EXHIBIT B

2:09-md-02042-SFC Doc # 440-3 Filed 11/05/13 Pg 1 of 12 Pg ID 10757
LEXSEE

Positive

As of: Nov 05, 2013

ENGINEERING & MANUFACTURING SERVICES, LLC, Plaintiff -Appellant, v.

CHESTER J. ASHTON; JOHN MCKENNA; DOUGLAS G. VESELSKY,

Defendants-Appellees.

No. 09-3090

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

10a0442n.06; 387 Fed. Appx. 575; 2010 U.S. App. LEXIS 14978; 2010 FED App.

0442N (6th Cir.)

July 21, 2010, Filed

NOTICE: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE

28 LIMITS CITATION TO SPECIFIC SITUATIONS.

PLEASE SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE SIXTH

CIRCUIT. IF CITED, A COPY MUST BE SERVED ON

OTHER PARTIES AND THE COURT. THIS NOTICE

IS TO BE PROMINENTLY DISPLAYED IF THIS

DECISION IS REPRODUCED.

PRIOR HISTORY: [**1]

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF OHIO.

Eng'g & Mfg. Servs., LLC v. Ashton, 2008 U.S. Dist.

LEXIS 90018 (N.D. Ohio, Aug. 12, 2008)

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff manufacturer

filed a 42 U.S.C.S. § 1983 action, alleging that the

affidavit in support of the search warrant pursuant to

which defendant fire department officers conducted a

wall-to-wall administrative search of the manufacturer's

plant failed to present facts sufficient to constitute

probable cause. The United States District Court for the

Northern District of Ohio granted the officers summary

judgment. The manufacturer appealed.

OVERVIEW: The manufacturer alleged that the

officers' actions were deliberate and intentional violations

of its clearly established rights under the Fourth and

Fourteenth Amendments. The court found that the district

court abused its discretion by sua sponte striking the

manufacturer's brief in opposition to the officers'

summary judgment motion because the manufacturer

established excusable neglect, under Fed. R. Civ. P. 6(b),

because the late filings did not prejudice the officers, the

length of the delay had no apparent impact on the

proceedings, and the manufacturer acted in good faith

throughout the proceedings. It was an abuse of discretion

to deny the manufacturer's motion for leave to file a

sur-reply brief. The officers' search warrant was not

supported by administrative probable cause because an

annual interior inspection plan was not derived from

neutral sources because the fire department actually

inspected only a fraction of the commercial

establishments annually, and the plan had human input

and components. The officers were not entitled to

summary judgment on qualified immunity grounds

because there were disputed factual issues underlying

probable cause.

Page 1

2:09-md-02042-SFC Doc # 440-3 Filed 11/05/13 Pg 2 of 12 Pg ID 10758
OUTCOME: The grant of summary judgment to the

officers was reversed. The matter was remanded for

further proceedings.

CORE TERMS: summary judgment, inspection,

probable cause, reply brief, inspect, annual, instanter,

leave to file, qualified immunity, ordinance, sur-reply,

battalion, inspected, search warrant, abused, hazardous,

reconsideration, industrial, dangerous conditions,

firefighters, partial, struck, notice, water-based, annually,

excusable neglect, legal standard, good faith,

establishment, prejudiced

LexisNexis(R) Headnotes

Civil Procedure > Pleading & Practice > Pleadings >

Time Limitations > Extensions

Civil Procedure > Judicial Officers > Judges >

Discretion

Civil Procedure > Discovery > General Overview

Civil Procedure > Appeals > Standards of Review >

Abuse of Discretion

[HN1]Matters of docket control and discovery are within

the sound discretion of a district court. When a party fails

to meet a deadline, the district court should determine if

such failure was the result of excusable neglect, Fed. R.

Civ. P. 6(b), and review of that determination is for abuse

of discretion. Such abuse exists if the district court relied

on erroneous findings of fact, applied the wrong legal

standard, misapplied the correct legal standard when

reaching a conclusion, or made a clear error of judgment.

The governing legal standard for excusable-neglect

determinations is a balancing of five principal factors: (1)

the danger of prejudice to the nonmoving party, (2) the

length of the delay and its potential impact on judicial

proceedings, (3) the reason for the delay, (4) whether the

delay was within the reasonable control of the moving

party, and (5) whether the late-filing party acted in good

faith.

Civil Procedure > Appeals > Standards of Review >

Abuse of Discretion

[HN2]An abuse of discretion exists if a district court

applied the wrong legal standard.

Civil Procedure > Summary Judgment > Motions for

Summary Judgment > General Overview

Civil Procedure > Summary Judgment > Opposition >

General Overview

[HN3]When new submissions and/or arguments are

included in a reply brief, and a nonmovant's ability to

respond to the new evidence has been vitiated, a problem

arises with respect to Fed. R. Civ. P. 56(c). Rule 56(c)

requires that an adverse party receive ten days notice

before a district court may enter summary judgment. Fed.

R. Civ. P. 56(c). The purpose of Rule 56(c) is to afford

the nonmoving party notice and a reasonable opportunity

to respond to the moving party's summary judgment

motion and supporting evidence. Summary judgment is

to be entered only if the nonmovant is on notice that it

must come forward with all of its evidence. It is only

logical that the purposes of notice and opportunity to

respond extend Rule 56(c) to the situation where the

moving party submits in a reply brief new reasons and

evidence in support of its motion for summary judgment,

and require a district court to allow the nonmoving party

an opportunity to respond. This is particularly true when

the district court relies on the new evidentiary

submissions.

Civil Procedure > Summary Judgment > Appellate

Review > Standards of Review

Civil Procedure > Appeals > Standards of Review > De

Novo Review

[HN4]An appellate court reviews a district court's grant

of summary judgment de novo.

Administrative Law > Agency Investigations > Scope >

Inspections

Constitutional Law > Bill of Rights > Fundamental

Rights > Search & Seizure > Probable Cause

Constitutional Law > Bill of Rights > Fundamental

Rights > Search & Seizure > Warrants

Criminal Law & Procedure > Search & Seizure >

Warrantless Searches > Administrative Searches

[HN5]Statutes such as Cleveland, Ohio, Municipal Code

§ 381.04 have been held unconstitutional unless

construed to require a search warrant supported by

administrative probable cause. Administrative inspections

are significant intrusions on Fourth Amendment rights for

which warrants generally are required, and probable

cause exists in this context if reasonable legislative or

administrative standards for conducting an area

inspection are satisfied with respect to a particular

dwelling. The decision to enter and inspect will not be the

387 Fed. Appx. 575, *; 2010 U.S. App. LEXIS 14978, **1;

2010 FED App. 0442N (6th Cir.)

Page 2

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product of the unreviewed discretion of the enforcement

officer in the field.

Administrative Law > Agency Investigations > Scope >

Inspections

Constitutional Law > Bill of Rights > Fundamental

Rights > Search & Seizure > Probable Cause

Constitutional Law > Bill of Rights > Fundamental

Rights > Search & Seizure > Warrants

Criminal Law & Procedure > Search & Seizure >

Warrantless Searches > Administrative Searches

Labor & Employment Law > Occupational Safety &

Health > Administrative Proceedings > Citations &

Inspections

[HN6]Administrative probable cause requires a neutral

administrative or legislative plan. Warrants are required

for administrative inspections under the Occupational

Safety and Health Act (OSHA). Probable cause justifying

the issuance of a warrant for administrative purposes may

be based either on specific evidence of an existing

violation or on a showing that reasonable legislative or

administrative standards for conducting an inspection are

satisfied with respect to a particular establishment. A

warrant showing that a specific business has been chosen

for an OSHA search on the basis of a general

administrative plan for the enforcement of the Act

derived from neutral sources would protect an employer's

Fourth Amendment rights. Because administrative and

legislative guidelines ensure that employers selected for

inspection pursuant to neutral administrative plans have

not been chosen simply for the purpose of harassment,

courts have held that administrative plan searches may

properly extend to the entire workplace. A permissible

administrative plan relies on either random selection or

selection by relevant statistics that have no individual

human component for the reason that searches flowing

from these types of plans could not be the product of an

agency's arbitrary decision.

Civil Rights Law > Immunity From Liability > Local

Officials > Individual Capacity

Constitutional Law > Bill of Rights > Fundamental

Rights > Search & Seizure > Warrants

[HN7]In 42 U.S.C.S. § 1983 actions, an officer ordinarily

receives qualified immunity if he relies on a judicially

secured warrant. When no facts are in dispute, whether an

official is entitled to qualified immunity is a question of

law. However, if disputed factual issues underlying

probable cause exist, those issues must be submitted to a

jury for the jury to determine the appropriate facts.

Similarly with qualified immunity, a court can submit to

the jury the factual dispute with an appropriate instruction

to find probable cause and qualified immunity if the

factual inquiry is answered one way and to find probable

cause and qualified immunity lacking if the inquiry is

answered in another way. However, the jury does not

decide whether the facts it has found are legally sufficient

to amount to probable cause or entitlement to qualified

immunity.

COUNSEL: For ENGINEERING &

MANUFACTURING SERVICES, LLC, Plaintiff -

Appellant: Orville Edward Stifel, II, Attorney General,

Law Office, Cleveland, OH; Stephen William Gard,

Cleveland, OH.

For CHESTER J. ASHTON, JOHN MCKENNA,

DOUGLAS G. VESELSKY, Defendant - Appellees:

Kevin J. Gibbons, City of Cleveland, Department of Law,

Cleveland, OH.

JUDGES: BEFORE: BATCHELDER, Chief Judge, and

WHITE, Circuit Judge, and GREER *, District Judge.

* The Honorable J. Ronnie Greer, United States

District Judge for the Eastern District of

Tennessee, sitting by designation.

OPINION BY: HELENE N. WHITE

OPINION

[*577] HELENE N. WHITE, Circuit Judge.

Plaintiff Engineering & Manufacturing Services, L.L.C.

(EMS), appeals the denial of its motion for partial

summary judgment and the grant of summary judgment

to defendants in this 42 U.S.C. § 1983 action arising from

a wall-to-wall administrative search of EMS's plant. The

issue is whether defendants' search warrant was

supported by administrative probable cause. We conclude

that it was not, and therefore REVERSE the grant of

summary judgment to defendants, and REMAND for

further proceedings consistent with this opinion.

I. FACTS [**2] and PROCEDURAL HISTORY

EMS manufactures sheet metal parts for the

automotive after-market in a 42,000 square foot building

located at 1120 East 152nd Street in Cleveland.

Defendants are high-ranking Cleveland Fire Department

387 Fed. Appx. 575, *; 2010 U.S. App. LEXIS 14978, **1;

2010 FED App. 0442N (6th Cir.)

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officers: Chester J. Ashton is a Captain and a Battalion

Chief, John McKenna a Captain and Deputy Fire

Marshall, and Douglas G. Veselsky a Lieutenant and

Chief Fire Inspector. Defendants are sued in their

individual and official capacities.

EMS's complaint alleged that the affidavit in support

of the search warrant pursuant to which defendants

conducted the February 22, 2007 search of EMS's plant

failed to present facts sufficient to constitute probable

cause, and contained material, intentional and reckless

falsehoods. EMS alleged that defendants' actions were

deliberate and intentional violations of EMS's clearly

established rights under the Fourth and Fourteenth

Amendments.

A.

Ashton's notarized affidavit in support of the search

warrant stated:

1. [] I am chief of the battalion that is

closest to the property at 1124 East 152nd

1 Street and my firefighters would be

responsible for responding to a fire at this

address if one were to occur.

2. Cleveland Codified Ordinance

[**3] § 381.04 gives the right of entry to

the Fire Chief or his authorized

representatives during reasonable hours . .

. "to examine and inspect for hazardous or

dangerous conditions, equipment,

materials, liquids, gases or accumulations;

obstructions to or on fire escapes and other

means of egress; and for the maintenance

of fire protection equipment."

3. As part of my duties, I (with my

local firefighters) conduct annual

inspections of industrial sites to "get to

know the property" the [sic] make certain

there are no hazardous or dangerous

conditions inside that would pose a threat

to firefighters in the event of a fire.

4. On November 29, 2006 and

December 22, 2006, I along with local

firefighters, went to the premises located

at 1124 East 152nd Street to conduct our

annual interior inspection of the premises

to determine if there are any hazardous or

dangerous conditions in case there is a

need to fight a fire at this large industrial

building in the future. We were denied

[*578] access to the premises on both

occasions by the owner, Alexander Erdey.

....

6. Based on my experience as a

Battalion Chief and the foregoing facts, I

believe it is likely that the conditions of

the interior of the [**4] premises known

as 1124 East 152nd Street, are in violation

of the City's Fire Code, and are or may

become hazardous to the public health,

safety or welfare.

1 EMS's actual address is 1120 East 152nd

Street.

B. EMS's Motion for Partial Summary Judgment on

Liability

Before discovery began, EMS filed a motion for

summary judgment on the issue of liability, asserting that

the warrant application did not allege specific evidence of

an existing fire-code violation; Chief Ashton's conclusory

belief that unspecified code violations existed in EMS's

building, without supporting facts, did not demonstrate

administrative probable cause; and the warrant

application did not permit the magistrate to find that the

inspection was based on reasonable legislative or

administrative standards, i.e., neutral criteria.

Defendants opposed EMS's motion, submitting with

their opposition brief several documents not submitted to

the issuing magistrate with the warrant application,

including two affidavits and Cleveland Ordinance §

381.04. EMS moved to strike the exhibits defendants had

not supplied to the magistrate. The district court

overruled EMS's motion to strike, but did not consider

the challenged exhibits, [**5] noting that it determined

probable cause with reference to Ashton's affidavit alone.

C.

The district court concluded that Ashton's affidavit

provided probable cause for the administrative warrant

and denied EMS's motion for partial summary judgment:

387 Fed. Appx. 575, *577; 2010 U.S. App. LEXIS 14978, **2;

2010 FED App. 0442N (6th Cir.)

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[] The affidavit Judge Pianka reviewed

provides the identity and qualifications of

the affiant. Chester Ashton is the chief of

the battalion closest to the industrial

premises; and the firefighters he

supervises would "be responsible for

responding to a fire at this address if one

were to occur." Reference is made to

Cleveland Codified Ordinance § 381.04, 2

authorizing the Fire Chief or his

representatives to enter during reasonable

hours "to examine and inspect for

hazardous or dangerous conditions. . ." In

addition, paragraphs #3 and #4 mention

the Fire Department's annual inspections

of industrial sites, to "get to know the

property" and "make certain there are no

hazardous or dangerous conditions inside

that would pose a threat to firefighters in

the event of a fire." Considering the

totality of the circumstances, therefore,

probable cause for the administrative

warrant existed: 1) Battalion Chief Ashton

was competent to make the sworn [**6]

declarations in the search warrant

application; 2) a valid city ordinance

authorized an administrative search, such

as the one conducted here; and 3) annual

inspections of industrial premises for fire

safety concerns [*579] are reasonable

and neutral. [R. 15, 4-6.]

2 Ordinance 381.04 provides in pertinent part:

(a) The Fire Chief or his

authorized representatives upon

presentation of proper credentials,

may enter any building or premises

at all reasonable hours or at such

times as may be necessary in an

existing emergency to examine and

inspect for hazardous or dangerous

conditions . . . and for the

maintenance of fire protection

equipment. No person shall

prevent, obstruct or delay any

inspection or the performance of

any lawful duty of a fireman acting

within his official capacity. [R.

7-12.]

D. Defendants' Motion for Summary Judgment

Defendants filed a motion for summary judgment on

April 28, 2008, asserting that because EMS's complaint

raised no issue other than the validity of the warrant, and

the district court had ruled the warrant was supported by

probable cause, they were entitled to summary judgment.

EMS filed a motion for leave to file its opposition

brief instanter on May 29, 2008, [**7] one day after the

May 28 deadline set by the district court's briefing

schedule. 3 Defendants did not object and the district

court granted EMS's motion by a non-document order

entered on May 30, 2008.

3 EMS's motion explained that the opposition

brief was completed the day prior, but that in

converting the document to pdf format for

electronic filing with the district court, the

document was lost, and counsel's outside

computer consultant was unable to address the

problem until the following morning. [R. 21.]

EMS's brief in opposition to defendants' motion

argued that the warrant was not based on administrative

probable cause (EMS had argued this in its own summary

judgment motion); that the evidence established that the

selection of buildings to be inspected and decisions on

how often to inspect were left to the discretion of Fire

Department officials; and that the search-warrant

application failed to include a copy of a "neutral"

inspection plan and failed to make any showing regarding

how the EMS search fit the plan's neutral selection

criteria.

Defendants filed a Reply brief to EMS's opposition

brief on June 9, 2008. Citing Cleveland Ordinance §

381.04, see n.2, and Order 7-5, 4 defendants [**8]

asserted that Cleveland's inspection plan was

constitutional and that EMS was selected for an annual

inspection pursuant to a neutral administrative plan.

Defendants argued that Captain Otto sent monthly

inspection sheets to the Battalions for buildings with

water-based systems, and that EMS appeared on the

Battalion Six list in 2006, 2007 and again in 2008. They

further argued that Otto maintains lists of buildings to be

387 Fed. Appx. 575, *578; 2010 U.S. App. LEXIS 14978, **5;

2010 FED App. 0442N (6th Cir.)

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inspected and that

[t]he goal is that by the end of the year

each building utilizing a water-based fire

suppression system will have been

inspected. Each year -- every building on

the water-based list [such as Plaintiff's] is

selected for inspection. Even if this Court

should determine that the City's current

plan give [sic] fire inspectors too much

discretion[,] the solution . . . is to require a

warrant. [R. 22, p. 13-14.]

Defendants' reply brief and several exhibits attached

thereto included data not provided to plaintiff in

discovery. Defendants also submitted for the first time an

affidavit [*580] of Fire Marshall Scott, which stated that

in 2007, the Fire Division conducted inspections at 8,449

of the 15,515 addresses on file, and that the Division

"does not claim to [**9] inspect every address, every

year--but this is the goal we strive to achieve."

4 Fire Division General Order 7-5, dated May

31, 2000, states in pertinent part:

Due to [] an increasing number

of building inspections required by

Federal, State and local legislation,

the Cleveland Fire Prevention

Bureau cannot inspect all existing

buildings. All fire companies,

therefore, shall assume the

responsibility of building

inspections and refer unabated

violations to the Fire Prevention

Bureau for follow-up.

1. Each shift of each company

shall conduct inspections from a

list that will be distributed monthly

by the Fire Prevention Bureau....

2. Shift Battalion Chiefs shall

coordinate and attend one Major

Inspection monthly . . . . Battalion

Chiefs will also be forwarded

monthly inspection lists, from the

Fire Prevention Bureau, which will

include facilities with water-based

protection systems . . .

Note: It is the goal of the

Division of Fire that all facilities

with water-based fire protection

systems be inspected annually. [R.

7-3.]

On June 11, 2008, EMS filed a motion seeking leave,

until June 23, 2008, to respond to new data, a new

affidavit and new arguments and theories defendants

presented [**10] for the first time in their Summary

Judgment Reply Brief. Defendants opposed the motion.

On June 16, 2008, court staff telephoned and advised

EMS's counsel to re-file EMS's brief in opposition to

defendants' summary judgment motion (i.e., advised that

the brief had to be filed after the district court granted

EMS leave to file the brief instanter). EMS's counsel

re-filed the brief that day.

EMS filed its sur-reply brief on June 23, 2008 -- at

which time the district court had not ruled on its June 11

motion for leave to file a sur-reply brief. Defendants did

not object and, on July 8, 2008, defendants moved for

leave to respond to EMS's sur-reply, attaching their

response.

E. District Court Strikes EMS's Brief in Opposition to

Summary Judgment and Denies EMS's Motion for

Leave to file Sur-Reply Brief

On July 15, 2008, the district court entered an order

striking EMS's brief in opposition to defendants'

summary judgment motion as untimely, denying EMS's

motion for leave to respond to defendants' reply brief,

and denying as moot defendants' motion for leave to

reply to plaintiff's sur-reply brief.

On July 16, 2008, EMS moved for reconsideration

and requested a hearing, stating in pertinent [**11] part:

Counsel's understanding of an order

granting a motion for leave to file an

"accompanying brief," is that the brief

accompanying the motion is deemed to

have been filed "instanter" (i.e.,

"immediately, forthwith, without delay")

at the moment the order is entered.

Counsel was unaware that a brief already

submitted electronically, and already part

of the court's electronic files, had to be

submitted again, after the motion for leave

was granted [on May 30, 2008].

387 Fed. Appx. 575, *579; 2010 U.S. App. LEXIS 14978, **8;

2010 FED App. 0442N (6th Cir.)

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On June 16, 2008, undersigned

counsel received a telephone call from the

Magistrate's chambers instructing counsel

to re-file the Brief in Opposition. This was

the first counsel was made aware of the

need to file the document a second time.

Counsel promptly complied with that

directive, and re-submitted the document

within the hour.

Counsel sincerely apologizes for any

misunderstanding regarding "instanter"

procedure in this Court. . . However, this

technical faux pas did not cause any

prejudice. It did not prejudice Defendants

since the Opposition Brief was timely

served on their counsel on May 29, 2008

(via the Court's electronic filing system),

and defendants had no difficulty filing

their Reply Brief by its original deadline.

[**12] Nor did it delay this case in any

material way.

***

In a footnote, counsel stated:

"Instanter procedure" in the courts of the

State of Ohio consists of submitting the

signed, original copy of the out-of-rule

brief, along with a motion for leave to file

instanter. If the motion for leave is

granted, the signed original is deemed

filed as of that moment.

Defendants opposed EMS's motion for

reconsideration.

[*581] The district court denied EMS's motion for

reconsideration, noting that its order granting plaintiff

leave to file the brief instanter "did not deem the brief

filed."

F. District Court Grants Defendants Summary

Judgment, ruling on Motion as Unopposed

The district court proceeded to rule on defendants'

summary judgment motion as unopposed, and granted

defendants summary judgment. Its opinion states:

Plaintiff moved for an order granting

EMS summary judgment on liability.

However, the Court denied Plaintiff's

motion, and held EMS' constitutional

rights under the Fourth and Fourteenth

Amendments were not violated because

probable cause for the warrant to inspect

the EMS premises existed. Since

Plaintiff's Complaint pleads no claim other

than the validity of the administrative

search warrant, [**13] and since the

Court held there was no constitutional

violation in the issuance and execution of

the search warrant, Defendants . . . are

entitled to summary judgment in their

favor. [R. 34.]

EMS timely appealed.

II.

EMS argues on appeal that 1) the district court

abused its discretion by striking its brief in opposition to

defendants' summary judgment motion; 2) the court erred

in granting defendants summary judgment where the

search warrant was fatally deficient, the Fire

Department's administrative inspection plan involved

discretionary selection, and the search violated clearly

established law; 3) the brief and evidentiary submissions

the district court struck established genuine factual issues

that precluded summary judgment; 4) the court abused its

discretion in denying EMS leave to file a sur-reply brief

where defendants' reply brief presented new arguments

and new data not provided to EMS in discovery; and 5)

the court erred in denying EMS partial summary

judgment.

1

We first address EMS's argument that the district

court abused its discretion by sua sponte striking EMS's

brief in opposition to defendants' summary judgment

motion and dismissing its complaint on the ground that

defendants' [**14] motion for summary judgment was

"unopposed."

EMS contends that this court reviews a dismissal of a

complaint for a non-moving party's failure to respond to a

motion within the applicable time limit as a dismissal for

failure to prosecute under Fed. R. Civ. P. 41(b), a harsh

sanction that should be ordered only in extreme situations

387 Fed. Appx. 575, *580; 2010 U.S. App. LEXIS 14978, **11;

2010 FED App. 0442N (6th Cir.)

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showing a clear record of delay or contumacious conduct

by the non-movant. EMS maintains that the district court

failed to consider the four factors necessary to support a

Rule 41(b) involuntary dismissal as set forth in Stough v.

Maryville Cmty. Sch., 138 F.3d 612, 614-15 (6th Cir.

1998).

Defendants maintain that Stough does not apply,

asserting that the district court did not dismiss EMS's

complaint under Fed. R. Civ. P. 41(b), but rather, first

struck EMS's opposition brief as untimely, and granted

defendants summary judgment "based in large part on its

prior holding that the administrative warrant in question

was based upon probable cause." Defendants assert that,

having granted their motion, the district court dismissed

EMS's case under Fed. R. Civ. P. 58. This court's review

of the order striking EMS's reply brief, they argue, is of

the district court's [**15] determination regarding

excusable neglect.

a

We agree with defendants that excusable neglect is

the appropriate standard [*582] given the procedural

posture of this case. [HN1]Matters of docket control and

discovery are within the sound discretion of the district

court. Jones v. Northcoast Behavioral Healthcare Sys.,

84 F. App'x 597, 599 (6th Cir. 2003); In re Air Crash

Disaster, 86 F.3d 498, 516 (6th Cir. 1996). When a party

fails to meet a deadline, the district court should

determine if such failure was the result of excusable

neglect, Fed. R. Civ. P. 6(b), and review of that

determination is for abuse of discretion. Nafziger v.

McDermott Int'l, Inc., 467 F.3d 514, 522 (6th Cir. 2006).

Such abuse exists if the district court

"relie[d] on erroneous findings of fact,

applie[d] the wrong legal standard,

misapplie[d] the correct legal standard

when reaching a conclusion, or ma[de] a

clear error of judgment." Reeb v. Ohio

Dep't of Rehab. and Corr., 435 F.3d 639,

644 (6th Cir. 2006). Here, the governing

legal standard for excusable-neglect

determinations is a balancing of five

principal factors: (1) the danger of

prejudice to the nonmoving party, (2) the

length of the delay and its potential impact

[**16] on judicial proceedings, (3) the

reason for the delay, (4) whether the delay

was within the reasonable control of the

moving party, and (5) whether the

late-filing party acted in good faith. See

Pioneer Inv. Servs. Co. v. Brunswick

Assocs. Ltd. P'ship, 507 U.S. 380, 395,

113 S. Ct. 1489, 123 L. Ed. 2d 74 []

(1993).

Nafziger, 467 F.3d at 522.

If the district court engaged in the excusable-neglect

balancing process discussed in Nafziger, it is not apparent

from the record. The district court's orders striking EMS's

opposition brief and denying reconsideration suggest that

it determined that EMS's counsel's ignorance of instanter

procedure in federal court, and EMS's resultant failure to

re-file the opposition brief until two weeks after the court

had granted EMS leave to file the brief instanter,

warranted striking its brief.

Although EMS's motion for reconsideration argued

that defendants were not prejudiced by the two-week

delay, that the delay had no impact on the proceedings,

and that EMS acted in good faith, the district court's order

denying reconsideration gives no indication that it

weighed these factors, which coincide with three of the

excusable neglect/Nafziger factors. We conclude that

these three factors weigh [**17] in EMS's favor.

First, the late filings did not prejudice defendants.

Defendants at no point claimed that either the May 29 or

June 16th filing of EMS's reply brief prejudiced them

and, further, defendants had received EMS's reply brief

on May 29, 2008, and already filed their response before

the district court sua sponte struck EMS's reply brief on

July 15, 2008. Second, that defendants had already filed

their response before EMS re-filed its reply brief

illustrates that the length of the delay (two weeks) had no

apparent impact on the proceedings. Third, EMS acted in

good faith throughout the proceedings. There is no local

court rule or internal operating procedure addressing

instanter procedure in the Northern District of Ohio.

EMS's counsel explained that state-court practice was

that when courts grant a motion for leave to file a

document instanter, the document is deemed filed.

Further, in the instant case, the district court granted

EMS's motion for leave to file its opposition brief

instanter the day after EMS filed it, i.e., the day after the

docket sheet entry stating that EMS's opposition brief

was "filed prematurely without leave of court." A reader

of the docket sheet could [**18] reasonably conclude

387 Fed. Appx. 575, *581; 2010 U.S. App. LEXIS 14978, **14;

2010 FED App. 0442N (6th Cir.)

Page 8

2:09-md-02042-SFC Doc # 440-3 Filed 11/05/13 Pg 9 of 12 Pg ID 10765
that when the district court granted the motion to file the

brief instanter the day after this docket notation, [*583]

it accepted EMS's appended opposition brief. Further,

when court staff called EMS's counsel several weeks later

to advise that he had to file the opposition Brief, he did so

immediately.

Defendants do not argue that EMS's late filing of its

opposition brief prejudiced them, and offer no argument

regarding the Nafziger factors. Given that the late filing

had no apparent impact on the proceedings, that

defendants were not prejudiced, and that there is no

indication EMS's counsel acted other than in good faith,

we conclude that EMS established excusable neglect and

that the district court thus abused its discretion in striking

EMS's opposition brief. See Nafziger, 467 F.3d at 524

([HN2]an abuse of discretion exists if the district court

applied the wrong legal standard).

b

Turning to the issue whether the district court abused

its discretion in denying EMS's motion for leave to file a

sur-reply brief, we agree with EMS that defendants'

presentation of new arguments and new evidence in their

reply brief violated EMS's right under Fed. R. Civ. P.

56(c) to notice and [**19] a reasonable opportunity to

respond to defendants' summary judgment motion and

supporting evidence and necessitated that EMS be

permitted to respond. In Seay v. Tennessee Valley Auth.,

339 F.3d 454, 481-82 (6th Cir. 2003), this court

concluded that the district court abused its discretion in

failing to allow the non-moving party an opportunity to

file a sur-reply brief under circumstances similar to the

instant case:

[HN3]When new submissions and/or

arguments are included in a reply brief,

and a nonmovant's ability to respond to the

new evidence has been vitiated, a problem

arises with respect to Federal Rule of Civil

Procedure 56(c). Rule 56(c) requires that

an adverse party receive ten days notice

before a district court may enter summary

judgment. Fed. R. Civ. P. 56(c);

Employers Ins. of Wausau v. Petroleum

Specialties, Inc., 69 F.3d 98, 105 (6th Cir.

1995). The purpose of Rule 56(c) is to

afford the nonmoving party notice and a

reasonable opportunity to respond to the

moving party's summary judgment motion

and supporting evidence. See Celotex

Corp. v. Catrett, 477 U.S. 317, 326, 106 S.

Ct. 2548, 91 L. Ed. 2d 265 [] (1986)

(holding that summary judgment is to be

entered only if the nonmovant is on notice

that it must come [**20] forward with all

of its evidence). It is only logical that the

purposes of notice and opportunity to

respond extend Rule 56(c) to the situation

where the moving party submits in a reply

brief new reasons and evidence in support

of its motion for summary judgment, and

require a district court to allow the

nonmoving party an opportunity to

respond. Beaird [v. Seagate Tech., Inc.,

145 F.3d 1159,] 1164-65 [10th Cir. 1998]

(citing Cia. Petrolera Caribe, Inc. v. Arco

Caribbean, Inc., 754 F.2d 404, 410 (1st

Cir. 1985)). This is particularly true when

the district court relies on the new

evidentiary submissions.

Accordingly, we conclude that the district court

abused its discretion by denying EMS's motion for leave

to file a sur-reply brief.

2

EMS contends that the district court erred in granting

defendants summary judgment where the search warrant

affidavit was fatally deficient, defendants' own moving

papers admitted that discretionary selection of

establishments to be searched was an inherent part of the

Fire Department's inspection plan, and the search of

EMS's premises violated clearly established law.

[*584] a

[HN4]This court reviews the district court's grant of

summary judgment de novo. Tysinger v. Police Dept. of

City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006).

[**21] The district court's opinion granting defendants

summary judgment does not discuss the probable cause

issue--it merely notes its initial ruling finding probable

cause. That ruling rested on the court's conclusions that

"a valid city ordinance [Cleveland Ordinance § 381.04]

authorized [the] administrative search" and that "annual

inspections of industrial premises for fire safety concerns

are reasonable and neutral."

387 Fed. Appx. 575, *582; 2010 U.S. App. LEXIS 14978, **18;

2010 FED App. 0442N (6th Cir.)

Page 9

Turning to the issue whether the district court abused

its discretion in denying EMS's motion for leave to file a

sur-reply brief, we agree with EMS that defendants'

presentation of new arguments and new evidence in their

reply brief violated EMS's right under Fed. R. Civ. P.

56(c) to notice and [**19] a reasonable opportunity to

respond to defendants' summary judgment motion and

supporting evidence and necessitated that EMS be

permitted to respond. In Seay v. Tennessee Valley Auth.,

339 F.3d 454, 481-82 (6th Cir. 2003), this court

concluded that the district court abused its discretion in

failing to allow the non-moving party an opportunity to

file a sur-reply brief under circumstances similar to the

instant case:

[HN3]When new submissions and/or

arguments are included in a reply brief,

and a nonmovant's ability to respond to the

new evidence has been vitiated, a problem

arises with respect to Federal Rule of Civil

Procedure 56(c) . Rule 56(c) requires that

an adverse party receive ten days notice

before a district court may enter summary

judgment. Fed. R. Civ. P. 56(c) ;

Employers p Ins. of Wausau v. Petroleum

Specialties, p Inc., 69 F.3d 98, 105 (6th Cir.

1995). The purpose of Rule 56(c) is to

afford the nonmoving party notice and a

reasonable opportunity to respond to the

moving party's summary judgment motion

and supporting evidence. See Celotex

Corp. v. Catrett, 477 U.S. 317, 326, 106 S.

Ct. 2548, 91 L. Ed. 2d 265 [] (1986)

(holding that summary judgment is to be

entered only if the nonmovant is on notice

that it must come [**20] forward with all

of its evidence). It is only logical that the

purposes of notice and opportunity to

respond extend Rule 56(c) to the situation

where the moving party submits in a reply

brief new reasons and evidence in support

of its motion for summary judgment, and

require a district court to allow the

nonmoving party an opportunity to

respond. Beaird [v. Seagate Tech., Inc.,

145 F.3d 1159,] 1164-65 [10th Cir. 1998]

(citing Cia. Petrolera Caribe, Inc. v. Arco

Caribbean, Inc., 754 F.2d 404, 410 (1st

Cir. 1985)). This is particularly true when

the district court relies on the new

evidentiary submissions.

Accordingly, we conclude that the district court

abused its discretion by denying EMS's motion for leave

to file a sur-reply brief.

2:09-md-02042-SFC Doc # 440-3 Filed 11/05/13 Pg 10 of 12 Pg ID 10766
Since Camara v. Mun. Court of City and County of

San Francisco, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed.

2d 930 (1967), and See v. City of Seattle, 387 U.S. 541,

87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967), [HN5]statutes

such as Cleveland's Municipal Code § 381.04 -- on which

the district court partly relied in concluding probable

cause was established -- have been held unconstitutional

unless construed to require a search warrant supported by

administrative probable cause. Camara held that

administrative inspections are significant intrusions on

Fourth Amendment rights for which warrants generally

are required, and that probable cause exists in this context

"if reasonable legislative or administrative standards for

conducting an area inspection are satisfied with respect to

a particular dwelling." 387 U.S. at 538. The See Court

noted that "the decision [**22] to enter and inspect will

not be the product of the unreviewed discretion of the

enforcement officer in the field." 387 U.S. at 545. See

also Allinder v. Ohio, 808 F.2d 1180 (6th Cir. 1987)

(finding unconstitutional an Ohio regulatory statute that

permitted warrantless inspection of apiaries located on

private property).

Because defendants in the instant case secured a

warrant, i.e., did not inspect EMS's premises without a

warrant based on their purported authority to do so under

Cleveland Ordinance § 381.04, the issue is whether the

"annual interior inspection plan" is derived from neutral

sources. We conclude that EMS presented ample

evidence to survive defendants' summary judgment

motion on this issue.

b - Annual Inspection Plan

Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct.

1816, 56 L. Ed. 2d 305 (1978), and Trinity Indus., Inc. v.

Occupational Safety and Health Review Comm'n, 16 F.3d

1455 (6th Cir. 1994), established that

[HN6]administrative probable cause requires a neutral

administrative or legislative plan. As this court noted in

Trinity Indus., 16 F.3d at 1460:

In Barlow's, the Supreme Court held that

warrants are required for administrative

inspections under the [Occupational Safety

and Health] Act. Id. at 325 [**23] []. The

Court also stated that probable cause

justifying the issuance of a warrant for

administrative purposes may be based

either on "specific evidence of an existing

violation" or "on a showing that

'reasonable legislative or administrative

standards for conducting an . . . inspection

are satisfied with respect to a particular

[establishment].'" Id. at 320 [].

Expounding on the second basis, the Court

noted that a "warrant showing that a

specific business has been chosen for an

OSHA search on the basis of a general

administrative plan for the enforcement of

the Act derived from neutral sources . . .

would protect an employer's Fourth

Amendment rights." Id. at 321 []

(emphasis added). Because administrative

and legislative guidelines ensure that

employers selected for inspection pursuant

to neutral [*585] administrative plans

have not been chosen simply for the

purpose of harassment, courts have held

that administrative plan searches may

properly extend to the entire workplace.

Donovan v. Sarasota Concrete Co., 693

F.2d 1061, 1068 (11th Cir. 1982).

A permissible administrative plan relies on "either

random selection or selection by relevant statistics that

have no individual human component [**24] for the

reason that searches flowing from these types of plans

could not be the product of an agency's arbitrary

decision." See Trinity Indus., 16 F.3d at 1463

(Batchelder, J., concurring) (discussing Barlow's, 436

U.S. at 323).

EMS argued in opposition to defendants' summary

judgment motion (in the brief the district court struck)

that although a plan to search commercial buildings

annually may arguably satisfy Barlow's neutrality

requirement by rendering the "whom to search and how

often to search" non-discretionary, the evidence

established that the Fire Department inspects a small

fraction of buildings annually and, in reality, Captain

Otto and several others select the buildings to be

inspected without neutral selection criteria.

We agree with EMS. Documentary evidence

submitted below supported that annual inspections are a

goal of the Fire Department, that the Department actually

inspects only a fraction of the commercial establishments

in Cleveland annually, and that Otto and others have

input into the choice of buildings to be inspected, i.e.,

387 Fed. Appx. 575, *584; 2010 U.S. App. LEXIS 14978, **21;

2010 FED App. 0442N (6th Cir.)

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2:09-md-02042-SFC Doc # 440-3 Filed 11/05/13 Pg 11 of 12 Pg ID 10767
that the Fire Department's administrative plan for annual

inspections has human input and components and is thus

not neutral.

In sum, EMS's [**25] opposition brief and

evidentiary submissions (which the district court struck)

established genuine factual issues that precluded

summary judgment in defendants' favor. We therefore

reverse the district court's grant of summary judgment to

defendants.

III. Qualified Immunity

Defendants argue that even if EMS is successful

regarding all its assignments of error, they are still

entitled to qualified immunity. 5 On the record before us,

we disagree.

5 The district court did not reach the issue of

qualified immunity.

[HN7]"In § 1983 actions, an officer ordinarily

receives qualified immunity if he . . . relies on a judicially

secured warrant." Hale v. Kart, 396 F.3d 721, 725 (6th

Cir. 2005). When no facts are in dispute, whether an

official is entitled to qualified immunity is a question of

law. Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549

(6th Cir. 2009). However,

[i]f disputed factual issues underlying

probable cause exist, those issues must be

submitted to a jury for the jury to

determine the appropriate facts. Similarly

with qualified immunity, a court can

submit to the jury the factual dispute with

an appropriate instruction to find probable

cause and qualified immunity if the factual

inquiry [**26] is answered one way and

to find probable cause and qualified

immunity lacking if the inquiry is

answered in another way. However, the

jury does not decide whether the facts it

has found are legally sufficient to amount

to probable cause or entitlement to

qualified immunity.

Hale, 396 F.3d at 728.

Here, the facts pertinent to probable cause and

qualified immunity are in dispute. Defendants maintain

that Ashton's affidavit accurately stated that Ashton

sought to inspect EMS as part of the Fire Department's

"annual interior inspection [*586] plan," while EMS

maintains that there is no such "plan," but rather, that the

Department inspects a fraction of the commercial

establishments in Cleveland annually, that Otto and

various other fire officials have substantial input into

what buildings get inspected, and that there are no written

criteria governing the selection of buildings inspected.

EMS also maintains that "to the extent [Ashton's

affidavit] intended to convey that the Fire Department has

a bona fide annual inspection plan that is selection neutral

because all buildings are regularly and systematically

inspected on a yearly basis, Ashton's reference to 'annual

inspections' was knowingly or [**27] recklessly false."

Because disputed factual issues underlying probable

cause are present in this case, defendants are not entitled

to summary judgment on qualified immunity grounds.

IV.

The same factual disputes undermine EMS's final

issue on appeal -- whether the district court erred in

denying its motion for partial summary judgment on

liability.

V.

We REVERSE the district court's grant of summary

judgment to defendants and REMAND for further

proceedings consistent with this opinion.

387 Fed. Appx. 575, *585; 2010 U.S. App. LEXIS 14978, **24;

2010 FED App. 0442N (6th Cir.)

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2:09-md-02042-SFC Doc # 440-3 Filed 11/05/13 Pg 12 of 12 Pg ID 10768