UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

California Pacific Hospitality, et al.,

Plaintiffs, Case No. 1:18cv294

v. Judge Michael R. Barrett

City of Norwood, Ohio,

Defendant.

OPINION & ORDER 

This matter is before the Court upon the Motion for Judgment on the Pleadings 

filed by Defendant City of Norwood (Doc. 6). Plaintiffs have filed a Response in 

Opposition (Doc. 9); and Defendant filed a Reply (Doc. 11). Also before the Court is 

Plaintiffs California Pacific Hospitality, LLC and Brahma Investment Groups, Inc,’s Motion 

for Writ of Mandamus (Doc. 8); and Defendant’s Response in Opposition. (Doc. 12).

I. BACKGROUND

For purposes of these Motions, there is little dispute between the parties as to the 

facts of this case and a related case: Berkowitz v. Brahma Investment Group Inc., Case 

No. 1:14cv453. Berkowitz arose out of a verified petition filed in the Hamilton County 

Court of Common Pleas by the law director for the City of Norwood pursuant to Ohio 

Revised Code § 3767.02, et seq. (the “Nuisance Action”). The law director sought to 

have a hotel owned by Plaintiffs California Pacific Hospitality, LLC (“Cal Pac”) and 

Brahma Investment Group, Inc. declared a public nuisance due to the illegal drug activity 

and prostitution which was occurring on the property. The Hamilton County Court of 

Common Pleas entered an ex parte Temporary Restraining Order and closed the 
2

property. The Nuisance Action was then removed to this Court. This Court found that it 

had subject matter jurisdiction based on diversity of citizenship. Brahma then brought the 

following counterclaims: (1) discrimination in violation of 42 U.S.C. §§ 1981 and 1985; (2) 

violation of 42 U.S.C. § 1983; (3) violation of due process based on the failure to name 

CalPac in the Nuisance Action; (4) and conversion of their property rights under the Ohio 

Constitution.

On appeal, the Sixth Circuit affirmed this Court’s dismissal of Brahma’s 

counterclaims and also affirmed this Court’s dismissal of the state-nuisance claims. Ohio 

ex rel. Moore v. Brahma Inv. Grp., Inc., 723 F. App'x 284, 289 (6th Cir. 2018). In doing 

so, the Sixth Circuit rejected CalPac and Brahma’s challenge to the state court’s order 

granting the preliminary injunction because that order was moot:

as the district court noted, it expired on June 1, 2015, per statutory fiat. See

Ohio Rev. Code § 3767.06(A). We therefore lack jurisdiction over this claim. 

See Univ. of Tex. v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 68 

L.Ed.2d 175 (1981). Furthermore, Appellants also lack standing, because 

as of December 9, 2015, they no longer had any ownership interest in the 

property. See Brownlow v. Schwartz, 261 U.S. 216, 217-18, 43 S.Ct. 263, 

67 L.Ed. 620 (1923).

Id. at 288.

The present action was removed from Hamilton County Court of Common Pleas. 

In their Complaint, Plaintiffs asserted jurisdiction under the following statutes: Ohio 

Revised Code §§ 2744, 3767.03; the Fourth, Fifth, and Fourteenth Amendments to the 

United States Constitution; 42 U.S.C. § 1981, 1983, 1985 and 1988; and the Ohio 

Constitution. (Doc. 4). Plaintiffs sought the following relief: a preemptory writ of 

mandamus compelling Norwood/Defendant-Respondent to initiate appropriation 

proceedings to compensate Plaintiffs for the taking of their property rights; and in the 
3

alternative, an alternative writ of mandamus requiring Norwood/Defendant-Respondent 

to show cause why it should not be ordered and compelled to initiate appropriation 

proceedings to compensate Plaintiffs for the taking of their property rights.

Plaintiffs have now clarified that the citation to 42 U.S.C. § 1981, 1983, 1985 and 

1988 in their Complaint was an error. Plaintiffs state that the only claims they intended 

to bring are a taking claim and a claim for damages pursuant to Ohio Revised Code § 

3767.03(A). Plaintiffs have also brought a motion asking this Court to issue a writ of 

mandamus compelling the City of Norwood to initiate appropriation proceedings to 

compensate CalPac and Brahma for the City’s temporary taking of their property.

Defendant argues that Plaintiffs’ claims should be dismissed and Plaintiffs’ Motion 

for Writ of Mandamus is procedurally defective and premature.

II. ANALYSIS

1. Motion for Judgment on the Pleadings

The standard of review for a Rule 12(c) motion is the same as for a motion under 

Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Fritz v. Charter 

Tp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). "For purposes of a motion for 

judgment on the pleadings, all well-pleaded material allegations of the pleadings of the 

opposing party must be taken as true, and the motion may be granted only if the moving 

party is nevertheless clearly entitled to judgment." Id. (quoting JPMorgan Chase Bank, 

N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)). The factual allegations in the 

complaint need to be sufficient to give notice to the defendant as to what claims are 

alleged, and the plaintiff must plead "sufficient factual matter" to render the legal claim 

plausible, i.e., more than merely possible. Id. (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 
4

1949-950 (2009)). Although the plausibility standard is not equivalent to a “’probability 

requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Ashcroft, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 

556 (2007)).

2. Constitutional taking claim

Plaintiffs argue that they were innocent owners, and therefore the closure of their 

property under Ohio Revised Code § 3767.06(A) constituted a taking. To the extent that 

Plaintiffs are bringing a taking claim under the Fifth Amendment,1 a federal court may 

hear a takings claim only after two criteria are met: (1) plaintiff must demonstrate that he 

or she received a “final decision” from the relevant government; and (2) the plaintiff must 

have sought “compensation through the procedures the State has provided for doing so.” 

Hensley v. City of Columbus, 557 F.3d 693, 696 (6th Cir. 2009) (quoting Williamson, 473 

U.S. at 186-87, 194). In Ohio, a mandamus action is “the vehicle with which to contest 

an involuntary taking.” River City Capital, L.P. v. Bd. of Cty. Comm'rs, Clermont Cty., 

Ohio, 491 F.3d 301, 307 (6th Cir. 2007).

There is no dispute that Plaintiffs failed to request mandamus before filing their 

motion in this Court. Therefore, any claim under the Fifth Amendment not yet ripe for 

review and this court lacks jurisdiction to hear Plaintiffs' taking claim under the 

Constitution. Coles v. Granville, 448 F.3d 853, 865 (6th Cir. 2006); see also Williamson 

Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, n.13, 

 1

However, Plaintiffs disavow any claim under 42 U.S.C. § 1983, which would be a proper 

vehicle for bringing a constitutional taking claim under the Fifth Amendment. See River City 

Capital, L.P. v. Bd. of Cty. Comm'rs, Clermont Cty., Ohio, 491 F.3d 301, 306 (6th Cir. 2007) 

(explaining that “the Takings Clause—in conjunction with 42 U.S.C. § 1983, the remedial statute 

with which it is often paired—would seem to provide a clear hook for federal question jurisdiction 

under Article III.”).
5

105 S. Ct. 3108, 3121, 87 L. Ed. 2d 126 (1985) (explaining that “because the Fifth 

Amendment proscribes takings without just compensation, no constitutional violation 

occurs until just compensation has been denied. The nature of the constitutional right 

therefore requires that a property owner utilize procedures for obtaining compensation 

before bringing a § 1983 action.”). Accordingly, any constitutional taking claim brought 

by Plaintiffs is DISMISSED without prejudice.

2

3. Ohio Revised Code § 3767.03

Plaintiffs also seem to be bringing a “taking” claim pursuant to Ohio Revised Code 

§ 3767.03. The state-law nuisance action in this case was brought pursuant to Ohio 

Revised Code § 3767.03, which provides that the city law director has the power to bring 

an action in equity to abate a nuisance and “to perpetually enjoin the person maintaining 

the nuisance from further maintaining it.” However, the statute also provides:

If it is finally decided that an injunction should not have been granted or if 

the action was wrongfully brought, not prosecuted to final judgment, 

dismissed, or not maintained, the defendant shall have recourse against the 

bond for all damages suffered, including damages to the defendant's 

property, person, or character, and for the reasonable attorney's fees 

incurred by the defendant in defending the action.

Ohio Rev. Code § 3767.03. Therefore, Ohio Revised Code § 3767.03 authorizes a court 

to award damages and reasonable attorney’s fees upon a finding that the injunction or 

nuisance action was wrongfully brought, not prosecuted to final judgment, dismissed, or 

not maintained. However, as one Ohio court has explained:

These provisions limit the amount of the awards to the amount of the bond, 

and limit a defendant's recourse on those awards to a proceeding against 

the bond the plaintiff posted. In this respect R.C. 3767.03 is similar to the 

 2

The Court notes that it may properly consider the ripeness of Plaintiffs' constitutional 

taking claim because ripeness is an aspect of subject matter jurisdiction and may be raised sua

sponte. Lytle v. Potter, 480 F. Supp. 2d 986, 991 (N.D. Ohio 2006) (citing Arnett v. Myers, 281 

F.3d 552, 562 (6th Cir. 2002)).
6

like provisions of Civ.R. 65(C) which, because a defendant can always ask 

the court to increase a bond the plaintiff posted if the defendant believes the 

amount posted is insufficient to cover his potential damages, limits a 

defendant's recovery of damages and attorneys fees to the amount of the 

bond posted. Professional Investigations and Consulting Agency, Inc. v. 

Kingsland (1990), 69 Ohio App.3d 753, 591 N.E.2d 1265, (per McCormac, 

J.).

Shuttleworth v. Knapke, 2003 WL 588598 (Ohio Ct. App. 2003). 

When the preliminary injunction in the Nuisance Action was entered by the Court 

of Common Pleas, the court did not enter an order for the payment of a bond. (Doc. 1-

16). Therefore, it is unclear what recourse Plaintiffs would have under Ohio Revised 

Code § 3767.03. Moreover, when ruling on the motion to dismiss the state-law Nuisance 

Claim in Berkowitz v. Brahma Investment Group Inc., this Court noted that Brahma 

agreed that the state-law nuisance claim and demand for injunctive relief were moot, and 

did not oppose the Court’s dismissal of the Nuisance Action on that basis. (Case No. 

1:14cv453, Doc. 103, PAGEID# 1606). Therefore, any claim Plaintiffs are bringing to 

pursuant to Ohio Revised Code § 3767.03 are DISMISSED.

4. Mandamus

In their request for relief in the Complaint and in the Motion for a Writ of Mandamus, 

Plaintiffs ask this Court to issue a writ of mandamus compelling the City of Norwood to 

initiate appropriation proceedings to compensate CalPac and Brahma for the City’s 

temporary taking of their property. 

“Although Federal Rule of Civil Procedure 81(b) ‘abolished’ the writ of mandamus, 

the All Writs Statute, 28 U.S.C. § 1651, empowers federal courts to ‘issue all writs in aid 

of their respective jurisdictions, including writs in the nature of mandamus.’” State ex rel. 

Skaggs v. Brunner, 588 F. Supp. 2d 828, 833 (S.D. Ohio 2008) (quoting Haggard v. 
7

Tennessee, 421 F.2d 1384, 1385 (6th Cir. 1970)). When a court sits in diversity, it can 

issue a writ of mandamus that Ohio courts are able to grant. Vary v. City of Cleveland, 

206 F. Supp. 3d 1273, 1277 (N.D. Ohio 2016).

The applicable statute in Ohio provides: “Application for the writ of mandamus must 

be by petition, in the name of the state on the relation of the person applying, and verified 

by affidavit. The court may require notice of it to be given to the defendant, or grant an 

order to show cause why it should not be allowed, or allow the writ without notice.” Ohio 

Rev. Code § 2731.04. The Ohio Supreme Court has made it clear that an action in 

mandamus may not be commenced by motion. Myles v. Wyatt, 62 Ohio St.3d 191, 580 

N.E.2d 1080 (Ohio 1991) (per curiam). Therefore, Plaintiffs’ Motion for a Writ of 

Mandamus is DENIED.

Even if the Court could construe Plaintiffs’ request for a writ of mandamus in the 

Complaint as being proper, this Court adopts the reasoning in Vary v. City of Cleveland, 

206 F. Supp. 3d 1273, 1279 (N.D. Ohio 2016) and concludes that abstention is proper. 

Accordingly, this matter should be remanded to state court. Accord Quackenbush v. 

Allstate Ins. Co., 517 U.S. 706, 721, 116 S. Ct. 1712, 1723, 135 L. Ed. 2d 1 (1996).

III. CONCLUSION

Based on the foregoing, it is hereby ORDERED that:

1. Defendant City of Norwood’s Motion for Judgment on the Pleadings (Doc. 6) is 

GRANTED in PART and DENIED in PART;

 

2. Plaintiffs California Pacific Hospitality, LLC and Brahma Investment Groups, 

Inc,’s Motion for Writ of Mandamus (Doc. 8) is DENIED;
8

3. This matter is remanded to the Hamilton County Court of Common Pleas.

IT IS SO ORDERED. 

 

/s/ Michael R. Barrett

JUDGE MICHAEL R. BARRETT