UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

BLUE ROCK INVESTMENTS, LLC, et 

al.,

Plaintiffs,

vs.

CITY OF XENIA, et al.,

Defendants.

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Case No. 3:17-cv-00409

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

The Complaint in the present case alleges that Plaintiff Blue Rock Investments, 

LLC leases the Towne Square Shopping Center from the City of Xenia, Ohio; the City 

owns title to the parcel of land on which the Shopping Center sits; and Blue Rock owns 

several commercial buildings that make up the Shopping Center, including the Fulmer’s 

Building. (Doc. #1, ¶s 25-33). Sometime in late 2016 or January 2017, the City 

contracted with Badger Construction Co., Inc. to demolish the building next door to the 

Fulmer’s Building as part of a shopping-center redevelopment. See Doc. #10, ¶53; Doc. 

#26, ¶17. Blue Rock and another Plaintiff—Boymel Family, LLC—allege that the 

demolition damaged the Fulmer’s Building’s foundation, compromised its structural 

integrity, and left behind giant holes in a wall that exposed its interior to mother nature’s 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

ire. Burst water pipes and damage to the Fulmer’s building’s fire-suppression system

followed, according to Plaintiffs’ Complaint.

Plaintiffs assert that the City has continuously refused to fix—or pay for repairs 

to—the Fulmer’s Building, and that the building remains exposed to the elements and 

structurally unsound. Plaintiffs allege that the City wants to demolish the Fulmer’s 

Building, rather than repair it, so the shopping-center redevelopment can move forward. 

And Plaintiffs report that the City attempted to coerce them into selling their interest in 

the Fulmer’s Building initially by threatening, later by citing, them with maintenancecode and fire-code violations—which the City itself caused—and by extending to 

Plaintiffs a “low-ball” offer to buy the Fulmer’s Building.

Plaintiffs bring the present case against the City under 42 U.S.C. § 1983 claiming 

that it violated their rights under the First Amendment (retaliation), Fourth Amendment 

(unreasonable seizure of property), and Fourteenth Amendment (substantive due 

process). They also advance two state-law claims against the City: breach of contract–

quiet enjoyment, and negligence. They do not assert a freestanding claim that the City 

has denied it just compensation for a taking in violation of the Fifth and Fourteenth 

Amendments’ Takings Clause.

The case is presently pending on the City’s Motion for Partial Judgment on the 

Pleadings and the parties’ related Memoranda. (Doc. #s 31, 32, 34, 39).

II. Motions for Judgment on the Pleadings

The City’s Rule 12(c) Motion requires the Court to “‘construe the Plaintiffs’

complaint in the light most favorable to them, and accept the complaint’s allegations as 
3

true, drawing all reasonable inferences in favor of the Plaintiffs.’” Bullington v. Bedford 

County, 905 F.3d 467, 469 (C.A.6 (Tenn.), 2018) (citations omitted). The Complaint’s 

factual allegations “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.” Fritz v. Charter Tp. of Comstock, 592 

F.3d 718, 722 (6th Cir. 2010) (quoting, in part, Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 

1937, 1949-50 (2009)). “‘[A] legal conclusion couched as a factual allegation’ need not 

be accepted as true..., nor are recitations of the elements of a cause of action 

sufficient.” Id. (citations omitted).

A Rule 12(c) “motion may be granted only if the moving party is ... clearly 

entitled to judgment.” Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 

2008) (citation omitted). A party is clearly entitled to judgment under Rule 12(c) “if 

there is an absence of law to support a claim of the type made or of facts sufficient to 

make a valid claim, or if on the face of the complaint there is an insurmountable bar to 

relief indicating that the plaintiff does not have a claim.” Mayrides v. Delaware County 

Comm'rs, 666 F.Supp.2d 861, 866 (S.D. Ohio 2009) (Marbley, D.J.) (citation omitted).

III. Plaintiffs’ Federal Claims Against The City

A. 42 U.S.C. § 1983

To state a § 1983 claim—as Plaintiffs strive to do—their Complaint must 

plausibly allege that a person under color of state law deprived them “of a right secured 

by the Constitution or laws of the United States.” Burley v. Gagacki, 729 F.3d 610, 619 

(6th Cir. 2013) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.
4

2006)). The City is considered a “person” under § 1983 and is therefore exposed to 

potential § 1983 liability. See Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997).

“[A] governmental entity is liable under § 1983 only when the entity itself is a

‘moving force’ behind the deprivation.” Kentucky v. Graham, 473 U.S. 159, 166, 105 

S.Ct. 3099, 3105 (1985) (citations omitted); see Heyerman v. County of Calhoun, 680 

F.3d 642, 648 (6th Cir. 2012) (“Municipal liability only attaches where a custom, policy, 

or practice attributable to the municipality was the ‘moving force’ behind the violation of 

the plaintiff’s constitutional rights.”).

B. Counts One and Two

Plaintiffs claim in Count One that the City violated their right to petition the 

government for redress of grievances by retaliating against them because they engaged in 

two activities the First Amendment protects. Plaintiffs’ first protected activity occurred 

when they asked the City to redress the damage it had caused to the Fulmer’s Building. 

(Doc. #1, ¶95). Plaintiffs’ second protected activity occurred when they refused to accept 

the City’s offer to buy the Fulmer’s Building at a distressed price. Id.

The City allegedly retaliated against Plaintiffs for these protected activities by 

invoking and abusing its “Code Enforcement process to issue the Notice of violation for 

issues the City itself caused.” Id. at ¶96. Plaintiffs claim, “The City’s retaliatory actions 

against Blue Rock would, in their totality, ordinarily chill or deter someone from 

exercising one’s First Amendment right of access to petition the government for the 

redress of grievances.” Id. at ¶97.

In Count Two, Plaintiffs advance a substantive-due-process claim based on the 
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theory that the City arbitrarily and capriciously damaged the Fulmer’s Building, refused 

to repair it, attempted to buy it at a “low-ball” price, and issued a retaliatory notice of 

code violations to Plaintiffs only after they refused the City’s low-ball bid to buy the 

Fulmer’s Building. Plaintiffs explain that they have unsuccessfully appealed the 

retaliatory citations to the Board of Zoning Appeals. Id. at ¶s 91-92. And, Plaintiffs 

allege, “The City’s action was not only a coercive tactic but was also a misuse of the 

City’s Enforcement powers. The City’s acts have been arbitrary, capricious, willful, and 

without regard to the facts and circumstances of this case.” Id. at ¶103(g)-(h). Plaintiffs’ 

substantive-due-process claims rests on the principle that “a substantive due process 

violation occurs when arbitrary and capricious government action deprives an individual 

of a constitutionally protected property interest.” Warren, 411 F.3d at 707; see 

Keymarket of Ohio, LLC v. Keller, 2013 WL 6000922, at *8 (S.D. Ohio 2013). 

The City contends that Plaintiffs’ Counts One and Two are not ripe because the 

claims are, in reality, a restyled Fifth Amendment takings claim subject to the mandate 

of Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 

U.S. 172, 105 S.Ct. 3108 (1985), which describes how a Fifth Amendment regulatory 

takings claim becomes ripe for federal judicial review. More on Williamson follows.

C. The Fifth Amendment and Ripeness

“The Fifth Amendment’s Takings Clause prohibits appropriation of private 

property for public use only where just compensation is not paid.” Peters v. Fair, 427 

F.3d 1035, 1037 (6th Cir. 2005) (citations omitted); see Chicago Burlington & Quincy 

R.R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581 (1897) (holding that the Takings
6

Clause applies to the states). “Any takings claim is not ripe until plaintiffs have sought 

just compensation by available state procedure.” Peters, 427 F.3d at 1037 (citing 

Williamson, 473 U.S. at 194, 105 S.Ct. 3108).

“The Takings Clause’s purpose is ‘not to limit the governmental interference with 

property rights per se, but rather to secure compensation in the event of otherwise proper 

interference amounting to a taking.’ Consequently, ‘a State does not violate the Takings 

Clause ‘until it refuses to compensate the owner.’” Wayside Church v. Van Buren 

County, 847 F.3d 812, 817 (6th Cir. 2017) (citations omitted) (italics in original); see 

Williamson, 473 U.S. at 194-95 (Fifth Amendment does not proscribe taking; “it 

proscribes taking without just compensation.”). A plaintiff “satisfies its duty to seek just 

compensation by pursuing ‘reasonable, certain, and adequate procedures’ for obtaining 

compensation.” Coles v. Granville, 448 F.3d 853, 861 (6th Cir. 2006) (quoting, in part, 

Williamson, 473 U.S. at 194) (other citation omitted).

Ohio’s mandamus proceeding constitutes a reasonable, certain, and adequate 

procedure by which a potential-takings plaintiff may seek just compensation. “Over the 

last ten years Ohio courts, including the Ohio Supreme Court, have consistently 

recognized mandamus as the vehicle with which to contest an involuntary taking, no 

matter whether that taking is a regulatory or a physical one, and no matter whether the 

public actor is a state or local entity.” Coles, 448 F.3d at 865; see Cornerstone 

Developers, Ltd. v. Sugarcreek Township, 3:15cv93, 2015 WL 6472260, at *4 (S.D. Ohio

2015) (Rice, D.J.).

The City argues that Plaintiffs’ retaliation and substantive-due-process claims are 
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ancillary to their restyled takings claim or constitute an implied takings claim. According 

to the City, if either argument is correct, Plaintiffs’ takings claim predominates, is unripe, 

and bounces their search for just compensation into state court under Williamson.

Plaintiffs argue that ripeness is not an issue here because they do not bring a 

freestanding or implied Fifth Amendment takings claim, and their substantive due 

process and retaliation claims cannot be ancillary to a takings claim they do not bring.

Although Plaintiffs are correct to point out that their Complaint does not allege a 

freestanding takings claim, they face the problem that “it is not clear why the concept of 

substantive due process should have any place in takings cases....” Montgomery v. 

Carter County, Tenn., 226 F.3d 758, 769 (6th Cir. 2000). 

Because of the highly destructive potential of overextending substantive due 

process protection, see, e.g., Washington v. Glucksberg, 521 U.S. 702, 720, 

117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (explaining the dangers), and 

because the doctrine’s borders are so undefined, the Supreme Court has 

repeatedly cautioned that the concept of substantive due process has no place 

when a provision of the Constitution directly addresses the type of illegal 

governmental conduct alleged by the plaintiff.

Id.; see Warren, 411 F.3d at 706–07 (6th Cir. 2005) (“Supreme Court authority 

subsequent to Williamson ... strongly stresses that substantive due process concepts are 

not available to provide relief when another provision of the Constitution directly 

addresses the type of illegal government conduct alleged by the plaintiff.”). From 

Plaintiffs’ viewpoint, the problem of mixing substantive-due-process claims into takings 

cases is presently insignificant because this is not a takings case. Plaintiffs are incorrect.

“The takings clause itself addresses whether and under what circumstances the 

government may take an individual’s private property, which is why a number of other 
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circuits have concluded that no room is left for the concept of substantive due process.” 

Montgomery, 226 F.3d at 769; cf. Warren, 411 F.3d at 707 (“We therefore decline to 

endorse a substantive due process theory based on a claim that erection of the barriers 

amounted to an unconstitutional taking of property.”). There is wiggle room here 

because the Sixth Circuit declined to hold in Montgomery that it was joining the “number 

of circuits” finding, in the Takings-Clause context, “no room ... left for the concept of 

substantive due process.” Id. The Sixth Circuit did, however, draw one line in the sand: 

“whatever the applicability of the concepts of procedural and substantive due process to 

takings claims, we agree that those concepts may not be used in order to mount an end 

run around the ripeness requirement of Williamson ....” Id.

The possibility of an end run around Williamson’s ripeness requirement is one of 

several pertinent factors to consider when determining whether Plaintiffs’ substantive due 

process claim is a “truly independent claim” or is ancillary to a takings claim. Two 

remaining factors are whether the substantive due process claim (1) stems from an 

immediate and concrete injury, or (2) arises from the same nucleus of facts as the takings 

claim. Monfort Supply Co. v. Hamilton County Bd. of Zoning Appeals, 1:04cv145, 2006 

WL 3692533, at *8 (S.D. Ohio 2006) (Watson, D.J.) (and cases cited therein); cf. Buckles 

v. Columbus Municipal Airport Authority, 90 F. App’x 927, 931 (6th Cir. 2004) (“a 

substantive due process claim that merely restates the more specific claim will not lie.”); 

Choate's Air Conditioning & Heating Inc. v. Light, Gas, Water Division of City of 

Memphis, 16 F. App’x 323, 330 (6th Cir. 2001) (“Choate’s has merely repackaged a 

takings claim as a substantive due process violation for purposes of filing a § 1983 action 
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in federal court.”).

Returning to Plaintiffs’ Complaint, while it is true that they do not advance a 

freestanding Takings-Clause claim, their Complaint describes physical intrusions upon 

and into the Fulmer’s Building when the City’s demolition left holes in an exterior wall

leading to additional damage to the interior fire-suppression system and burst water 

pipes. Plaintiffs, moreover, base their substantive-due-process claim on the allegation 

that “the City’s demolition of the [neighboring] building compromised the foundational 

and structural integrity of, and damaged the Fulmer’s Building.” (Doc. #1, ¶103(b)). 

The Complaint further alleges that the City’s (Badger Construction’s) demolition of the 

building next door to the Fulmer’s Building was part of the City’s plan “to convert Xenia 

Towne Square Shopping Center into an ‘urban, mixed-use plan’ where the current 

shopping center would be chopped up into small squares by new city streets.” (Doc. #1, 

¶4). Plaintiffs continue, “The Fulmer’s Building sits squarely in the path of one of the 

City anticipated streets, such that a substantial portion—if not all of the Fulmer’s 

Building—will have to be demolished and re-constructed to make way for a new road. 

The City has in fact commissioned architectural designs that call for the demolition and 

re-design of the Fulmer’s Building.” Id. at ¶5. While these re-development efforts have 

not yet been fully realized (the Fulmer Building is apparently still standing), the City’s

next-door demolition and resulting damage to the Fulmer’s Building took place in what 

presents as a prototypical Fifth-Amendment-takings scenario—a municipality taking 

private property for the public use as a redeveloped shopping center. Consequently, if the 
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Complaint stopped here, Plaintiffs’ substantive-due-process claim would be a rather 

obvious effort to avoid Williamson and the availability of Ohio’s mandamus action.

See Coles, 448 F.3d at 865; see Cornerstone Developers, 3:15cv93, 2015 WL 6472260, 

at *4. But the Complaint does not stop here. 

The Complaint continues forward in time to describe the City’s alleged postdemolition conduct that Plaintiffs say was coercive, arbitrary, and capricious. Plaintiffs 

contend that their substantive-due-process claim is not ancillary to a takings claim

because it “did not arise until the City employed coercive tactics and misused its 

enforcement powers to compel Blue Rock to sell the Fulmer’s Building at a distressed 

price. It does not arise from the City’s negligent demolition of the Fulmer’s Building or 

the ‘Takings Clause.’” (Doc. #34, PageID #596). 

Plaintiffs’ substantive-due-process claim is not truly independent from a TakingsClause claim. Both claims arise from same nucleus of operative facts—the City’s 

(through Badger Construction) demolition of the building next to the Fulmer’s Building 

and the resulting damage to the Fulmer’s Building. The City’s alleged post-demolition 

conduct would not—indeed, could not—have occurred without the demolition and 

resulting damage to the Fulmer’s Building. Without these operative events, Plaintiffs 

would not have needed to ask the City to repair the damage it had caused, and the City 

would have lacked an opportunity to refuse to repair, or pay for the repairs, of the 

Fulmer’s Building. Without these events, the City would not have had the opportunity to

misuse its enforcement power by threatening Plaintiffs with the code violations and by 

charging Blue Rock with code violations that the City had caused. And, without these 
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events—particularly the damage the City caused to the Fulmer’s Building—the City 

would not have had the opportunity to make its low-ball, distressed-price offer to buy the 

damaged Fulmer’s Building.

Similarly, Plaintiffs’ First Amendment retaliation claim is based on the same 

nucleus of operative facts as a takings claim. Without the demolition and damage to the 

Fulmer Building, Plaintiffs would not have engaged in the protected activities described 

in the Complaint. There would have been no need for them to ask (petition) the City to 

repair the post-demolition damage and no opportunity for Plaintiffs to reject the City’s 

low-ball, distressed-price offer to buy the Fulmer’s Building. The City’s alleged 

retaliatory acts—e.g., abuse of its code-enforcement authority—likewise could not have 

occurred without the demolition and resulting damage that led to the Fulmer’s Building’s 

code violations.

Plaintiffs, moreover, have not alleged an independent harm in support of their 

substantive-due-process claim or retaliation claims. Instead, they generally allege, “Blue 

Rock has suffered and will continue to suffer the deprivation of their vested rights under 

the United States Constitution.” (Doc. #1, ¶s 101, 104). Plaintiffs explain that they are 

not seeking just compensation in this case; they seek an Order compelling the city to stop 

its coercive conduct and placing “Blue Rock in the same position that it would have been 

[in] had the City’s wrongful behavior not occurred.” Id. at 597. The Complaint, 

however, does not bear out these distinctions. Plaintiffs’ Prayer for Relief seeks 

“compensatory ... damages...,” thereby pointing at monetary relief or “just 

compensation,” as the Fifth Amendment says. (Doc. #1, PageID #23).
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More significantly, placing Blue Rock in the same position as it would have 

occupied absent the City’s alleged misconduct leads to the same remedy under a 

substantive-due-process theory or a Takings-Clause theory. Under each theory, Plaintiffs 

would be made whole by the cost of restoring the Fulmer’s Building to its pre-demolition 

value. See Pembaur v. City of Cincinnati, 745 F.Supp. 446, 455 (S.D. Ohio 1990)

(“compensatory damages—'damages grounded in determinations of plaintiffs’ actual 

losses’—are the mechanism by which constitutional deprivations are redressed.”); see 

also Wheeler v. City of Pleasant Grove, 833 F.2d 267, 270-71 (11th Cir. 1987) (“It is 

well settled that in determining the compensation due for a taking, ‘the question is, What 

has the owner lost?’” (quoting, in part, Boston Chamber of Commerce v. City of 

Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 460 (1910))).

In addition to same nucleus of operative facts, Plaintiffs’ retaliation and 

substantive-due-process claims attempt to mount an end run around Williamson’s

ripeness requirement. This is seen in the absence of a Takings-Clause claim from the 

Complaint that, as observed above, alleges a prototypical Fifth-Amendment-takings 

scenario—a municipality taking private property for the public use as a redeveloped 

shopping center. This conclusion is bolstered by the Complaint’s post-demolition 

allegation that the City proposes to demolish the Fulmer Building. (Doc. #1, PageID

#14). Accepting this as true explains why the City allegedly does not want to repair the 

Fulmer’s Building, why it allegedly attempted to buy the Fulmer’s Building at a 

distressed price, and why it has allegedly engaged in coercive conduct to achieve its 

redevelopment goals. And, assuming the City wants to demolish the Fulmer’s Building 
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as part of its shopping-center redevelopment, the Complaint’s demolition, damage, and 

post-demolition allegations fit squarely under the Fifth Amendment takings clause. See

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539, 125 S.Ct. 2074, 2082 (2005) (““The 

Court has held that physical takings require compensation because of the unique burden 

they impose: A permanent physical invasion, however minimal the economic cost it 

entails, eviscerates the owner’s right to exclude others from entering and using her 

property-perhaps the most fundamental of all property interests.”); Waste Management, 

Inc. of Tennessee v. Metropolitan Government of Nashville and Davidson County, 130 

F.3d 731, 737 (6th Cir. 1997) (“A physical taking ... occurs where the government 

physically intrudes upon a plaintiff’s property....”); see also Warren, 411 F.3d at 705 

(“the Warrens have never contended that the City placed its barriers or otherwise 

physically encroached on their property. Such an allegation would have been a physical 

takings claim.” (emphasis in original)); Center for Powell Crossing, LLC v. City of 

Powell, Ohio, 173 F.Supp.3d 639, 654 (S.D. Ohio 2016) (Graham, D.J.) (“A physical 

taking occurs when ‘the government physically intrudes upon a plaintiff’s property’” 

(citation omitted)).

For all the above reasons, Plaintiffs’ First Amendment retaliation and substantivedue-process claims are not ripe. They are ancillary to a repackaged Fifth Amendment

takings claim and must therefore be litigated in the Ohio courts through a mandamus 

proceeding. See Coles, 448 F.3d at 865 (finding takings claim not yet ripe for federal 

review under Williamson); see also Peters, 427 F.3d at 1037 ( “claims for violations of 

substantive due process and procedural due process claims ancillary to a takings claim 
14

are ... subject to this [Williamson’s] ripeness requirement.”); Montgomery, 226 F.3d at 

769 (substantive-due-process claim “may not be used to avoid Williamson’s ripeness 

requirement); Choate’s, 16 F. App’x at 330 (“Choate’s has merely repackaged a takings 

claim as a substantive due process violation for purposes of filing a § 1983 action in 

federal court.”).

2

Accordingly, the City’s Motion for Judgment on The Pleadings is well taken as to 

Counts One and Two.

D. Count Three

Plaintiffs claim in Count Three of their Complaint that their possessory interest in 

the Fulmer’s Building has been unlawfully seized in violation of the Fourth and 

Fourteenth Amendments. 

The Fourth, through the Fourteenth, Amendment, “provides in pertinent part that 

the ‘right of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated....’” Soldal v. Cook County, Ill., 

506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992). “A ‘seizure’ of property occurs when ‘there 

is some meaningful interference with an individual’s possessory interests in that 

property.” Id. at 61, 113 S.Ct. 538 (citation omitted).

The City contends that Plaintiffs lack standing to litigate whether the City seized 

 2 Plaintiff points out that Choate’s “distinguished the plaintiff’s takings claim from an ‘arbitrary and 

capricious substantive due process claim.’” (Doc. #34, PageID #596). This distinction does not help 

Plaintiffs here because the Court of Appeals in Choate’s found that the plaintiff’s “effort to analogize his 

case to the zoning context and argue that it has an arbitrary and capricious substantive due process claim 

is unavailing.” 16 F. App’x at 331. Additionally, Choate’s is cited here to support the proposition that a 

takings claim repackaged as a substantive-due-process claim is subject to Williamson’s ripeness 

requirement.
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the Fulmer’s Building in violation of the Fourth Amendment. To support this contention, 

the City focuses on Plaintiffs’ negligence allegation—specifically, Plaintiffs’ allegation 

that when the building next to the Fulmer’s Building “‘was demolished..., the City and/or 

its agents failed to perform the demolition in a workmanlike manner such that the City’s 

demolition undermined the Fulmer’s Building’s foundation and left holes in the Fulmer’s 

Building’s exterior wall.’” (Doc. #31, PageID #570 (emphasis by the City) (quoting, in 

part, Doc. #1, ¶7)). The City maintains that the duty to perform in a workmanlike manner 

came from its contract with Badger Construction to which Plaintiffs were not a party. 

The City argues that Plaintiffs cannot fairly trace their alleged Fourth-Amendment injury 

to a contract they were not a party to. The City alternatively argues that Plaintiffs’ 

workmanlike-manner allegation substantially constitutes a negligence claim and thus falls 

short of a § 1983 violation. Cf. Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999)

(“successful § 1983 claimant must establish that the defendant acted knowingly or 

intentionally to violate his or her constitutional rights..., such that mere negligence or 

recklessness is insufficient.” (internal citation omitted)).

The City’s focus on the contractual duty imposed by its contract with Badger 

Construction and Plaintiffs’ descriptions of the City’s negligence overlooks some of 

Plaintiffs’ allegations concerning the City’s pre- and post-demolition conduct. Doing so, 

the City’s arguments construe Plaintiffs’ Complaint in the light most favorable to the 

City–a mistaken approach under Rule 12(c). Bullington, 905 F.3d at 469. Even if the 

City’s is not making this Rule 12(c) mistake, the City’s contentions fail to draw “‘all 

reasonable inferences in favor of the Plaintiffs.’” Id. (citation omitted). Consequently, 
16

even if the City is correct that to conclude that Plaintiffs’ Fourth-Amendment claim rests 

on the City’s purported breach of a contractual duty to perform in a workmanlike manner 

or otherwise identifies merely negligent conduct by the City, the Complaint advances 

other facts that must be construed in Plaintiffs’ favor. Doing so, these other facts raise a 

reasonable inference that the City intentionally and “meaningfully interfered” with 

Plaintiffs’ possessory interest in the Fulmer’s Building in violation of the Fourth 

Amendment.

The other facts Plaintiffs allege concern the City’s pre-demolition and postdemolition knowledge and conduct. The City’s meaningful interference began, according 

to the Complaint, in the fact that the City knew before the demolition that the Fulmer’s 

Building would need protection from damage. Plaintiffs assert, “as was obvious at the 

time, the [neighboring] building and the Fulmer’s Building were tied to one another. The 

top of the [neighboring] building’s east wall was flashed into the top of the Fulmer’s 

Building’s west wall, and, at both the front and rear of the structures, there was not an 

evident gap between the two buildings.” (Doc. #6, ¶36).

Plaintiffs allege that when the City solicited bids for the demolition project, it 

informed potential bidders, “upon the demolition’s completion, the site should be graded 

in a manner to ensure that any areas along the exterior of any building would contain at 

least ten feet of sloped fill to prevent undermining of the building’s footings....” Id. at 

¶56. This reasonably shows that the City knew the demolition project would involve 

work to prevent damage to the Fulmer’s Building.

Additionally, two bids submitted to the City by architectural firms, one from 
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Pinnacle Architects and one from Porter Levin Architects, “expressly warned of the 

likely damage demolition of the [neighboring] building would cause to the west wall of 

the Fulmer’s Building.” Id. at ¶38. The Complaint explains in greater detail the specific

warnings and explanations Pinnacle Architects and Levin Porter provided the City. See 

id. at ¶s 39-44.

If this were not enough to raise a reasonable inference about the City’s knowledge, 

The Complaint continues, “The City knew prior to the ... demolition that the Fulmer’s 

Building would likely be damaged.” (Doc. #1, PageID #8 (bold and capitalization 

omitted)). They support this allegation with information about what the City knew a year 

before the demolition (which occurred “[s]ometime in January 2017,” id. at ¶65). The 

City gained this information from architectural bids and inspections:

On or about January 14, 2016, after receiving the bids from Pinnacle and 

Levin Ports, the City informed Blue Rock that ‘our architect needs to inspect 

the inside west all of the Fulmer[’]s Building to help him assess existing 

conditions and determine how best to protect the west wall of the Fulmer’s 

Building during this demolition.’

The City’s architect inspected the buildings five days later ....

During the inspection, Levin Porter determined that the west wall of the 

Fulmer’s Building was not designed to be a free-standing wall. This meant 

that when the [demolition occurred]..., at a minimum, the newly exposed 

Fulmer’s wall would need a protective coating.

(Doc. #1, ¶46).

As to the demolition itself, Plaintiffs assert that “the City failed to ever provide 

notice to Blue Rock of the dates that the actual demolition would occur. Nor did the City 

provide Blue Rock notice that the demolition had taken place after-the-fact....” Id. at 68. 
18

The Complaint also describes a series of intentional post-demolition acts by the City that, 

if true, show the City meaningfully interfered with Plaintiffs’ ability to use the Fulmer’s 

Building. Here, under the heading of Plaintiffs’ Count III, the Complaint’s central refrain

returns: “The City’s demolition of the [neighboring] building damaged the exterior wall 

of the Fulmer’s Building by compromising its foundation and structural integrity and also 

caused damage to the interior of the Fulmer’s Building.” (Doc. #1, ¶107). Similarly, 

Count III points to the City’s alleged refusal to make repairs to the Fulmer’s Building’s 

west wall, and Plaintiffs maintain, “These acts by the City have deprived Blue Rock of its 

right to use the Fulmer’s Building.” Id. at ¶109.

In light of the above, and contrary to the City’s focus on Plaintiffs’ allegations 

about the City’s contractual obligation to perform the demolition in a workmanlike 

manner, the Complaint reasonably and fairly traces Plaintiffs’ alleged FourthAmendment injury—the City’s meaningful interference with Plaintiffs’ possessory 

interest in the Fulmer’s Building—to the City’s intentional and knowing conduct before 

and after the demolition. Indeed, the City’s intentional and knowing conduct advances 

more than a mere negligence claim or a claim based on the City’s contract with Badger 

Construction; it supports a plausible claim that the City was the moving force behind 

Plaintiffs’ Fourth-Amendment injury. See, generally, Graham, 473 U.S. at 166, 105 

S.Ct. at 3105 (“[A] governmental entity is liable under § 1983 only when the entity itself 

is a ‘moving force’ behind the deprivation.”). And, it does not matter that the Complaint 

contains allegations that also accuse the City of negligent conduct because Plaintiffs are 

allowed to plead in the alternative or inconsistently. See Fed. R. Civ. P. 8(d)(2)-(3). 
19

The City relies in its Reply on Wilson v. Elliott Cty., Ky., 198 F. App’x 471, 473-

74 (6th Cir. 2006) where the Sixth Circuit affirmed a dismissal without prejudice of a 

plaintiffs’ claims asserting “a violation of the Fourth and Fifth Amendment rights for the 

taking of his real property without due process and without just compensation (Counts II 

and III) under 42 U.S.C. § 1983.” Wilson, however, does not support dismissal of 

Plaintiffs’ independent Fourth-Amendment—non-takings—claim, In Wilson, the 

plaintiff’s independent claim in Count I “alleged a violation of his Fourth Amendment 

rights for the warrantless taking of personal property.” Id. at 473. This claim survived; 

it was not dismissed like Counts II and III for lack of ripeness.

Accordingly, the City’s Motion for Judgment on the pleadings lacks merit as to 

Plaintiffs’ Count Three.

IV. Plaintiff’s Negligence Claim—Count V

Plaintiffs’ negligence claim in Count V rests on allegations that (1) the City owed 

a duty to Blue Rock to exercise reasonable care in the demolition of the building next to 

the Fulmer’s Building; (2) the City breached its duty by negligently failing “to exercise 

reasonable care in contracting, managing, and p[er]forming the demolition ...”; and (3) as 

a direct and proximate cause of the City’s breaches, the Fulmer’s Building suffered a 

myriad of costly structural, foundational, and other damage.

The City contends that the immunity extended to political subdivisions under Ohio 

statutory law shields it from liability for any negligence Badger Construction committed 

in connection to the demolition project.
20

Under Ohio law, a three-tier analysis determines whether a political subdivision is 

immune from liability for tort claims. Range v. Douglas, 763 F.3d 573, 582 (6th Cir. 

2014) (citing Lambert v. Clancy, 125 Ohio St.3d 231 (2010)). “Under Tier 1, political 

subdivisions and their employees receive a general grant of immunity for acts in 

connection with a government function.” Id. at 583-83 (citing Lambert, 125 Ohio St.3d 

231, 927 N.E.2d at 588; Ohio Rev. Code § 2744.02(A)(1)). This Tier 1 immunity also 

extends to a political subdivision acting in a proprietary function. See Ohio Rev. Code § 

2744.02(A)(1). 

Tier 2 lists exceptions to this immunity. See Range, 763 F.3d at 582 (citing Ohio 

Rev. Code § 27744.02(B)). “If an exception applies, Tier 3 considers if immunity is 

reinstated under any of the defense provisions in Ohio Revised Code § 

2744.03.” Id. (citation omitted).

Plaintiffs’ Complaint and Memorandum in Opposition point to the landlord-tenant 

relationship between the City and Blue Rock and asserts, “At all relevant times, the City 

was p[er]forming a proprietary function within its corporate powers by leasing its 

property to Blue Rock for consideration. Accordingly, the City is not immune for 

liability for its negligence.” Id. at ¶s 126-28 (citation omitted).

The City contends that none of the Tier-2 exceptions applies to eliminate its 

immunity under Ohio Rev. Code. § 2744.02(A)(1). The City reasons that the only 

possible exception at Tier 2 is its potential liability for acts of its “employees” performing 

proprietary functions. But, according to the City, this possibility is not realized because 

Badger Construction was not a City “employee”; it was an independent contractor.
21

The Tier-2 exception upon which the City relies states: “political subdivisions are 

liable for..., loss to person or property caused by the negligent performance of acts by 

their employees with respect to proprietary functions of the political subdivisions.” Ohio

Rev. Code § 2744.02(B)(2). The statutory definition of the term “employee” “does not 

include an independent contractor.” Ohio Rev. Code § 2744.01(B).

The Complaint does not specifically describe, or mention, Badger Construction. 

On its face, then, it does not illuminate Badger Construction’s status as either an 

employee or an independent contractor. Yet, Plaintiffs do not respond to the City’s 

contention that Badger Construction was an independent contractor, not an employee. 

Consequently, there presently appears to be no disagreement between Plaintiffs and the 

City over Badger Construction’s role an independent contractor in connection with the 

demolition project. Based on this, and assuming the City was engaged in proprietary acts 

when it, the City cannot be liable for Badger Construction’s purportedly negligent acts in 

connection with the demolition under Ohio Rev. Code § 2744.02(B)(2). Because Badger

Construction’s status was that of an independent contractor, rather than an employee, the 

immunity exception in § 2744.02(B)(2) for negligent acts of the City’s employees does 

not apply to Badger Construction. See Collias v. Redburn, 2012-Ohio- 2128, ¶ 17, 2012 

WL 1664117, at *4 (Ohio App. 2012).

But what about Plaintiffs’ allegations that the City was negligent in contracting 

with Badger Construction in the first place and was negligent in managing the demolition 

project? Such conduct by the City refers to the City’s acts, not acts by Badger 

Construction—in other words, the City’s negligence not Badger Construction’s 
22

negligence. If so, Badger Construction’s status as an independent contractor would not 

ameliorate the City’s own purported negligence. Cf. Weldon v. Prairie Twp., 2010-Ohio5562, ¶ 13, 2010 WL 4632553, at *4 (Ohio App. 2010) (political subdivision retains 

immunity when “liability sought to be imposed was performed by an independent 

contractor...., and there is no evidence that the political subdivision exercised control 

over the political subdivision’s acts.”).

The City also argues that its acts in redeveloping the shopping center meet the 

definition of “governmental functions,” including “the enforcement or nonperformance of 

any law;... The provision or nonprovision, planning or design, construction, or 

reconstruction of a public improvement;... Urban renewal projects and the elimination of 

slum conditions....” Ohio Rev. Code. § 2744.01(i), (l), (q). Plaintiffs do not specifically 

respond to this. They instead argue that the City engaged in proprietary activities by 

leasing the property to Blue Rock. This argument, however, does not help Plaintiffs. 

Assuming the City was engaged in proprietary activities as when acting as a lessor, it 

retains its immunity for the damage to the Fulmer’s Building caused by the purported 

negligence of its independent contractor, Badger Construction. Cf. Weldon, 2010-Ohio5562, ¶ 13, 2010 WL 4632553, at *4.

Plaintiffs lastly argue that the City can be liable for Badger Construction’s 

negligence because, as a matter of law, the demolition of the Fulmer’s Building was an 

inherently dangerous activity. Plaintiffs are correct to recognize that “the act of razing a 

building is inherently dangerous ....” Trotwood v. S. Cent. Constr., L.L.C., 192 Ohio 

App.3d 69, 81 (2011). And, Ohio law imposes nondelegable duties on “the employer that 
23

arise out of the work itself because its performance creates dangers to others, i.e., 

inherently dangerous work.” Pusey v. Bator, 94 Ohio St.3d 275, 279 (2002). Employers 

in Ohio, therefore, may not escape liability for negligent acts of their independent 

contractor performing an inherently dangerous activity. See id.

Yet, when the employer, like the City, is a political subdivision entitled to 

statutory immunity under Ohio Rev. Code § 2744.02, such immunity is not defeated on 

the ground that the independent contractor performed a nondelegable duty, such as 

demolishing a building. See Trotwood, 192 Ohio App.3d at 83 (“Nothing in [Ohio Rev. 

Code] Chapter 2744 creates an exception when an independent contractor performs a 

nondelegable duty.” (footnote omitted)).

Accordingly, the City’s Motion for Judgment on the pleadings is well taken as to 

Plaintiffs’ Count V.

V. Punitive Damages

Plaintiffs have withdrawn their request for punitive damages against the City on its 

claims under 42 U.S.C. § 1983 and Ohio law. (Doc. #34, PageID #605).

IT IS THEREFORE RECOMMENDED THAT:

1. The City of Xenia’s Motion for Judgment on the Pleadings (Doc. #31) be 

GRANTED and Plaintiffs’ Counts I, II, and V be dismissed because they 

are not ripe; and

2. The City of Xenia’s Motion for Judgment on the Pleadings (Doc. #31) be 

DENIED in remaining part.

December 10, 2018 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
24

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. A party may respond to another party’s objections within 

FOURTEEN days after being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).