McManus & Associates, LLC v. Centerville Ohio City of

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

McManus & Associates, LLC, et al.,

Plaintiffs,

v. Case No. 3:25-cv-035

Judge Thomas M. Rose

City of Centerville, Ohio, et al.,

Defendants.

ENTRY AND ORDER DENYING PLAINTIFF’S MOTION

FOR LEAVE TO FILE SUR-REPLY (DOC. 16) GRANTING

DEFENDANTS MOTION FOR JUDGEMENT ON THE

PLEADINGS (DOC. 9) AND TERMINATING CASE

Pending before the Court are a motion by Defendants, the City of Centerville, Ohio, and

Ian Vanness, to enter judgment on the pleadings as to all Plaintiffs’ claims (Doc. 9.) and a

motion by Plaintiffs, McManus & Associates LLC and William McManus for leave to file a sur-

reply (Doc. 16). Before addressing the motion challenging the sufficiency of the pleadings, the

Court will address the motion to file a sur-reply.

Similar to other courts, in the Southern District of Ohio the “Local Rules do not

contemplate or permit the filing of a sur-reply, and hence such filings are not permitted without

first obtaining leave of the Court…. [G]enerally, such leave is only granted to address arguments

or evidence raised for the first time in a reply.” Smith v. United States, 2021 WL 667115, *2

(E.D. Ky. 2021) (citing Key v. Shelby County, 551 Fed. Appx. 262, 265 (6th Cir. 2014)); see also

§ 1189 Close of the Pleadings, 5 Fed. Prac. & Proc. Civ. § 1189 (4th ed.). Plaintiffs seek

permission to “address[] the points raised in the attached proffered sur-reply” and because of

“‘inflammatory rhetoric’ contained in Defendants’ reply.” (Id. PageID 116.) This is not a proper

basis for seeking permission to file a sur-reply. Plaintiffs’ Motion for Leave to File Sur-Reply

(Doc. 9) is DENIED.

I. Background

Plaintiffs, McManus & Associates, LLC and William McManus, filed their action after

the City of Centerville enacted Ordinance No. 08-24, which amends the City’s Unified

Development Ordinance at three sections: Article 3.13(H), Table 9.1 of Article 9.05, and Article

11.02.

The Ordinance allegedly prohibits property owners outside of a single designated district

within the City from renting their real estate for periods of 29 days or less. (Doc.13, PageID 3.)

Plaintiffs own residential real estate within the municipal jurisdiction of the Defendant, City of

Centerville. (Id.) Property inside that district is allegedly not thus restricted. (Doc. 1, PageID 3.)

Plaintiffs allegedly rent their property for periods sometimes less than a full month. (Id.)

Plaintiffs’ property is allegedly not in the single permitted district in which the Ordinance

allegedly allows rentals for periods of less than one month. Plaintiffs allege that the enactment of

the Ordinance “threatens to cause the deprivation of Plaintiffs’ rights protected by the United

States Constitution and the Ohio Constitution.” (Id., PageID 5.)

On February 9, 2025, Plaintiffs filed an action with this Court asserting federal question

jurisdiction under 28 U.S.C. § 1331. (Id., PageID 3.) Plaintiffs’ first claim for relief requests that

this Court issue preliminary and permanent injunctions prohibiting the Defendants from

enforcing the Ordinance on its face and as applied to these Plaintiffs and Plaintiffs’ Premises, in

violation of Plaintiffs’ Equal Protection, Due Process, and private property rights. (Doc. 1,

PageID 7.) The Second claim for relief decries a violation of Plaintiffs’ Due Process rights under

the Fourteenth Amendment to the United States Constitution and Plaintiffs’ rights under Section

19, Article I of the Ohio Constitution, providing that “Private property shall ever be held

inviolate, but subservient to the public welfare.”

Defendants’ Federal Rule of Civil Procedure 12(c) Motion for Judgement on the

Pleadings asserts, inter alia, that Plaintiffs’ claims are not ripe for review, depriving the Court of

jurisdiction over the matter. (Doc. 9, PageID 68.)

II. Standard

Rule 12(c) provides that, “[a]fter the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c).

Pursuant to Rule 12(h)(2), a motion for judgment on the pleadings is analyzed using the same

standard of review as a motion to dismiss under Rule 12(b)(6). Hunter v. Ohio Veterans Home,

272 F. Supp. 2d 692, 694 (N.D. Ohio June 26, 2003); Morgan v. Church’s Fried Chicken, 829

F.2d 10, 11 (6th Cir. 1987). To survive a motion to dismiss under Rule 12(b)(6), a challenged

pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 66, 678 (2009) (quoting Bell Atl. 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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A

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

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting

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.

III. Analysis

A. Ripeness

The ripeness doctrine arises “both from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., 509 U.S.

43, 57 n.18 (1993); Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc). “The

ripeness doctrine not only depends on the finding of a case and controversy and hence

jurisdiction under Article III, but it also requires that the court exercise its discretion to determine

if judicial resolution would be desirable under all of the circumstances.” Brown v. Ferro Corp.,

763 F.2d 798, 801 (6th Cir. 1985). When a claim is not ripe within the meaning of Article III a

court lacks jurisdiction over the subject matter. Id.

A claim is unripe when “it rests upon contingent future events that may not occur as

anticipated or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). In

land-use cases, a claim will ripen when the government has adopted a “definitive position” as to

“how the regulations at issue apply to the particular land in question.” Pakdel v. City & Cty of

San Fran., 594 U.S. 474, 478 (2021). Plaintiffs in this case have alleged no facts suggesting that

the City of Centerville has taken a “definitive position” as to how the Ordinance will be

interpreted to apply to their allegedly prior, non-conforming use of the property.

“[A] claim does not become ripe at the first whiff of governmental insensitivity or

whenever a government official takes an adverse legal position against someone, even if one

potential response is to curtail protected activities. One justification for the ripeness doctrine is

that it avoids the premature resolution of constitutional questions….” Miles Christi Religious

Ord. v. Twp. of Northville, 629 F.3d 533, 540 (6th Cir. 2010). A decision involving the

application of ordinances is not final where the local zoning board was not presented with, nor

given the opportunity to interpret, the regulations at issue in the first instance. Id. at 537.

The requirement that a plaintiff first obtain “a final, definitive decision from local zoning

authorities ensures that federal review—should the occasion eventually arise—is premised on

concrete and established facts and that all non-constitutional avenues of resolution have been

explored first, perhaps obviating the need for judicial entanglement in constitutional disputes.”

Insomnia Inc. v. City of Memphis, Tenn., 278 F. App’x 609, 615 (6th Cir. 2008) (citation and

internal quotation marks omitted). Plaintiffs have not satisfied the finality requirement in this

case, which is a prerequisite to litigation.

Plaintiffs counter that in other contexts, the constitutionality of a statute is ripe for review

with more remote fears of prosecution. (Doc. 14, PageID 89-90.) Particularly, Plaintiffs assert

that their request for Declaratory Judgement under 28 U.S.C. § 2201 is sufficiently ripe.

This may be true and might be relevant if the instant case arose in a different context.

“[T]he central purpose of the Declaratory Judgment Act . . . is to provide the opportunity

to clarify rights and legal relationships without waiting for an adversary to file suit.” Severe

Records, LLC v. Rich, 658 F.3d 571, 580 (6th Cir. 2011) (citations and quotations omitted,

editing in original). The ripeness doctrine applies to declaratory judgment actions. “It is clear that

the declaratory judgment procedure is available in the federal courts only in cases involving

actual controversies and may not be used to obtain an advisory opinion in a controversy not yet

arisen.” Marek v. Navient Corp., 2017 WL 32943, at *1 (N.D. Ohio Jan. 4, 2017) (quoting

United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 116 (1947)).

When a party sues for declaratory relief, “he must satisfy the prerequisites of the

Declaratory Judgment Act and Article III’s standing baseline.” Saginaw County v. STAT

Emergency Med. Servs., Inc., 946 F.3d 951, 954 (6th Cir. 2020). In particular, he must show “a

substantial controversy, between parties having adverse legal interests, of sufficient immediacy

and reality to warrant the issuance of a declaratory judgment.” Id. (quoting MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 127 (2007)); see Friends of Tims Ford v. Tenn. Valley Auth., 585

F.3d 955, 971 (6th Cir. 2009) (explaining that a declaratory judgment must “affect[ ] the

behavior of the defendant towards the plaintiff” (quoting Hewitt v. Helms, 482 U.S. 755, 761

(1987))). The difference between an abstract question and a controversy suitable for judgment is

largely a one of degree. Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941).

The Sixth Circuit considers several factors when deciding whether the issues presented

pursuant to the Declaratory Judgment Act are ripe for review. See United Steelworkers of

America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194 (6th Cir. 1988). First is the hardship

that “refusing to consider [Plaintiff’s] prospective claims would impose upon the parties.” Id. at

195. Second is the likelihood that the harm Plaintiffs allege “will ever come to pass.” Id. at 194.

Third is whether the factual record is developed enough for a fair adjudication on the merits of

the parties’ claims. Id. at 195.

In land use cases, the second factor, the likelihood that “a dispute that is likely to come to

pass,” is governed by the requirement that the local zoning board be presented with and given the

opportunity to interpret, the regulations at issue in the first instance. Miles Christi Religious

Order, 629 F.3d at 537. “[T]he Court has determined that it does not have subject matter

jurisdiction over the declaratory judgment claim because Plaintiffs’ allegations do not establish

that they have completed the appeals process with regard to [a] zoning decision. As a result,

there is no final decision, and the declaratory judgment claim is unripe.” Farr v. Daling, 684 F.

Supp. 3d 1358, 1377-78 (N.D. Ga. 2023) (citation omitted); compare Skilwies v. City of Huber

Heights, 689 F. Supp. 3d 540 (S.D. Ohio 2023) (challenging city’s denial of his requests for re-

zoning and use-variance and ordering him to cease and desist operating business on property).

IV. Conclusion

In the absence of a case or controversy, the motion (Doc. 9) to dismiss is GRANTED

and Plaintiffs’ claims are dismissed without prejudice. The motion for leave to file a sur-reply

(Doc. 16) is DENIED. The captioned cause is hereby ordered terminated upon the docket

records of the United States District Court for the Southern District of Ohio, Western Division at

Dayton.

DONE and ORDERED in Dayton, Ohio, this Monday, August 18, 2025.

s/Thomas M. Rose

_______________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE