698 F. App'x 305
6th Cir.2017Background
- Plaintiff Maryann Bullock owns a house on an unpaved stretch of Cherry Street that the City of Covington repeatedly declined to pave; she accesses her driveway via a rear alley the City resurfaced in 2014.
- Bullock sued the City and Code Enforcement Officer James Ediger in April 2016 seeking: (1) a declaratory judgment that Cherry Street is a public street; (2) § 1983 claims alleging a property deprivation and Equal Protection violation; (3) a state-law public-nuisance claim against the City; and (4) a tort claim against Ediger.
- Plaintiff’s initial counsel, J. Christian Dennery, was disqualified because he previously represented the City on matters related to streets and nuisance complaints; another attorney was also disqualified.
- The district court granted the City and Ediger’s motions to dismiss all federal and state claims except the state tort claim against Ediger, but declined to exercise supplemental jurisdiction over that remaining claim and dismissed it with prejudice.
- Bullock appealed; the Sixth Circuit affirmed most rulings but vacated the dismissal-with-prejudice of the Ediger tort claim and instructed the district court to dismiss that claim without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Disqualification of prior counsel | Dennery’s prior City work did not involve Bullock personally, so rule against former government-employees should not bar representation | Dennery personally and substantially worked on City nuisance and street matters related to the dispute | District court did not abuse discretion in disqualifying Dennery under SCR 3.130(1.11)(a)(2) |
| Timeliness of § 1983 claims | Injuries are ongoing; claim timely | Discrete acts (e.g., 2014 decision not to pave) occurred over one year before suit; Kentucky 1-year limitations applies | § 1983 claims are time-barred under Kentucky’s one-year statute of limitations |
| City immunity for nuisance claim / takings argument | Nuisance claim effectively alleges a taking; municipal immunity for legislative acts is waived for takings | City’s decision on which roads to pave is quasi-legislative and therefore immune under Ky. Rev. Stat. § 65.2003(3) | Plaintiff forfeited takings argument by not raising it below; municipal immunity bars the nuisance claim |
| Declaratory-judgment request to declare street public | Court should declare Cherry Street public | Court should refuse judicially to perform city road-commissioner functions | District court did not abuse discretion in denying declaratory relief |
| Supplemental jurisdiction over state tort claim against Ediger | N/A (plaintiff sought to proceed) | District court declined supplemental jurisdiction and dismissed the claim with prejudice | Sixth Circuit vacated dismissal-with-prejudice and instructed dismissal without prejudice (ordinary practice when declining supplemental jurisdiction) |
Key Cases Cited
- United States v. Brock, 501 F.3d 762 (6th Cir. 2007) (standard of review for disqualification decisions)
- Moody v. Michigan Gaming Control Bd., 847 F.3d 399 (6th Cir. 2017) (de novo review of statute-of-limitations dismissal)
- Bonner v. Perry, 564 F.3d 424 (6th Cir. 2009) (Kentucky one-year limitations period applies to § 1983 claims)
- Scottsdale Ins. Co. v. Flowers, 513 F.3d 546 (6th Cir. 2008) (forfeiture rules for arguments not raised below)
- W. World Ins. Co. v. Hoey, 773 F.3d 755 (6th Cir. 2014) (abuse-of-discretion standard for denial of declaratory relief)
- Grubbs v. Sheakley Group, Inc., 807 F.3d 785 (6th Cir. 2015) (practice of dismissing state claims without prejudice when declining supplemental jurisdiction)
- Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015) (same)