IN THE SUPREME COURT OF OHIO

JOSH HAAS, et al., . Supreme Court Case No. 2013-1195

Plaintiffs,%A.ppellees/Cross-Appellants, Appeal fronl Williams County Court ofAppeals, Sixth District

V.

VILLAGE OF STRYKER, et al.,Court of Appeals Case No. WM-12-004

DefendantslAppe l.l ant/Cros s-Appeliees

MEMORANDUM OF CROSS-APPELLEES VILLAGE OF STRYKER ANI)PEGGY ST.,IOHN OPPOSING THE 1!!IEMORA.NDUM IN StiPPORT OFJURISDICTION OF CROSS-APPELLANTS J(?SH AND SHEILA HAAS

Jane M. Lynch (0012180) (COUNSEL OF RECORD)Jared A. Wagner (0076674)Green & Green, Lawyers109 North Main Street, Suite 800Dayton, Ohio 45402'I'e1. 937.224.3333Fax 937.224.4311jmlynchi^green-1aw.cartij awagn.er@.green-law.corn

Maria J. Armstrong (00.38973)Bricker & Eckler100 South 'I'hird StreetColumbus, Ohio 43215-4291Tel. 614.227.8821Fax 614.227.2390marmstrong c^bricker.corn.

^,^

COUNSEL FOR CROSS-APPELLEES VILLAGE OF STRVKER AND PEGGY ST. JOHN

George C. Rogers (0014107)6884 State Rt. 110Napoleon, Ohio 43543Tel. 419. 748.8041Fax 419.748.8532

COUNSEL FOR CROSS-APPI;LLANTS JOSH AND SHEILA HAAS

I. EXPLANATION OF WHY TIIE ISSUES RAISED BY THE CROSS-APPELLANTS ARE NOT OF GREAT PITBLIC. OR GENERAL INTEREST

All three of Plaintiffs' propositions of law involve matters of well established law for

which there is no demonstrated, nor even argued, conflicts for this Court to resolve. As sach,

Plaintiffs have a failed to establish any issues of great public or general interest and jurisdiction

over the issues raised in their memorandum should be dectined.

In the first proposition of law, Plaintiffs argue that a party should be held liable under the

Fourth Ainetidment for filing a criminal complaint resulting in a summons to appear in court

Nvhere the criminal suspect is subsequently arrested for failing to appear. 1-lowever, as correctly

noted by the Sixth District, the relevant case law on this issue clearly and unequivocally

establishes that the filing of a criminal complaint that results in a suzninons is not, as a matter of

law, sufficient to establish that the defendant effectuated a seizure of the plaintiff, even if he is

sr.ibsequently arrested for failing to appear in response to the summons. 7faas v. Stlyker, 6th

Dist. hTo. WM-12-004, 2013-Ohio-2476,'^ 28-31 (citing Fitlly v. .Barada, 599 F.3d 591, 594-595

(7th Cir.2010); Burg v. Gosselin, 591 F.3ti 95, 99-101 (2d Cir.2010); Bielanski v. Cot<n1y of

Kane, 550 F.3d 632, 637-643 (7th Cir.2008); L?iBella v. Borough of'Beachwvocl; 407 F.3d 599,

601-603 (3d Ci.r.2005); DePiero v. City of l'tlaceclonia, 180 F.3d 770, 789 (6th Cir.1999); and

Gonzales v. I?ickson; 6th Dist. No. WD--09---071, 2010-Ohio-2792, 14 24.) Thus, because

Plaintiffs' first proposition of law is contrary to the well establish law and there is no conflict

among the Ohio Courts on this issue of law, it does not involve an issue of great public or

general interest for this Court to consider.

alleged claim, arld may not simply state legal conclusions."). Accordingly, this proposition of

law also does not present an issue of great public or general interest.

In sum, all of the arguments raised by the Plaintiffs in their three propositions of law seek

to have this Court address areas of law that are well established and devoid of conflict. Such

arguments do not present the sort matters of great public or general interest necessary to invoke

this Court's discretionary jurisdiction, and the Court should decline I'laintiffs' attempt to obtain a

review of the Sixth District's decision.

II. ARGt,'hIENTS CONTRA TO PLAINTIFFS' PROPOSITIONS OF LAW

A. The Sixth District Correctly Applied the Undisputed and Clearly EstablishedLaw When it Found That the Filing of a Criminal Complaint Resulting in aSummons to Appear in Court Does Not Give Rise to a Seizure under theFourth Amendment

'I'he first proposition of law raised by Pla:intiffs challenges the Sixth District's conclusion

that defendant Peggy St. John was not liable for plaintiff Josh Flaas' arrest. Stryker at 28-31.

The only action St. John is alleged to have takezi in this matter was to file a criniinal complaint

against Mr. IIaas in the Bryan, Ohio Municipal Court, which resulted in that court issuing a

summons for Mr. llaas to appear before the court. (Complaint at', 4.) When Mr. F-laasfailed to

appear in response to ttie summons, a bench warrant was issued for his arrest, pursuarzt to which

he was subsequently arrested and incarcerated. (Iei. at ^, 5-6.) There are no allegations that St.

John was in any manner involved with the issuarzce of the warrant for Mr. Haas' arrest or with

his actual arrest_ (see, generally, Id. )

Applying the well established case law regarding what constitutes a seizure under the

l`ourth Amendment, the Sixth District recognized that merely initiating a criminal action that

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results in the issuance of a summons is insufficient to establish a seizure under the Fourth

Amendment, even where the criminal defendant is subsequently arrested for failing to appear in

response to the summons. Stryker at'!f 28-31 (citing Tailly, 599 F.3d at 594---595; Burg, 591 F.3d

at 99-101; Bielanski, 550 F.3d at 637-643; DiBella, 407 F.3d at 601-603; DePieYo, 180 F.3d at

789; Dickson at ¶ 24.) As noted by the Sixth District, the law on this point is clear and

undisputed. Moreover, Plaintiffs have failed to point to any discernable conflicts on this issue

among any courts at all let alone among Qhio's courts.

In arguing that the Sixth District's decision is incorrect, Plaintiffs rely on the case of

Malley v. Briggs, 475 U.S. 335 (1986); however, the holding in tl%lalley is not applicable to the

facts of this case and the interpretation of lVlcrlley urged by Haas' is contrary to law.

l'irst, Nlalley is factually distinguishable. LJnlik:e the facts alleged in this case, Malley

involved a claim against a police officer who had applied for an arrest warrant without

probable cause. Nlalley, 475 U.S. at 338-339 (empliasis added). I-1ere, Plaintiffs alleged that a

policy maker (St. John) filed a criminal complaint, which resulted in the issuance of a

summons to appear. (Complaint at ^j 4.) The defendant in ji/Jalley specifically requested the

arrest of the plaintiff by applying for an arrest warrant. 1111cclley; 475 U.S. at 338-339.

F=lowever, in this case, St. John, like the defendants in Depiero and Bur^q, simply initiated

criminal proceedings that required Mr. Haas to appear in court and answer a summons.

(Complaint at ^,,'4.) Therefore, there is no basis for holding that St. Johm is liable for Mr. Haas'

seizure.

Second, the holding in Nfalley does not, as 1'laintiffs contend, stand for the proposition

that a party responsible for initiating the criminal process is liable for a subsequent arrest arising

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out of the plaintiff's failtu-e to appear in response to a sumnlons. Rather, MalleY simply stands

for the logical proposition that a party requesting an arrest warrant is liable for the resulting

arrest. There are no allegations that St. John ever sought or received. a warrant for the arrest of

either of thePlaintiffs.

Third, Plaintiffs' interpretation of Malley is directly in conflict with the plethora of

subsequently issued case law relied upon by the Sixth District, which unequivocally holds that

the Fourth Amendment is not implicated by the initiation of a criminal action requiring the

plaintiff to appear in court: Zully, 599 F.3d at 594-595; Burg, 591 F.3d at 9$; Bielanski, 550

F.3d at 642; Di.Bellcr, 407 F3d at 603; DePiera, 1.80 F.3d at 789, Dickson at 24; see, also,

Martinez v. Ca3°r, 479 F.3d 1292, 1299 (10thCir. 2007) ("the niere issuance of a citation

requiring presence at future legal proceedings does not qualify, as a constitutional seizure");

Kara7n v. C,'itv of Bacrhank, 352 F.3d 1188, 1191-1194 (9th Cir. 2003); Technical C?rclnance, Inc.

v. United Stutes. 244 F.3d 641, 651 (8th Cir. 2001); I3y-ittan v. ^'L7alUney, 196 F.3d 24, 30 (l st Cir.

1999) (holding tr.rat the issuance of a summons cannot constitute a seizure simply because it

threatens a citizen with the possibility of confnement if he f.°ails to appear in court). More

importantl:y, Plaintiffs' interpretation is also at odds with the Supreme Coiirt's own in:ternal

discussion within Malley regarding the difference between an officer applying for an arrest

warrant and an individual initiating a criminal prosecution:

We have interpreted § 1983 to give absolu.teimmunity to functions "intimatelyassociated with the judicial phase of th.e criminal process," not from anexaggerated esteem for those who perform these functions, and certainly not froma desire to shield abuses of off ce, but bucause any lesser degree of inlmunitycottld irnpair the judicial process itself: We zntend no disrespect to the of.ficerapplying for a warrant by observing that his action, while a vital part of theadministration of criminal justice, is fizrther removed from the judicial phase of

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criminal proceedings than the act of a prosecutor in seeking an indictment.Furthermore, petitioner's analogy, while it has some force, does not take accotmtof the fact that the prosecutor's act in seeking an indictmeitt is but the first step inthe process of seeking a conviction. Exposing the prosecutor to liability for theinitial phase of his prosecutorial work could interfere with his exercise ofindependent judgment at every phase of his work, since the prosecutor mightcome to see later decisions in terms of their effect on his potential liability. T`hus,we shield the prosecutor seeking an indictment because any lesser immunitycould impair the perfortnance of a central actor in the judicial process.

tl%lalley, 475 U.S. at 342-343.

In support of their interpretation of Malley, the 1laas' cite to a Washington State Court

decision, Han.son v. City of Kent, 914 P.2d 127 (Wash. App. 1996), which relied on dicta

contained withizi a footnote in Malley for the proposition that a police officer requesting an arrest

warrant may not avoid liability on the basis that a judge approved of the warrant. Hanson, 914

P.2d at 137-138. Putting aside the fact that this decision has no binding precedential value in this

case and is based on dicta within a fbotnote, even if there were a string of Ohio cases providing

the exact same conclusion set forth within Hansfln, such law would stiil not be relevantsince the

legal cozlclusion thereiiY is not applicable to the facts and claims in this action.

Both .rl^lalley and Hanson involved police officers requesting arrest warrants. Malley,

475 U.S. at 338-339; Hanson, 914 P.2d at 129-130. Whereas an arrest is obviously the likely

and intended outcome of an arrest warrant, the same cannot be said for the filing of a criminal

complaint that results in a summons to appear, si.nce an arrest is not the necessary result of filing

such a complaint. It would be impossible to argue that one did not intend the seizure of another

Nvhen requesting an arrest warrant since a seizure is the express and sole purpose of an. arrest

warrant: An arrest is not, however, either the necessary or intended result of the filing of a

criminal complaint requesting that anotller appear in court. Indeed, in order for an arrest to occur

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in such a circumstance all of the following must occur: (1) the party does not show up in

response to the summns; (2) the trial court elects to issue a bench warrant for failing to appear;

and (3) the party is subsequently arrested prior to appearing before the court. As noted by the

Sixth District, as well as every other court to have considered this issue, the connection between

the filizlg of a criminal complaint resulting in a summons to appear and a subsequent arrest for

failing to appear in response to the sununons is simply too attenuated. to attribute liability for the

arrest upon the person filing the initial complaint.

Thus, neither the holding in Malley nor the holding in Hanson are relevant to a

determination of whether St. John effectuated a seizure of Mr. Haas under the Fourth

Amendment. Rather, the only relevant cases are those that specifically address the question of

whether a party that initiates a criminal complaiilt resulting in the issuance of a summons to

appear is liable for a subsequent arrest caused by the plaintiff's failure to appear in response to

the summons. All of the cases addressing this issue have clearly and unequivocally held that the

answer to that question is no. DePiero, 180 F.3d at 789; Tully, 599 F.3d at 594-595; I3ui°l-, 591

F.3d at 98; Bielanski, 550 F.3d at 642; lVartinez, 479 F.3d at 1299; Kar•arn, 352F.3d at 1191-

1194; Technical Ordnance, 244 1~'.3d at 651; DiBella, 407 F.3d at 607; Britton, 196 F.3d at 30;

Dickson at !T, 24.

B. It is undisputed that Issues of Immunity Can Be Raised Through a Motion toDismiss

Plaintiffs' second proposition of law, although it is not developed in any meaningful

manner within their memorandum, appears to suggest that the issue of inlmunity cannot be raised

through a motion to dismiss. In support of this proposition, Plaintiffs rely solely on the decision

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in N.A.D. v. Cleveland Metro. x5"chool Dist., 8th Dist. No. 97195, 2012-Ohzo-4929, wherein the

Eighth District recognized that immunity is a question of law that is preferably addressed

through a motion for summary judgment. Ici. at !1( 18 (emphasis added). From this language,

Plaintiffs attempt to arrive at the conclusion that immunity cannot ever be addressed through a

motion to dismiss as a matter of law. However, such a conclusiori completely ignores the

necessary logical implication of the use of the word preferably, which by its very nature

indicates that a motion t<or sunamary judgment is only one of several rnethods available to

address immunity, Moreover. Plaintiffs' reasoning also completely ignores the fact that the

Eighth District in N.A.D. went on to consider the merits of the immunity issue within the context

of a motion to dismiss. Icl. at T 19-22. Therefore, rather than supporting Plaintiffs' second

proposition of law, N.A.D. actually demonstrates that a motion to disniiss can be used to address

issues of imnlunity. Id.

Indeed, this Cour-t has previously considered the merits of the question of imrnunity

within the context of a motion to dismiss. Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-

1483} ¶ 14-23. Likewise, numerous otller courts have consistently and specifically upheld the

use of a Civ.R. 12(B)(6) motion to dismiss as an appropriate mechanism through which to

address all of the following: § 1983 claims (Pepper- at ^ 19-22; Kinlin v. Kline, Case No. 1:12

CV 581, 2012 WL 3780461, *3-*7 (N.D. Ohio Aiig. 31, 2012); IL:litchell v. City, of Hamilton,

Case No. 1:11-CV-764, 2012 WL 701173, *5-*6 (S.D. Ohio Mar. 1, 2012)); issues of R.C. 2744

statutory imrmunity (Pepper at ^ 5-18; Rid-All E.xterminating at ^J 1-15; Inwood Village at ^ 1-

20); qual1ified immunity (Harrell v. C'oolr, 169 F.3d 428, 431 (7th Cir. 1999); Heyne v. i1^1Etro.

Nashville Pub. &hs, 655 F.3d 556, 562-570 (6th Cir, 2011); I3ettio v. I'illage of Norehfielr,l, 775

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F. Supp. 1545, 1551 (N.I). Ohio 1991)); and absolute immunity (Loyer v. Tasrner, 129 Ohio

App.3d 33, 34-38 (6th Dist. 1998); Dowclv v. Jones, 7th I)ist. No, 10 CO 21, 2011-Ohio-316$;1^

14-20; Transky>v. 0hio Civ. RightsCmrn'n, 11th Dist. No. 2010-L-038, 2011-OhiQ-1865,'^. 10-

20; I,i.rhoa v. 1_,isboa, 8th Dist. No. 95673 201I-Ohio-351,12-23.)

C. Plaintiffs' argument that the Dismissal of Their Claims Was InappropriateBased on the Allegation that There May Possibly Be Some Set of Facts ThatWould Allow Them To Recover is Contrary to the Well Established Law inOhio Requiring Parties to Establish At Least Some Facts Within aComplaint Suppoi°ting their Legal Conclusions

Ohio case law interpreting the no set of facts standard of review for motions to dismiss

has held both: (1) that courtsrnust identify which of the allegations in a complaint are legal

conclusions since such allegations do not enjoy an assumption of truth; and (2) that courts must

determine whether the factual conclusions set forth within a complaint support the legal theories

upon which plaintiffs are seeking to recover. Ogle v. Ohio Power Co., 180 Ohio App.3d 44,

2008-Ohio-742,3(4th Dist.) (citing McGlone v. Gritnshaw, 86 Ohio App.3d279, 285 (4" Dist.

1993) (citing 1Iitchell v. Lawson 1L.tilk Co., 40 Ohio St.3d 190, 193 (1989) (holding that "[t]he

cvurt, however, need zzot presume the truth of legal conclusions that are unsupporteci by factual

allegations.")); see also, JP ^l%IoNgan Chase Bank, N.A. v. f3elden Oak Furniture Outlet, Inc., 5th

Dist. No. 2010 CA 00049, 2010-Ohio-4444, 'c 21-22,De VoNev_ 11fut. of' t9maha .Ins. Co., 32

Ohio App.2d 36, 38 (7th Dist. 1972) (holding that "to constitute fair notice, the complaint must

still allege sufficient underlying facts that relate to and support the alleged claim, and may not

simply state legal conclusions.");NCS Healthcare, Inc. v. Candletitwod Partners, LLC, 160 Ohio

App.3d 421; 2005-Ohio-1669, !j 11 (8th Dist.), discretionary appeal not allowed by 106 Ohio

St.3d 1533, 2005-Ohio-5146; Gonzalez v. Po,snei°, 6th Dist. No. F-09-017, 2010-Ohio-2117, c^;

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19; Clemens v. Katz, 6th Dist. No. L-08-1274, 2009-Ohio-1461, ^7, discretionary appeal not

allowed by 122 Ohio St.3d 1481, 2009-Ohio-3625. Thus, Plaintiffs' argument that the mere

assertion of legal accusations without any sort of factual support is sufficient to withstand

dismissal based on the potential possibility that there may be some set of facts under which they

could conceivably recover is contrary to the well establislled law in Ohio.

What Plaintiff is essentially arguing is that the Court should apply the no set of facts

standard of review in a literal manner rather than in a manner consistent with the jurisprudence

of Ohio's courts. Indeed, one could argue that the no set of facts standard, taken to its extreme

logical conclusion, would prevent dismissals from ever being appropriate since it is always

theoretically possible to argue that there may be some set of facts that would cause one party to

be liable to another. For example, it is theoretically possible that the Pope and Mr. I-laas could

both at some point be driving cars in WilliamsCounty and that the Pope could become liable to

Mr. Ilaas for causing an accident. `I'hus; under Plaintiffs' proposed interpretation of the no set of

facts standard, he could survive a motion to dismiss by simply filing a complaint against ihe

Pope and alleging that he is liable in tort.

This is precisely the reason that the United States Supreme Court has retired the not set of

facts language. Bell Atl. Corp. v. 7ivomhly 550 U.S. 544; 563 (2007) and A;shcroft` v. Ic7bcrl 129

S. Ct. 193', 1949-50 (2009). In retiring the "no set of facts" standard of review, the Supreme

Court noted that such language was "an incomplete, negative gloss on an accepted pleading

standard" that could "be read in isolation as saying that any statement revealing the theory of the

claim will suffice unless its factual impossibility may be shown from the face of thepleadings."

T'Womhly, 550 U.S. at 561-563. Specifically rejecting the sort of reasoning propoErnded by

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Plaintiffs in the third proposition of law, the Court further reasoned that "[o]n such a focused and

literal reading of Conley jv. Gib:sonJ's `no set of facts,' a wholly conclusory statement of a claim

would stirvive a motion to dismiss whenever the pleadings left open the possibility that a

pIaintiffzn.ight later establish some `set of [undisclosed] facts' to support recoverv." Id. at 561.

In sum, Plaintiffs' suggested interpretation of the no set of facts statldard of review is

contrary to both the well established scope and application of this standard of review under Ohio

law as well as the recent law from the tlnited States Supreme Court interpreting pleading

requirements.

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III. CONCLUSION

For all the reasons stated above, the issues raised by Plaintiffs do not involve matters of

great public or gezieral interest. As such, the Cross-Appellees respectfully requests this Court to

decline jurisdiction over all of the Cross-Appellants' propositions of law.

RespectfuIly submitted,

'yMe M. Lynch (00121 60) (Counsel ofRecord)Jared A. Wagner (0076674)Green & Green, Lawyers109 North Main Street, Suite 800Dayton, Ohio 45402-1290".Cel. 937.224.3333Fax 937.224.4311j mlynch(c ,̂green-1aw.comjawagner agreen-law.corn

Maria J. Armstrong (0038973)f3ricker. & Eckler100 South Third StreetColumbus, Ohio 43215-4291Tel. 614.227.8821Fax 614.227.2390inarmstrong^)bricker.com

Counsel for C:ross-Appellees Village of Stryker andPeggy St. John

Certificate of Service

I hereby certify that a true and accurate copy of the foregoing was served via regular mailupon counsel for I'laintiffs/Appellees, George C. Rogers, Escluire, 6884 State Rt. I 10, Napoleon,Ohio 43 543 on the 27`h day of September 2013.

^^'^:k:..,^.^'

Jred A. Wagi^er (007 674) ,C(JLJNSEL FOR CROSS-APPELLEES VILLAGEOF S"IRYKER. AND PEGGY ST. JOH.-N

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