Petition for Writ of Certiorari — Miami Township Board of Trustees, Petitioner v. Roger Dean Gillispie, et al.
Supreme Court briefNov 20, 2025
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APPENDIX
TABLE OF CONTENTS
Page
Opinion of the United States Court of Appeals
for the Sixth Circuit, Gillispie v. Miami Twp.,
Ohio, et al., Nos. 23-3999, 23-4000, 23-4001
(May 2, 2025)............................................................. 1a
Entry and Order of the United States District
Court for the Southern District of Ohio Denying
Motion To Reconsider and Request for Hearing,
Gillispie v. City of Miami Twp., et al., No. 3:13cv-416 (Apr. 30, 2024) ............................................. 43a
Entry and Order of the United States District
Court for the Southern District of Ohio Denying
Plaintiff ’s Motion To Enforce Judgment and
Granting Motion for Stay of Execution/
Response to Plaintiff ’s Motion To Enforce Judgment, Gillispie v. City of Miami Twp., et al.,
No. 3:13-cv-416 (Mar. 1, 2024) ............................... 47a
Order of the United States District Court for
the Southern District of Ohio Entering Judgment on Miami Township Board of Trustees’
Intervenor Complaint for Declaratory Judgment
and Relief, Gillispie v. City of Miami Twp.,
et al., No. 3:13-cv-416 (Nov. 8, 2023) ...................... 59a
Entry and Order of the United States District
Court for the Southern District of Ohio Denying
Intervenor Miami Township Board of Trustees’
Motion for Judgment as a Matter of Law and,
in the Alternative, Motion for a New Trial;
Denying Intervenor Miami Township Board of
Trustees’ Motion To Alter or Amend Judgment;
and Denying Defendant Matthew Scott Moore’s
Motion To Alter or Amend the Judgment,
Gillispie v. City of Miami Twp., et al., No. 3:13cv-416 (July 31, 2023) ............................................. 77a
ii
Entry and Order of the United States District
Court for the Southern District of Ohio Granting the Motion To Intervene Filed by Miami
Township, Gillispie v. City of Miami Twp.,
et al., No. 3:13-cv-416 (Oct. 11, 2022)................... 203a
Order of the United States Court of Appeals for
the Sixth Circuit Denying Rehearing, Gillispie
v. Miami Twp., Ohio, et al., Nos. 23-3999,
23-4000, 23-4001 (June 23, 2025) ........................ 215a
Constitution, Statutes, and Rules Involved......... 217a
U.S. Const. art. VI, cl. 2 (Supremacy Clause) .. 217a
42 U.S.C. § 1983 ............................................... 217a
Political Subdivision Tort Liability Act,
Ohio Rev. Code § 2744.01 et seq.:
§ 2744.07 ..................................................... 218a
Fed. R. Civ. P. 5.1 ............................................ 221a
1a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
Nos. 23-3999, 23-4000 & 23-4001
ROGER DEAN GILLISPIE,
Plaintiff-Appellee/
Cross-Appellant
(23-3999/4001),
v.
MIAMI TOWNSHIP, OHIO,
Defendant,
MIAMI TOWNSHIP BOARD OF TRUSTEES,
Intervenor-Appellant/
Cross-Appellee
(23-3999/4000/4001),
MATTHEW SCOTT MOORE,
Defendant-Appellee/
Cross-Appellant
(23-3999/4000).
_______________
Filed: May 2, 2025
_______________
Before: CLAY, GIBBONS, and GRIFFIN, Circuit
Judges.
CLAY, Circuit Judge.
Plaintiff Roger Dean Gillispie (“Gillispie”) was
wrongfully convicted of sexual assault and imprisoned
for decades. After his release, he filed this 42 U.S.C.
§ 1983 action against Defendant Matthew Scott Moore
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(“Detective Moore”) and Miami Township, Ohio (“Miami
Township”). The case then proceeded to trial, where
the jury found in favor of Gillispie and awarded him
$45 million in damages. The district court later determined that Miami Township was liable to indemnify
Detective Moore for the full amount of damages.
Gillispie, Detective Moore, and Miami Township each
appeal portions of the district court’s determinations.
For the reasons set forth below, we AFFIRM the
district court in full.
I. BACKGROUND
A. Factual History
On August 20, 1988, an individual abducted two
sisters, B.W. and C.W., at gunpoint in the parking lot
of a Best Products store in Miami Township, Ohio and
forced the sisters to perform oral sex on him. Another
woman, S.C., saw news reports about the attack and
reported that a similar crime was perpetrated against
her two weeks earlier in a different county.
The Miami Township Police Department (“MTPD”)
began to investigate. The lead detective on the case
was Gary Bailey, who was supervised by Sergeant
Steve Fritz. Detective Bailey proceeded to visit the
crime scene, speak with the victims, develop a composite sketch of the alleged perpetrator, and investigate
over twenty subjects. Yet as time passed, “the good
leads ran out,” and the investigation went cold.
At the time of the attacks, Gillispie was working at
General Motors. He was later fired from the company.
Gillispie’s supervisor, Richard Wolfe, then suggested
to police that Gillispie was a possible subject. Wolfe
previously worked as an officer at the Miami Township Police Department (“MTPD”), and for this reason,
investigating officers took his accusation seriously.
After meeting with Wolfe, MTPD Chief Thomas Angel
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instructed Sergeant Fritz and Detective Bailey to
investigate Gillispie. Sergeant Fritz and Bailey ultimately eliminated Gillispie as a suspect, as they found
that Gillispie did not meet the victims’ descriptions
and had no criminal history. However, the reports
memorializing these findings were never produced to
Gillispie’s defense counsel at trial. Bailey and Fritz
later left their positions in the MTPD in 1989 and
1990, respectively.
In 1990, Chief Angel placed a new officer, Detective
Moore, on the case. Detective Moore then created a
photo lineup and worked with the three victims to
identify the perpetrator. All three identified Gillispie
as their attacker. Gillispie’s brief identifies numerous
alleged flaws in Detective Moore’s photo array and
later investigation, including: (1) using a photo of Gillispie that was larger and had a different background
color from the other photos; (2) using filler photos of
police officers with darker skin than Gillispie and
whom the victims may have seen at the police station;
(3) telling the victims, before showing them the
photos, that Detective Moore had identified a possible
suspect; (4) pressuring one of the victims by telling her
she needed to be 100 percent positive; (5) failing to
adequately record and memorialize the identification
procedures; (6) telling B.W. and C.W. that they selected
the same individual, which may have increased each
of the victims’ confidence in their selection while
testifying at trial; and (7) incorrectly telling B.W. and
C.W. before a pretrial hearing that Detective Moore
believed that Gillispie had changed his appearance by
dyeing and cutting his hair. Gillispie avers that none
of this exculpatory evidence was handed over to his
defense counsel at trial.
On September 5, 1990, the MTPD arrested Gillispie.
Gillispie was convicted at trial in February 1991 but
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was subsequently granted a new trial. In June 1991,
Gillispie was once again convicted, with the jury
finding him responsible for the attacks on all three
victims. Gillispie was then incarcerated for more than
two decades, starting his term of imprisonment on
September 5, 1990, and remaining in prison until
December 22, 2011. In 2011, the U.S. District Court
for the Southern District of Ohio granted Gillispie
a writ of habeas corpus, finding that the exculpatory
reports produced by Sergeant Fritz and Detective
Bailey were never produced to Gillispie’s trial counsel.
Gillispie v. Timmerman-Cooper, 835 F. Supp. 2d 482,
487-88, 509 (S.D. Ohio 2011). An Ohio state court
then vacated Gillispie’s conviction and ordered a new
trial. Subsequently, the Montgomery County Court of
Common Pleas dismissed all charges against Gillispie
with prejudice in 2017 and later declared him wrongfully imprisoned in 2021.
B. Procedural History
On December 13, 2013, Gillispie filed a complaint
in the U.S. District Court for the Southern District
of Ohio regarding his wrongful imprisonment. He
later filed an amended complaint, in which he alleged
a series of claims against numerous defendants.
Relevant to this appeal are the following claims:
(1) a § 1983 claim for unconstitutional suppression
of exculpatory material against Detective Moore and
Miami Township; (2) a § 1983 claim for unconstitutional suggestive identification against Detective Moore
and Miami Township; (3) a § 1983 claim for fabricated
evidence against Detective Moore and Miami Township; (4) a § 1983 claim for malicious prosecution against
Detective Moore and Miami Township; (5) a § 1983
claim for destruction of exculpatory evidence against
Detective Moore and Miami Township; (6) an Ohio
state law claim for malicious prosecution against
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Detective Moore and Miami Township; (7) an Ohio
state law claim for infliction of emotional distress
against Detective Moore and Miami Township; (8) an
Ohio state law claim for spoliation of evidence against
Detective Moore and Miami Township; and (9) an
Ohio state law claim for indemnification against
Miami Township.
Both Detective Moore and Miami Township subsequently moved for summary judgment. The district
court granted Detective Moore’s motion in part,
permitting Gillispie’s § 1983 claims to proceed to trial
but dismissing the Ohio state law claims for malicious
prosecution, infliction of emotional distress, and spoliation of evidence. The district court also dismissed all
claims against the Township, dismissing the indemnification claim without prejudice and dismissing the
rest of the claims with prejudice. Gillispie then voluntarily dismissed three of his § 1983 claims against
Detective Moore (fabricated evidence, malicious prosecution, and destruction of evidence) via two stipulations. Accordingly, the case at trial focused on the two
remaining § 1983 claims against Detective Moore:
suppression of exculpatory evidence and suggestive
identification.
Prior to trial, Miami Township moved to intervene.
The district court granted the motion, noting that
the Township “is allowed to intervene at trial for
the limited purpose of questioning and argument on
only the discreet [sic] issues of lack of good faith and
scope of employment consistent with Ohio Rev. Code
§ 2744.07.” Intervenor Order, R. 392, Page ID #13693.
Miami Township subsequently filed an intervenor
complaint, in which it sought a declaratory judgment
finding that it did not owe a duty to defend or indemnify Detective Moore. Miami Township specifically
argued that “[t]he alleged acts and/or omissions which
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serve as the basis for the claims against Matthew
Scott Moore in the Underlying Action, if proven, were
not taken by Matthew Scott Moore in the scope of his
employment or official responsibilities” and were also
“not taken in good faith.” Intervenor Compl., R. 397,
Page ID #13763.
The case then proceeded to trial. Moore moved for a
directed verdict before closing arguments with respect
to the suppression of documents claim, which the district court denied. The jury then returned a verdict in
favor of Gillispie on both claims and awarded him $45
million in damages. The jury also answered a set of
special interrogatories for each claim, which included
the following questions: (1) “was it proven by a
preponderance of the evidence that . . . Moore was not
acting in good faith?”; (2) “was it proven by a preponderance of the evidence that . . . Moore was acting
manifestly outside the scope of his employment or
official responsibilities as a police officer with Miami
Township?”; and (3) “was it proven by a preponderance of the evidence that . . . Moore was not acting
within the scope of his employment or official responsibilities as a police officer with Miami Township?”
Verdict, R. 475, Page ID #15564-65. The jury answered “no” to each question. Id.
Following trial, Gillispie filed a motion to intervene
in Miami Township’s declaratory judgment action.
The district court denied this motion. Miami Township also filed two motions: a motion for judgment as
a matter of law, or in the alternative, for a new trial;
and a motion to alter or amend the judgment, arguing
that the $45 million damages award was excessive.
The court denied these motions as well.
The district court then proceeded to resolve Miami
Township’s claim for declaratory judgment. Miami
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Township provided three broad arguments in its
declaratory judgment brief: (1) that the Township did
not have indemnify Detective Moore because he “was
not acting in good faith or within the scope of his
employment or official responsibilities when he knowingly took actions that violated Plaintiff Roger D. Gillispie’s constitutional rights;” (2) if the district court
found that the Township did have to indemnify Moore,
“then, as a matter of law, [Miami Township’s] indemnification to Moore is limited to whatever amount
Moore pays towards the judgment;” and (3) that the
district court should find that Miami Township does
not have to indemnify Detective Moore because the
Ohio indemnification law, Ohio Rev. Code § 2744.07,
violates the Due Process, Equal Protection, and
Supremacy Clauses of the United States Constitution.
R. 523, Page ID #18207. The district court rejected
Miami Township’s arguments, finding that the constitutional challenges were not timely raised and that
the Township’s other arguments failed on the merits.
Accordingly, the district court found that Miami
Township “owes a duty to defend Moore in connection
with Plaintiff Roger Dean Gillispie’s claims” and
ordered the Township “to indemnify Moore in the full
amount of the verdict entered against him.” Order, R.
529, Page ID #18294.
All parties now appeal various portions of the district court’s determinations.
II. DISCUSSION
A. Standards of Review
“We review a district court order granting summary
judgment under a de novo standard of review, without
deference to the decision of the lower court.” Rose v.
State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th
Cir. 2014) (citation and quotation marks omitted).
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This Court reviews a motion to amend or alter a judgment for abuse of discretion. Mich. Flyer LLC v.
Wayne Cnty. Airport Auth., 860 F.3d 425, 431 (6th Cir.
2017). The Court reviews a denial of a motion for a
judgment as a matter of law de novo. Morrison v. B.
Braun Med. Inc., 663 F.3d 251, 256 (6th Cir. 2011).
“We review de novo the district court’s denial of a
directed verdict.” Slayton v. Ohio Dep’t of Youth
Servs., 206 F.3d 669, 678 (6th Cir. 2000) (emphasis
omitted). “We review a district court’s jury instructions for abuse of discretion.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 536 (6th Cir. 2008). A district court’s determination on a declaratory judgment
is reviewed de novo. W. World Ins. Co. v. Hoey, 773
F.3d 755, 762 (6th Cir. 2014). We also review de novo
“a district court’s decision to dismiss a matter for untimeliness.” Children’s Ctr. for Developmental Enrichment v. Machle, 612 F.3d 518, 521 (6th Cir. 2010).
B. Analysis
1. Monell Claims
Gillispie appeals in part the district court’s summary
judgment determination. Specifically, he argues that
his five federal claims against Miami Township, which
were premised on Monell 1 liability, should not have
been dismissed on summary judgment.
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
“A dispute of a material fact is genuine so long as the
evidence is such that a reasonable jury could return
1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Gillispie
specifically argues that Detective Moore violated Gillispie’s due
process rights, and that Miami Township therefore faces supervisory liability.
9a
a verdict for the non-moving party.” Kirilenko-Ison
v. Bd. of Educ. of Danville Indep. Sch., 974 F.3d 652,
660 (6th Cir. 2020) (cleaned up). “When evaluating a
motion for summary judgment, this Court views the
evidence in the light most favorable to the party
opposing the motion.” Id.
Under the Supreme Court’s Monell doctrine, “a
municipality can be found liable under § 1983 only
where the municipality itself causes the constitutional
violation at issue.” City of Canton v. Harris, 489 U.S.
378, 385 (1989). This means that “a municipality can
be liable under § 1983 only where its policies are the
‘moving force behind the constitutional violation.’ ” Id.
at 389 (quoting Monell, 436 U.S. at 694). “Municipal
liability must rest on a direct causal connection
between the policies or customs of the city and the constitutional injury to the plaintiff; ‘respondeat superior
or vicarious liability will not attach under § 1983.’ ”
Gray v. City of Detroit, 399 F.3d 612, 617 (6th Cir.
2005) (quoting Harris, 489 U.S. at 385). This Court
has recognized four means by which a plaintiff may
show that the municipality’s policies or customs were
connected to the constitutional violation: “(1) the
existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence
of a policy of inadequate training or supervision; or
(4) the existence of a custom of tolerance or acquiescence of federal rights violations.” Jackson v. City of
Cleveland, 925 F.3d 793, 828 (6th Cir. 2019).
Gillispie’s brief focuses on two of the means identified by Jackson: ratification by an official with final
decision-making authority and a policy of inadequate
training or supervision. Neither of these theories are
availing.
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a. Ratification by an Official with
Final Decision-Making Authority
Liability under Monell “can be established by
showing that an official with final decision making
authority ratified the illegal actions.” Paterek v. Vill.
of Armada, 801 F.3d 630, 651 (6th Cir. 2015) (cleaned
up). However, the Supreme Court has clarified that
“[t]he fact that a particular official—even a policymaking official—has discretion in the exercise of
particular functions does not, without more, give rise
to municipal liability based on an exercise of that discretion.” Pembaur v. City of Cincinnati, 475 U.S. 469,
481-82 (1986). Instead, the official must “be responsible for establishing final government policy respecting
such activity before the municipality can be held
liable.” Id. at 483. There are two means by which an
individual can be granted authority to make municipal policy: via “legislative enactment” or delegation
“by an official who possesses such authority.” Id.
Gillispie has failed to show that an official with final
decision-making authority ratified Detective Moore’s
alleged constitutional violations. To maintain his
Monell claim under a ratification theory, Gillispie
must show that a Miami Township official with final
decision-making authority specifically approved of
Detective Moore’s alleged violations. Yet Gillispie
provides no evidence to support such an argument.
Gillispie avers that (1) the Township stated “that
Moore acted consistently with its policies or procedures”; (2) “other witnesses testified Moore acted in
compliance with the policies and practices of the Township”; and (3) Detective Moore’s “titular supervisor[ ]
confirmed that Moore’s decision to administer photo
lineups without another officer’s review of the arrays
was consistent with department policy.” Gillispie Br.
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ECF No. 48, 32. Essentially, Gillispie argues that
Detective Moore followed MTPD policies, which inand-of-itself is indicative of ratification. But that is
not the ratification standard. Instead, Gillispie must
show that an official approved of the specific illegal act
that Detective Moore committed. See Wallace v. Coffee Cnty., 852 F. App’x 871, 877-78 (6th Cir. 2021)
(finding that a ratification theory did not apply where
a supervisor did not approve of the specific constitutional violations). Gillispie provides no evidence that
anyone approved of the specific alleged violations.
Additionally, Gillispie does not indicate that a
specific decision-maker was responsible for the alleged
ratification. This Court has held that a ratification
theory “requires that [a] plaintiff make allegations
against a specific final decisionmaker.” Brown v.
Chapman, 814 F.3d 447, 463 (6th Cir. 2016). Yet
Gillispie does not demonstrate that any one particular
individual ratified the conduct at issue. Instead,
Gillispie broadly states that Detective Moore followed
MTPD policies, with no suggestion that a specific official took part in approving Detective Moore’s actions.
This is insufficient under this Circuit’s precedent.
Accordingly, the district court correctly determined
that Gillispie’s ratification theory was non-viable.
b. Inadequate Training or Supervision
“In order to show that a municipality is liable for a
failure to train its employees, a plaintiff must establish that: 1) the [municipality’s] training program was
inadequate for the tasks that officers must perform;
2) the inadequacy was the result of the [municipality’s]
deliberate indifference; and 3) the inadequacy was
closely related to or actually caused the injury.” Jackson, 925 F.3d at 834 (cleaned up). It is “[o]nly when
the failure to train amounts to ‘deliberate indifference’
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on behalf of the city toward its inhabitants, however,
will failure to train lead to city liability under § 1983.”
Gregory v. City of Louisville, 444 F.3d 725, 753 (6th
Cir. 2006) (quoting Harris, 489 U.S. at 388). The
Supreme Court has found that deliberate indifference
“is a stringent standard of fault, requiring proof that
a municipal actor disregarded a known or obvious
consequence of his action.” Bd. of Cnty. Comm’rs of
Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997). A
plaintiff meets the deliberate indifference standard by
showing either:
(1) prior instances of unconstitutional conduct
demonstrating that the [municipality] had notice
that the training was deficient and likely to cause
injury but ignored it or (2) evidence of a single
violation of federal rights, accompanied by a showing that the [municipality] had failed to train its
employees to handle recurring situations presenting an obvious potential for such a violation.
Jackson, 925 F.3d at 836 (citation and internal quotation marks omitted).
Gillispie argues that there is sufficient evidence to
demonstrate that Miami Township failed to adequately
train or supervise Detective Moore. At the crux of his
argument is the contention that Miami Township
failed to provide any real policies or procedures to guide
and cabin Detective Moore’s investigation. Gillispie
specifically argues that the Township did not have
policies and procedures regarding Brady obligations,
photo lineups, or basic introductory officer training.
The fault in Gillispie’s argument is that it fails to
demonstrate deliberate indifference. At most, Gillispie
argues that the Township failed “to adopt any standards whatsoever to actually guide the officer; i.e., what
procedures MTPD officers should use.” Gillispie Br.,
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ECF No. 48, 30. It is true that “[t]his Court has held
that evidence pointing to a City’s failure to provide
any training on key duties with direct impact on the
constitutional rights of citizens is sufficient to survive
summary judgment with a Monell failure to train
claim.” Gregory, 444 F.3d at 754. However, it is
not accurate to say that there is evidence in this case
that Miami Township failed to provide any training.
The district court highlighted numerous examples of
MTPD policies and training efforts, including: (1) that
Detective Moore stated in his deposition that he was
trained such that at the time of the alleged wrongdoing, he understood that he had to turn over any
exculpatory information in his possession and that it
was illegal to fabricate evidence or testimony; (2) the
MTPD had a police academy, which Moore attended,
that followed the state’s suggested curriculum; (3) at
the time of the alleged wrongdoing, the Township had
written “Photographic Identification General Guidelines” and “Photographic Show-Up Instructions”; (4) a
supervisory detective testified that the MTPD had a
practice and procedure in place requiring officers to
turn over their entire body of work for the case to the
prosecutor; and (5) a former MTPD detective testified
that the MTPD maintained a set of policies and procedures relating to case investigations and report retentions.
As there is insufficient evidence to demonstrate an
absence of any policies on the part of Miami Township,
Gillispie must show that Miami Township’s actions
fall under either of the Jackson deliberate indifferent
standards. Gillispie must therefore demonstrate that
either (1) there were prior instances of unconstitutional conduct by Miami Township employees that put
the Township on notice, or (2) there was evidence of
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a single violation of constitutional rights and Miami
Township failed to implement policies in response to
this violation. Jackson, 925 F.3d at 836. Nowhere
does Gillispie touch on these elements. Gillispie does
not show that there were either recurring constitutional violations or that there was a single constitutional violation and Miami Township failed to implement post-hoc policies. In fact, Gillispie does not even
mention the Jackson standard in either his opening
or reply brief, despite the district court’s application
of the standard2 and Miami Township’s extensive
discussion of the standard in its reply brief. Furthermore, there does not appear to be any evidence in the
record to find that either of the Jackson elements
apply to this case. Thus, because Plaintiff cannot
show any evidence to meet the deliberate indifference
standard under Jackson, the district court did not err
in finding that Plaintiff could not maintain his Monell
claims under an inadequate training or supervision
theory.
In summary, Gillispie has failed to show that either
an official with final decision-making authority approved of the alleged constitutional violations or that
Miami Township maintained a policy of inadequate
training or supervision. Gillispie has therefore failed
to demonstrate that any reasonable jury could find
Miami Township liable for a Monell supervisory liability claim.
2 The district court even noted in its summary judgment order
that Gillispie failed to address the Jackson standard. Summ. J.
Order, R. 298, Page ID #10889 (“To the extent that Gillispie even
makes the argument, the evidence does not support a showing of
prior instances of unconstitutional conduct demonstrating that
the Township had notice that the training was deficient and
likely to cause injury but the Township ignored it.” (cleaned up)
(emphasis added)).
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2. Miami Township’s Motion to Alter or Amend
the Judgment
Both Miami Township and Detective Moore appeal
the district court’s denial of their Rule 59 motion.
They specifically seek a reduction in the $45 million
in damages, arguing that such an award shocks the
conscience.
Rule 59(e) of the Federal Rules of Civil Procedure
permits a district court to alter or amend a judgment.
“A court may grant a Rule 59(e) motion to alter or
amend if there is: (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in
controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620
(6th Cir. 2005). If a court seeks to alter or amend a
judgment with respect to damages, the court may
either reduce the damages or order a new trial. Denhof
v. City of Grand Rapids, 494 F.3d 534, 547 (6th Cir.
2007). A district court “is sharply limited in its ability
to remit a jury verdict.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir. 2004). The court
can “remit the damages verdict ‘only when, after
reviewing all the evidence in the light most favorable
to the prevailing party, it is convinced that the verdict
is clearly excessive; resulted from passion, bias, or
prejudice; or is so excessive or inadequate as to shock
the conscience of the court.’ ” Corbin v. Steak ‘n Shake,
Inc., 861 F. App’x 639, 645 (6th Cir. 2021) (quoting
Am. Trim, LLC v. Oracle Corp., 383 F.3d 462, 475 (6th
Cir. 2004)). For this reason, this Circuit has found
that a damages award should be reduced only if it is
either: “(1) beyond the range supportable by proof or
(2) so excessive as to shock the conscience, or (3) the
result of a mistake.” Bickel v. Korean Air Lines Co.,
96 F.3d 151, 156 (6th Cir. 1996) (cleaned up).
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a. Standing
Gillispie argues that Miami Township does not have
standing to make its damages-reduction argument.
He notes that Miami Township was permitted to
intervene in this trial for the “limited purpose of
questioning, argument, and submission of proposed
jury instructions and interrogatories on the discreet
issues of lack of good faith and scope of employment.”
Gillispie Br., ECF No. 48, 53 (quoting Mot. Intervene,
R. 370, Page ID #12697). According to Gillispie, this
limited scope did not include the capacity to intervene
at trial regarding damages, given that the Township
did not make any argument to the jury regarding the
amount of damages. (Id.). However, Gillispie points
to no case law holding that an intervenor may not
challenge a damages award that directly impacts the
intervenor. In fact, case law in this Circuit suggests
the opposite. This Court has held that “a party to
an action in a district court has standing to appeal a
judgment or order by which it is actually aggrieved.”
City of Cleveland v. Ohio, 508 F.3d 827, 837 (6th Cir.
2007). In this instance, Miami Township is aggrieved
by the district court’s denial of the 59(e) motion, as the
Township is now liable for tens of millions of dollars
in damages due to the district court’s judgment. There
is perhaps no better example of a party aggrieved
by a district court’s judgment than a party subject to
such large damages. Accordingly, Miami Township has
standing to make this argument.
b. Merits
Miami Township presents two arguments as to why
the district court’s denial was in error: (1) there is
insufficient evidence to support the damages award,
and (2) the damages are excessive. Neither argument
is persuasive.
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i. Sufficiency of the Evidence
At trial, the jury was instructed that in order to find
damages by a preponderance of the evidence, the jury
could consider “the mental and emotional aspects of
injury, even if they are not easy to measure.” Jury
Instructions, R. 472, Page ID #15548. The district
court further instructed the jury that “[c]ompensatory
damages include but are not limited to:” “[t]he physical mental, and emotional pain and suffering Plaintiff
has experienced;” “[t]he physical, mental, and emotional
pain and suffering Plaintiff is reasonably certain to
experience in the future;” “[t]he loss of enjoyment of
life Plaintiff has experienced;” and “[t]he loss of enjoyment of life Plaintiff is reasonabl[y] certain to experience in the future.” Id.
Miami Township argues that the preponderance of
the evidence does not support the $45 million damages
award. This is because there is “little specific evidence
of past, present, or future physical pain or suffering,
and no specific evidence that Gillispie is reasonably
likely to suffer any loss of enjoyment in the future.”
Miami Br., ECF No. 36, 30. Miami Township cites
to evidence that Gillispie is physically mobile and able
to engage in hobbies. Regarding actual damages, the
Township argues that there is little evidence that he
had $45 million in lost wages due to the time he spent
in prison.
There is a critical flaw in this argument. What
Miami Township does not address, and which formed
the core of the district court’s determination, is the
fact that Gillispie was forced to spend years of his life
unfairly locked in a maximum-security prison, labeled
a violent felon, and deprived of the opportunity to live
a normal life. The district court’s decision cites pages
worth of testimony and evidence at trial describing the
18a
kind of loss and pain endured by Gillispie because of
his wrongful imprisonment. Among the most noteworthy of that evidence includes: (1) testimony from
Gillispie regarding his fellow inmates at his maximum
security prison, in which “[s]eventy percent of the
people that are there are not going home” and thus
“don’t care about you or anything else in life,” Order,
R. 519, Page ID #18155 (quoting Trial Tr., R. 500,
Page ID #16663-64); (2) testimony from Gillispie
regarding the violence in the prison, in which he saw,
among other things, “people beat so bad, the life taken
right out of them,” “people stabbed with a pencil,
broke it off so they can’t get it out of them,” “a man
get hit in the head so hard that his eyeball came out
of his eye socket,” id. (quoting Trial Tr., R. 500, Page
ID #16664-65); (3) testimony from Gillispie regarding
pain caused by the decades spent away from family;
(4) testimony from Gillispie regarding the humiliation
felt by having to register as a sex offender; (5) testimony from Gillispie that after he was released on
parole after decades in prison, he “had to go check in,
go pee in a cup, go get permission to leave the state,
for five years,” id. at Page ID #18157 (quoting Trial
Tr., R. 500, Page ID #16700-01); (6) testimony from
Gillispie that he was twenty-five years old at the time
of his incarceration and was thus unable to ever start
a family; and (7) testimony from Gillispie’s criminal
attorney, who told a number of stories demonstrating
the pain felt by Gillispie at never being able to start
a family. These pieces of testimony are just a few
examples of the long list of evidence presented to the
jury regarding the pain and suffering felt by Gillispie.
In considering these examples, it cannot be said that
the jury’s determination failed to meet the preponderance of the evidence standard. True, Gillispie does not
19a
appear to suffer from any physical ailments due to his
time in prison, and seems able to undertake hobbies
in his post-prison life. Yet the jury’s instructions
were broad, as the jury was encouraged to consider
emotional and mental pain and suffering, and loss of
enjoyment of life. The inability to start a family, the
experience of witnessing frequent violence, and the
immense reputational damage are all factors that the
jury could consider under the district court’s instructions. Miami Township has not identified, nor has this
Court found, cases finding that a jury may not award
very large damages based on these factors. Accordingly, the jury’s award of damages was supported by a
preponderance of the evidence.
ii. The Size of the Damages
Miami Township next argues that the damages
award is so excessive that it shocks the conscience. To
support its argument, the Township turns the Court’s
attention to one district court case, Wheatt v. City
of E. Cleveland, No. 17-CV-377, 2019 WL 4071646
(N.D. Ohio Aug. 29, 2019), and one out-of-circuit case,
Limone v. United States, 579 F.3d 79 (1st Cir. 2009).
Wheatt concerned a case in which three plaintiffs
were wrongfully convicted for murder in 1996. Wheatt,
2019 WL 4071646 at *1. The plaintiffs were later
granted a new trial in Ohio state court 2015 and
subsequently brought suit against the municipal
defendant in federal court under § 1983. Id. In the
federal court trial, the jury awarded $15 million in
damages to the plaintiffs, which the district court
upheld. Id. at *1, *8-10. Miami Township argues
that Wheatt demonstrates the unconscionability of the
damages award in this case: each plaintiff in Wheatt
received $5 million in damages for two decades of
wrongful imprisonment; Gillispie, by contrast, was
20a
awarded nine times that figure. In Limone, the First
Circuit considered a case in which a jury awarded over
$100 million in damages to seven wrongfully convicted
plaintiffs. Limone, 579 F.3d at 83. The district court
calculated damages by determining that the “wrongfully imprisoned plaintiffs were entitled to compensation of at least $1 million per year of imprisonment.”
Id. at 107. While First Circuit upheld this calculation,
it noted in dicta that “the district court’s awards are
at the outer edge of the universe of permissible awards
and survive scrutiny, though barely, only because of
the deferential nature of the standard of review and
the unique circumstances of the case.” Id. Miami
Township argues that in this case, the annualized
cost of Gillispie’s term of imprisonment would be $2.5
million—far more than the $1 million that was reluctantly accepted by the First Circuit.
Miami Township’s reliance on these cases is unavailing. To begin, this Circuit has emphasized that
reliance on comparator cases is often inapposite. In
Champion v. Outlook Nashville, Inc., we noted that
“[e]ndeavoring to compare awards is difficult and
often unfruitful, because the factual circumstances of
each case differ so widely and because it places reviewing courts in the position of making awkward assessments of pain and suffering better left to a jury.”
380 F.3d at 906 (citing, inter alia, Layne v. Wal-Mart
Stores, Inc., 24 F. App’x 364, 368 (6th Cir. 2001),
Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d 814,
827 (6th Cir. 1980)). It is thus questionable whether
this Court should even consider the aforementioned
cases.
But even if we were to engage in such a comparator
analysis, there are cases that have similarly large
damages awards. In Gilliam v. Allen, for example, the
21a
Fourth Circuit considered a case in which two wrongfully convicted individuals served decades in prison.
62 F.4th 829, 834 (4th Cir. 2023). After a jury trial,
the district court awarded $62 million in compensatory damages, $13 million in punitive damages, $36
million in prejudgment interest, and $6.25 million
in attorney’s fees. Id. The Fourth Circuit concluded
that the district court abused its discretion in granting
the $36 million prejudgment interest award, and
also failed to reduce the compensatory damages by
$10-to-$11.5 million to account for prior settlements
that the plaintiffs had received. Id. at 847-50. In all
other respects, however, the court upheld the award of
damages, thus giving the plaintiffs and their counsel
a total award of over $70 million. See id. at 851. That
award exceeds the total in this case. And even when
the $70 million total is divided in half to account for
the two plaintiffs, Gillispie’s award is only 29 percent
higher. This percentage is diminished even further
when Gilliam’s $10 million in prior settlements is
considered. If the $10 million in prior settlements is
counted as part of the total, the award stands at $40
million per plaintiff—meaning that Gillispie’s award
was only 12.5 percent higher.
Finally, it must be emphasized the degree to which
a court’s discretion is cabined in remitting damages.
We have specifically held that a court “is sharply
limited in its ability to remit a jury verdict.” Champion, 380 F.3d at 905. This is because “juries have
broad discretion to set damages amounts.” Smith v.
LexisNexis Screening Sols., Inc., 837 F.3d 604, 612
(6th Cir. 2016). Juries are free to consider “humiliation, mental suffering and the intangible loss of civil
rights” in determining damages in § 1983 cases.
Green v. Francis, 705 F.2d 846, 850 (6th Cir. 1983).
22a
That is precisely what the jury did in this case. It
reviewed the reams of evidence describing the longterm pain Gillispie endured throughout his wrongful
term of imprisonment, and the long term psychological and familial effects cause by a quarter-century
spent behind bars. Because “[o]ne simply cannot
quantify the mental and physical pain and suffering
such an experience would cause,” this Court “cannot
conclude that the evidence does not support the
awards.” Bickel, 96 F.3d at 156. Thus, the district
court correctly cabined its review of the damages in
this case and found that the award was not excessive
or shocked the conscience.
In summary, Miami Township has standing to
assert its argument regarding the damages award.
That argument, however, is unavailing. The award
was both supported by a preponderance of the
evidence and was not so excessive so as to shock the
conscience.
3. Miami Township’s Motion for Judgment as
a Matter of Law
After the conclusion of trial, Miami Township filed
a motion for a judgment as a matter of law regarding
whether it had to indemnify Detective Moore. Miami
Township argued that Detective Moore did not act in
good faith and acted outside of his official responsibilities, and as such, the Township could not be held
liable for indemnification under Ohio law. The Township thus requested that the district court either set
aside the jury’s findings regarding Detective Moore’s
actions or hold a new trial on this issue. The district
court denied this motion.
“Judgment as a matter of law is proper where ‘there
is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party on that
23a
issue,’ and where the claim ‘cannot under the controlling law be maintained without a favorable finding on
that issue.’ ” Kusens v. Pascal Co., 448 F.3d 349, 360
(6th Cir. 2006) (quoting Fed. R. Civ. P. 50(a)) (cleaned
up). In evaluating a Rule 50 motion, courts employ
“the same as the inquiry for resolving a motion for
summary judgment pursuant to Rule 56.” White v.
Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 794
(6th Cir. 2004) (en banc), aff ’d, 548 U.S. 53 (2006).
This means that “[w]e review all of the evidence in the
record in the light most favorable to the nonmoving
party and determine whether there was a genuine
issue of material fact for the jury.” Id.
The relevant statute at issue here is Ohio Rev. Code
§ 2744.07(B). That statute concerns indemnification,
and states in relevant part:
[A] political subdivision shall indemnify and hold
harmless an employee in the amount of any
judgment, other than a judgment for punitive or
exemplary damages, that is obtained against the
employee in a state or federal court or as a result
of a law of a foreign jurisdiction and that is for
damages for injury, death, or loss to person or
property caused by an act or omission in connection with a governmental or proprietary function.
Ohio Rev. Code § 2744.07(B)(1). If, however, “the employee was not acting in good faith” or “was not acting
within the scope of the employee’s employment or official responsibilities,” then the political subdivision’s
duty to indemnify vanishes. Id. § 2744.07(B)(2)(a)-(b).
At trial, the jury considered whether Miami Township
was liable for indemnification under this statute. In
its verdict, the jury stated that Miami Township had
failed to prove that Detective Moore was not acting
in good faith or was acting outside the scope of his
24a
employment, thus rendering the Township liable for
indemnification. Miami Township argues that this
finding is unsupportable by both the evidence presented at trial and controlling law.
a. Good Faith
In its jury instructions, the district court defined
good faith as follows:
For purposes of this issue, one does not act in
good faith when his conduct evinces a dishonest
purpose, conscious wrongdoing, or the breach of
a known duty through some ulterior motive.
Bad faith is the opposite of good faith, generally
implying or involving actual or constructive fraud,
or a design to mislead or deceive another, not
prompted by an honest mistake as to one’s rights
or duties, but by some interested or sinister
motive. Bad faith, although not susceptible of
concrete definition, embraces more than bad
judgment or negligence. It imports a dishonest
purpose, moral obliquity, conscious wrongdoing,
breach of a known duty through some ulterior
motive, or ill will partaking of the nature of fraud.
Conduct that is reckless may still be in good faith.
Jury Instructions, R. 472, Page ID #15551. This
definition finds its support in Ohio case law. See,
e.g., McCormack v. Jefferson Area Loc. Sch. Dist., 112
N.E.3d 338, 344 (Ohio Ct. App. 2018) (“[O]ne does not
act in good faith when his conduct evinces a dishonest
purpose, conscious wrongdoing, or the breach of a
known duty through some ulterior motive.”); Strayer
v. Barnett, 94 N.E.3d 156, 164 (Ohio Ct. App. 2017)
(noting that an employer is not liable where “the
employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless
manner”); Buckeye Union Ins. v. New England Ins.,
25a
720 N.E.2d 495, 499 (Ohio 1999) (“A lack of good faith
is the equivalent of bad faith, and bad faith, although
not susceptible of concrete definition, embraces more
than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing,
breach of a known duty through some ulterior motive
or ill will partaking of the nature of fraud. It also
embraces actual intent to mislead or deceive another.”)
(citation omitted).
There is ample evidence in this case that Detective
Moore acted recklessly. In its order denying the
motion for judgment as a matter of law, the district
court comprehensively listed each major piece of evidence highlighting Detective Moore’s reckless actions
throughout the investigation and prosecution. With
respect to photo identifications, for example, Detective
Moore asked C.W. if “any of the persons shown in the
photographs resemble the person you saw” after C.W.
had already failed to identify Gillispie in the initial
photo array. Trial Tr., R. 489, Page ID #15940-41.
Regarding suppression of evidence, for example,
Detective Moore failed to turn over evidence pertaining to the suggestive aspects of his questioning.
Reckless behavior, however, is not necessarily bad
faith. Instead, as Ohio law and the jury instructions
make clear, Miami Township was required to prove
that Detective Moore engaged in “conscious wrongdoing” to show he acted in bad faith. See Buckeye
Union Ins., 720 N.E.2d at 499; Jury Instructions,
R. 472, Page ID #15551. In the long list of evidence
highlighted by the district court, there does not appear
to be any clear statement, testimony, or record clearly
showing that Detective Moore knowingly flouted Gillispie’s constitutional protections. True, a jury could
infer from the circumstantial evidence that Detective
26a
Moore engaged in a level of willingness. However, a
jury could also conclude that Detective Moore’s actions
were the product of incompetence, not conscious wrongdoing. For example, one of the experts at trial testified
that a well-trained police officer “would be able to
determine whether or not a lineup was knowingly or
unnecessarily suggestive.” Trial Tr., R. 493, Page ID
#16297-98. The expert emphasized the caveat that
the officer needed to be well-trained, suggesting that
a poorly trained officer might be unable to recognize
when his actions are violating proper practice. It thus
appears that there is evidence to suggest that Detective Moore was inept. While an incompetent police
officer presents its own risks and concerns, such an
individual does not act with the kind of mental culpability required for a showing of bad faith under Ohio
law.
Miami Township points to this Court’s holding in
Moldowan v. City of Warren, 578 F.3d 351 (6th Cir.
2009). That case concerned a § 1983 suit regarding a
Brady violation. Id. at 363-65. Miami Township cites
to a particular passage to make its argument, which
states:
It [is] not impl[ied] . . . that the police are entirely
shielded from liability unless a defendant shows
bad faith. Where the exculpatory value of a piece
of evidence is apparent, the police have an unwavering constitutional duty to preserve and ultimately disclose that evidence. The failure to fulfill
that obligation constitutes a due process violation,
regardless of the whether a criminal defendant or
§ 1983 plaintiff can show that the evidence was
destroyed or concealed in bad faith. The reason no
further showing of animus or bad faith is required
is that, where the police have in their possession
27a
evidence that they know or should know might be
expected to play a significant role in the suspect’s
defense, the destruction or concealment of that
evidence can never be done in good faith and in
accord with their normal practice.
Id. at 388 (cleaned up). According to the Township,
this demonstrates that “Moore’s acts could not have
been taken in good faith (or in accord with the normal
practice (official duties) of police officers) as a matter
of law.” Miami Br., ECF No. 34, 24. This is because
Moldowan, according to the Township, “holds certain
actions can never be done in good faith.” Id. at 25.
Moldowan is unavailing to the Township’s argument. Ohio law requires a showing of bad faith to be
relieved of indemnification liability; in Moldowan, by
contrast, we explicitly held that bad faith was not
required for § 1983 claims. 578 F.3d at 388. The
entire point of the above quotation was to elucidate
the reasons why bad faith is not required for § 1983.
And as the district court correctly pointed out, the
“opinion in Moldowan had nothing to do with Ohio
Rev. Code § 2744.07 or indemnification or Ohio law
whatsoever.” Order, R. 519, Page ID #18135. Ohio
law has specific standards with respect to the intertwined nature of bad faith and indemnification that
has no similar parallel to federal § 1983 doctrine.
Thus, applying a case that does not have any connection whatsoever to the specific Ohio law at issue would
be improper.
In summary, we cannot say that the jury’s determination on good faith was unsupported by the evidence.
There is no obvious and direct evidence demonstrating
that Detective Moore knowingly violated Gillispie’s
constitutional protections. While perhaps a reasonable jury could find that Detective Moore acted in bad
28a
faith, it is also possible for a reasonable jury to conclude that Detective Moore was simply incompetent.
The jury’s good faith determination was not therefore
unreasonable.
b. Outside the Scope of Employment
With respect to scope of employment, the district
court provided the following instruction to the jury:
Scope of employment means the employee is
engaged in an activity that is logically related to
the business of the employer. The determination
of whether conduct is within the scope of employment necessarily turns on the perception of
whether the employee acted, or believed himself
to have acted, at least in part, in his employer’s
interests. However, if an employee’s actions are
self-serving or have no relationship to the employer’s business, then the conduct is manifestly
outside the scope of employment. Manifestly is
defined as plainly or obviously.
Jury Instructions, R. 472, Page ID #15551. Like the
good faith jury instruction, this instruction is also
derived from Ohio law. See, e.g., McCormack, 112
N.E.3d at 344 (“The determination of whether conduct
is within the scope of employment necessarily turns
on the fact finder’s perception of whether the employee
acted, or believed himself to have acted, at least in
part, in his employer’s interests.” (cleaned up)); Theobald v. Univ. of Cincinnati, 857 N.E.2d 573, 577, 580
(Ohio 2006) (“The Revised Code does not define ‘scope
of employment.’ The concept generally denotes an
agency relationship in which the agent or employee is
engaged in an activity that is logically related to the
business of the principal or employer. . . . [I]f an employee’s actions are self-serving or have no relationship to the employer’s business, then the conduct is
29a
manifestly outside the scope of employment.” (internal
quotation marks omitted)).
Miami Township points to little evidence to show
that Detective Moore’s actions were taken outside of
the scope of his employment. In its brief, the Township provides a lengthy retelling of the reckless
actions taken by Detective Moore. The Township then
states that this evidence “shows that Moore’s actions
. . . could not have been done . . . within the scope of
his employment or official responsibilities.” Miami
Br., ECF No. 36, 21. Yet at no point does Miami Township provide evidence that specifically shows that
Detective Moore’s actions were either self-serving or
wholly detached from the business of MTPD. In fact,
it is hard to conceive of how any of Detective Moore’s
wrongdoing was committed out of self-interest or
divorced from MTPD business. There is no evidence
to suggest that convicting Gillispie would have
returned any immediate personal benefit to Detective
Moore. Furthermore, all of Detective Moore’s alleged
wrongdoing occurred during a police investigation,
which is definitionally part of the work of the MTPD.
Miami Township again cites to our decision in
Moldowan. In that case, we held that “the destruction
or concealment of that evidence can never be done
. . . in accord with [the police’s] normal practice.”
Moldowan, 578 F.3d at 389 (citation and quotation
marks omitted). Yet whether an action is within
the normal practice has no bearing on whether an
employee was acting out of self-serving motives or
with no connection to his employer’s business. This
again demonstrates the incompatibility of attempting
to draw a parallel between a case dealing with federal
§ 1983 doctrine and this case: the Ohio law at issue
has specific standards that do not parallel federal
30a
doctrine, and it is thus inapposite to rely on case law
interpreting federal law. Miami Township also cites to
a New York Court of Appeals case, Lemma v. Nassau
Cnty. Police Officer Indemnification Bd., which also
does not address the Ohio law at issue. 105 N.E.3d
1250 (N.Y. 2018). That case does not even discuss the
contours of a scope of employment doctrine; in fact, the
Court of Appeals specifically found that the doctrine
at issue, “discharge of duties,” is not always identical
to the scope of employment doctrine. Id. at 1256.
In summary, the evidence demonstrates that a
reasonable jury could conclude that Detective Moore
was acting in good faith and that he was acting within
the scope of his employment. Thus, the jury was
within its discretion to find that Miami Township was
required to indemnify Detective Moore pursuant to
Ohio Rev. Code § 2744.07(B).
4. Detective Moore’s Motion for a Directed
Verdict
When parties move for a directed verdict under
Federal Rule of Civil Procedure 50, they must “speak
up at two times if they want the court to resolve the
claim as a matter of law.” Maxwell v. Dodd, 662 F.3d
418, 421 (6th Cir. 2011). First, “[t]hey must move for
judgment as a matter of law before the claim goes
to the jury,” and second, “they must renew the motion
(or seek a new trial) after the jury issues its verdict.”
Id. (citing Fed. R. Civ. P. 50(a)-(b)). If a party fails on
either of these fronts, this Court is deprived of appellate review. Id.
Detective Moore moved for a directed verdict on the
suppression and destruction of evidence claims before
the commencement of closing arguments. However, it
does not appear that he raised his motion for a second
time, as is required under Rule 50(b). Accordingly,
31a
Detective Moore has failed to preserve this issue for
appellate review.
5. Detective Moore’s Proposed Jury Instructions
“We will reverse a judgment based on inadequate
jury instructions only ‘if the instructions, viewed as a
whole, were confusing, misleading and prejudicial.’ ”
Williams v. Eau Claire Pub. Schs., 397 F.3d 441, 445
(6th Cir. 2005) (citation omitted). “A district court’s
refusal to give a jury instruction constitutes reversible
error if (1) the omitted instruction is a correct statement of the law, (2) the instruction is not substantially
covered by other delivered charges, and (3) the failure
to give the instruction impairs the requesting party’s
theory of the case.” Decker v. GE Healthcare Inc., 770
F.3d 378, 396 (6th Cir. 2014) (citation omitted).
Prior to the conclusion of trial, Detective Moore
submitted proposed jury instructions. With respect to
the suggestive identification claim, Detective Moore
requested that the district court include the following
instruction:
You are instructed that the following items do not,
in and of themselves make a photo array unduly
suggestive:
1. The difference in the background color of the
photos;
2. The differences in the clothing worn by the
persons in the photo array;
3. The fact that the suspect photo has some slight
unique aspect to it such as head tilt, difference in
head size, face width, head being more or less in the
foreground, or some difference in age of persons in
the array, provided the person meets the general
description of the suspect;
32a
4. Any alleged inquiry of the victim of whether they
could identify the perpetrator from the photo array;
5. That the eye color of the suspect was more noticeably blue tha[n] the fillers;
6. That time, even years, had passed between the
crime and the identification;
These factors are just examples and you are entitled
to evaluate the evidence before you. The fundamental question is whether you consider the identifications to be reliable, fair evidence.
Moore Proposed Jury Instructions, R. 413, Page ID
#14062 (citations omitted). The district court did not
adopt this proposed instruction.
The district court did not abuse its discretion in failing to adopt Detective Moore’s proposed instruction.
Assuming, arguendo, that the proposed instruction is
a correct statement of the law3 and is not substantially
covered by the other charges, the omission of this
instruction nevertheless did not impair Detective
Moore’s case theory. Nothing in the district court’s
instructions prevented Detective Moore from arguing
that differences in photo background colors, differences in clothing colors, unique aspects to photos in
the array, inquiries from the victim, bluer eye colors,
and time passage do not necessarily make a photo
array unduly suggestive. In fact, Detective Moore’s
counsel made these very arguments during closing
argument, and nothing in the district court’s instructions detracted from that argument.
3 Gillispie provides strong arguments in his brief as to why
these instructions are not necessarily accurate statements of the
law. However, we need not reach that point, as the omission of
the proposed instructions did not impinge on Detective Moore’s
theory of the case.
33a
Detective Moore’s proposed jury instruction is, at its
core, a laundry list of factors that are helpful to his
case. Yet there is no case law in this Circuit holding
that a litigant is entitled to such jury instructions
merely because they aid his case-in-chief. Furthermore, this Court may only reverse a district court’s
jury instructions if those instructions “were confusing,
misleading and prejudicial.” Williams, 397 F.3d at
445. There was nothing confusing, misleading, or
prejudicial about the district court’s instructions.
Those instructions clearly articulated the law and
provided ample opportunity for Detective Moore to
poke holes in Gillispie’s case theory. Thus, the district
court did not err in denying the proposed jury instruction.
6. Declaratory Judgment
On November 8, 2023, the district court entered a
judgment on Miami Township’s declaratory judgment
complaint, finding that the Township must indemnify
Detective Moore for the full amount of damages. The
district court determined that Miami Township was
required to indemnify Detective Moore under Ohio
Rev. Code § 2744.07(B) because the jury explicitly
found in its special interrogatories that Detective
Moore had acted in good faith and within the scope of
his employment. The court specifically noted that
questions of good faith and scope of employment are
inherently factual in nature, and the court could “not
disregard the conclusions of the jury on issues of fact.”
Order, R. 529, Page ID #18285-86.
a. Reliance on Jury Determination
Miami Township argues that the district court erred
in following the jury’s special interrogatory answers.
According to the Township, the jury’s findings belied
the evidence and controlling law. But as discussed
34a
above, the jury’s findings were supported by both the
evidence and applicable law. Miami Township further
argues that if the district court had granted the Township’s motion for judgment as a matter of law, the
Township could have presented “additional evidence
of Moore’s conduct not presented at trial regarding the
issues of good faith and scope of employment.” Miami
Br., ECF No. 36, 36. The Township then provides a
long list of evidence supporting its theory that Detective Moore acted neither in good faith nor within
the scope of his employment. Yet as discussed above,
the district court did not err in denying the motion
for judgment as a matter of law. Thus, both of Miami
Township’s arguments fail, as the district court properly relied on the jury’s special interrogatory responses
to find that the Township must indemnify Detective
Moore.
b. Indemnification in the Full Amount
Miami Township next argues that it should not be
held liable to pay the full amount of the $45 million in
damages. The Township states that “it was entitled
to a declaration that its indemnification obligation to
Moore is limited to reimburse Moore for what Moore
can pay towards any final judgment against him.”
Miami Br., ECF No. 36, 39. According to the Township, this standard should be adopted because the
animating principles behind Ohio Rev. Code § 2744.07
did not contemplate the kind of indemnification at
issue in this case.
This issue is one of statutory interpretation.
We must ask whether Ohio Rev. Code § 2744.07(B)
permits Miami Township to indemnify Detective
Moore for the full $45 million damages award. To
determine the meaning of a statute, “[t]he starting
point . . . is the language of the statute itself.” United
35a
States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005)
(quoting Grp. Life & Health Ins. Co. v. Royal Drug Co.,
440 U.S. 205, 210 (1979)). “This inquiry begins—and
sometimes ends—with the plain language of the
statute. If the language of the statute is clear, the
court applies the statute as written.” Donovan v.
FirstCredit, Inc., 983 F.3d 246, 253 (6th Cir. 2020)
(cleaned up). When examining the specific language
of a statute, “words will be interpreted as taking their
ordinary, contemporary, common meaning,” as “it is
appropriate to assume that the ordinary meaning
of the language that Congress employed ‘accurately
expresses its legislative purpose.’ ” Plavcak, 411 F.3d
at 660-61 (first citing Perrin v. United States, 444 U.S.
37, 42 (1979), then quoting Mills Music, Inc. v. Snyder,
469 U.S. 153, 164 (1985)).
Ohio Rev. Code § 2744.07(B)’s language is plain and
clear. The statute states that
Except as otherwise provided in division (B)(2) of
this section, a political subdivision shall indemnify and hold harmless an employee in the amount
of any judgment, other than a judgment for
punitive or exemplary damages, that is obtained
against the employee in a state or federal court or
as a result of a law of a foreign jurisdiction and
that is for damages for injury, death, or loss to
person or property caused by an act or omission in
connection with a governmental or proprietary
function.
Ohio Rev. Code § 2744.07(B)(1). The plain text of
this provision limits a political subdivision’s duty to
indemnify in one narrow circumstance—when employees have judgments against them for punitive or
exemplary damages. Id. § 2744.07(B)(1). In this case,
because Gillispie’s damages were compensatory only,
36a
the limitation in § 2744.07(B)(1) does not apply.
And the statute does not make any kind connection
between the amount an employee is able to pay and
the amount the municipality must indemnify. Reading Miami Township’s proposed interpretation of the
law would require an impermissible extratextual
interpretation of this statute. This lack of textual
grounding in the Township’s interpretation is fatal to
the Township’s argument.
The Township turns the Court’s attention to Ayers
v. City of Cleveland, 156 N.E.3d 848 (Ohio 2020).
In that case, the Ohio Supreme Court considered
whether a judgment creditor could bring a claim
under Ohio Rev. Code § 2744.07 against the City of
Cleveland. Id. at 850-51. The court ultimately determined that only an employee of a political subdivision,
and not a judgment creditor, could seek indemnification under the statute. Id. at 854. Miami Township
specifically highlights the court’s finding that “the
right of indemnification is personal to the employee”
and that “the statute does not provide that a political
subdivision shall indemnify any judgment against an
employee.” Id. at 853. The court further noted that
“indemnification is a personal right rather than a
right that may be enforced by a third party” because
“indemnification exists to make whole the person who
is indemnified” and “indemnification does not exist
to benefit a third party.” Id. at 853-54 (citation and
internal quotation marks omitted). Miami Township
argues that this language necessarily leads to the
“conclusion that the Township’s indemnity obligation
to Moore is limited to the amount Moore pays towards
the judgment[, which] is not a stretch or inconsistent
with Ayers.” Miami Br., ECF No. 36, 41.
The Township’s interpretation of Ayers far exceeds
the Ohio Supreme Court’s actual holding. Ayers in
37a
no way contemplated the issue at hand: whether a
municipality must indemnify the full amount of the
damages against an employee. Each of the Ayers quotations cited by the Township are in explicit reference
to the question of whether a non-employee, third party
can utilize Ohio Rev. Code § 2744.07 to recover. 156
N.E.3d at 853-54. This case thus presents little precedential usefulness for the issue at hand.
Miami Township also argues that permitting full
indemnification would frustrate the Ohio Legislature’s
purpose in passing Ohio Rev. Code § 2744. The Township highlights case law finding that the “manifest
statutory purpose of R.C. Chapter 2744 is the preservation of the fiscal integrity of political subdivisions.”
Summerville v. Forest Park, 943 N.E.2d 522, 531
(Ohio 2010) (citation omitted). Miami Township
appears to use this quote to argue that the Township
should not be saddled with the financial burden of
paying $45 million to Gillespie on behalf of Moore.
Yet that quotation is inapplicable to this case. The
language from Summerville concerns exceptions under
Ohio Rev. Code § 2744 in which a political subdivision
is not required to pay. See id. It is those exceptions,
and not the statute as whole, that the Ohio Supreme
Court’s language was geared towards. See id. In fact,
to suggest that the statute exists purely to protect
the financial resources of a municipality would contort
basic logic. It would be nonsensical for Ohio to pass a
law finding that a municipality must financially cover
the losses of its employees in court, but also have the
underlying goal of protecting the fiscal assets of the
municipality.
In summary, a plain reading of Ohio Rev. Code
§ 2744.07(B) indicates that Miami Township must
indemnify Detective Moore for the full amount of damages. Miami Township’s reading of the statute falls
38a
well outside the bounds of the law’s text and is
grounded in an inaccurate reading of Ohio case law.
c. Constitutional Challenges
Miami Township further argues that it does not
have to indemnify Detective Moore because the underlying statute is unconstitutional. Specifically, the
Township argues that Ohio Rev. Code § 2744.07(B)
violates the Due Process, Equal Protection, and
Supremacy Clauses of the U.S. Constitution. The
district court did not consider the merits of this
argument, as the court found that the argument was
untimely pursuant to Federal Rule of Civil Procedure
5.1.
Rule 5.1 governs the notice a party must give when
it makes a constitutional challenge to a statute. The
rule states in relevant part:
A party that files a pleading, written motion, or
other paper drawing into question the constitutionality of a federal or state statute must promptly:
(1) file a notice of constitutional question stating
the question and identifying the paper that raises
it, if:
(A) a federal statute is questioned and the
parties do not include the United States, one
of its agencies, or one of its officers or employees
in an official capacity; or
(B) a state statute is questioned and the parties
do not include the state, one of its agencies,
or one of its officers or employees in an official
capacity; and
(2) serve the notice and paper on the Attorney
General of the United States if a federal statute
is questioned—or on the state attorney general if
a state statute is questioned—either by certified
39a
or registered mail or by sending it to an electronic
address designated by the attorney general for
this purpose.
Fed. R. Civ. P. 5.1(a). After these requirements have
been satisfied, the court must then “certify to the
appropriate attorney general that a statute has been
questioned.” Fed. R. Civ. P. 5.1(b).
The district court determined that Miami Township
failed to provide timely notice as required under Rule
5.1. It specifically found that the Township had failed
to make the constitutional challenge in the initial
intervenor complaint; instead, the first time the
Township brought this argument was over a year later
in the Township’s declaratory judgment briefing. The
court cited district court case law to hold that “[a]
party desiring to question the constitutionality of a
state statute at issue in a civil action—as is the case
here—should lodge their challenge at the pleading
stage of the litigation.” Order, R. 529, Page ID
#18292-93 (citing Mockeridge v. Alcona Cnty. ex rel.
Bd. of Comm’rs, 636 F. Supp. 3d 790, 793-94 (E.D.
Mich. 2022)). The court further noted that to allow
Miami Township to bring this argument “would cause
substantial prejudice on Moore and the State of Ohio”
because “[h]ere at the eleventh hour of this litigation,
neither Moore nor the State of Ohio could reasonably
be expected to fully and adequately defend the constitutionality of Ohio Rev. Code § 2744.07.” Id. at Page
ID #18293.
There is an important flaw with the district court’s
finding. The court cited a district court case to support
the proposition that Rule 5.1 notice must be given at
the pleadings stage of litigation. However, neither the
district court, nor Detective Moore, nor Gillispie point
to case law from this Court holding the same. None of
40a
our sister circuits appear to take this approach either.
Furthermore, this requirement seems to contradict
the language of Rule 5.1. Rule 5.1(a) states that notice
must be filed where a party makes a constitutional
challenge in “a pleading, written motion, or other
paper.” This language suggests that a party need not
just bring a constitutional challenge in a pleading,
as they may also bring such challenges in written
motions or other papers.
The district court did not err, however, in its finding
of prejudice. Although the question of prejudice in the
context of Rule 5.1 has not been fully fleshed out by
this Circuit or our sister circuits, we have nevertheless
spoken broadly on untimely and prejudicial filings.
We have largely found that when a party makes a
filing in the late stages of litigation, that filing may
be considered prejudicial where it imposes an unfair
burden on other parties. See, e.g., Salem Pointe Cap.,
LLC v. BEP Rarity Bay, LLC, 854 F. App’x 688, 699
(6th Cir. 2021) (denying intervention where “extensive
litigation . . . has occurred, [so] intervention at this
late stage would cause prejudice in the form of undue
delay” (cleaned up)); Bank of Am., N.A. v. Corporex
Realty & Inv. Corp., 661 F. App’x 305, 317-18 (6th Cir.
2016) (finding the addition of new claims late in litigation would prejudice the defendant because it would
require reopening discovery); United Precision Prods.
Co. v. Avco Corp., 540 F. App’x 489, 497 (6th Cir. 2013)
(finding an amendment to a counterclaim three months
before trial “is untimely, is prejudicial to the opposing
party and would unduly delay the proceedings” (cleaned
up)).
In this case, Miami Township raised its constitutional claims on September 21, 2023. That was nearly
one year after it filed its intervenor complaint and
41a
exactly ten months after the jury returned its verdict.
There appears to be little reason why the Township
could not have raised these arguments earlier.
Furthermore, given how late in litigation the Township made this argument, the district court was
correct to find it unreasonable for Detective Moore and
the State of Ohio to adequately defend the constitutionality of the statute at issue. The district court
rendered its judgment only a month-and-a-half after
Miami Township made this argument, meaning that
Detective Moore and the State of Ohio had only a
small amount of time to prepare arguments for an
entirely unforeseen issue that had yet to be litigated
in this case.
Miami Township argues that it could not have
raised this issue earlier because the issue had not yet
become ripe. According to the Township, at the time
it filed the intervenor complaint, “it was unknown
if the statute would even apply, and the Township
argued that it did not apply because Moore was not
acting in good faith or within the scope of his employment or official responsibilities.” Miami Br., ECF No.
36, 44. Yet under this logic, the whole intervenor complaint was not ripe. At the time the Township filed its
complaint, the trial had yet to commence, and it was
therefore “unknown” whether Detective Moore would
be held liable and the Township would face possible
indemnification. Furthermore, once the jury returned
its verdict and specifically indicated in its special
interrogatories that Detective Moore acted in good
faith and within the scope of his employment, Miami
Township was under clear notice that it was almost
certain to face indemnification liability under Ohio
Rev. Code § 2744.07(B). Nevertheless, the Township
proceeded to wait ten months after the verdict to first
make its constitutional argument.
42a
In summary, the district court did not err in finding
that Miami Township’s constitutional challenge was
untimely. The district court’s determination that
a Rule 5.1 notice must be filed in a complaint does
not have support in either Sixth Circuit precedent,
the precedent of other circuit courts, or the language
of Rule 5.1. However, the district court correctly held
that allowing this argument to proceed would have
unfairly prejudiced both Detective Moore and the
State of Ohio. In the course of this lengthy litigation,
Miami Township brought this novel challenge to Ohio
law at the last hour, and it would have been difficult
for Ohio and Detective Moore to provide an adequate
defense on such short notice.4
III. CONCLUSION
For the reasons set forth above, this Court DENIES
Miami Township’s motion to certify questions to the
Ohio Supreme Court and AFFIRMS the judgment of
the district court.
4 For similar reasons, we deny the Township’s pending motion
to certify seven questions—which concern the implementation
and constitutionality of Ohio Rev. Code § 2744—to the Ohio
Supreme Court. “[C]ertification is disfavored when it is sought
only after the district court has entered an adverse judgment.”
State Auto Prop. & Cas. Ins. Co. v. Hargis, 785 F.3d 189, 194 (6th
Cir. 2015). Miami Township did not timely seek certification in
district court; indeed, it sought certification with this Court only
after the district rendered an adverse judgment against it. We
therefore exercise our “sound discretion” and deny the Township’s motion. See Pennington v. State Farm Mut. Auto. Ins. Co.,
553 F.3d 447, 450 (6th Cir. 2009) (citation omitted).
43a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
_______________
Case No. 3:13-cv-416
ROGER DEAN GILLISPIE,
Plaintiff,
v.
THE CITY OF MIAMI TOWNSHIP, ET AL.,
Defendants.
_______________
Signed April 30, 2024
_______________
ENTRY AND ORDER DENYING MOTION TO
RECONSIDER AND REQUEST FOR HEARING
THOMAS M. ROSE, UNITED STATES DISTRICT
JUDGE
Presently before the Court is Motion to Reconsider
and Request for Hearing (the “Motion”) (Doc. No. 569),
submitted by Plaintiff Roger Dean Gillispie (“Gillispie”) on March 14, 2024. Defendant Matthew Scott
Moore (“Moore”) and Intervenor Miami Township Board
of Trustees (the “Township”) filed their responses in
opposition to Gillispie’s Motion on April 4, 2024 (Doc.
Nos. 570; 571). Gillispie filed his reply in support of
the Motion with the Court’s leave on April 25, 2024
(Doc. No. 573). The Court has considered all of the
briefing on this matter and the Motion is now ripe for
decision.
The facts of this case are well documented and
the Court assumes the Parties’ familiarity with them
44a
for the purposes of the instant Motion. At present,
Gillispie seeks reconsideration with respect to the
Court’s “Entry and Order Denying Plaintiff ’s Motion
to Enforce Judgment (Doc. No. 539) and Granting
Motion for Stay of Execution/Response to Plaintiff ’s
Motion to Enforce Judgment (Doc. No. 554)” (Doc. No.
568). There, the Court stayed Gillispie’s judgment
against Moore without bond, pending appeal, based on
extraordinary circumstances. (Doc. No. 568 at PageID
20931.) Briefly, the Court found that Gillispie lacks
standing to enforce Moore’s right to indemnification
by the Township and, in any event, neither Moore nor
the Township have sufficient available funds to satisfy
Gillispie’s judgment or otherwise post a full supersedeas bond, pending appeal. (Id. at PageID 2092526, 20928-31.)
Gillispie posits that the Court erred in granting a
stay without bond, pending appeal. (Doc. No. 569
at PageID 20934.) Specifically, Gillispie avers that
the Court ignored his previous arguments regarding
the Township’s liability insurance. (Id.) To this end,
Gillispie would have the Court make two rulings.
First, Gillispie essentially asks the Court to order the
Township to seek indemnification from its insurer,
First Mercury Syndicate, Inc. (“First Mercury”) for
the cost of a full supersedeas bond. (Id.) He further
submits that ordering the Township’s insurer to post
a supersedeas bond is in the best interest of all
the Parties involved. (Doc. No. 573 at PageID 20959.)
Second, Gillispie expressly asks the Court to compel
First Mercury’s attendance at a hearing on this matter. (Doc. No. 569 at PageID 20934.)
In seeking reconsideration, Gillispie makes no reference to any federal rule of civil procedure, statute,
case law, or otherwise. The Court must infer from the
45a
tenor of Gillispie’s Motion that he seeks reconsideration pursuant to Fed. R. Civ. P. 59(e). There are only
three grounds for reconsideration pursuant to Rule
59(e): “(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not
available at trial; and, (3) to correct a clear error of law
or to prevent manifest injustice.” Berridge v. Heiser,
993 F. Supp. 1136, 1146-47 (S.D. Ohio 1997) (citing
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.
1996)). Gillispie’s contention that the Court ignored
his previous argument suggests an error of law or
manifest injustice.
Assuming arguendo that Gillispie has adequately
alleged an error of law or manifest injustice, his argument fails, nonetheless. The Court has already held—
on at least two occasions now—that Gillispie does not
have standing to take enforcement action against the
Township directly, per Ayers v. Cleveland, 2020-Ohio1047, 156 N.E.3d 848, 853 (Ohio 2020). (Doc. Nos. 518
at PageID 18072-18079; 568 at PageID 20925.) The
Township is presumably the party insured by First
Mercury, and Gillispie lacks standing to seek relief
directly from the Township here. The Court will not
belabor this point yet again.
Even if Gillispie did have standing to seek relief
from the Township, he still lacks the ability to invoke
third party standing with respect to First Mercury.
Generally, a party will only have standing to “assert
[his] own rights, not the claims of third parties.” Util.
Serv. Partners, Inc. v. Pub. Util Comm., 2009-Ohio6747, 921 N.E.2d 1038, 1048 (Ohio 2009) (quoting N.
Canton v. Canton, 2007-Ohio-4005, 871 N.E.2d 586, at
¶ 14 (Ohio 2007)) (internal quotation marks omitted).
However, Ohio law recognizes third party standing
“when a claimant (i) suffers its own injury in fact,
46a
(ii) possesses a sufficiently close relationship with the
person who possesses the right, and (iii) shows some
hindrance that stands in the way of the claimant seeking relief.” Id. (quoting E. Liverpool v. Columbiana
Cty. Budget Comm., 2007-Ohio-3759, 870 N.E.2d 705,
at ¶ 22 (Ohio 2007)) (internal quotation marks omitted).
Here, Gillispie cannot satisfy the second or third
prongs of this test. Apart from this litigation, nothing
binds Gillispie and the Township together to create a
sufficiently close relationship for Gillispie to assert
the Township’s alleged insurance rights. See Link v.
Wayne Insurance Grp., 2018-Ohio-3529, at ¶ 16 (Ohio
Ct. App. Sep. 4, 2018) (finding no “close relationship”
where plaintiff was assignee of insured’s right to sue).
Additionally, the Township faces no hinderance in asserting its own rights against First Mercury. Indeed,
there is a separate action between the Township
and First Mercury on this very issue.1 Ultimately,
Gillispie is simply without standing to seek bond from
First Mercury.
Given the Court’s findings, a hearing will not be
held. Moreover, the Court will certainly not compel
the attendance of First Mercury—a non-party and
litigant in a related case—at any such hearing.
Accordingly, for the reasons stated above, the
Court DENIES Motion to Reconsider and Request for
Hearing (Doc. No. 569) in all respects.
DONE and ORDERED in Dayton, Ohio, this
Tuesday, April 30, 2024.
1 See CM/ECF Docket No. 3:22-cv-258-TMR-PBS First Mercury
Syndicate, Inc. v. The City of Miami Township, et al.
47a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
_______________
Case No. 3:13-cv-416
ROGER DEAN GILLISPIE,
Plaintiff,
v.
THE CITY OF MIAMI TOWNSHIP, ET AL.,
Defendants.
_______________
Signed March 1, 2024
_______________
ENTRY AND ORDER DENYING PLAINTIFF’S
MOTION TO ENFORCE JUDGMENT AND
GRANTING MOTION FOR STAY OF EXECUTION/
RESPONSE TO PLAINTIFF’S MOTION TO
ENFORCE JUDGMENT
THOMAS M. ROSE, UNITED STATES DISTRICT
JUDGE
This case is currently before the Court on two
connected motions.
First, Plaintiff Roger Dean
Gillispie (“Gillispie”) has filed Plaintiff ’s Motion to
Enforce Judgment (the “Motion to Enforce”) (Doc. No.
539). Now that the Court has issued a final appealable
order requiring Intervenor Miami Township Board
of Trustees (the “Township”) to indemnify Defendant
Matthew Scott Moore (“Moore”) for the $45 million
jury verdict returned in Gillispie’s favor, Gillispie
seeks to enforce the verdict against the Township.
(Doc. No. 539 at PageID 18315-16.) In short, Gillispie
48a
contends that the Township should be required to pay
him the $45 million verdict reached against Moore,
plus interest. (Id. at PageID 18316.) However, as this
case has since been appealed, Gillispie submits that,
in lieu of enforcement, Moore or the Township must
be required to post a full supersedeas bond, “inclusive
of the verdict, pre-judgment interest, post-judgment
interest, costs, and attorney’s fees.” (Id. at PageID
18320.)
Second, Moore has filed Motion for Stay of Execution/
Response to Plaintiff ’s Motion to Enforce Judgment
(the “Motion for Stay”) (Doc. No. 554). While responding to the Motion to Enforce, Moore additionally
moves the Court for a stay of execution regarding
Gillispie’s judgment against him. (Doc. No. 554 at
PageID 20105.) Moore submits in his Motion for Stay
that enforcement should be stayed pending appeal
and that the Township has the duty to post any supersedeas bond ordered by the Court. In any event, Moore
suggests that the Township itself serves as adequate
security while the Parties’ appeals are pending.
For the reasons discussed below, the Court
DENIES the Motion to Enforce (Doc. No. 539) and
GRANTS the Motion for Stay (Doc. No. 554).
I. BACKGROUND
At this juncture, the Court assumes the Parties are
quite familiar with the facts of this case and will not
reiterate them here.1 Instead, the Court will set forth
the procedural posture of the Motion to Enforce and
the Motion for Stay (collectively, “Motions”).
On November 8, 2023, after much deliberation, the
Court issued its Order Entering Judgment on Miami
1 For a full factual background of this case, see Doc. No. 519 at
PageID 18084-94.
49a
Township Board of Trustees’ Intervenor Complaint
for Declaratory Judgment and Relief (Doc. No. 529).
There, the Court found that the Township must
“indemnify Moore in the full amount of the verdict
entered against him,” and “that the Township owes a
duty to defend Moore in connection with [Gillispie’s]
claims,” pursuant to Ohio Rev. Code § 2744.07. (Doc.
No. 529 at PageID 18294.) With this being the final
appealable order in this matter, the Parties subsequently filed their respective appeals. (See Doc. Nos.
531, 532, 533.)
On December 21, 2023, Gillispie filed the Motion to
Enforce (Doc. No. 539). Moore filed his response in
opposition to the Motion to Enforce on January 10,
2024 (Doc. No. 554), and the Township filed its
response in opposition to the same on January 11,
2024 (Doc. No. 555). Gillispie then filed his reply in
support of the Motion to Enforce on February 1, 2024
(Doc. No. 565). Hence, the Motion to Enforce is ripe
for review and decision.
As previously stated, Moore submitted his Motion
for Stay and his response in opposition to the Motion
to Enforce as a single document. (Doc. No. 554 at
PageID 20105.) As such, Moore filed his Motion for
Stay on January 10, 2024 (Doc. No. 554). Pursuant to
the Court’s order, Gillispie and the Township filed
their respective responses in opposition to the Motion
for Stay on January 31, 2024 (Doc. Nos. 563; 564).
Moore filed his reply in support of the Motion for Stay
on February 20, 2024 (Doc. No. 567). Thus, the Motion
for Stay is likewise ripe for review and decision.
II. ANALYSIS
Briefly, Gillispie would have the $45 million dollar
verdict in this case enforced against the Township.
(Doc. No. 539 at PageID 18320.) However, the Town-
50a
ship argues that Gillispie lacks standing to assert
Moore’s right to indemnification when seeking enforcement of the judgment rendered against Moore. (Doc.
No. 555 at PageID 20111-12.)
Barring enforcement, Gillispie asks that the Court
order Moore or the Township to post a full bond
pending appeal. (Doc. No. 539 at PageID 18320.)
Conversely, Moore contends that he is entitled to a
stay as a matter of right. (Doc. No. 554 at PageID
20106-08.) Though, in the event that the Court finds
Moore unentitled to a stay as a matter of right, Moore
requests that the Court stay execution of the present
judgment pending appeal without bond. (Id. at
PageID 20105-06.)
The Court will address Gillispie’s Motion to Enforce
as to the Township and Moore’s Motion for Stay
accordingly.
1. Gillispie’s Standing to Enforce as
to the Township2
The Court must first determine whether Gillispie
possesses standing to enforce any judgment against
the Township. Although Gillispie received a $45 million verdict against Moore, Gillispie seeks to enforce
that verdict solely against the Township. (See Doc.
No. 539 at PageID 18315-16.) Gillispie reasons that
the Court has ordered the Township to indemnify
Moore for the amount of the jury verdict in this matter
pursuant to Ohio Rev. Code § 2744.07 and therefore,
the Township is obligated to pay the jury verdict upon
enforcement. (Id.) On the other hand, the Township
argues that Gillispie lacks “standing to assert or
enforce Moore’s indemnification rights under [Ohio
Rev. Code] 2744.07.” (Id. at PageID 20112.)
2 See also Doc. No. 518 at PageID 18072-74.
51a
The Court previously determined that Gillispie does
not have standing to enforce Moore’s statutory right
to indemnification under Ohio Rev. Code § 2744.07.
(Doc. No. 518 at PageID 18072-74.) Section 2744.07
“provides that a political subdivision ‘shall indemnify
and hold harmless an employee.’ Thus, the right to
indemnification is personal to the employee.” Ayers v.
Cleveland, 2020-Ohio-1047, 160 Ohio St.3d 288, 156
N.E.3d 848, 853 (Ohio 2020) (emphasis in original).
Indeed, the Ohio Supreme Court determined in Ayers
“that R.C. 2744.07(A)(2) does not permit a judgment
creditor to proceed directly against an indemnitor.” Id.
Based on this principle, the Court presently finds—
as it did previously—that Gillispie is without standing
to enforce the jury verdict in this case against the
Township. Plainly, Gillispie is a judgment creditor
and the Township is merely Moore’s indemnitor. At
no point has the Township been found liable for
Gillispie’s underlying claims. Further, Moore’s indemnification rights, as determined by the Court, are
personal to Moore and they are Moore’s rights alone
to enforce. Therefore, the Court DENIES the Motion
to Enforce to the extent that it seeks enforcement as
to the Township.
2. Stay of Execution
As a practical matter, the next issue the Court must
address is whether a stay of execution respecting
Gillispie’s $45 million verdict is warranted. Although
Gillispie’s Motion to Enforce initially seeks enforcement of the jury verdict, the majority of the Motion to
Enforce argues for Moore or the Township to post a
full bond pending appeal. (See Doc. No. 539 at PageID
18318-20.) Moore’s Motion for Stay places the issue of
a bond front and center, arguing for either a stay of
execution as a matter of right or a stay pending appeal
without otherwise requiring bond. (Doc. No. 554.)
52a
Stays of enforcement actions as a matter of right are
governed by Fed. R. Civ. P. 62. Arban v. West Pub.
Corp., 345 F.3d 390, 409 (6th Cir. 2003). Pertinent
here, “Rule [62(b)] entitles a party who files a satisfactory supersedeas bond to a stay of money judgment as
a matter of right.” Id. (citing Fed. Prescription Serv.,
Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir.
1980)); see also Fed. R. Civ. P. 62(b).
Specifically, Rule 62(b) provides that:
At any time after judgment is entered, a party
may obtain a stay by providing a bond or other
security. The stay takes effect when the court
approves the bond or other security and remains
in effect for the time specified in the bond or other
security.
To explain, imposing a bond requirement on an
appealing party serves to both protect the status quo
and provide adequate security to protect the nonappealing party’s interest in his judgment. Volunteer
Energy Servs. Inc. v. Option Energy LLC, No. 1:11-CV554, 2014 WL 879458, at *1-2 (W.D. Mich. Mar. 5,
2014) (quoting Poplar Grove Planting & Ref. Co., Inc.
v. Bache Halsey Stuart, Inc. 600 F.2d 1189, 1191 (5th
Cir. 1979)). On one hand, posting bond will permit an
appealing party “ ‘to avoid the risk of satisfying the
judgment only to find that restitution is impossible
after reversal.’ ” Hamlin v. Charter Twp. Of Flint,
181 F.R.D. 348, 351 (E.D. Mich. 1998) (quoting Poplar
Grove, 600 F.2d at 1190). On the other hand, a
bond requirement insulates a “non-appealing party
‘from the risk of a later uncollectible judgment’ and
‘provides compensation for those injuries which can be
said to be the natural and proximate result of the
stay.’ ” Hamlin, 181 F.R.D. at 351 (quoting NLRB v.
Westphal, 859 F.2d 818, 819 (9th Cir. 1988); Moore v.
53a
Townsend, 577 F.2d 424, 427 (7th Cir. 1978)) (internal
citations omitted). “Because of Rule [62(b)]’s dual
protective role, a full supersedeas bond should almost
always be required.” Hamlin, 181 F.R.D. at 351 (internal citations omitted).
However, Rule 62(b)’s bond requirement has not
been found to be inflexible. Pucci v. Somers, 834 F.
Supp. 2d 690, 706-07 (E.D. Mich. 2011) (quoting
Olympia Equip. Leasing Co. v. W. Union Tel. Co., 786
F.2d 794, 796 (7th Cir. 1986)). Rule 62(b) “in no way
necessarily implies that filing a bond is the only way
to obtain a stay.” Arban, 345 F.3d at 409 (internal
citations and quotation marks omitted). Rather, courts
have discretion to permit a stay secured by a reduced
bond or no bond at all in extraordinary circumstances:
where the defendant’s ability to pay the judgment
is so plain that the cost of the bond would be a
waste of money; and—the opposite case, one of
increasing importance in an age of titanic damage
judgments—where the requirement would put the
defendant’s other creditors in undue jeopardy.
Olympia Equip., 786 F.2d at 796; see also Arban, 345
F.3d at 409; see also Hamlin, 181 F.R.D. at 353; see
also Pucci, 843 F. Supp. 2d at 706.
As previously stated, Gillispie requests that either
Moore or the Township be required to post a full
supersedeas bond, despite Moore’s request for a stay
pending appeal without bond. (Doc. No. 539 at PageID
18318-20.) The Court considers Moore’s and the
Township’s right to a stay in turn.
i. Moore’s Right to a Stay Pending Appeal
In his Motion for Stay, Moore asserts his entitlement to a stay pending appeal on two grounds. (See
Doc. No. 554.) To start, Moore contends that he is
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entitled to a stay of enforcement as a matter of right
pursuant to Fed. R. Civ. P. 62(f ). Rule 62(f ) provides
that “[i]f a judgment is a lien on the judgment debtor’s
property under the law of the state where the court is
located, the judgment debtor is entitled to the same
stay of execution the state court would give.” Fed. R.
Civ. P. 62(f ). To this end, Moore argues that, under
Ohio law, the jury verdict against him here constitutes
a lien against his property. (Doc. No. 554 at PageID
20106.) Under his theory, Moore would be entitled to
a stay pending appeal as a matter of right pursuant to
state law. (Id. at PageID 20107.)
The Court finds Moore’s position regarding Fed. R.
Civ. P. 62(f ) to be without merit. In Ohio, a money
judgment “shall be a lien upon lands and tenements of
each judgment debtor within any county . . . from the
time there is filed in the office of the clerk of the court
of common pleas of such county a certificate of judgment . . . .” Ohio Rev. Code § 2329.02. Importantly,
a money judgment rendered in Ohio “does not
independently constitute a lien.” Kennedy v. Cty. Of
Zanesville, OH, No. 2:03-cv-1047, 2008 U.S. Dist.
LEXIS 67230, at *1, 2008 WL 3993894, at *1 (S.D.
Ohio Aug. 20, 2008). Rather, a judgment creditor
must file a “facially compliant certificate of judgment
in a specific county” to acquire a judgment lien in
Ohio. In re Purdy, 591 B.R. 307, 310 (Bankr. N.D.
Ohio 2018). Presently, Gillispie has not filed a certificate of judgment to create a judgment lien on Moore’s
property, nor does Gillispie desire to do so. (Doc. No.
564 at PageID 20884.) Without this, the jury verdict
against Moore here does not constitute a lien. Therefore, Moore is not entitled to a stay as a matter of right
under Rule 62(f ).
Notwithstanding, Moore may still prevail in his
request for a stay pending appeal without bond.
55a
Moore argues that the Court should grant a stay pending appeal pursuant to Fed. R. Civ. P. 62(b) and utilize
its discretion to set aside the typical bond requirement. (Doc. No. 554 at PageID 20105.) Moore submits
that the Township is bound to indemnify Moore and
must be post adequate security pending appeal if
required by the Court. (Id.) However, Moore seems to
suggest that the Township itself is adequate security
in this case because the township is a political subdivision with taxing authority. (Id. at PageID 2010506.)
In response, Gillispie argues broadly against disposing of the typical bond requirement here. (Doc. No.
564 at PageID 20879-83.) Essentially, Gillispie posits
that neither Moore nor the Township have established
extraordinary circumstances to allow the Court to
forego bond pending appeal. (Id.)
The Court finds that the circumstances of this
case warrant a stay of enforcement proceedings as to
Moore without bond. Despite Gillispie’s argument that
Moore has failed to establish extraordinary circumstances, Gillispie clearly indicates that Moore has
insubstantial resources. (Id. at PageID 20882.) Moore
confirms as much in his reply briefing, stating that he
does not have the funds to post a full bond. (Doc. No.
567 at PageID 20918.) Moore does not abandon his
assertion that the Township is obligated to post
adequate security and the Court will address Moore’s
argument on this issue below. For purposes of determining whether Moore is entitled to a stay, the Court
notes that Moore’s inability to post a full bond is
apparent to both Gillispie and Moore himself. As it
is also apparent to the Court, the Court finds that
requiring Moore to post a full bond here would not
only unduly burden Moore’s right to an appeal, but it
would impede the interests of Moore’s other creditors.
56a
As such, the Court will grant Moore a stay of execution
without bond pending appeal.
ii. The Township’s Right to a Stay
Pending Appeal
Regardless, the Court otherwise finds that the
Township itself constitutes adequate security for a
stay pending appeal. As discussed above, Gillispie
lacks standing to enforce Moore’s indemnification
rights. However, Moore may assert his right to be
indemnified by the Township for purposes of posting
a supersedeas bond and Moore does so in his Motion
for Stay. (Doc. No. 554 at PageID 20105-06.) In this
regard, Moore’s Motion for Stay is effectively a motion
to enforce the Court’s declaratory judgment finding
that the Township must defend and indemnify Moore
pursuant to Ohio Rev. Code. § 2744.07. (See Doc. No.
529.) Fundamentally, Moore argues that the Township is adequate security for Gillispie’s judgment
pending appeal because the Township is a sovereign
entity with taxing authority. (Doc. No. 554 at PageID
20105-06.) The Township continues to contest its duty
to indemnify Moore and maintains that it need not
post a supersedeas bond in this matter. (Doc. No. 563
at PageID 20872.)
For the instant analysis, the Court assumes that
Moore may enforce his indemnification rights against
the Township for purposes of posting a supersedeas
bond or other security. While the Township does not
set forth an ability or inability to post bond, the Court
can make its determination here based on publicly
available records. For the 2024 fiscal year, the Township has estimated gross revenues of $23,506,884 and
estimated expenses in the amount of $22,219,757. (See
MIAMI TOWNSHIP, BUDGET, https://www.miami
township.com/293/Budget (last visited February 21,
57a
2024).) On net, the Township is projected to end the
fiscal year with $1,287,127.3
Even if the Township were to indiscriminately use
its operating budget to post a supersedeas bond, doing
so would cause the Township substantial economic
harm. To be sure, requiring the Township to post a
full bond here would almost certainly threaten the
interests of the Township’s creditors. For perspective,
the Township’s list of creditors is not simply made
up of financial institutions. The Township’s citizens
are its creditors. Citizens pay property taxes to the
Township and in return the Township provides the
citizens with municipal services. If the Township
cannot afford to render those services because this
Court forced it to pay a bond, then the Township
would plainly be in default to its citizenry.
In addition, as Moore suggests, the Township is a
sovereign entity with taxing authority. If ultimately
required by the Sixth Circuit to indemnify Moore
for the $45 million verdict in Gillispie’s favor, the
Township can budget accordingly. But the Township
is a constant. It cannot up and move to avoid the
Court’s jurisdiction in the interim.
Thus, the Court finds that extraordinary circumstances
preclude imposing a supersedeas bond requirement on
the Township and, in any event, the Township itself
constitutes adequate security for Gillispie’s judgment
pending appeal.
3 The Township cannot dedicate its entire operating budget
to paying a bond in this case and remain compliant with state
law. Pursuant to Ohio Rev. Code § 2744.06, judgments against a
political subdivision or one of its employees “shall be paid from
funds of the political subdivision[ ] that have been appropriated
for that purpose.” Ohio Rev. Code § 2744.06(A).
58a
III. CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff ’s Motion to Enforce Judgment (Doc. No. 539) and
GRANTS the Motion for Stay of Execution/Response
to Plaintiff ’s Motion to Enforce Judgment (Doc. No.
554). In accordance with this order, all proceedings
to enforce the Court’s judgment are STAYED WITHOUT BOND pending a final disposition of this case
on appeal.
DONE and ORDERED in Dayton, Ohio, this
Friday, March 1, 2024.
59a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
_______________
Case No. 3:13-cv-416
ROGER DEAN GILLISPIE,
Plaintiff,
v.
THE CITY OF MIAMI TOWNSHIP, ET AL.,
Defendants.
_______________
Signed November 8, 2023
_______________
ORDER ENTERING JUDGMENT ON
MIAMI TOWNSHIP BOARD OF TRUSTEES’
INTERVENOR COMPLAINT FOR
DECLARATORY JUDGMENT AND RELIEF
(DOC. NO. 397)
THOMAS M. ROSE, UNITED STATES DISTRICT
JUDGE
Presently before the Court is the resolution of Miami
Township Board of Trustees’ Intervenor Complaint
for Declaratory Judgment and Relief (“Intervenor
Complaint”) (Doc. No. 397). In the Intervenor Complaint, Intervenor Plaintiff Miami Township Board of
Trustees (the “Township”) seeks declaratory judgment
that:
(1) it does not owe a duty to defend Defendant
Matthew Scott Moore in connection with the
claims asserted against him in the Amended Complaint filed in the Underlying Action; (2) it does
60a
not owe a duty to indemnify Defendant Matthew
Scott Moore in connection with the claims
asserted against him in the Amended Complaint
filed in the Underlying Action; and (3) for such
other and further relief as the Court deems
proper.
(Doc. No. 397 at PageID 13763.)
Consistent with the factual findings of the jury and
for the reasons explained below, the Court enters
judgment in favor of Defendant Matthew Scott Moore
(“Moore”). The Court ORDERS the Township to
indemnify Moore in the full amount of the verdict
entered against him (Doc. No. 479) and finds that the
Township owes a duty to defend Moore in connection
with Plaintiff Roger Dean Gillispie’s (“Gillispie”)
claims.
I. BACKGROUND
The Court assumes that the Parties are familiar
with the factual background of Gillispie’s action and
will not delve into its extensive history.1 The Court
will briefly address the procedural posture of this case
as it is relevant to this briefing.
On September 23, 2022, the Township filed its
Motion to Intervene. (Doc. No. 370.) In the Motion
to Intervene, the Township argued that it had a
“substantial legal interest in any determination as to
whether Moore was not acting in good faith or was acting outside of the scope of his employment or official
responsibilities” at the relevant time(s) in the underlying action. (Id. at PageID 12701.) The Township
requested “limited participation in the trial of this
matter.” (Id. at PageID 12694.) This was because
1 For a complete history of this case refer to Document
Numbers 298, 322, 379, and 519.
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Ohio Rev. Code § 2744.01 and § 2744.07 could require
the Township to pay the costs of Moore’s defense and
indemnify him for any compensatory damages awarded
against him. (Id. at PageID 12701.) The Township
further argued that § 2744.07 provides exceptions
that would relieve the Township of its duties if Moore
did not act in good faith or if he was acting outside the
scope of his employment or official responsibilities at
the relevant time(s) in the underlying action. (Id.) The
Township argued that the questions of good faith and
scope of employment aligned directly with Gillispie’s
claims against Moore that would be addressed at trial.
(Id. at PageID 12701-702.)
On October 11, 2022, the Court granted the Township’s Motion to Intervene, with certain parameters.
(Doc. No. 392.) Aligning with its request (Doc. No. 370
at PageID 1267), the Township’s participation at trial
was limited to questioning, argument, and submitting
proposed jury instructions and interrogatories on the
discrete issues of good faith and scope of employment
consistent with Ohio Rev. Code § 2744.07. (Doc. No.
392 at PageID 13693-94.) Gillispie and Moore were
also allowed to question, argue, and submit proposed
jury instructions on the issues of good faith and scope
of employment. (Id. at PageID 13694.)
On October 13, 2022, in compliance with the Court’s
order (Doc. No. 392 at PageID 13693) and Rule 24(c),
the Township filed Miami Township Board of Trustees’ Intervenor Complaint for Declaratory Judgment
and Relief. (Doc. No. 397.)
II. FACTUAL FINDINGS
The Court conducted a jury trial beginning on
November 7, 2022 and concluding when the jury
returned a verdict on November 21, 2022. (Doc. Nos.
455, 475.) On Gillispie’s First Claim for Due Process—
62a
Suggestive Identification, the jury was instructed, in
part, “Plaintiff Gillispie’s first claim is that Defendant
Moore violated his constitutional right to due process
of law and a fair trial through identification evidence.”
(Doc. No. 472 at PageID 15544.) On Gillispie’s Second
Claim for Due Process—Suppression of Material
Evidence, the jury was instructed, in part, “Plaintiff
Gillispie’s second claim is that Defendant Moore
violated his right to a fair trial by failing to disclose
exculpatory and/or impeachment evidence that was
material to Plaintiff ’s defense in the criminal case.”
(Id. at PageID 15546.) The jury found for Gillispie on
both claims. (Doc. No. 475 at PageID 15561-62.)
With respect to the question of whether Moore acted
in good faith, acted manifestly outside the scope of his
employment, or acted outside the scope of his employment, the jury was instructed on both claims:
If, and only if, you find in favor of Plaintiff Gillispie
and against Defendant Moore on one or more of
Plaintiff ’s claims, then there is another issue that
you must decide. You must determine whether, at
the time of Defendant Moore’s act or omission that
deprived Plaintiff Gillispie of his Constitutional
right, Defendant Moore was not acting in good faith,
was acting manifestly outside the scope of his
employment or official responsibilities, or was not
acting within the scope of his employment or official
responsibilities.
This issue does not involve any element of Plaintiff
Gillispie’s claims, and Plaintiff Gillispie has no
burden of proof whatsoever regarding this issue one
way or the other.
In the event that you find that Defendant Moore
violated the constitutional rights of Plaintiff
Gillispie with respect to one or more of Plaintiff ’s
63a
claims, then separately for each of those claims only
you must determine whether:
(1) An act of Defendant Moore was not taken in
good faith;
(2) Defendant Moore was acting manifestly outside the scope of his employment or official responsibilities when he took the act; and
(3) Defendant Moore was not acting within the
scope of his employment or official responsibilities
when he took the act.
For purposes of this issue, one does not act in good
faith when his conduct evinces a dishonest purpose,
conscious wrongdoing, or the breach of a known duty
through some ulterior motive. Bad faith is the opposite of good faith, generally implying or involving
actual or constructive fraud, or a design to mislead
or deceive another, not prompted by an honest
mistake as to one’s rights or duties, but by some
interested or sinister motive. Bad faith, although not
susceptible of concrete definition, embraces more
than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior
motive, or ill will partaking of the nature of fraud.
Conduct that is reckless may still be in good faith.
Scope of employment means the employee is
engaged in an activity that is logically related to the
business of the employer. The determination of
whether conduct is within the scope of employment
necessarily turns on the perception of whether the
employee acted, or believed himself to have acted, at
least in part, in his employer’s interests. However,
if an employee’s actions are self-serving or have no
relationship to the employer’s business, then the
64a
conduct is manifestly outside the scope of employment. Manifestly is defined as plainly or obviously.
(Doc. No. 472 at PageID 15551.)
With respect to both claims, the jury was asked
three questions:
1. “[W]as it proven by a preponderance of the
evidence that Matthew Scott Moore was not acting
in good faith?”
2. “[W]as it proven by a preponderance of the
evidence that Matthew Scott Moore was acting
manifestly outside the scope of his employment or
official responsibilities as a police officer with Miami
Township?”
3. “[W]as it proven by a preponderance of the
evidence that Matthew Scott Moore was not acting
within the scope of his employment or official
responsibilities as a police office with Miami Township?”
(Doc. No. 475 at PageID 15564-65.) With respect to
Claim One, the jury answered “No” to each of three
questions. (Id. at PageID 15564.) With respect to
Claim Two, the jury answered “No” to each of three
questions. (Id. at PageID 15565.)
III. ANALYSIS
The Township makes several arguments regarding
the entry of a declaratory judgment. First, the Township contends that it does not have to indemnify
Moore because, regardless of the jury’s findings,
whether Moore acted in good faith or within the scope
of his employment is a matter of law for the Court to
decide. (Doc. No. 523 at PageID 18209.) Second, the
Township argues, if it is required to indemnify Moore,
it should only have to indemnify Moore for the
amounts of the judgment he pays and not the entire
65a
amount of the judgment entered against him. (Id. at
PageID 18219.) Third, with respect to Ohio Rev. Code
§ 2744.07(B), the Township contends the statute is
unconstitutionally vague and violates the Supremacy
Clause of the United States Constitution. (Id. at
PageID 18221.)
The Court will address each argument, along with
Moore’s responses, in turn.
a. Good Faith and Scope of Employment
The Township argues that the question of whether
Moore was acting in good faith or within the scope
of his employment or official responsibilities pursuant
to Ohio Rev. Code § 2744.07 is a question of law,
“irrespective of the jury’s conclusions.” (Doc. No. 523
at PageID 18209.) It further contends that the Court
should read “reckless” conduct into the phase “not
acting in good faith” under Ohio Rev. Code § 2744.07
and, consequently, that Moore could not have been
acting in good faith. (Id. at PageID 18218.)
i. Effect of the Jury’s Findings
The Township first contends that the question of
whether Moore was acting in good faith or within the
scope of his employment or official responsibilities
pursuant to Ohio Rev. Code § 2744.07 is a question of
law, “irrespective of the jury’s conclusions.” (Doc. No.
523 at PageID 18209.) Moore contends that the issues
of bad faith and scope of employment were properly
decided by the jury at trial. (Doc. No. 525 at PageID
18238-39.)
The underlying questions of whether an employee
acted in bad faith and within the scope of their
employment are questions of fact. See Stevens v. Cox,
2009-Ohio-391, at ¶ 86 (Ohio Ct. App. 2009) (“[a] further issue of fact remains as to whether [the defendant
in a Section 1983 action] acted in good faith and within
66a
the scope of her official duties, thereby entitling
her to indemnification pursuant to [Ohio Rev. Code
§] 2744.07”); see also McCormack v. Jefferson Area
Loc. Sch. Dist., 2018-Ohio-3744, at ¶ 24, 112 N.E.3d
338, 343 (Ohio Ct. App. 2018) (in the context of Ohio
Rev. Code § 2744.07, “[w]hether an employee acted
in the scope of his employment and whether he acted
in good faith are questions of fact”); Moore v. City of
Cleveland, 2017-Ohio-1156, at ¶ 16, 87 N.E.3d 858
(Ohio Ct. App. 2017) (“[w]e recognize that whether
an employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner is generally a
question of fact for the jury”); Hoffman v. Gallia Cty.
Sheriff’s Off., 2017-Ohio-9192, at ¶ 38, 103 N.E.3d 1,
14 (Ohio Ct. App. 2017) (applying Ohio Rev. Code
§ 2744.03); Doe v. Greenville City Sch., 2021-Ohio2127, at ¶ 12, 174 N.E.3d 917, 921 (Ohio Ct. App. 2021)
(applying Ohio Rev. Code § 2744.03); Townsend v.
Kettering, 2022-Ohio-2710, at ¶ 30, 194 N.E.3d 457,
467 (Ohio Ct. App. 2022) (applying Ohio Rev. Code
§ 2744.03).
As an initial matter, the Court addressed the jury’s
role at trial in its order on the post-trial motions. The
Court found that the questions of whether Moore
acted in good faith or outside the scope of his employment or official responsibilities were properly before
the jury under Fed. R. Civ. P. 39(b). (Doc. No. 519 at
PageID 18112.) Indeed, the Court further found that
those issues were also triable to the jury under Fed. R.
Civ. P. 39(c)(2). (Id. at PageID 188113-15.)
The jury, in turn, determined that it was not proven
that Moore was not acting in good faith, was acting
manifestly outside the scope of his employment or
official responsibilities, or was acting outside the
scope of his employment or official responsibilities.
67a
(Doc. No. 475 at PageID 15564-65.) While the Township now offers a slew of information that was not
presented to the jury in support of its argument that
Moore acted in bad faith or outside the scope of his
employment, those questions were properly before the
jury. The factual issues posed were correspondingly
decided by the jury. While the Court may decide
the applicability of the statute, see McCormack,
2018-Ohio-3744, at ¶ 24, 112 N.E.3d 338, it may not
disregard the conclusions of the jury on issues of fact.
ii. Recklessness
The Township next argues that Moore cannot be
determined to have acted in “good faith” if his actions
were reckless.2 (Doc. No. 523 at PageID 18218.) The
Township points to several other sections of Ohio
law that deny indemnification to public officials if they
act in a reckless manner and moves this Court to read
“reckless” conduct into the phase “not acting in good
faith” under Ohio Rev. Code § 2744.07. (Id.)
In support of its position, the Township points to
Ohio Rev. Code § 9.87(B)(2) and Ohio Rev. Code
§ 2744.03(A)(6)(b). (Doc. No. 523 at PageID 18218.)
Under Ohio Rev. Code § 9.87(B)(2):
(B) The state shall not indemnify an officer or
employee under any of the following circumstances:
...
(2) When the officer or employee acts manifestly
outside the scope of the officer’s or employee’s
employment or official responsibilities, with malicious
2 The Township also reraises an argument made in the posttrial briefing under Moldowan v. City of Warren, 578 F.3d 351
(6th Cir. 2009). (Doc. No. 523 at PageID 18211-13.) The applicability of Moldowan was explored in depth in the order on the posttrial motions (Doc. No. 519 at PageID 18133-35) and the Court
need not revisit that ruling here.
68a
purpose, in bad faith, or in a wanton or reckless
manner, as determined by the employer of the
officer or employee or by the attorney general.
Similarly, under Ohio Rev. Code § 2744.03(A)(6)(b):
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to
recover damages for injury, death, or loss to person
or property allegedly caused by any act or omission
in connection with a governmental or proprietary
function, the following defenses or immunities may
be asserted to establish nonliability:
...
(6) In addition to any immunity or defense . . . the
employee is immune from liability unless one of the
following applies:
...
(b) The employee’s acts or omissions were with
malicious purpose, in bad faith, or in a wanton or
reckless manner. . . .
The Township argues that the inclusion of “reckless”
in both of these statutes demonstrates that the Court
should include “reckless” within the meaning of “not
acting in good faith” in § 2744.07. (Doc. Nos. 523 at
PageID 18218; 526 at PageID 18257.)
“In general, when the legislature uses particular
language in one part of a statute but omits that language in another part of the statute or uses different
language, it is presumed that the legislature did so
intentionally and purposely.” Diller v. Diller, 2021Ohio-4252, at ¶ 42, 182 N.E.3d 370, 182 N.E.2d 370,
387 (Ohio Ct. App. 2021) (citing Hulsmeyer v. Hospice
of Southwest Ohio, Inc., 142 Ohio St.3d 236, 244, 2014Ohio-5511, at ¶ 26, 29 N.E.3d 903, 911 (Ohio 2014));
Black v. Ohio Bd. of Nursing, 2022-Ohio-4782, at ¶ 39,
69a
204 N.E.3d 1154, 204 N.E.2d 1154, 1170 (Ohio Ct.
App. 2022) (citing In re Black Fork Wind Energy,
L.L.C., 156 Ohio St.3d 181, 192, 2018-Ohio-5206, at
¶ 40, 124 N.E.3d 787, 798 (Ohio 2018)).
The decision by the legislature to include “reckless”
in § 2744.03, but not § 2744.07 would, in contradiction
to the Township’s point, indicate to the Court that
the legislature excluded the term intentionally. Had
the legislature wanted to include “reckless” conduct
as part of § 2744.07(B) it understood how to do so,
as demonstrated by its inclusion in § 2744.03 and
§ 9.87(B)(2).
Moreover, as the Court found in its order on the
post-trial motions:
Ohio Rev. Code § 2744.03(A)(6)(b), which is from
the same act as § 2744.07[. . .] shows that there is a
distinction between acts or omissions taken “in bad
faith” and acts or omissions taken “in a wanton or
reckless manner.” See also Chavalia v. City of Cleveland, 2017-Ohio-1048, 87 N.E.3d 705, 714 n. 11
(Ohio Ct. App. 2017) (in a case involving whether
the conduct of the defendant employees of a political
subdivision was “reckless,” highlighting that the
plaintiff had not argued that the employees “acted
(or failed to act) with malicious purpose or in bad
faith and there is no evidence in the record to
suggest that they did so”); Strayer v. Barnett, 2017Ohio-5617, 94 N.E.3d 156, 164 (Ohio Ct. App. 2017)
(case involving the issue of whether a political
subdivision’s employees’ actions were wanton or
reckless; there was “no allegation, or any facts to
support, that the [political subdivision’s employees]
. . . acted with a malicious purpose or in bad faith”).
(Doc. No. 519 at PageID 18119 n. 12.) As this Court
explained, there is a distinction between acts of reckless and wanton conduct and those of bad faith.
70a
Therefore, the Court will not interpret “not acting in
good faith” under Ohio Rev. Code § 2744.07 to include
reckless acts.3
The Court finds the Township must indemnify
Moore in the full amount of the verdict entered
against him pursuant to Ohio Rev. Code § 2744.07 and
finds that the Township owes a duty to defend Moore
in connection with Plaintiff Roger Dean Gillispie’s
claims.
b. Obligation to Reimburse Moore
The Township next argues that if it is required to
indemnify Moore, its indemnification obligation
should be limited to the amounts Moore actually pays
toward any final judgment rendered against him.
(Doc. No. 523 at PageID 18219.) Specifically, the
Township argues that the purpose of Chapter 2744 is
to protect the financial soundness of Ohio’s political
subdivisions. (Id.) Moreover, the Township contends
that the Ohio Supreme Court’s holding in Ayers v.
City of Cleveland, 160 Ohio St. 3d 288, 2020-Ohio1047, 156 N.E.3d 848 (Ohio 2020), limits the right of
indemnification to the employee and, consequently,
the Township need only “make whole” the person indemnified, Moore in this case. (Id. at PageID 18220.)
In response, Moore argues that the holding in Ayers
is far more limited and that the Township should
be required to indemnify Moore for the full amount of
the judgment entered against him. (Doc. No. 525 at
PageID 18241-42.)
The Township cites to two cases for the position
that the purpose of Chapter 2744 is to preserve the
3 The Court discussed the relevance of recklessness and its
consistency with the jury’s findings in the order on the post-trial
motions. (Doc. No. 519 at PageID 18117-21.)
71a
financial integrity of Ohio’s political subdivisions. See
Menefee v. Queen City Metro, 49 Ohio St. 3d 27, 29, 550
N.E.2d 181, 182 (Ohio 1990); Summerville v. Forest
Park, 128 Ohio St. 3d 221, 229, 2010-Ohio-6280, ¶ 38,
943 N.E.2d 522, 531 (Ohio 2010). However, the Township only cites to a portion of the relevant language in
Menefee. In full, Menefee holds:
The statute serves two purposes. It conserves the
fiscal resources of political subdivisions by limiting their tort liability. Secondly, it permits injured
persons, who have no source of reimbursement for
their damages, to recover for a tort committed by
the political subdivisions.
Menefee, 49 Ohio St. 3d at 29, 550 N.E.2d 181. Thus,
while fiscal security was certainly a purpose, it was
not the sole purpose of the statute as identified by the
Ohio Supreme Court.
The Parties further dispute the applicability of
Ayers to the Township’s argument.
In Ayers, the plaintiff had been released from prison
pursuant to a habeas corpus action and then filed a
civil rights lawsuit against the city of Cleveland and
the detectives who had been involved in his case.
Ayers, 2020-Ohio-1047 at ¶ 2, 160 Ohio St.3d 288, 156
N.E.3d 848. The district court dismissed the claims
against the city of Cleveland, but the plaintiff ultimately obtained a jury verdict against the two officers.
Id. at ¶ 3. After the verdict, one of the detectives
passed away and the other filed chapter 7 bankruptcy,
but neither detective sought to enforce their right to
indemnification. Id. at ¶ 4.
The plaintiff filed a second action against the city of
Cleveland, alleging claims of statutory indemnification under Ohio Rev. Code § 2744.07(A)(2), and the
case ultimately made its way to the Ohio Supreme
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Court. Id. at ¶¶ 6 -10. The court held that the statute
“provides that a political subdivision ‘shall indemnify
and hold harmless an employee.’ Thus, the right
of indemnification is personal to the employee.” Id.
at ¶ 21 (emphasis in original). The Ohio Supreme
Court also held that the plain language of Section
2744.07(A)(2) requires a political subdivision to “indemnify an employee in the amount of any judgment qualifying under the statute.” Id. at ¶ 18.
The Court is not convinced by the Township’s
attempts to stretch Ayers beyond the bounds of who
may press an indemnification claim. Nor is the Court
persuaded that the Ohio legislature intended for
indemnification to be carried out in such a piecemeal
fashion. Indeed, the novelty of the Township’s reading
is exemplified by the lack of any citation to another
case allowing for a similar indemnification procedure.
Moreover, it is unclear exactly how the Township
believes the indemnification process should work
practically. Is Moore to pay Gillispie $100, receive an
indemnification check from the Township, and then
immediately pay that money to Gillispie? Is Moore to
act as Sisyphus, perpetually pushing a check to Gillispie, only to repeat the measure when he is indemnified by the Township? Surely this cannot have been
the intent of the Ohio legislature, as exemplified by
the Ohio Supreme Court in Menefee when it held that
Chapter 2744, “permits injured persons, who have no
source of reimbursement for their damages, to recover
for a tort committed by the political subdivisions.”
Menefee, 49 Ohio St. 3d at 29, 550 N.E.2d 181.
Therefore, the Township must indemnify Moore in
the amount of the entire judgment against him.
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c. Constitutional Challenge to
Ohio Rev. Code § 2744.07(B)
Finally, the Township challenges the constitutionality of Ohio Rev. Code § 2744.07 pursuant to Fed. R.
Civ. P. 5.1. (Doc. No. 523 at PageID 18221-226.) The
Township submits that its constitutional challenge
“is properly and timely raised.” (Id. at PageID 18221.)
Moore counters that the constitutionality of Ohio Rev.
Code § 2744.07 was not properly placed at issue in the
Township’s Intervenor Complaint. (Doc. No. 525 at
PageID 18243.) Moore further argues that the Township’s attempt to raise such a constitutional challenge
is untimely and subject to waiver. (Id.)
As a practical matter, Fed. R. Civ. P. 5.1 governs
the manner in which parties must provide notice of
properly raised constitutional questions rather than
a broad mechanism for asserting constitutional challenges. Conyers v. Garrett, No. 22-11152, 2022 U.S.
Dist. LEXIS 99940, at *10, 2022 WL 1913598, at *4
(E.D. Mich. June 3, 2022) (describing the assertion of
a constitutional challenge as separate from filing
notice of a constitutional challenge). Rule 5.1 states
in pertinent part:
(a) Notice by a Party. A party that files a pleading,
written motion, or other paper drawing into question the constitutionality of a federal or state statute
must promptly:
(1) file a notice of constitutional question stating the
question and identifying the paper that raises it, if:
(A) a federal statute is questioned and the parties do
not include the United States, one of its agencies, or
one of its officers or employees in an official capacity;
or
(B) a state statute is questioned and the parties do
not include the state, one of its agencies, or one of its
officers or employees in an official capacity; and
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(2) serve the notice and paper on the Attorney
General of the United States if a federal statute is
questioned--or on the state attorney general if a
state statute is questioned--either by certified or
registered mail or by sending it to an electronic
address designated by the attorney general for this
purpose.
Fed. R. Civ. P. 5.1(a). Once a party provides proper
notice of their constitutional challenge, “[t]he court
must, under U.S.C. § 2403, certify to the appropriate
attorney general that a statute has been questioned.”
Fed. R. Civ. P. 5.1(b).
Notwithstanding the provisions of Rule 5.1, a court
may decline to certify a Rule 5.1 notice if such notice
is not timely filed with the court. Mockeridge v.
Alcona Cnty. by Bd. of Comm’rs., 665 F.Supp.3d 857,
860 (E.D. Mich. 2023) (“Mockeridge II ”). “A Rule 5.1
notice is timely filed if it is filed as soon as practicable
after” the statute raising a constitutional question
was first relied upon. Id.; see also Mockeridge v.
Alcona Cnty. by Bd. of Comm’rs., 636 F. Supp. 3d 790,
794 (E.D. Mich. 2022) (“Mockeridge I ”) (finding plaintiffs’ notice untimely where filed five months after
being apprised of defendant’s intent to rely on the
statute challenged).
Courts will not be required to certify a Rule 5.1 notice when the constitutional challenge is insufficiently
raised. Mockeridge I, 636 F.Supp.3d at 793-94; Henley
v. Sunier, No. 1:17-cv-02385, 2018 U.S. Dist. LEXIS
203156, at *11-12, 2018 WL 6268297, at *4 (S.D. Ind.
Nov. 30, 2018). Indeed, a court need not consider a
constitutional challenge at all when the challenge is
insufficiently raised. Mockeridge I, 636 F. Supp. 3d
at 793-94; Henley, 2018 U.S. Dist. LEXIS 203156
at *11-12, 2018 WL 6268297 at *4. To this end,
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constitutional challenges can be forfeited if not raised
at the appropriate juncture. U.S. v. Al-Maliki, 787
F.3d 784, 791 (6th Cir. 2015) (citing U.S. v. Suaarez,
263 F.3d 468, 476 (6th Cir. 2001)) (“challenges to
Congress’s authority to pass a law can be forfeited by
litigants”). A party desiring to question the constitutionality of a state statute at issue in a civil action—
as is the case here—should lodge their challenge at
the pleading stage of the litigation. Mockeridge I,
636 F.Supp.3d at 793-94 (internal citations omitted).
Failure to do so may render the party’s constitutional
claim “ ‘foreclosed to [them].’ ” Id. (quoting Henley,
2018 U.S. Dist. LEXIS 203156 at *11-12, 2018 WL
6268297 at *4) (“[Plaintiffs’] counsel is no stranger to
constitutional litigation, and had he intended to raise
a constitutional challenge to the statute itself, there
are specific procedural steps he was required to follow.
He should have included such a challenge in his
complaint”).
In the instant case, the Township’s brief, addressing
a separate declaratory judgment claim that has been
the subject of a jury finding, is not the proper vehicle
to raise a constitutional challenge. The Township notably did not raise a challenge to the constitutionality
of Ohio Rev. Code § 2744.07 in the Township’s Intervenor Complaint. (See Doc. No. 397.) The Court finds
that the Township could have raised its constitutional
challenge when filing the Intervenor Complaint and
chose not to do so. To hold otherwise would not only
allow the Township to circumvent well known procedural requirements, but it would cause substantial
prejudice on Moore and the State of Ohio. Here at the
eleventh hour of this litigation, neither Moore nor the
State of Ohio could reasonably be expected to fully and
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adequately defend the constitutionality of Ohio Rev.
Code § 2744.07.
Regardless, the Township’s Rule 5.1 notice itself is
untimely here. Even if the Township’s constitutional
questions were properly raised, the Township first
relied on Ohio Rev. Code § 2744.07 in the Intervenor
Complaint, filed on October 13, 2022. (See Doc. No.
397.) Over a year has passed since this initial reliance. The Court has been provided with no explanation as to why this challenge was not brought at the
outset of the instant declaratory judgment action.
Therefore, the Court will neither consider the
Township’s constitutional challenge here nor certify
its constitutional questions.
IV. CONCLUSION
The Court ORDERS the Township to indemnify
Moore in the full amount of the verdict entered
against him (Doc. No. 479) pursuant to Ohio Rev. Code
§ 2744.07 and finds that the Township owes a duty to
defend Moore in connection with Plaintiff Roger Dean
Gillispie’s claims.
As to Miami Township Board of Trustees’ declaratory judgment claims (Doc. No. 397), judgment is
entered in favor of Defendant Matthew Scott Moore.
The Clerk is directed to terminate this action.
DONE and ORDERED in Dayton, Ohio, this
Wednesday, November 8, 2023.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
_______________
Case No. 3:13-cv-416
ROGER DEAN GILLISPIE,
Plaintiff,
v.
THE CITY OF MIAMI TOWNSHIP, ET AL.,
Defendants.
_______________
Signed July 31, 2023
_______________
ENTRY AND ORDER DENYING INTERVENOR
MIAMI TOWNSHIP BOARD OF TRUSTEES’
MOTION FOR JUDGMENT AS A MATTER OF
LAW AND, IN THE ALTERNATIVE, MOTION
FOR A NEW TRIAL; DENYING INTERVENOR
MIAMI TOWNSHIP BOARD OF TRUSTEES’
MOTION TO ALTER OR AMEND JUDGMENT;
AND DENYING DEFENDANT MATTHEW
SCOTT MOORE’S MOTION TO ALTER
OR AMEND THE JUDGMENT
THOMAS M. ROSE, UNITED STATES DISTRICT
JUDGE
Presently before the Court are three motions: (1) a
motion for judgment as a matter of law and, in the
alternative, for a new trial, filed by Intervenor Miami
Township Board of Trustees (“Intervenor”) (Doc. No.
481); (2) a motion to alter or amend the judgment, filed
by the Intervenor (Doc. No. 482); and (3) a motion to
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alter or amend judgment, filed by Defendant Matthew
Scott Moore (“Moore” or “Defendant”) (Doc. No. 485).
Given their overlapping background, issues, and briefing, the Court decides all three motions in this single
order. The three motions are post-trial motions relating to a trial that took place between November 7 and
November 21, 2022.
For the reasons discussed below, the Court DENIES
the Intervenor’s Motion for Judgment as a Matter of
Law and, in the Alternative, Motion for a New Trial
(Doc. No. 481); DENIES the Intervenor’s Motion
to Alter or Amend Judgment (Doc. No. 482); and
DENIES Moore’s Motion to Alter or Amend the Judgment (Doc. No. 485).
I. BACKGROUND
This section provides only some of the very lengthy
background for this case, which has been pending for
nearly a decade. For additional background see, for
example, Document Numbers 298, 322, and 379.
A. Case Commencement and Motions
for Summary Judgment
Plaintiff Roger Dean Gillispie (“Gillispie” or “Plaintiff ”) commenced this case on December 13, 2013.
(Doc. No. 1.) Shortly thereafter, he filed his First
Amended Complaint (the “Complaint”), which remains
the operative complaint for his claims. (Doc. No. 18.)
In the Complaint, Gillispie brought several claims
against numerous defendants. Among those defendants was Miami Township, Ohio (“Miami Township”), erroneously designated in the Complaint as the
City of Miami Township. (Doc. No. 18; Doc. No. 36.)
Miami Township operates the Miami Township Police
Department. (Doc. No. 397 at PageID 13758; Doc. No.
451 at PageID 15429.)
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As a broad overview of Gillispie’s claims, he alleged
that Defendant Moore—who was a police detective
for the Miami Township Police Department at the
relevant times—engaged in various acts of police misconduct that “framed [Gillispie] for a series of sexual
assaults that he did not commit,” resulting in Gillispie
being “deprived of his right to a fair trial,” “wrongfully
convict[ed],” and spending “over 20 years incarcerated
as an innocent man.” (Doc. No. 18 at PageID 77, 9496, 98.)
Regarding the underlying circumstances of the
crimes for which Gillispie was convicted, as well as
Gillispie’s criminal trials, incarceration, and certain
subsequent court proceedings, the following facts were
uncontroverted at trial and included as stipulations of
fact in the jury instructions:
On August 20, 1988, two twin sisters, B.W. and C.W.
were sexually assaulted after being abducted at
gunpoint by a stranger in the parking lot of the Best
Products Store in Dayton, Ohio. . . . After seeing
news about the Best Products assaults, another
woman, S.C., reported being assaulted on August 5,
1988 in a similar manner in a store parking lot in
Montgomery County. . . .
On September 5, 1990, Gillispie was arrested and
then prosecuted for the Best Products crimes and
those related to S.C. Gillispie was convicted at a
criminal trial in February 1991 and then granted a
new trial. Gillispie was convicted again in June of
1991 for the Best Products crimes involving B.W.
and C.W. as well as crimes against S.C. Gillispie
was confined for approximately two weeks after his
arrest and on bond until his first trial in February
1991.
Gillispie was continuously incarcerated
between February 5, 1991 and December 22, 2011.
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Gillispie was released following a federal court’s
order to vacate the convictions and requiring a
new trial on the basis of the claim that exculpatory
evidence was not produced to Gillispie during the
criminal prosecution. In 2012, a separate Ohio court
vacated Gillispie’s conviction and ordered a new
trial due to the existence of new evidence about an
alternative suspect. Following an order by a judge
in the Montgomery County Court of Common Pleas,
which became final on July 26, 2017, the charges
against Gillispie were dismissed with prejudice. On
November 19, 2021, Gillispie was declared to be a
wrongfully imprisoned individual pursuant to Ohio
law by a judge in the Montgomery County Court of
Common [P]leas.
(Doc. No. 405 at PageID 13873-74; Doc. No. 472 at
PageID 15537.)
On September 16, 2019, Miami Township moved for
summary judgment on all claims against it. (Doc. No.
260.) On September 21, 2020, the Court issued an
order ruling on Miami Township’s motion for summary
judgment and on several other motions. (Doc. No.
298.) In that order, the Court granted summary judgment to Miami Township on eight of the nine counts
and dismissed the remaining count without prejudice.
(Id. at PageID 10932-33.) The Court’s ruling was
based on the legal standards for determining a motion
for summary judgment, the claims at issue, the
evidence presented to the Court at the time (which
obviously did not include the evidence presented more
than two years later at the trial), and the arguments
made to the Court at the time. (Doc. No. 298.)
Ultimately, based on that summary judgment order
and the unopposed dismissal of some defendants (see,
e.g., Doc. No. 302), this case proceeded to trial against
81a
only one defendant (Moore) on five claims—all of
which were claims brought pursuant to 42 U.S.C.
§ 1983 (“Section 1983”). (See Doc. No. 18; Doc. No. 298;
Doc. No. 392 at PageID 13687.) Gillispie titled those
claims in his Complaint: Suppression of Exculpatory
Material; Suggestive Identification; Fabricated Evidence; Malicious Prosecution; and Destruction of
Exculpatory Evidence. (Doc. No. 18 at PageID 94-97.)
In those claims, Gillispie alleged that he “suffered
actual damages, pain and suffering, lost wages, and
other damages as a direct and proximate result” of
each of the alleged Section 1983 violations. (Id. at
PageID 94-98.)
B. The Intervenor’s Intervention in this Case
Political subdivisions in Ohio, such as Miami Township, sometimes have a duty to defend and/or a duty
to indemnify their employees. (Doc. No. 397 at PageID
13761; Doc. No. 451 at PageID 15429.) The state statute Ohio Rev. Code § 2744.07 sets forth circumstances
when a political subdivision has a duty to defend one
of its employees and when a political subdivision has
a duty to indemnify one of its employees.
On September 23, 2022, “former Defendant Miami
Township . . . (previously erroneously designated as
The City of Miami Township)” filed a motion to intervene in this case (the “Motion to Intervene”).1 (Doc.
1 The Intervenor filed its Motion to Intervene less than three
weeks before the Final Pretrial Conference and 45 days prior to
the scheduled start of trial. (Doc. No. 322 at PageID 11349.)
However, in its Motion to Intervene, the Intervenor explained
that, “[u]ntil 2020 [when the Court granted its motion for
summary judgment], [it] actively participated in all phases of
litigation, including discovery” and it “had limited participation
in follow up depositions conducted in 2022, as well as the proceedings in the state court involving the disclosure of grand jury
testimony.” (Doc. No. 370 at PageID 12699.)
82a
No. 370.) In the Motion to Intervene, the Intervenor
explained that it was moving to intervene “for limited
participation in the trial of this matter.” (Doc. No. 370
at PageID 12694.) The Intervenor clarified that it
was seeking to intervene “for the limited purpose of
questioning, argument, and submission of proposed
jury instructions and interrogatories on the discreet
issues of lack of good faith and scope of employment
consistent with [Ohio Rev. Code §] 2744.07.” (Id. at
PageID 12697; see also id. at PageID 12706 (the Intervenor “requests intervention only for the limited purpose of submitting jury instructions interrogatories
and participation at trial related to the factual issue[s]
that go to a claim for indemnity of Moore”).) It specified in its reply brief that it was “not seeking to be a
participant in all aspects of the trial.” (Doc. No. 381
at PageID 12824.) The Intervenor argued that allowing it to intervene would enhance judicial economy, it
had “common claims and defenses that shared with
the main action a common question of law or fact,” and
allowing it to intervene would “not prejudice any other
party or delay the proceedings.” (Doc. No. 370 at
PageID 12704, 12706.)
On October 11, 2022, the Court granted the Motion
to Intervene. (Doc. No. 392.) Without addressing the
Intervenor’s arguments for intervention pursuant to
Federal Rule of Civil Procedure 24(a)(2), the Court
found that the Intervenor “should be permitted to
intervene pursuant to Federal Rule of Civil Procedure
24(b).” (Doc. No. 392 at PageID 13689.) The Court’s
order also provided clarification regarding limitations
on the Intervenor’s participation pre-trial and at the
trial. (Id. at PageID 13693-94.) Those limitations
corresponded with the Intervenor’s own requested
scope of intervention. (Doc. No. 392 at PageID 1369394.) Specifically, the Court allowed the Intervenor to
83a
intervene at trial for the purpose of questioning, argument, and submitting proposed jury instructions and
interrogatories on the discrete issues of lack of good
faith and scope of employment consistent with Ohio
Rev. Code § 2744.07. (Id.)
On October 13, 2022, the Intervenor filed its Intervenor Complaint for Declaratory Judgment and Relief
(the “Intervenor Complaint”). (Doc. No. 397.) The
Intervenor Complaint contains a single count, which
seeks a declaration by this Court that it has no duty
to defend or indemnify Moore for claims made against
him in the underlying action, pursuant to Ohio
Revised Code § 2744.07. (Id. at PageID 13763.) The
Intervenor Complaint alleges that “[t]he alleged acts
and/or omissions which serve as the basis for the
claims against Matthew Scott Moore in the Underlying Action, if proven, were not taken in good faith”
and also “were not taken by Matthew Scott Moore in
the scope of his employment or official responsibilities,” so “[a]ccordingly, pursuant to [Ohio Rev. Code
§] 2744.07, the [Intervenor] seeks a declaration by this
Court that it has no duty to defend or indemnify
Matthew Scott Moore for claims made against him in
the Underlying Action.” (Id. at PageID 13763.)
After the Court denied Moore’s motion to dismiss
the Intervenor Complaint, Moore filed an Answer to
the Intervenor Complaint on November 4, 2022. (Doc.
No. 451.) Neither the Intervenor Complaint nor the
Answer to the Intervenor Complaint included a jury
demand. (Doc. No. 397; Doc. No. 451.)
C. Pre-Trial and Trial
Prior to trial, the parties filed a host of motions in
limine. (See Doc. Nos. 324, 325, 326, 327, 335, 336,
337, 338, 339, 340, 341, 342, 343, 375.) Topics
addressed in those motions included, for example:
84a
expert testimony; articles relating to Gillispie’s incarceration; testimony regarding the state court’s determination that Gillispie was wrongfully imprisoned
pursuant to Ohio Rev. Code § 2743.48; certain testimony from lay witnesses; reference to whether Moore
would be able to pay for a damages award and to the
jurors’ interests as taxpayers; affirmative defenses;
and rulings by the trial court in the underlying criminal cases. (Id.) The Court ruled on those motions prior
to trial. (Doc. Nos. 379, 393, 407, 428, 445.) Additionally, the Final Pretrial Order contained various
uncontroverted facts established by admissions in the
pleadings or by stipulations of counsel. (Doc. No. 405
at PageID 13873-74.)
The parties also filed a host of proposed jury instructions, both prior to the trial and during the trial. (Doc.
No. 399, 403, 404, 411, 413, 420, 439, 440, 441, 470.)
The Intervenor submitted proposed jury instructions
and interrogatories, which included instructions on
“actions or omissions not in good faith” and on “scope
of employment” and three questions for the jury to
answer regarding whether Moore’s acts or omissions
occurred while he was acting in good faith and within
the scope of his employment or official duties with
Miami Township. (Doc. No. 399.)
Trial began on November 7, 2022. (Doc. No. 455.)
The parties questioned the prospective jurors during
the voir dire process, and a jury was selected that
same day. (Id.) The trial included several full days of
evidence, which included testimony from 21 witnesses
(plus one witness’s testimony through a prior deposition) and numerous exhibits (45 of which were admitted into evidence and submitted to the jurors). (Doc.
Nos. 455, 456, 457, 462, 463, 465, 466, 471, 473.)
85a
During the trial, the Intervenor was allowed to
question witnesses on the issues of good faith and
scope of employment, in accordance with the Court’s
order granting its motion to intervene. (Doc. No. 392
at PageID 13693.) While the Intervenor did not end
up calling any of its own witnesses, it did question a
number of witnesses.2 (See, e.g., Doc. No. 489 at
PageID 15990-16000 (questioning Moore); Doc. No.
491 at PageID 16228-36 (questioning Fritz); Doc. No.
493 at PageID 16297-98 (questioning Dr. Scott); Doc.
No. 507 at PageID 17647-49 (questioning Monheim);
Doc. No. 509 at PageID 17846-62 (questioning Lieberman); Doc. No. 510 at PageID 17949-52 (questioning
Godsey).) This included, but was not limited to, questioning Moore—whose actions are the ones at issue in
the Intervenor’s Complaint concerning lack of good
faith and scope of employment. (Id.) The Intervenor
also responded to a motion to trifurcate the trial;
objected to designations of deposition testimony and
submitted counter-designations of deposition testimony;
participated in voir dire (including asking questions to
the prospective jurors); was permitted to make challenges for cause, but not peremptory challenges; made
opening statements; objected to certain testimony;
made motions; and made closing arguments. (See,
e.g., Doc. No. 399 (proposed jury instructions and jury
interrogatories); Doc. No. 414 (response in opposition
to motion to trifurcate); Doc. No. 436 and Doc. No. 437
(objections to proposed deposition designations); Doc.
No. 438 (counter-designations of deposition testimony);
Doc. No. 489 at PageID 15990-16000 (questioning
Moore); Doc. No. 500 at PageID 16698 (objection to
2 The Intervenor also successfully quashed a subpoena for
Ronald Hess—who had served as the Township’s Rule 30(b)(6)
designee—to testify at the trial. (Doc. No. 447; Doc. No. 454.)
86a
Gillispie’s testimony); Doc. No. 511 at PageID 1797380 (asking questions to prospective jurors); Doc. No.
511 at PageID 17982-87 (permission to make challenges
in jury selection for cause, but not peremptory challenges); Doc. No. 497 at PageID 16557-60 (opening
statement); Doc. No. 507 at PageID 17760 (moving for
a directed verdict); Doc. No. 498 at PageID 16449-55
(closing argument).) Also, while the Intervenor did
not end up affirmatively seeking admission of any
exhibits, it did object to the admission of certain
exhibits. (See, e.g., Doc. No. 507 at PageID 17728-29,
17733 (objection to Gillispie’s request for admission of
certain exhibits); id. at PageID 17754 (upon being
asked by the Court if “there are any other exhibits”
requested to be admitted, the Intervenor said that
there were not).
Also during the trial, Gillispie filed stipulations
through which he dropped three of his five Section
1983 claims against Moore. (Doc. No. 464; 11/15/2022
Notation Order; Doc. No. 469; 11/18/2022 Notation
Order.) This left him with two pending Section 1983
claims against Moore that went to the jury: (1) violation of his constitutional right to due process of law
and a fair trial through identification evidence; and
(2) violation of his constitutional right to a fair trial
by failing to disclose exculpatory and/or impeachment
evidence that was material to his defense in a criminal
case. (Id.; see also Doc. No. 472 at PageID 15544-46
(jury instructions).)
Prior to closing arguments, Moore moved for a
directed verdict on the allegation that he had
suppressed or destroyed documents. (Doc. No. 507 at
PageID 17743-47.) The Court denied that motion.
(Id.) Additionally, Gillispie moved for judgment as a
matter of law (Doc. No. 467), to which the Intervenor
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filed an opposition and the Court heard argument
from all parties. (Doc. No. 467; Doc. No. 468; Doc. No.
507 at PageID 17754-63.) The Court denied that
motion. (Doc. No. 507 at PageID 17763, 17765-66.)
And, the Intervenor moved for judgment as a matter
of law regarding the issues of good faith and scope
of employment in the context of Ohio Rev. Code
§ 2744.07. (Doc. No. 507 at PageID 17760-63.) The
Court denied that motion as well. (Id. at PageID
17765.)
Following closing arguments by the parties, the
Court gave the jury instructions. (Doc. No. 472; Doc.
No. 473; Doc. No. 498.) The Court’s instructions to the
jury included the following jury instruction (Instruction No. 29) relating to the Intervenor’s potential duty
to defend and/or duty to indemnify Moore:
ADDITIONAL ISSUE IF THE JURY FINDS
IN FAVOR OF PLAINTIFF ON ANY
OF HIS CLAIMS
If, and only if, you find in favor of Plaintiff Gillispie and against Defendant Moore on one or more
of Plaintiff ’s claims, then there is another issue that
you must decide. You must determine whether, at
the time of Defendant Moore’s act or omission that
deprived Plaintiff Gillispie of his Constitutional
right, Defendant Moore was not acting in good faith,
was acting manifestly outside the scope of his
employment or official responsibilities, or was not
acting within the scope of his employment or official
responsibilities.
This issue does not involve any element of Plaintiff Gillispie’s claims, and Plaintiff Gillispie has no
burden of proof whatsoever regarding this issue one
way or the other.
88a
In the event that you find that Defendant Moore
violated the constitutional rights of Plaintiff
Gillispie with respect to one or more of Plaintiff ’s
claims, then separately for each of those claims only
you must determine whether:
(1) An act of Defendant Moore was not taken in
good faith;
(2) Defendant Moore was acting manifestly outside the scope of his employment or official responsibilities when he took the act; and
(3) Defendant Moore was not acting within the
scope of his employment or official responsibilities
when he took the act.
For purposes of this issue, one does not act in good
faith when his conduct evinces a dishonest purpose,
conscious wrongdoing, or the breach of a known
duty through some ulterior motive. Bad faith is the
opposite of good faith, generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, not prompted by an honest
mistake as to one’s rights or duties, but by some
interested or sinister motive. Bad faith, although
not susceptible of concrete definition, embraces
more than bad judgment or negligence. It imports a
dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior
motive, or ill will partaking of the nature of fraud.
Conduct that is reckless may still be in good faith.
Scope of employment means the employee is
engaged in an activity that is logically related to the
business of the employer. The determination of
whether conduct is within the scope of employment
necessarily turns on the perception of whether the
employee acted, or believed himself to have acted, at
least in part, in his employer’s interests. However,
89a
if an employee’s actions are self-serving or have no
relationship to the employer’s business, then the
conduct is manifestly outside the scope of employment. Manifestly is defined as plainly or obviously.
(Doc. No. 472 at PageID 15551; Doc. No. 498 at PageID
16490-92.)
D. Verdict and Judgment
After receiving the jury instructions from the Court,
the jury started its deliberations at approximately
3:05 p.m. on the afternoon of Friday, November 18,
2022 and recessed that day at approximately 4:50 p.m.
(Doc. Nos. 471, 473, 498.) After the weekend, the jury
continued its deliberations on Monday, November 21,
2022 starting at 9:00 a.m. and delivered its verdict at
1:20 p.m. that day. (Doc. No. 474.) The jury found for
Gillispie on both of his claims that were submitted
to them: Due Process/Fair Trial (Unreliable Identification) and Due Process Fair Trial (Suppression of
Evidence). (Doc. No. 475.) The jury then assessed
damages in the amount of $45,000,000. (Id.)
Having found Moore liable on both claims, the jury
then answered a series of questions for each of the two
claims, in accordance with Instruction No. 29 (quoted
above). (Doc. No. 475 at PageID 15564-65.) Those
questions were: (1) “was it proven by a preponderance
of the evidence that Matthew Scott Moore was not
acting in good faith?”; (2) “was it proven by a preponderance of the evidence that Matthew Scott Moore was
acting manifestly outside the scope of his employment
or official responsibilities as a police officer with Miami
Township?”; and (3) “was it proven by a preponderance
of the evidence that Matthew Scott Moore was not
acting within the scope of his employment or official
responsibilities as a police officer with Miami
Township?” (Id.) Thus, those questions related to
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the Intervenor’s claim for declaratory judgment in its
Intervenor Complaint and tracked the language in
Ohio Rev. Code § 2744.07 regarding exceptions to a
political subdivision’s duty to defend and duty to
indemnify. See Ohio Rev. Code § 2744.07(A)(2)(a),
(A)(2)(b), (B)(2)(a), (B)(2)(b). The jury answered “No”
to all six questions—three for each of the two claims.
(Doc. No. 475 at PageID 15564-65.)
Finally, the Court entered a Judgment on November
29, 2022 (“Judgment”). (Doc. No. 479.) In accordance
with the jury’s verdict, the Court entered judgment in
the amount of $45,000,000.00 for Gillispie and against
Moore on the Section 1983 claims that went to the
jury. (Id.) The Judgment did not address the claim in
the Intervenor Complaint. (Id.)
E. The Pending Motions
On December 19, 2022, the Intervenor filed its
Motion for Judgment as a Matter of Law and in the
Alternative, Motion for a New Trial (the “JMOL/New
Trial Motion”). (Doc. No. 481.) The same day, the
Intervenor filed its Motion to Alter or Amend Judgment
(the “Intervenor Alter/Amend Judgment Motion”).
(Doc. No. 482.) On December 27, 2022, Moore filed his
Motion to Alter or Amend the Judgment (the “Moore
Alter/Amend Judgment Motion”). (Doc. No. 485.)
Gillispie filed an opposition to the JMOL/New Trial
Motion.3 (Doc. No. 502.) He also filed an omnibus
3 In its reply in support of the JMOL/New Trial Motion, the
Intervenor clarified that it “is not disputing the jury’s verdict
finding that . . . Moore . . . violated . . . Gillispie’s . . . constitutional rights,” but instead the question is whether the Intervenor
is entitled to judgment in its favor as a matter of law pursuant to
Rule 50 or a new trial pursuant to Rule 59 “on the issues of good
faith and scope of employment or official responsibilities under
R.C. 2744.07.” (Doc. No. 515 at PageID 18008.) The Intervenor
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then argued that, “[b]ecause [the JMOL/New Trial Motion] goes
only to issues pertaining to the [Intervenor’s] declaratory
judgment action against [Moore], the Motion is not [Gillispie’s]
to oppose”; Moore “is the sole party with standing to oppose the
Motion, and he did not”; and, “[a]s such, the Motion is unopposed
and should be granted.” (Id. at PageID 18009 (emphasis in original).) The Court will not grant the JMOL/New Trial Motion
simply because Moore did not file a memorandum in opposition.
First, the Intervenor cites no legal authority for its argument
that the JMOL/New Trial Motion should be granted simply
because Moore did not file a memorandum in opposition. Second,
the rules do not mandate such an outcome. See S.D. Ohio Civ. R.
7.2(a)(2) (“Failure to file a memorandum in opposition may result
in the granting of any motion that would not result directly in
entry of final judgment or an award of attorneys’ fees”); Fed. R.
Civ. P. 50(b) (in ruling on the motion “the court may” direct the
entry of judgment as a matter of law) (emphasis added); Fed. R.
Civ. P. 59(a)(1) (“[t]he court may, on motion, grant a new trial on
all or some of the issues. . . .”) (emphasis added). Third, caselaw
runs counter to that argument. See, e.g., Wheaton v. N. Oakland
Med. Ctr., 130 F. App’x 773, 788-90 (6th Cir. 2005) (where the
district court had denied a party’s motion for judgment as a matter of law or for a new trial despite the fact that the non-movant
filed no opposition to the motion, “the district court’s decision was
correct” in denying the motion where the record provided ample
evidence to support the jury’s verdict; finding that the effect of
the non-movant’s failure to file an opposition was that it waived
its right to challenge an apparent procedural violation by the
movant in filing the motion); EMI Music Mktg. v. Avatar Records,
Inc., 364 F. Supp. 2d 337, 342 (S.D.N.Y. 2005) (although the nonmovant did not file a written opposition to the movant’s Rule
50(b) motion, the district court addressed the motion on its merits and found that the evidence at trial was insufficient to support
the jury’s finding); see also Fed. R. Civ. P. 1 (the Federal Rules
of Civil Procedure “should be construed, administered, and
employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding”
(emphasis added)); Bailey v. Dep’t of Veterans Affairs, No. 9455092, 33 F.3d 58 (Table), 1994 WL 417423, at *2, 1994 U.S. App.
LEXIS 31611 (9th Cir. Aug. 10, 1994) (rejecting the argument
that the district court had erred by not granting a Rule 59(e)
motion to amend the judgment despite the other party’s failure
92a
response to both the Intervenor Alter/Amend Judgment Motion and the Moore Alter/Amend Judgment
Motion. (Doc. No. 503.) The Intervenor filed replies in
support of its JMOL/New Trial Motion (Doc. No. 515)
and its Intervenor Alter/Amend Judgment Motion
(Doc. No. 516). Finally, Moore filed a reply in support
of the Moore Alter/Amend Judgment Motion. (Doc. No.
517.) The three motions are ripe for review and decision.
II. ANALYSIS
The Court will first address the JMOL/New Trial
Motion and then jointly address the Intervenor Alter/
Amend Judgment Motion and Moore Alter/Amend
Judgment Motion.
In the JMOL/New Trial Motion, the Intervenor
moves the Court, “pursuant to Rule 50(b) and Rule 59
of the Federal Rules of Civil Procedure, for judgment
as a matter of law on the jury issues not decided by
to file opposition papers as required by the local rules, where the
language of the local rules was “discretionary” in providing “that
the failure to file a timely opposition to a motion and failure to
appear at a hearing on a motion may be deemed consent to the
granting of the motion”) (internal quotation marks omitted;
emphasis added). The JMOL/New Trial Motion is not an agreed
or joint motion. Additionally, the Court does not believe that the
JMOL/New Trial Motion necessarily “goes only to issues pertaining to the [Intervenor’s] declaratory judgment action against”
Moore—as the Intervenor asserts—or, at the least, it does not
clearly go only to those issues. For example, the JMOL/New Trial
Motion attacks the damages award to Gillispie. (Doc. No. 481 at
PageID 15609 (arguing that “the damages award against Defendant Moore was excessive” and “the jury verdict shocks the conscious and was excessive”).) As another example, the Intervenor
addresses jury instructions involving Gillispie’s claims against
Moore. (Doc. No. 481 at PageID 15602.) However, in perhaps an
abundance of caution, the Court will address the JMOL/New
Trial Motion while not relying on Gillispie’s response in opposition to that motion (Doc. No. 502)
93a
verdict related to the jury interrogatories concerning
defense and indemnification under Ohio Revised Code
2744.07.” (Doc. No. 481 at PageID 15597.) The Intervenor states that it “renews its Rule 50 Motion for
Judgment as a Matter of Law on the issues of whether
Defendant Moore was acting in good faith or outside
of the scope of his employment or official responsibilities.” (Id. at PageID 15600.) “In the alternative, the
[Intervenor] . . . requests a new trial on the basis that
the jury’s findings on those issues were against the
weight of the evidence and the trial being unfair to
the” Intervenor. (Id. at PageID 15597-98.) This alternative request is made pursuant to Federal Rule of
Civil Procedure 59(a). (Id. at PageID 15608-13.) The
Intervenor also explains that its “grounds for seeking
a judgment as a matter of law and for a new trial are
the same.” (Id. at PageID 15601.)
In the Intervenor Alter/Amend Judgment Motion
and Moore Alter/Amend Judgment Motion, both
movants ask the Court to alter or amend the Judgment, pursuant to Rule 59(e). (Doc. No. 482; Doc. No.
485.) More specifically, the Intervenor4 asks the Court
“to reduce the jury damages award of $45,000,000.00”
against Moore because “[t]he award is so greatly
excessive so as to shock the conscience, thereby requiring a remittitur by this Court.” (Doc. No. 482 at
PageID 15614.) Moore asks the Court to “reduce the
jury award against” him because it “is excessive [and]
it shocks the conscience and therefore is required to be
reduced.” (Doc. No. 485 at PageID 15710.)
4 The Court will assume, for purposes of this order, that the
Intervenor has standing to challenge the Judgment’s d
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