional rights, in

part, by requiring further review—because the plaintiff must first seek further review—is

unavailing.

2. Procedural default

The parties dispute whether the plaintiff’s federal claims are procedurally defaulted

because the plaintiff failed to present the issue to state courts and, by the time of filing, was time-

barred from doing so. (See Doc. No. 13-1 at 6–11; Doc. No. 39 at 5–10; Doc. No. 47 at 8–10.)

Generally, a plaintiff need not exhaust state remedies—judicial or administrative—to bring an

action under Section 1983 for constitutional deprivations. See Patsy v. Bd. of Regents of State of

Fla., 457 U.S. 496, 507 (1982) (“[E]xhaustion of state administrative remedies is not a prerequisite

to an action under § 1983 . . . .”).11 Thus, that the plaintiff has not sought relief in the state courts

is irrelevant to the plaintiff’s 12(b)(1) motion. The defendant’s arguments to the contrary, citing

cases in which state prisoners were barred from federal habeas relief under 28 U.S.C. § 2254(b)’s

exhaustion requirement, are inapposite.

C. Rule 12(b)(2) Motion

The defendants move for dismissal for lack of personal jurisdiction under Rule 12(b)(2)

(Doc. No. 11 at 1) but make no argument in support of dismissal. Thus, this court finds no grounds

to dismiss under Rule 12(b)(2). Accord, e.g., United States v. ARG Corp., No. 3:10-CV-311, 2011

WL 338818, at *1 n.1 (N.D. Ind. Jan. 31, 2011) (declining to address a Rule 12(b)(2) motion where

no argument in support was presented); Funnekotter v. Agric. Dev. Bank of Zim., No. 13-CIV-

1917 (CM), 2013 WL 6091616, at *2 n.1 (S.D.N.Y. Nov. 15, 2013) (same).

11 Under some circumstances, however, a plaintiff must prove the inadequacy of state remedies to

prevail on a procedural due process claim. See, e.g., Mun. Servs. of Am. Corp v. Sak, No. 1:22- cv-

2037, 2023 WL 6958639, at *4 (N.D. Ohio Oct. 20, 2023) (“[T]he Sixth Circuit has held that when

a plaintiff challenges a deprivation [of property] arising from a random, unauthorized act of a state

government official, a plaintiff is required to plead and prove the inadequacy of state remedies in

order to state a procedural due process claim.” (citing Michell v. Fankhauser, 375 F.3d 477, 483–

84 (6th Cir. 2004)).

D. Rule 12(b)(6) Motion

The defendants move to dismiss, for failure to state a claim, the plaintiff’s four Counts, all

brought under 42 U.S.C. § 1983.12 To state a § 1983 claim, a plaintiff must allege (1) a deprivation

of rights secured by the Constitution or federal law and (2) that the defendant deprived him of this

right under color of law. See Jones v. Duncan, 840 F.2d 359, 361–62 (6th Cir. 1988) (citing Adickes

v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)). Section 1983 does not permit conventional

vicarious liability claims against municipalities for the unconstitutional actions of their employees.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). But “the statute does permit a

municipality to be held liable if the plaintiff establishes that the municipality’s ‘policy’ . . . is what

led to a violation of the plaintiff’s constitutional rights.” Dibrell v. City of Knoxville, 984 F.3d

1156, 1165 (6th Cir. 2021) (citing Monell, 436 U.S. at 694–95).

Count II13 – Deprivation of property and liberty interests pursuant to an unconstitutionally

vague act

The thrust of the plaintiff’s case is that the defendants improperly denied its demolition

permit application and required it to undergo additional scrutiny under a housing ordinance—

Clarksville Zoning Ordinance § 9.5.4(1)—from which it is exempted by § 9.5.1(3). (Doc. No. 1 ¶¶

1, 23–25.) Instead, the plaintiff argues, the City should have, but did not, grant the plaintiff’s

application under Property Maintenance Code § 4-601(j). (See Doc. No. 39 at 19 (noting “the

City’s refusal to issue a demolition permit under Section 4-601(j) of the Code”).)

12 Count III does not specify that the plaintiff brings its void-for-vagueness challenge under 42

U.S.C. § 1983, but, reading the Complaint as a whole, the court construes it that way. Accord

Adams-Suggs v. Coppotelli, No. 15-CV-0669-SMY-PMF, 2016 WL 1698406, at *2 (S.D. Ill. Apr.

28, 2016) (“Viewing the allegations of the Complaint as a whole, the Court finds that Plaintiff has

sufficiently invoked 42 U.S.C. § 1983.”).

13 The court addresses Count I last.

Section 4-601(j), the plaintiff argues, requires that the City ministerially grant demolition

permit applications. (Doc. No. 1 ¶ 19.) Or, if there are further criteria the City considers when

evaluating demolition permit applications, they are unstated, and therefore Section 4-601(j) is

unconstitutionally vague. (Doc. No. 39 at 17–18.) Put another way, the plaintiff alleges that

Property Maintenance Code § 4-601(j) is “unconstitutionally vague and void for vagueness” “to

the extent” it “allows a ‘housing official’ to consider any . . . standard of review for the issuance

of a Demolition Permit” “other than only for the applicant to first make an application.” (Doc. No.

1 ¶¶ 43.) The plaintiff seeks a declaration that “§ 4-601(j) provide[s] no objective basis for a

‘housing official’ to deny” its demolition permit application, (id. ¶ 46), which it describes as relief

from “the Defendants’ application of an unconstitutionally vague ordinance.” (Doc. No. 39 at 3.)

Courts typically consider only as-applied void-for-vagueness challenges to civil laws. See

Stevens v. City of Columbus, No. 21-3755, 2022 WL 2966396, at *5 (6th Cir. July 27, 2022) (citing

Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir. 1999)). Here,

however, the facts as alleged, viewed in the light most favorable to the plaintiff, indicate that the

City denied the plaintiff’s application because of its interpretation of the Zoning Ordinance, not

the Property Maintenance Code. As the plaintiff puts it: “the heart of the matter . . . brings to light

the pivotal question of whether Gracey was legally mandated by the Defendant[s] to undergo any

scrutiny and secure discretionary approval from the Common Design Review Board. This central

issue stands at the core of the ongoing controversy.” (Doc. No. 39 at 27.) The provision allegedly

requiring the plaintiff to undergo review by the Common Design Review Board is Zoning

Ordinance § 9.5.4(1), not Property Maintenance Code § 4-601(j). The court finds that, if the

plaintiff’s permit was denied, it was denied, as the plaintiff alleges, under the Zoning Ordinance,

not the Property Maintenance Code.

Because “a court is required to examine the vagueness challenge ‘in the light of the facts

of the case at hand’ and [a plaintiff] ‘bears the burden of establishing that the statute is vague as

applied to his particular case, not merely that the statute could be construed as vague in some

hypothetical situation,” the court will dismiss Count II for failure to state a claim. Hartman v.

Acton, 499 F. Supp. 3d 523, 533–34 (S.D. Ohio 2020) (quoting United States v. Krumrei, 258 F.3d

535, 537 (6th Cir. 2001)).

Count III – The issuance of injunctive relief to remedy the plaintiff’s denial of its right to

“substantive due process”

The plaintiff alleges that it has a property interest in the demolition and electrical

disconnect permits it sought and that the defendants’ actions have deprived it of that property

interest in violation of the substantive due process clause of the Fourteenth Amendment, which

entitles it to damages and injunctive relief. (Doc. No. 1 ¶ 47.)

The Fourteenth Amendment to the United States Constitution guarantees that no state shall

“deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, § 1. “The touchstone of due process is protection of the individual against arbitrary action of

government, [including] the exercise of power without any reasonable justification in the service

of a legitimate governmental objective.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845–46

(1998) (internal quotation marks omitted). The Due Process Clause provides “heightened

protection against government interference with certain fundamental rights and liberty interests.”

Washington v. Glucksberg, 521 U.S. 702, 720 (1997). The Fourteenth Amendment protects both

procedural and substantive due process, but the plaintiff alleges violations only of the latter.

Substantive due process protects certain rights, regardless of the procedures used. Accord Siefert

v. Hamilton Cnty., 951 F.3d 753, 765 (6th Cir. 2020).

Historically, the Sixth Circuit has allowed substantive due process claims that allege either

a deprivation of a particular constitutional guarantee or actions that “shock the conscience.” See,

e.g., Pittman v. Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 640 F.3d 716, 728 (6th Cir. 2011)

(“Substantive due process claims may be loosely divided into two categories: (1) deprivations of

a particular constitutional guarantee; and (2) actions that ‘shock the conscience.’” (quoting Valot

v. Se. Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997))). Recently, however, the

Sixth Circuit has held that plaintiffs “must show as a predicate the deprivation of a liberty or

property interest, as well as conscience-shocking conduct.” Siefert, 951 F.3d at 766 (quoting

Guertin v. State, 912 F.3d 907, 922 (6th Cir. 2019)) (internal quotation marks omitted).

Thus, to state a substantive due process claim, the plaintiff must allege two things. First, it

must allege a deprivation of a constitutionally protected liberty or property interest based on the

discretionary conduct of government officials. American Express Travel Related Servs. v.

Kentucky, 641 F.3d 685, 688–89 (6th Cir. 2011). Second, it “must show how the government’s

discretionary conduct that deprived that interest was constitutionally repugnant.” Guertin, 912

F.3d at 922 (citing Am. Express, 641 F.3d at 688). This second requirement is difficult to meet:

The threshold for the invocation of substantive due process is incredibly high, as it is

intended as a final safeguard against government actions that scream abuse and shock the

conscience. To that effect, the protections of substantive due process are limited to

government action that is ‘arbitrarily and oppressively exercised,’ where ‘only the most

egregious official conduct can be said to be arbitrary in the constitutional sense.’

Flege v. Williamstown Indep. Schs., No. 06-47-DLB, 2007 WL 679022, at *15 (E.D. Ky. Mar. 1,

2007) (quoting Lewis, 523 U.S. at 846).

Even if the plaintiff has a fundamental property interest in the two permits it applied for,

and assuming that the defendants interfered with that property interest, the court, accepting the

factual allegations as true and drawing all reasonable inferences in favor of the plaintiff, does not

find that the defendants’ conduct was conscience-shocking. At its strongest, the Complaint alleges

that the defendants have willfully misapplied municipal law for the improper purpose of

prohibiting the plaintiff from demolishing a building that the defendants, and some others, prefer

to retain. This conduct is not enough to state a substantive due process claim.

“Even where state officials have allegedly violated state law or administrative procedures,

such violations do not ordinarily rise to the level of a constitutional deprivation.” Lippman v. Town

of Grafton by & Through Berger, 594 F. Supp. 3d 134, 149–50 (D. Mass. 2022) (quoting PFZ

Props., Inc. v. Rodríguez, 928 F.2d 28, 31 (1st Cir. 1991); see also Regan Carroll Tr. v. City &

Cnty. of San Francisco, No. C-07-2577 SBA, 2008 WL 4544349, at *1 (N.D. Cal. Sept. 30, 2008)

(“The federal courts have repeatedly recognized that a local agency’s compliance with its own

land use regulations does not present an interest protected under § 1983.”) Nor are state law

violations conscience-shocking merely because the official acted with improper motive, as the

plaintiff here alleges.14

14 Accord, e.g., Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992)

(“Our decision [affirming dismissal under Rule 12(b)(6)] would be the same even if the City had

knowingly enforced the invalid zoning ordinance in bad faith and had no claim that St. Louis

County zoning applied to the property. A bad-faith violation of state law remains only a violation

of state law.”); Lindquist v. Buckingham Twp., 106 F. App’x 768, 774 (3d Cir. 2004) (“[A]

violation of state law, even a bad faith violation of state law, will not support a substantive due

process claim in a land-use dispute.”); Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir.

1999) (“Arbitrary conduct that might violate zoning regulations as a matter of state law is not

sufficient to demonstrate conduct so outrageously arbitrary as to constitute a gross abuse of

governmental authority that will offend the substantive component of the Due Process Clause.”)

(citation omitted); Kriss v. Fayette Cnty., 827 F. Supp. 2d 477, 494 (W.D. Pa. 2011) (“Conscience-

shocking behavior in the context of zoning actions requires allegations of corruption, self-dealing,

or bias against an ethnic group.” (citing Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir.

2004))), aff’d, 504 F. App’x 182 (3d Cir. 2012); Highway Materials, Inc. v. Whitemarsh Twp., 386

F. App’x 251, 258 (3d Cir. 2010) (“Even a scheme to improperly apply ordinances, treat a property

owner differently from nearby owners, actively inhibit a property owner’s opportunity to develop

its land, and intentionally disregard duties under Pennsylvania state law does not amount to

behavior that shocks the conscience.”).

If true, the allegations against the defendants may be actionable elsewhere. But the

substantive due process claim asserted here is simply not cognizable under the federal

Constitution.

Count IV – Claim for damages pursuant to plaintiff’s “deprivation of equal protection of

the law”

The plaintiff alleges that the defendants treated it differently from similarly situated

demolition-permit applicants and thereby deprived it of equal protection of the laws in violation

of the Fourteenth Amendment. (Doc. No. 1 ¶ 50.) The Complaint alleges that the defendants’

actions have prevented the plaintiff from demolishing the House, which imposes recurring costs

and prevents the Property’s sale to another developer. (Id. ¶ 51.) The plaintiff seeks damages and

injunctive relief requiring the City to issue the permits the plaintiff seeks. (Id. ¶ 52.)

The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The clause is

“essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “States may not ‘make distinctions which either

burden a fundamental right, target a suspect class, or intentionally treat one differently from others

similarly situated without any rational basis for the difference.’” Ogle v. Sevier Cnty. Reg’l Plan.

Comm’n, 838 F. App’x 913, 921 (6th Cir. 2020) (quoting Radvansky v. City of Olmsted Falls, 395

F.3d 291, 312 (6th Cir. 2005)).

To state a “class-of-one” equal protection claim based on selective enforcement, a plaintiff

must allege that “[1] she has been intentionally treated differently from others similarly situated

and [2] that there is no rational basis for the difference in treatment.” Johnson v. Morales, 946 F.3d

911, 939 (6th Cir. 2020) (White, J., concurring) (quoting Vill. of Willowbrook v. Olech, 528 U.S.

562, 564 (2000) (per curiam)). “However, a comparator must be ‘similarly situated in all relevant

respects.’” Fouts v. Warren City Council, 97 F.4th 459, 470 (6th Cir. 2024) (quoting EJS Props.,

LLC v. City of Toledo, 698 F.3d 845, 865 (6th Cir. 2012)), cert. denied, No. 24-155, 2024 WL

4486379 (U.S. Oct. 15, 2024).

Gracey argues that it has stated a class-of-one equal protection claim based on selective

enforcement. (Doc. No. 39 at 21–23, 35–36.) The defendants argue that Gracey has failed to state

a claim because it has not pled adequate facts from which the court can infer that the defendants

treated the plaintiff differently from similarly situated permit applicants. (Doc. No. 13-1 at 20.)

Further, the defendants argue that the Complaint “fails to plead any specific facts showing how

other permit applicants are/were similarly situated to the Plaintiff . . . [or] who such similarly

situated applicants are/were.” (Id. at 21 (emphasis in original) (citing Doc. No. 1 ¶¶ 23, 50(a)).)

It is “no easy task” to plead a “class-of-one” equal protection claim. Andrews v. City of

Mentor, 11 F.4th 462, 478 (6th Cir. 2021) (Larsen, J., concurring in part and dissenting in part).

The requirement that the comparators be similarly situated “must be enforced with particular rigor

in the land-use context because zoning decisions ‘will often, perhaps almost always, treat one

landowner differently from another.’” Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007)

(quoting Olech, 528 U.S. at 565 (Breyer, J., concurring)).

The Complaint’s two factual contentions regarding differential treatment are insufficient

to state a claim for relief. The plaintiff’s first allegation—that “[p]rior demolition permits were

issued by the Defendants for structures located in the Downtown Urban Design Overlay District

without the interplay and approval by the Commission Design Review Board” (Doc. No. 1 ¶ 23)—

does not even specify that the owners of those structures were parties other than the plaintiff. And

given the plaintiff’s description of its work as “sole[ly]” the “acquisition of distressed real estate”

within Clarksville’s central business zone for development—either by demolition or conversion

of existing buildings—(No. 16-1 ¶¶ 3–4), it is possible that those structures belonged to the

plaintiff. While the court must accept the facts pleaded as true and draw all reasonable inferences

in favor of the plaintiff, the Complaint contains no facts, on this point, for the court to so infer.

The plaintiff’s second allegation in support of its class-of-one claim is: “Compared with

other similar situations involving other property owners in the City of Clarksville seeking a

Demolition Permit and a Utility Disconnect Permit, the Plaintiff, Gracey, has been adversely

selectively treated.” (Doc. No. 1 ¶ 50(a).) This statement, unlike the first, claims that the plaintiff

was treated differently from other owners. But it does not say anything about who those owners

are or in what way they were similarly situated. The plaintiff provides no more than a conclusory

statement of adverse treatment that cannot be accepted as true, even at the motion to dismiss phase.

Iqbal, 556 U.S. at 678.

In defense of its pleading, the plaintiff points this court to the standard articulated in an

unpublished decision from the District of New Jersey. There, the court wrote that a “complaint

must merely contain sufficient allegations of the existence of similarly situated individuals to

nudge the claim across the line from conceivable to plausible.” Toll Bros. v. Twp. of Moorestown,

No. CIV.A. 10-4843, 2011 WL 2559507, at *6 (D.N.J. June 27, 2011) (citing Mann v. Brenner,

375 F. App’x 232, 238–39 (3d Cir. 2010)). The court in Toll Brothers denied the defendant’s

motion to dismiss for failure to state a claim because the plaintiff “ha[d] supported its class-of-one

claim with detailed factual allegations that document a consistent and deliberate pattern of

disparate treatment from other water users within Moorestown’s water franchise area.” Id. at *7.

The court contrasted the case before it with a Third Circuit decision holding that a developer who

was denied a sewer easement from the township failed to adequately plead a class-of-one claim

because he “simply alleged that he was treated differently from ‘other similarly situated residential

and commercial developers.’” Id. at *6 (quoting Perano v. Twp. Of Tilden, 423 F. App’x 234, 238

(3d Cir. 2011)).15 In the case before this court, the plaintiff’s sole factual contention about similarly

situated applicants likewise fails to nudge the claim across the plausibility line. Count IV will

therefore be dismissed. As discussed above, the court does not consider the plaintiff’s Initial

Disclosure (Doc. No. 39-3), which it says contains “a list of seven similarly situated entit[i]es.”

(Doc. No. 39 at 22.)

Count I – Violation of the Zoning Code

The plaintiff alleges that the Clarksville Zoning Ordinance exempts houses like the

plaintiff’s from the Downtown District’s provisions and, therefore, that it need take no further

action—other than having filed an application with the City—to secure a demolition permit. (Doc.

No. 1 ¶ 40.) The plaintiff seeks a declaration to that effect under 42 U.S.C. 1983, as authorized by

28 U.S.C. §§ 2201 and 2202 and Rule 57. Id. ¶ 41. On their own, however, Section 1983, the

Declaratory Judgement Act, and a Federal Rule of Civil Procedure provide no substantive federal

right the deprivation of which provides grounds for relief.

Section 1983 does not provide an independent cause of action. See Westbrook v. Bonner,

No. 2:23-cv-02094-SHL-atc, 2024 WL 4010307, at *4 (W.D. Tenn. Aug. 30, 2024) (“Because §

1983 is not a standalone claim, [the plaintiff] needs a constitutional hook for her claim.” (citing

Baker v. McCollan, 443 U.S. 137, 140 (1979))). The Declaratory Judgment Act creates a remedy

where the district court already has jurisdiction, but “[i]t does not create subject matter jurisdiction

where none otherwise exists.” King v. Sloane, 545 F.2d 7, 8 (6th Cir. 1976); see also Louisville &

15 The Perano court added: “Without more specific factual allegations as to the allegedly similarly

situated parties, he has not made plausible the conclusion that those parties exist and that they are

like him in all relevant aspects. Accordingly, Perano has failed to state an Equal Protection claim.”

Perano v. Twp. Of Tilden, 423 F. App’x 234, 238–39 (3d Cir. 2011).

Nashville R. Co. v. Donovan, 713 F.2d 1243, 1245 (6th Cir. 1983) (“[T]he Declaratory Judgment

Act . . . is not an independent source of federal jurisdiction.”) (citations omitted). And it is merely

“procedural, leaving substantive rights unchanged.” Medtronic, Inc. v. Mirowski Fam. Ventures,

LLC, 571 U.S. 191, 199 (2014) (citations and internal quotation marks omitted). Rule 57 confers

neither a substantive right nor jurisdiction. The Enabling Act provides that the Federal Rules “shall

not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). Similarly, Rule 82

states that the Federal Rules “do not extend or limit the jurisdiction of the district courts.”

In Count I, the plaintiff seeks a declaration interpreting a municipal ordinance and applying

that interpretation to this case. “The district courts may decline to exercise supplement jurisdiction

over a claim . . . if . . . the district court has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c).16 Because the court will dismiss the other counts, over which

it has original jurisdiction, it declines to exercise supplemental jurisdiction over the remaining

claim and will dismiss Count I. A Tennessee “court should have the opportunity to consider the

merits of the Plaintiff’s state law claim.” Aquilina v. Wriggelsworth, 759 F. App’x 340, 348 (6th

Cir. 2018) (affirming the lower court and finding no abuse of discretion in the district court’s

decision not to exercise supplemental jurisdiction) (citation omitted); see also Prows v. City of

Oxford, No. 1:23-CV-330, 2024 WL 4451572, at *13 (S.D. Ohio Jan. 24, 2024), R. & R. adopted,

No. 1:23-CV-330, 2024 WL 4343658 (S.D. Ohio Sept. 30, 2024) (declining to exercise supplement

jurisdiction over a violation of “Ohio Municipal Home Rule,” which was asserted, but not as a

“discrete claim or count[],” in the complaint); DeCasso v. City of Cleveland, No. 1:11-CV-2644,

16 The Complaint does not assert that this court has supplemental jurisdiction under 28 U.S.C. §

1367, but “Rule 8(a)(1) does not require formalistic statutory invocations.” Bilal v. Rotec Indus.,

Inc., No. 03 C 9220, 2004 WL 1794918, at *2 (N.D. Ill. Aug. 5, 2004) (citing Rohler v. TRW, Inc.,

576 F.2d 1260, 1264 (7th Cir. 1978)).

2012 WL 3552649, at *3 (N.D. Ohio Aug. 16, 2012) (declining to exercise supplemental

Jurisdiction because claims implicating municipal ordinances, among others, “are most

appropriately heard at the state court level”) .

E, Remaining defenses

Because the court will grant the defendant’s 12(b)(6) motion for failure to state a claim, as

to all of the Complaint’s counts, it does not address qualified immunity.!’ The court will also not

address the defendant’s 12(b)(4) motion for insufficient process, 12(b)(5) motion for insufficient

service or process, or 12(b)(7) motion for failure to join a party under Rule 19.

V. CONCLUSION

For the reasons set forth herein, the Motion to Dismiss (Doc. No. 11) will be granted, and

the Complaint will be dismissed in its entirety. Count I will be dismissed without prejudice; Counts

II-IV will be dismissed with prejudice.

ALETA A. TRAUGER if

United States District Judg

'7 Moreover, qualified immunity is “generally a ‘bad fit’ for a motion to dismiss based on the

pleadings.” Freeman v. Spoljaric, 667 F. Supp. 3d 636, 656 (S.D. Ohio 2023) (quoting Siefert, 951

F.3d at 761); see also Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015) (“it is generally

inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified

immunity”).

26