UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

 

WCI, Inc., 

Plaintiff, 

v. Case No.: 3:17-cv-282

 Judge Thomas M. Rose 

Ohio Department of Public Safety, et al., 

 

Defendants.

______________________________________________________________________________ 

ENTRY AND ORDER REJECTING REPORT AND 

RECOMMENDATIONS OF THE MAGISTRATE JUDGE. (ECF 26); 

OVERRULING PLAINTIFF’S OBJECTION TO THE REPORT AND 

RECOMMENDATION (ECF 28); SUSTAINING DEFENDANTS’ 

OBJECTION TO THE REPORT AND RECOMMENDATION (ECF 27); 

GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF 

JURISDICTION, (ECF 22), AND TERMINATING CASE. 

___________________________________________________________________________ 

The instant case is on remand from the United States Court of Appeals for the Sixth 

Circuit. See WCI, Inc. v. Ohio Department of Public Safety, 774 F. App’x 959 (6th Cir. 2019). 

The panel noted: 

WCI filed this suit in the district court, alleging 

constitutional violations and seeking declaratory and injunctive 

relief against the Commission and the Department. In its 

complaint, WCI claimed to have preserved its right to plenary 

adjudication of these issues in federal court pursuant to England v. 

Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964). 

The defendants did not answer the complaint or specifically deny 

the England reservation claim, but instead moved to dismiss the 

complaint for failure to state a claim upon which relief could be 

granted. 

 

For purposes of this appeal, we assume without deciding that 

WCI properly invoked its England reservation, but we recognize 

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that this question might warrant further analysis on remand. See id. 

at 418–19 (“But we see no reason why a party, after unreservedly 

litigating his federal claims in the state courts although not required 

to do so, should be allowed to ignore the adverse state decision and 

start all over again in the District Court.”); Trafalgar Corp. v. Miami 

Cty. Bd. of Comm’rs, 519 F.3d 285, 288 (6th Cir. 2008) 

(“Furthermore, because [the plaintiff] asserted federal issues in its 

complaint at the state court level, it cannot now claim to have 

reserved its federal causes of action for subsequent litigation in 

federal court under ... England[.]”); see also Lumbard v. City of Ann 

Arbor, 913 F.3d 585, 589–90 (6th Cir. 2019) (recognizing England

limitations). 

WCI, Inc. v. Ohio Dep't of Pub. Safety, 774 F. App'x 959, 961 (6th Cir. 2019). 

 An England reservation permits a plaintiff who is in state court because a federal 

court abstained from ruling on questions of state law to reserve federal claims for subsequent 

review in a federal forum. A party making an England reservation has a duty to make a 

Windsor notification to the state court of the claims being reserved, so that the state court can 

interpret state law with an eye to the coming federal challenges, but the party must not 

actually litigate the claims in the state court. Anderson v. Charter Twp. of Ypsilanti, 266 F.3d 

487, 495–96 (6th Cir. 2001) (citing “Government and Civic Employees Organizing 

Committee v. Windsor, 353 U.S. 364, 366 (1957), England, 375 U.S. at 420, and NAACP v. 

Button, 371 U.S. 415, 427 (1963)). 

 For a while, the Sixth Circuit extended England beyond cases of federal abstention, in 

order to permit a plaintiff to reserve federal claims—and thereby avoid the Rooker-Feldman 

doctrine1

—in cases where the plaintiff is procedurally obligated to bring an initial state court 

1 The Rooker-Feldman, named for Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court 

of Appeals v. Feldman, 460 U.S. 462 (1983), bars a federal district court from exercising subject matter jurisdiction 

over cases “brought by state-court losers complaining of injuries caused by the state-court judgments rendered before 

the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon 

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The doctrine emanates in part from the 

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action. See DLX, Inc. v. Kentucky, 381 F.3d 511, 523, n.9 (6th Cir. 2004) (given that state 

court action is a condition precedent for ripeness of a federal takings claim, claim preclusion 

does not bar subsequent federal takings action where plaintiff reserved federal claims in the 

state court proceeding) (internal citation omitted). The DLX extension, however, has been 

abrogated: 

Appellants argue that our opinion in DLX means that, in the Sixth 

Circuit, claims properly reserved under England are not subject to 

claim preclusion when litigants are involuntarily forced into state 

court under Williamson. On this point, the Appellants correctly 

characterize our ruling in DLX. However, the Supreme Court in 

San Remo Hotel, L.P. v. City and County of San Francisco, 545 

U.S. 323 (2005), clearly overruled this circuit, along with others, 

with respect to our DLX claim-preclusion exemption. San Remo, 

545 U.S. at 345 (overruling Santini v. Conn. Haz. Waste Mgmt. 

Serv., 342 F.3d 118 (2d Cir. 2003)). The San Remo court held that 

there are no judicial exceptions to the Full Faith and Credit Statute, 

28 U.S.C. § 1738,2

 “simply to guarantee that all takings plaintiffs 

can have their day in federal court.” Id. at 339. “Even when the 

plaintiff's resort to state court is involuntary ... we have held that 

Congress must clearly manifest its intent to depart from § 1738.” Id. 

at 345 (internal quotation marks omitted). When § 1738 applies to 

a state court decision, both issue preclusion and claim preclusion 

apply. “This statute has long been understood to encompass the 

doctrines of res judicata, or ‘claim preclusion,’ and collateral 

estoppel, or ‘issue preclusion.’” Id. at 336 (citing Allen v. McCurry, 

449 U.S. 90, 94–96 (1980)). The preclusion doctrines under § 1738 

apply to subsequent litigation in federal court to the same extent that 

they would in the state courts in which the judgment was rendered. 

See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 

(1984). 

provisions of 28 U.S.C. § 1257(a) to hold that federal appellate jurisdiction over a state court decision lies exclusively 

with the Supreme Court, and not lower federal courts. Abbott v. Michigan, 474 F.3d 324, 330 (6th Cir. 2007) (noting 

that “the proper course of action” when a plaintiff complains of an injury directly caused by a state-court judgment “is 

to appeal the judgment through the state-court system and then to seek review by writ of certiorari from the U.S. 

Supreme Court.”). 

2 “The ... judicial proceedings of any court of any such State...shall have the same full faith and credit in every court 

within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, 

Territory or Possession from which they are taken.” 28 U.S.C. § 1738 (West) 

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Lumbard v. City of Ann Arbor, 913 F.3d 585, 589–90 (6th Cir.), cert. denied, 140 S. Ct. 267, 

205 L. Ed. 2d 133 (2019). The Rooker-Feldman doctrine is jurisdictional. Exxon Mobil 

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). 

 Thus, 

under the Full Faith and Credit Act, 28 U.S.C. § 1738, federal courts 

must give a prior adjudication by a state court the same preclusive 

effect that it would have under the law of the state whose court 

issued the judgment. See Migra v. Warren City Sch. Dist. Bd. of 

Educ., 465 U.S. 75, 80–81 (1984); Lumbard v. City of Ann Arbor, 

913 F.3d 585, 590 (6th Cir. 2019). “When [28 U.S.C.] § 1738 

applies to a state court decision, both issue preclusion [collateral 

estoppel] and claim preclusion [res judicata] apply.” Lumbard, 913 

F.3d at 590 (citing San Remo Hotel, L.P. v. City & Cty. of San 

Francisco, 545 U.S. 323, 336 (2005)). Accordingly, a judgment in 

[a] state court[] has the same claim preclusive effect in federal court 

that the judgment would have in [that state’s] courts. Migra, 465 

U.S. at 85; Hutcherson v. Lauderdale Cty., Tenn., 326 F.3d 747, 758 

(6th Cir. 2003). 

West v. Parker, 783 F. App'x 506, 511-12 (6th Cir.), cert. denied, 140 S. Ct. 25, 204 L. Ed. 2d 

1181 (2019) (Boggs, J.). 

 In Ohio, res judicata involves both claim preclusion and 

issue preclusion. Grava v. Parkman Township, 73 Ohio St.3d 379, 

381, 653 N.E.2d 226 (1995). Under claim preclusion, a valid, final 

judgment on the merits bars all subsequent actions based on any 

claim arising out of the transaction or occurrence that was the 

subject matter of the previous action. Kirkhart v. Keiper, 101 Ohio 

St. 3d 377, 378, 2004-Ohio-1496, 805 N.E.2d 1089. Claim 

preclusion not only bars claims and defenses that were actually 

brought in the prior action, but also those that were part of the same 

transaction or occurrence that could have been brought. Grava, 73 

Ohio St. 3d at 382, 653 N.E.2d 226; Kocinski v. Reynolds, 6th Dist. 

Lucas No. L-99-1318, 2000 WL 1132778, at *2, 2000 Ohio App. 

LEXIS 3595, *4 (Aug. 11, 2000). “Transaction” is defined as a 

“common nucleus of operative facts.” Grava, 73 Ohio St. at 382. 

* * * * * * * * * 

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Along with claim preclusion, collateral estoppel operates to uphold 

the past determinations of issues and claims by courts, preserving 

resources, promoting judicial economy and reducing the possibility 

of inconsistent decisions. Montana v. United States, 440 U.S. 147, 

153-54 (1979). 

Hake v. Simpson, No. 3:17-CV-420, 2018 WL 3973098, at *5 (S.D. Ohio Aug. 20, 2018), 

aff'd, 770 F. App'x 733 (6th Cir. 2019) (Rose, J.). 

 Here, the Ohio appellate court summarized the constitutional claims raised in the 

assignments of error in state court: 

III. The Ohio State Liquor control commission's decision is 

unconstitutional because it is overbroad and cannot be reconciled 

with other penalties for more serious violations. 

IV. The Ohio State Liquor Control Commission's penalty violates 

the appellant's 8th Amendment rights by being overwhelmingly 

excessive. 

ECF 1-5, PageID 32. 

 Plaintiff received a valid, final judgment on the merits of these claims, when the court 

rejected them. This bars all subsequent actions based on any claim arising out of the 

transaction or occurrence that was the subject matter of the previous action. Kirkhart v. 

Keiper, 101 Ohio St.3d 377, 378, 2004-Ohio-1496, 805 N.E.2d 1089. The claims and 

defenses that were actually brought in Plaintiff’s state-court action are barred, as well as 

those that were part of the same transaction or occurrence that could have been brought. 

Grava, 73 Ohio St. 3d at 382, 653 N.E.2d 226. This includes WCI’s due-process, takings 

and Eighth-Amendment claims. In short, WCI’s III, IV, V, VII and VIII claims are barred.3 

3 Plaintiff’s claims would be barred even without the holding of San Remo Hotel, as a review of the record reveals 

that Plaintiff did not make a valid England reservation. While Plaintiff formally invoked England, Plaintiff 

proceeded to actively litigate the claims it brings to this forum. Windsor requires informing the state court of the 

federal claims that will be subsequently brought, so that questions of state law can be made with an eye to those 

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 While Plaintiff asserts their claims survive Rooker-Feldman, they would still face 

jurisdictional hurdles. Under the Eleventh Amendment to the U.S. Constitution, a state and 

its agencies may not be sued in federal court, regardless of the relief sought, unless the state 

has waived its immunity or Congress has overridden it. See Puerto Rico Aqueduct & Sewer 

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (“This [Eleventh Amendment] 

withdrawal of jurisdiction effectively confers an immunity from suit. Thus, ‘this Court has 

consistently held that an unconsenting State is immune from suits brought in federal courts 

by her own citizens as well as by citizens of another State.’”) (quoting Edelman v. Jordan, 

415 U.S. 651, 662–663 (1974)); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 

120 (1984) (“[I]f a lawsuit against state officials under 42 U.S.C. § 1983 alleges a 

constitutional claim, the federal court is barred from awarding damages against the state 

treasury even though the claim arises under the Constitution. Similarly, if a § 1983 action 

alleging a constitutional claim is brought directly against a State, the Eleventh Amendment 

bars a federal court from granting any relief on that claim.”) (citation omitted); Alabama v. 

challenges. A party my not, however, claim to be merely fulfilling Windsor, and proceed to list the “reserved” 

federal claims in the assignments of error. Trafalgar Corp. v. Miami Cty. Bd. of Comm'rs, 519 F.3d 285, 287–88 (6th 

Cir. 2008) (“because Trafalgar asserted federal issues in its complaint at the state court level, it cannot now claim to 

have reserved its federal causes of action for subsequent litigation in federal court under DLX or England.”). See 

also, Appellate Brief, filed Dec. 10, 2015, and Notice of Appeal, field September 10, 2015, WCI, Inc. v. Ohio State 

Liquor Control Comm., 15-cv-7970, 16AP-72, 2016-Ohio-4778, 68 N.E.3d 250 (10th Dist. Ct. App. 2016) available 

at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/. A court may sua sponte take notice of another court's 

order for the limited purpose of recognizing the subject matter of the litigation. Auto-Owners Ins. Co. v. Morris, 191 

F. Supp. 3d 1302, 1304–05 (N.D. Ala. 2016) (citing United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) and 

Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992)). 

 Plaintiff cannot avoid res judicata by means of a talismanic invocation of England. 

Anderson v. Charter Twp. of Ypsilanti, 266 F.3d 487, 497 (6th Cir. 2001) (“His argument on appeal to the Michigan 

Court of Appeals thus went far beyond the limited-notice requirement of Windsor. Anderson therefore waived his 

right to pursue these claims in federal court, despite the district court's retention of the federal claims.”). 

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Pugh, 438 U.S. 781, 782 (1978) (“There can be no doubt, however, that suit against the State 

and [one of its departments] is barred by the Eleventh Amendment, unless [the State] has 

consented to the filing of such a suit.”). Not only does this independently wipe out 

Plaintiff’s claims for monetary damages, it would do away with declaratory and prospective 

injunctive relief. 

 Plaintiff points out an exception to the Eleventh Amendment bar, “a federal court 

may, without violating the Eleventh Amendment, issue a prospective injunction against a 

state officer to end a continuing violation of federal law.” Ex Parte Young at 203 U.S. at 159; 

Wolfel v. Morris, 972 F.2d 712, 719 (6th Cir. 1992) (“[T]he eleventh amendment is not a bar 

to injunctive relief against the defendants in their official capacities.”); Verizon Md., Inc. 

PSC, 535 U.S. 635, 645 (2002) (“In determining whether the doctrine of Ex Parte Young

avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward 

inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks 

relief properly characterized as prospective.’”) citing Idaho v. Coeur d’Alene Tribe of Idaho, 

521 U.S. 261, 296 (1997). 

However, declaratory and injunctive relief against State officials sued in their official 

capacities should not be granted where the future injury is speculative or may never occur. See 

Kallstrom v. City of Columbus, 136 F.3d 1055, 1072 (6th Cir. 1998); see also Ford v. 

Department of Justice, 6th Cir. Case No. 98-5495, 1999 U.S. App. LEXIS 13302 *4 (June 11, 

1999). A plaintiff must “show that future harm to him is certainly impending.” Buckley v. 

Ray, 848 F.3d 855, 867 n.10 (8th Cir. 2017) (Emphasis in original). A likelihood of 

repetition must be shown. Id. 

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 WCI’s threat of facing unfair sanctions remains speculative and unlikely to occur, 

because sanctions do not arise until a violation is found. WCI’s complaint details several 

measures it has taken to avoid future liquor violations, suggesting that it will not violate again. 

Comp., ¶¶23-28, ECF 1, PageID 5-6. “A claim is not ripe for adjudication if it rests upon 

contingent future events that may not occur as anticipated, or indeed may not occur at all.” 

Texas v. United States, 523 U.S. 296, 300 (1998). Read in its entirety, the Complaint alleges 

that WCI will not violate Rule 52 in the future. WCI’s request for a prospective injunction is 

not ripe for adjudication because it rests upon contingent future events that may not occur as 

anticipated or, as is more likely the case, may not occur at all. Compare Berry v. Schmitt, 688 

F.3d 290, 297 (6th Cir. 2012) (“warning letter implied a threat of future enforcement that 

elevated the injury from subjective chill to actual injury.”). Thus, declaratory and 

prospective injunctive relief is not available due to the absence of an imminent threat. 

 Finally, the Court will consider Plaintiff’s custom and practice claims.4

 Under 

Article III, “this court only possesses jurisdiction over actual cases and controversies that will 

affect the rights of the litigants.” Marquart v. McGinnis, 22 F. App’x 383, 384 (6th Cir. 2001), 

citing, Rosales-Garcia v. Holland, 238 F.3d 704, 713 (6th Cir. 2001). The Complaint does 

not allege that WCI itself will be affected in the future by the claimed “custom[s] and 

practice[s]” on the part of the Commission. Indeed, the state court has ruled that Plaintiff’s 

rights were not violated in the instant case. 

4 The Sixth Circuit has affirmed dismissal of the only claim to mention “customs and practices.” WCI, Inc. v. Ohio 

Dep't of Pub. Safety, 774 F. App'x 959, 967 (6th Cir. 2019) (“We AFFIRM the district court’s decision as to Counts I, 

II, and VI of WCI’s complaint.”). They are also barred by Rooker-Feldman , but the Court will address Plaintiff’s 

argument that they survive, underlying other claims. 

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Nevertheless, the Sixth Circuit, after instructing the Court to consider the England 

reservation, stated “On remand, the district court is instructed that WCI has a property interest 

in its Ohio liquor license. This district court must consider, under the framework of 

Mathews, [v. Eldridge, 424 U.S. 319, 335 (1976)] whether Ohio provided sufficient 

procedural protection to satisfy the requirements of due process.” WCI, 774 F. App’x at 965. 

The Sixth Circuit has repeatedly ruled that Ohio Rev. Code Chapter 119 satisfies procedural 

due process: Comsia v. Mangnone, No. 85-4060, 1987 WL 35877 *1 (6th Cir. 1987) (“The 

State of Ohio provides an adequate post-deprivation proceeding for the plaintiff to pursue 

which satisfies the requirements of procedural due process.”); Haddix v. Simon, 84-3951, 

1986 WL 16826 *1 (6th Cir. 1986) (“the State of Ohio has provided meaningful predeprivation and post-deprivation remedies for one adversely affected by decisions of the State 

of Ohio Liquor Control Commission.”).5

 Nothing has changed with regard to this question.6 

5 “Federal courts, in adopting rules, are not free to extend the judicial power of the United States described in Article 

III of the Constitution. Willy v. Coastal Corp., 503 U.S. 131, 135 (1992). The judicial power of the United States is 

limited by the doctrine of precedent.” Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir.), opinion vacated as 

moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). “Following from the limitation of rule making about matters 

of substance, even nonprecedential status rules made by federal courts pursuant to their inherent Article III power 

would arguably be ultra vires.” Penelope Pether, Constitutional Solipsism: Toward A Thick Doctrine of Article III 

Duty; or Why the Federal Circuits' Nonprecedential Status Rules Are (Profoundly) Unconstitutional, 17 Wm. & Mary 

Bill Rts. J. 955, 996 (2009). 

6 Additionally, Defendant Thomas Stickrath, the Director of the Ohio Department of Public Safety (substituted 

automatically for previous Director John Born), is DISMISSED. See Complaint (“Comp.”), ¶ 2. There are no 

allegations against the Director of Public Safety. The Report and Recommendation made no recommendation 

as regards the motion to dismiss him, possibly overlooking this because Plaintiff did not oppose it. Ohio law 

defines Stickrath’s authority, see, e.g., Ohio Revised Code §§ 5502.01 & 5502.011, and no provision authorizes 

Stickrath or any of his agents in the Department of Public Safety to impose penalties on liquor permit holders 

for violations of Ohio liquor control law. The Department investigates and present charges to the Commission, 

which adjudicates and imposes penalties. The Complaint thus states no viable claim against him. 

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A Report and Recommendation, (ECF 25), would have the Court grant in part 

Defendants’ Motion to Dismiss for Lack of Jurisdiction (ECF 22) under Rule 12(b)(1), 

dismiss WCI’s claims for monetary damages as barred under Fed. R. Civ. P. 12(b)(1) by the 

Eleventh Amendment; and otherwise deny Defendants’ Motion to Dismiss for Lack of 

Subject Matter Jurisdiction (ECF 22) under Rule 12(b)(1). For the reasons stated above, 

the Report and Recommendations of the Magistrate Judge, (ECF 25) is REJECTED. 

Plaintiff’s Objection to the Report and Recommendation (ECF 28) is OVERRULED. 

Defendants’ Objection to the Report and Recommendation (ECF 27) is SUSTAINED. 

Defendants’ Motion to Dismiss for Lack of Jurisdiction (ECF 22) is GRANTED. 

The instant case is TERMINATED on the dockets of the United States District 

Court for the Southern District of Ohio, Western Division at Dayton. 

DONE and ORDERED this 30th day of July, 2020. 

s/THOMAS M. ROSE 

__________________________________ 

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE 

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