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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DOUGLAS P. LABORDE, et al., 

 Plaintiffs, Case No. 2:12-cv-00697 

 Judge Gregory L. Frost 

v. Magistrate Judge Terrence P. Kemp 

CITY OF GAHANNA, et al., 

 Defendants.

OPINION AND ORDER

 This matter is before the Court on the following filings: 

1. Defendants City of Gahanna and Gahanna Finance Director Jennifer Teal’s motion to 

dismiss Plaintiffs’ Fifth Amendment claim (ECF No. 14), Plaintiffs’ response (ECF 

No. 20), and the Gahanna Defendants’ reply (ECF No. 27); 

2. Defendant Regional Income Tax Agency’s (“RITA”) motion for judgment on the 

pleadings (ECF No. 15), Plaintiffs’ response (ECF No. 22), and RITA’s reply (ECF 

No. 29); and 

3. Plaintiffs’ objection to the affidavit of Defendant Teal (ECF No. 21) and the Gahanna 

Defendants’ reply (ECF No. 28). 

For the reasons detailed below, the Court SUSTAINS Plaintiffs’ objection to Defendant 

Teal’s affidavit, GRANTS the Gahanna Defendants’ motion to dismiss, GRANTS RITA’s 

motion for judgment on the pleadings, and REMANDS the remaining state-law claims to the 

Court of Common Pleas for Franklin County, Ohio. 

 

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I. Background 

This case is a putative class action alleging that Defendant City of Gahanna, Ohio 

(“Gahanna”), used a tax form that resulted in the overpayment of municipal income taxes by 

Gahanna residents for tax years 2008 to 2011. Also joined as Defendants in this action are 

Gahanna finance director Jennifer Teal and RITA. Because this matter is before the Court on 

motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), the Court gleans the 

following relevant facts from the allegations in Plaintiffs’ Complaint. 

Gahanna has, by ordinance, imposed a system for the assessment, collection, and 

payment of individual income taxes applicable to that city’s residents. (Compl. & 11, ECF No. 2 

at PAGEID# 33.) Gahanna City Code '' 161.03(1), (3), and (6) levy an income tax at the rate of 

1.5 percent on certain qualifying wages, salaries, commissions, net profits, and other types of 

income earned by Gahanna residents. (Compl. & 12.) The Gahanna City Code also provides for 

certain credits that offset a Gahanna resident’s income tax liability. Relevant to this case is 

Gahanna City Code ' 161.18, which allows “a credit of eighty-three and one-third percent (83-

1/3%) of the amount” a Gahanna resident has paid in municipal income tax to another 

municipality for income earned outside Gahanna. (Compl. & 16 at PAGEID# 34.) The amount 

of the allowable credit is capped at the amount of the taxpayer’s liability (absent the credit) for 

Gahanna income tax. (Id.) 

Under Gahanna City Code ' 161.05(a), Gahanna residents are required to file a city 

income tax return on a form prescribed by RITA. (Id. & 17.) RITA is an agency created by 

members of a Regional Council of Governments under Chapter 167 of the Ohio Revised Code. 

(Id. & 5 at PAGEID# 32.) Plaintiffs allege that Gahanna residents are required to use “Form 37,” 

which RITA prescribed and the City approved. (Id. at & 20, PAGEID# 35.) 

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Plaintiffs allege that Form 37 is inconsistent with Gahanna City Code ' 161.18. 

Specifically, Plaintiffs allege that a taxpayer who used Form 37 for tax years 2008, 2009, 2010, 

and 2011 did not receive the full tax credit to which he or she was entitled under ' 161.18. (Id.

at & 23.) To illustrate the point, Plaintiffs’ Complaint detailed a hypothetical situation that 

displayed the inconsistency between Form 37 and ' 161.18. (Id. at & 24.) Plaintiffs’ 

hypothetical assumes a Gahanna resident who works in Columbus, Ohio, earning an annual 

income of $100,000. (Id.) The hypothetical further provides that the taxpayer paid $2,500 in 

municipal income taxes to Columbus based on Columbus’ tax rate of 2.5%, which is one percent 

higher than Gahanna’s rate. (Id.) Under the Gahanna Code, the taxpayer’s liability for Gahanna 

income tax would be $1,500 ($100,000 multiplied by the 1.5% tax rate). But Gahanna City Code 

' 161.18 entitles the hypothetical taxpayer to a tax credit of $1,500 against the taxpayer’s 

Gahanna income tax liability calculated as follows: 

a. 83 1/3% multiplied by $2,500 (the amount paid to Columbus); 

b. The resulting $2,083 is capped at $1,500, the amount the taxpayer would otherwise 

owe to Gahanna. (Id. & 26 at PAGEID# 36.) 

Plaintiffs allege, however, that if the taxpayer uses Form 37, the taxpayer does not enjoy 

the benefit of the credit allowed by law. Form 37 applies the tax credit of 83-1/3% against the 

lesser of (1) the tax withheld by the taxpayer’s employer or (2) the amount of wages earned 

multiplied by Gahanna’s 1.5% income tax rate. (Id. & 31 at PAGEID# 37.) Thus, in the 

hypothetical illustrated above, Form 37 calculates a credit to the taxpayer of approximately 

$1,250 (83-1/3% multiplied by the $1,500), which is $250 less than the amount of the tax credit 

that the Gahanna ordinance actually provides. (See id. &32.) 

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The named Plaintiffs allege that Form 37 caused their Gahanna income tax liability to be 

overstated on their 2009, 2010, and 2011 municipal income tax returns by $347, $438, and $473, 

respectively. (Id. & 42 at PAGEID# 38) Plaintiffs filed this lawsuit in the Franklin County 

Court of Common Pleas, seeking “restitution of the monies overpaid in reliance [on] and as 

provided for by Form 37” for the tax years at issue. (Id. & 45 at PAGEID# 39.) Plaintiffs’ 

Complaint alleges nine counts: a claim for declaratory judgment as to the proper construction of 

Gahanna City Code ' 161.18 (Count 1), a claim for declaratory judgment as to whether Form 37 

properly calculates the tax credit for income earned outside Gahanna (Count 2), a claim for 

declaratory judgment as to the proper construction of Gahanna City Code ' 161.05 (Count 3), a 

takings claim under the Ohio Constitution (Count 4), a takings claim under the United States 

Constitution (Count 5), a claim alleging a violation of 42 U.S.C. ' 1983 (Count 6), a claim for 

“injunctive relief” (Count 7), a claim for unjust enrichment (Count 8), and a claim alleging strict 

liability under Ohio Rev. Code ' 9.39 (Count 9). 

Defendants removed the case to this Court, invoking federal question jurisdiction in view 

of Plaintiffs’ allegations of an unconstitutional taking under the federal Constitution and liability 

under 42 U.S.C. ' 1983. (ECF No. 1.) Defendants answered Plaintiffs’ Complaint (ECF Nos. 5 

and 7) and then filed two dispositive motions between them (ECF Nos. 14 and 15). Defendants 

Gahanna and Teal styled their motion as a “Motion to Dismiss Plaintiffs’ Fifth Amendment 

Claim”; Defendant RITA styled its motion as a “Motion for Judgment on the Pleadings.” (Id.) 

Neither motion is a model of clarity in the relief it seeks. The motion of Gahanna and 

Teal purports to seek only the dismissal of Counts 5 and 7 of Plaintiffs’ Complaint. (ECF No. 14 

at PAGEID# 107.) Elsewhere in the motion, however, Gahanna and Teal argue that this Court 

must not retain jurisdiction over the state-law claims, presumably seeking this Court’s remand of 

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those counts. (Id. at PAGEID# 115.) Gahanna and Teal also construe Count 5 of the Complaint 

as asserting a Fifth Amendment takings claim under 42 U.S.C. ' 1983 even though Plaintiffs also 

assert a ' 1983 takings claim in Count 6. (Id. at PAGEID# 108.) As for RITA’s motion, RITA 

expressly moves for judgment on the pleadings “as it relates to Plaintiffs’ federal law claims for 

violation of the Fifth Amendment to the United States Constitution and violation of [42 U.S.C. '

1983], as well as [Plaintiffs’] request for injunctive relief.” (ECF No. 15 at PAGEID# 144.) In 

the body of the motion, however, RITA makes clear that it seeks dismissal of all the federal 

claims and asks the Court to “relinquish jurisdiction” over the remaining state-law claims. (ECF 

No. 15 at PAGEID# 154-56.) It is with this understanding of the motions that the Court 

adjudicates them. 

II. Discussion 

Defendants bring their motions before the Court under Fed. R. Civ. P. 12(c), seeking 

partial judgment on the pleadings on Plaintiffs’ claims based upon a Fifth Amendment “taking” 

of their property without just compensation.1

 Courts consider a motion for judgment on the 

pleadings under Fed. R. Civ. P. 12(c) in the same manner as a Rule 12(b)(6) motion to dismiss. 

Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). That is, the court should 

grant the motion when it appears “beyond doubt that the plaintiff can prove no set of facts in 

support of his claim which would entitle him to relief.” Lewis v. ACB Bus. Servs., Inc., 135 F.3d 

389, 405 (6th Cir. 1998). For purposes of this determination, the Court construes the complaint 

in the light most favorable to Plaintiffs and assumes all well-pleaded factual allegations in the 

 

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 Defendants City of Gahanna and Jennifer Teal styled their motion as a “motion to dismiss” Plaintiffs’ 

Fifth Amendment claim (ECF No. 14.) The motion is more properly characterized as a motion for 

judgment on the pleadings, as Defendants filed an Answer (ECF No. 5) before filing their dispositive 

motion and the Court appropriately treats it as such. See McGlone v. Bell, 681 F.3d 718, 728 n.2 (6th Cir. 

2012). 

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complaint to be true. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). The Court 

need not accept the truth of any legal conclusions or unwarranted factual inferences. JP Morgan 

Chase Bank, N.A. v. Winget, 510 F.3d 577, 581-82 (6th Cir. 2007). 

A. Objection to Defendant Teal’s Affidavit 

As an initial matter, the Court addresses Plaintiffs’ objection to the inclusion of an 

affidavit by Defendant Teal, attached as an exhibit to Gahanna’s and Teal’s motion to dismiss. 

(ECF No. 21.) When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a motion 

for judgment on the pleadings under Fed. R. Civ. P. 12(c), courts may consider matters outside 

the pleadings that “are presented to and not excluded by the court,” but only if the court converts 

the motion to one for summary judgment under Fed. R. Civ. P. 56. The Court is not, however, 

required to do so and may exclude matters outside the pleadings from its consideration of a Rule 

12(c) motion. See Carney v. Experian Info. Solutions, Inc., 57 F. Supp. 2d 496, 500 (W.D. Tenn. 

1999). In this case, the Court sees no reason to consider the affidavit of Teal and convert the 

motion into a Rule 56 summary judgment motion. Accordingly, the Court SUSTAINS 

Plaintiffs’ objection to the inclusion of Defendant Teal’s affidavit and disregards the affidavit for 

purposes of deciding Teal’s and Gahanna’s motion to dismiss. 

B. Fifth Amendment Takings Claim 

In the motions before the Court, Defendants ask the Court to dismiss Count 5 of 

Plaintiffs’ Complaint, alleging a “taking” of their private property (i.e., tax overpayments) 

without compensation, in violation of the Fifth Amendment to the United States Constitution.2

 

The gravamen of Plaintiffs’ “takings” claim is that Form 37 results in an overpayment of income 

 

2 The Fifth Amendment provides, inter alia, that “[n]o person shall . . . be deprived of life, liberty, or 

property, without due process of law; nor shall private property be taken for public use, without just 

compensation.” 

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taxes by Gahanna residents by understating the tax credit to which a resident is entitled. (Compl. 

&& 97-101, ECF No. 2 at PAGEID# 47.) Plaintiffs further allege that Gahanna’s retention of 

these overpayments “constitutes a taking of Plaintiffs’ . . . private property without 

compensation.” (Id. & 101.) 

Defendants argue that there is no cognizable “takings” claim in this case. Even if the 

Court takes Plaintiffs’ allegations as true (as the Court must in ruling on a Fed. R. Civ. P. 12(c) 

motion), Defendants contend that a tax does not constitute a “taking” within the meaning of the 

Fifth Amendment. Indeed, there are numerous cases holding that the government’s act of 

collecting taxes is not a per se taking of private property under the Fifth Amendment. See, e.g., 

Branch v. United States, 69 F.3d 1571, 1576 (Fed. Cir. 1995) (“even though taxes or special 

municipal assessments indisputably ‘take’ money from individuals or businesses, assessments of 

that kind are not treated as per se takings under the Fifth Amendment”); County of Mobile v. 

Kimball, 102 U.S. 691, 703 (1880) (“neither is taxation for a public purpose, however great, the 

taking of private property for public use, in the sense of the Constitution”). 

As an initial matter, the Court notes that it could arguably avoid the merits of Plaintiffs’ 

Fifth Amendment claim in Count 5, at least in the way it is pleaded. Plaintiffs have pleaded a 

direct action under the Fifth Amendment against Gahanna, RITA, and Teal. This is in the nature 

of a Bivens claim. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). But such a 

direct claim is not cognizable against these defendants. The Fifth Amendment circumscribes 

only the actions of the federal government; the Fourteenth Amendment restricts the activities of 

the states and their instrumentalities. Scott v. Clay Cnty., 205 F.3d 867, 873 n.8 (6th Cir. 2000). 

And even then, there can be no direct Fourteenth Amendment claim brought against a local 

government defendant, as 42 U.S.C. ' 1983 provides the exclusive remedy for alleged 

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constitutional claims. See Thomas v. Shipka, 818 F.2d 496, 499 (6th Cir. 1987). Thus, to the 

extent Count 5 pleads a Bivens claim against Gahanna, RITA, and Teal, Count 5 does not plead a 

valid claim for relief. 

That said, Defendants Gahanna and Teal construe Count 5 as a claim brought under 42 

U.S.C. ' 1983, alleging an unconstitutional taking. (ECF No. 14 at PAGEID# 108.) Even 

though Plaintiffs’ Complaint does not readily lend itself to that construction (indeed, Plaintiffs 

expressly pleaded a ' 1983 claim in Count 6), the Court will proceed to a takings analysis as if 

Plaintiffs pleaded a ' 1983 claim in Count 5. 

Plaintiffs’ theory for relief relies upon the premise that Gahanna’s collection of income 

taxes without giving Gahanna residents the proper amount of credit to which they are entitled 

under the Gahanna Code effects a “taking” of property without just compensation. In opposing 

Defendants’ motions, Plaintiffs argue Form 37, which they allege Gahanna taxpayers are 

required to use, understated the amount of tax credit they were entitled to, resulting in a “per se 

taking,” (ECF No. 22 at PAGEID# 192.) Plaintiffs contend that Form 37 takes away their 

intangible property right in the “credits” to which they are due as Gahanna resident taxpayers. 

(Id. at PAGEID# 192-93.) 

 The Court finds Defendants’ position well-taken—Plaintiffs have not pleaded a valid 

claim for an unconstitutional “taking” within the meaning of the Fifth Amendment. Persuasive 

to this Court are the multitude of cases that stand for the well-established proposition that a 

government’s act of taxation is not a per se taking of private property within the meaning of the 

Constitution. See, e.g., Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005); United 

States Shoe Corp. v. United States, 296 F.3d 1378, 1383 (Fed. Cir. 2002); Branch, 69 F.3d at 

1576; see also United States v. Sperry Corp., 493 U.S. 52, 62 n.9 (1989) (rejecting the view that 

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money is private property that can be physically occupied by the government). This is true even 

if a takings claim is based upon the theory that the governmental body collected an illegal tax. 

United States Shoe Corp., 296 F.3d at 1383 (finding that the government’s act of taxation was 

not a per se taking of private property even though the tax in question was declared illegal). 

 Plaintiffs try mightily to distinguish the line of cases relied upon by Defendants. In doing 

so, Plaintiffs frame the issue differently, taking the position that they are not challenging the 

ability of Gahanna to impose a municipal income tax. Rather, Plaintiffs contend that they are 

asking simply that the Gahanna City Code be applied correctly, such that Gahanna residents are 

able to enjoy the credit allowed for income taxes paid to other municipalities to the maximum 

extent permitted by the Code. (ECF No. 22 at PAGEID# 191.) Plaintiffs argue that the tax 

credit provided in the Gahanna Code is an “intangible” private property interest that falls within 

the ambit of the Fifth Amendment takings clause. (Id. at PAGEID# 192.) The Court is not 

persuaded. 

 For one thing, the authorities cited by Plaintiffs for the proposition that tax credits are 

“intangible property rights of the taxpayer” are inapposite. Plaintiffs first point to Ohio Rev. 

Code ' 5701.09, which states that “ ‘other taxable intangibles’ and ‘other intangible property’ 

include every valuable right, title, or interest not comprised within or expressly excluded from 

any of the other definitions set forth in sections 5701.01 to 5701.09, inclusive, of the Revised 

Code.” Plaintiffs do not cogently explain how this statute—which appears to define what sorts 

of intangible interests are taxable—supports the notion that Defendants have taken a property 

interest for Fifth Amendment takings purposes. The statute simply does not define a municipal 

tax credit as a property interest, much less an interest protected by the Fifth Amendment’s 

takings clause. 

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 Plaintiffs next invoke Woda Ivy Glen, L.P. v. Fayette Cnty. Bd. of Revision, 121 Ohio St. 

3d 175, 184, 2009-Ohio-762, 902 N.E. 2d 984 (Ohio 2009) for the proposition that a tax credit is 

“a separate intangible asset.” But Wody Ivy Glen does not inform the issue before the Court. In 

Woda Ivy Glen, the Ohio Supreme Court held that “in the context of appraising real property for 

tax purposes, the use restrictions imposed under [the Internal Revenue Code] constitute 

governmental restrictions for the general welfare that must be taken into account when 

determining the value of [low income housing] property.” Id. Thus, the Ohio Supreme Court 

held that the Board of Tax Appeals “erred by holding that the effect of such restrictions must be 

disregarded and by reverting to a cost-based valuation that improperly reflects the affirmative 

benefit of the tax credits, which constitute a separable intangible asset.” Id. Read in context, 

Woda Ivy Glen holds simply that tax credits are an “intangible asset” that should not have been 

taken into account in valuing low-income housing property for property tax purposes. Woda Ivy 

Glen does nothing to support the view that miscalculating an income tax credit somehow 

implicates Fifth Amendment takings principles.3

 

 Further undercutting Plaintiffs’ position is the fact that they have cited no case standing 

for the proposition that the miscalculation of an income tax because of the failure to apply a 

credit becomes an unconstitutional “taking” under the Fifth Amendment even though the 

imposition and collection of an income tax does not itself implicate a takings analysis. Plaintiffs 

say that the cases Defendants rely upon “stand for the unremarkable position that taxes do not 

 

3 Plaintiffs also rely on Cottonwood Affordable Hous. v. Yavapai Cnty., 205 Ariz. 427 (Ariz. Tax Ct. 

2003) for the proposition that a low-income housing tax credit is an intangible property interest. This 

case is unhelpful to Plaintiffs for the same reason that Woda Ivy Glen does not inform the issue before the 

Court. Similar to Woda Ivy Glen, Cottonwood held that the low-income housing tax credits were 

“intangible property” that should not be taken into account when valuing low-income housing property 

for tax purposes. 205 Ariz. at 429. 

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constitute a taking.” (ECF No. 22 at PAGEID # 193.) Plaintiffs argue that their theory of 

liability is distinguishable because Defendants have deprived them of the full benefit of a tax 

credit. But the Court fails to see how the Fifth Amendment Takings Clause, which is not 

implicated by the collecting of a tax in the first place, is suddenly put in play when a tax credit is 

not properly applied. In the Court’s view, the “tax credit” at issue in this case is part and parcel 

of the entire municipal income tax system implemented by Gahanna. Plaintiffs’ purported 

“distinction” is one without a difference for purposes of a Fifth Amendment takings analysis. 

 Accordingly, the Court GRANTS Defendants’ motions for dismissal and/or partial 

judgment on the pleadings with respect to Count 5 of Plaintiffs’ Complaint. 

C. Section 1983 Claim 

Defendants also move for judgment on the pleadings and/or dismissal as to Count 6 of 

the Complaint, alleging violation of 42 U.S.C. ' 1983.4 In its motion, RITA argues it is entitled 

to judgment as a matter of law on this claim because Plaintiffs have failed to allege that they 

have been deprived of a right secured by the Constitution and laws of the United States. See 

Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970) (reciting the elements of a ' 1983 claim). 

Because Plaintiffs have failed (for the reasons set forth above) to establish a cognizable claim for 

an unconstitutional “taking” of their property without just compensation in violation of the Fifth 

Amendment, Defendants argue that Plaintiffs necessarily fail to plead a valid ' 1983 claim. 

 

4 The Court notes that Defendants Gahanna and Teal cite Counts 5 and 7 as the federal “takings” claims 

they seek to dismiss by way of their motion. (ECF No. 14 at PAGEID# 107, 117.) As noted earlier, 

however, Gahanna and Teal also construe Count 5 of the Complaint as alleging a Fifth Amendment 

takings claim under ' 1983. (Id. at PAGEID# 108.) This construction renders Count 5 indistinguishable 

from Count 6. Thus, the Court construes the motion of Defendants Gahanna and Teal as seeking 

dismissal of Count 6. Plaintiffs are not prejudiced by this construction as their briefing does not (as set 

forth below) distinguish between the constitutional claims asserted in Counts 5 and 6. 

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Though Defendants are correct that Plaintiffs fail to allege a valid Fifth Amendment 

“takings” claim, that does not necessarily lead to the conclusion that a ' 1983 claim is also 

barred. At the Fed. R .Civ. P. 12(c) stage, this Court is bound to construe the Complaint in the 

light most favorable to Plaintiffs, accept all factual allegations as true, and determine whether 

Plaintiffs can prove any set of facts that would entitle them to relief. Wee Care Child Ctr. v. 

Lumpkin, 680 F.3d 841, 846 (6th Cir. 2012). Bearing this standard in mind, the Court must 

determine if Count 6 of Plaintiffs’ Complaint pleads a ' 1983 claim based simply on a Fifth 

Amendment “takings” theory or whether Plaintiffs plead the deprivation of some other 

constitutional right. The salient allegation to examine for making this determination appears at 

paragraph 105 of the Complaint: 

By prescribing and adopting Form 37, which fails to conform with existing law 

(specifically City Code Section 161.18) thereby taking Plaintiffs’ and the Class’s 

private property without compensation, Defendants are acting under color of law 

and have unlawfully deprived Plaintiffs and the Class of their constitutional rights 

secured by the Fifth and Fourteenth Amendments to the United States 

Constitution. 

(Compl. & 105, ECF No. 2 at PAGEID# 48.) 

This allegation is indistinguishable from the theory of liability alleged in Count 5, except 

that Plaintiffs plead expressly in Count 6 a violation of 42 U.S.C. ' 1983 rather than a direct 

claim under the Fifth Amendment takings clause. Other than the fact that it invokes ' 1983 as 

the operative remedial statute, Count 6 is in substance no different than Count 5—both claims 

allege an unconstitutional taking of property without compensation in violation of the Fifth 

Amendment (as applied to the states by virtue of the Fourteenth Amendment). 

Plaintiffs’ opposition to RITA’s motion for judgment on the pleadings confirms the 

identity of the theories of liability pleaded in Counts 5 and 6. In arguing that they have pleaded a 

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valid ' 1983 claim, Plaintiffs rest on the perceived laurels of their argument that they have 

pleaded a valid takings claim: 

The sole predicate of RITA’s argument that the LaBordes cannot satisfy a claim 

under 42 U.S.C. ' 1983 is because RITA claims that the LaBordes cannot satisfy 

a taking under the Fifth Amendment. As demonstrated above, however, the 

LaBordes have suffered a Fifth Amendment taking of their Tax Credit, and, thus, 

have met what is required to bring a claim under 42 U.S.C. ' 1983. 

(ECF No. 22 at PAGEID# 194.) 

The allegations in the Complaint combined with Plaintiffs’ argument in their opposition 

to RITA’s motion make clear that they base their constitutional claims solely on the theory that 

Defendants have (through promulgation and use of Form 37) deprived them of the full benefit of 

a tax credit to which they were otherwise entitled under the Gahanna City Code, resulting in an 

unconstitutional “taking” of their property without just compensation. As analyzed above with 

regard to Count 5, however, Plaintiffs’ theory does not plead a valid “takings” claim within the 

meaning of the Fifth Amendment. Accordingly, Count 6 is similarly flawed. The Court 

therefore GRANTS Defendants’ motions for judgment on the pleadings and/or dismissal of 

Plaintiffs’ ' 1983 claim. 

D. Injunctive Relief and the Tax Injunction Act 

Count 7 alleges a claim for “Injunctive Relief.” Both motions seek dismissal of Count 7 

on the basis that such a claim is barred by the Tax Injunction Act (“TIA”), 28 U.S.C. ' 1341. 

(ECF No. 14 at PAGEID# 114; ECF No. 15 at PAGEID# 154.) 

As an initial matter, the Court notes that Count 7 does not technically state a valid claim. 

Injunctive relief is a remedy for a claim, not a cause of action unto itself. Allen v. Andersen 

Windows, Inc., No. 2:12-cv-347, 2012 U.S. Dist. LEXIS 180320 at *62-63 (S.D. Ohio Dec. 20, 

2012); Huntington Nat'l Bank v. Guishard, No. 2:12-cv-1035, 2012 U.S. Dist. LEXIS 167214, at 

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*15 n.1 (S.D. Ohio Nov. 26, 2012). Nonetheless, this Court will treat Plaintiffs’ averments 

seeking injunctive relief as part of the prayer for relief, even though pleaded as a distinct count in 

the Complaint. See Allen at *63. 

The TIA provides: “The district courts shall not enjoin, suspend or restrain the 

assessment, levy or collection of any tax under State law where a plain, speedy and efficient 

remedy may be had in the courts of such State.” 28 U.S.C. ' 1341. When applicable, the TIA 

forecloses federal court jurisdiction. See Wenz v. Rossford Ohio Transp. Improvement Dist., 392 

F. Supp. 2d 931, 935 (N.D. Ohio 2005) (citing Hedgepeth v Tennessee, 215 F.3d 608, 612 (6th 

Cir. 2000)). To determine whether this case falls within the TIA’s prohibition, it is appropriate 

to first identify the relief sought. Hibbs v. Winn, 542 U.S. 88, 99 (2004). If Plaintiffs are 

attempting to “enjoin, suspend, or restrain the assessment, levy, or collection of any tax under 

State law,” then the TIA prohibition applies to prospective injunctive and declaratory relief. Id.

at 100. The TIA applies to both state and local taxation. Id. at 100 n.1. 

Plaintiffs argue that the TIA does not apply to this case because they are not seeking to 

enjoin the assessment, levy, or collection of any taxes. Rather, Plaintiffs say they are requesting 

that Defendants follow the Gahanna City Code and collect only those income taxes provided for 

by ordinance. (ECF No. 22 at PAGEID# 196.) More specifically, Plaintiffs want Defendants to 

be enjoined from using Form 37 in its present form, which allegedly calculates incorrectly (to 

Gahanna taxpayers’ detriment) the tax credit for taxes paid to other municipalities on income 

earned outside Gahanna. (Compl. & 110, ECF No. 2 at PAGEID# 49.) Plaintiffs argue that this 

type of relief is not within the ambit of the TIA: they argue this is not a lawsuit in which they 

seek to avoid paying a state or local tax, which is the principal type of action that the TIA is 

designed to preclude. Hibbs, 542 U.S. at 107 (“In sum, this Court has interpreted and applied the 

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TIA only in cases Congress wrote the Act to address, i.e., cases in which state taxpayers seek 

federal-court orders enabling them to avoid paying state taxes.”). And in any event, Plaintiffs 

say they are “willing to forego any available injunctive relief” until final resolution of the 

declaratory relief claims regarding construction of the Gahanna City Code provisions at issue 

and final certification of an “injunctive relief class” under Fed. R. Civ. P. 23(b)(2). (ECF No. 22 

at PAGEID# 195.) 

The Court finds Plaintiffs’ attempt to sidestep the TIA unavailing. Despite Plaintiffs’ 

characterization of what this lawsuit is about, this case falls squarely within the coverage of what 

the TIA prohibits in federal court. The TIA is designed to reach those cases “‘using the federal 

courts to raise questions of state or federal law going to the validity of the particular taxes 

imposed upon them.’” Hibbs, 542 U.S. at 109 (quoting Wells v. Malloy, 510 F.2d 74, 77 (2d Cir. 

1977)). At its core, that is what Plaintiffs are attempting to accomplish in this case. Plaintiffs 

are raising questions of state and federal law to challenge the validity of the municipal income 

taxes they paid. It makes no difference whether Plaintiffs base their theory on the invalidity of 

an assessment in the first instance or, as is the case here, the incorrect calculation of a tax credit. 

The only case Plaintiffs rely upon for the proposition that the TIA does not apply—

Hibbs—does not support their argument. Plaintiffs cite the passage of Hibbs in which the 

Supreme Court observed that “[n]owhere does the legislative history [of the TIA] announce a 

sweeping congressional direction to prevent ‘federal-court interference with all aspects of state 

tax administration.’” Id. at 105. But Hibbs must be read in context—the case held that the TIA 

did not bar a third party from suing in federal court to raise a constitutional challenge to tax 

benefits. Id. at 108. In Hibbs, for example, the Supreme Court held that the TIA did not bar a 

federal lawsuit challenging a state tax statute on Establishment Clause grounds. This case, in 

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contrast, is one in which Plaintiffs—the taxpayers themselves—seek to enjoin Defendants’ use 

of Form 37 and the collection of taxes that would result from the continued utilization of Form 

37. Regardless of how Plaintiffs dress it up, this case remains one in which taxpayers seek a 

federal court order that would enable them to avoid paying a higher amount of municipal income 

taxes. This type of suit falls squarely within the TIA bar to federal court jurisdiction. Id. at 107-

09. 

Further underscoring the TIA bar is the existence of “a plain, speedy and efficient 

remedy” available in the Ohio state courts to challenge Gahanna’s use of Form 37. Ohio Rev. 

Code ' 2723.01 provides: “Courts of common pleas may enjoin the illegal levy or collection of 

taxes and assessments and entertain actions to recover them when collected, without regard to 

the amount thereof, but no recovery shall be had unless the action is brought within one year 

after the taxes or assessments are collected.” Defendants (ironically, given their removal of the 

case to federal court) contend that this statute provides Plaintiffs with an available state remedy. 

Plaintiffs provide no cogent argument as to why Ohio Rev. Code ' 2723.01 would preclude the 

injunctive relief they seek were they to pursue it in state court. 

The Court therefore GRANTS Defendants’ motions for dismissal and/or judgment on the 

pleadings as to claims barred by the TIA. The claims barred include not only Plaintiffs’ claimed 

entitlement to injunctive relief (Count 7), but also the declaratory judgment claims asserted in 

Count 1, Count 2, and Count 3. 

E. Supplemental Jurisdiction Over State-Law Claims 

Defendants’ motions also seek to dismiss remaining state-law claims—Count 4 (taking 

under the Ohio Constitution), Count 8 (unjust enrichment), and Count 9 (strict liability)—on the 

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basis that the Court should decline to exercise supplemental jurisdiction over them after having 

ruled that the federal claims are dismissed. This Court agrees. 

 Under 28 U.S.C. § 1367(c), a district court may decline to exercise supplemental 

jurisdiction over state-law claims where, as here, “the district court has dismissed all claims over 

which it has original jurisdiction.” When deciding whether to exercise supplemental jurisdiction, 

“a district court should consider and weigh several factors, including the ‘values of judicial 

economy, convenience, fairness, and comity.’” Gamel v. City of Cincinnati, 625 F.3d 949, 951-

52 (2010) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 98 L. 

Ed. 2d 720 (1988)); see also Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 

1993). When a district court dismisses all claims over which it had original jurisdiction, the 

balance of considerations is likely to weigh in favor of declining to exercise supplemental 

jurisdiction. Gamel at 952; see also Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th 

Cir. 2006) (“Residual jurisdiction should be exercised only in cases where the interests of 

judicial economy and the avoidance of multiplicity of litigation outweigh our concern over 

needlessly deciding state law issues.”). 

In assessing the factors of judicial economy, fairness, and comity, a district court is 

guided by several specific considerations. Among these are (1) whether the district court should 

avoid needless state law decisions as a matter of comity, (2) whether the district court, in its 

disposition of federal-law claim, resolved a related state-law issue, (3) whether similar predicate 

factual findings are necessary to resolve both the state and the federal claims, (4) whether the 

district court has expended significant time and resources, (5) whether dismissal or remand will 

result in duplicative litigation, (6) whether the matter has been on the district court’s docket for a 

significant time, (7) whether the parties have completed discovery, (8) whether plaintiff has 

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abandoned all federal claims at a late stage of the proceedings, and (9) whether a summary 

judgment motion has been extensively briefed and is ripe for review. Fox v. Brown Memorial 

Home, 761 F. Supp. 2d 718, 723-24 (S.D. Ohio 2011). In this case, the balancing of these factors 

counsels heavily against exercising supplemental jurisdiction. 

As a matter of comity, for many of the same reasons underlying the Court’s TIA analysis, 

the Court should avoid meddling into matters regarding the enforcement of local tax laws. The 

case was filed less than a year ago, discovery has not been completed, and the Court has yet to 

expend a great deal of time and resources given that the summary judgment deadline is still a 

few months away. And the Court cannot say that it has necessarily resolved remaining state-law 

issues with its disposition of the federal claims. 

Accordingly, the Court declines to exercise supplemental jurisdiction over the remaining 

state-law claims and REMANDS this case to the state court where it was originally filed. 

III. Conclusion 

For the reasons set forth above, the Court SUSTAINS Plaintiffs’ objection to the 

Affidavit of Defendant Teal and disregards it for purposes of deciding the motion to dismiss of 

Defendants Gahanna and Teal. The Court GRANTS the motion to dismiss of Defendants 

Gahanna and Teal (ECF No. 14) and the motion for judgment on the pleadings of Defendant 

RITA (ECF No. 15). All claims over which this Court had original jurisdiction are 

DISMISSED. The Court REMANDS the remaining state-law claims to the Court of Common 

Pleas for Franklin County, Ohio, for further proceedings. 

 IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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