Opinion
Case No. C-3-99-16
March 27, 2000.
B. Randall Roach, Attorney for Plaintiff.
Robert J. Surdyk, Attorney for Defendant.
This litigation stems from a dispute over the Plaintiffs' ability to construct a home on two contiguous parcels of real estate in a subdivision known as Heritage Estates. On January 22, 1997, the Plaintiffs entered into a contract with the City of Moraine to purchase the real estate. Thereafter, members of the City staff and Moraine Planning Commission approved the Plaintiffs' request to replat the property so that a single home could be built on the two lots. In response, and in opposition to that approval, several residents of Heritage Estates brought the issue before the Moraine City Council, which overturned the decision of the City Planning Commission by a 4-3 vote. The Plaintiffs appealed that ruling to the Montgomery County Common Pleas Court, pursuant to Ohio Revised Code Chapter 2506. In a September 22, 1999, Decision and Entry, the Common Pleas Court reversed the Moraine City Council and reinstated the decision of the Moraine Planning Commission, concluding that the rejection of the Plaintiffs' replat application was not supported by reliable, probative and substantial evidence.
On January 19, 1999, the Plaintiffs commenced the present litigation by filing a nine-count Complaint against the City of Moraine and three members of the Moraine City Council, Jill Crafton, Gary Trace and Robert Riley, who have been sued in their individual and official capacities. (Doc. #1). The Plaintiffs' various claims stem from the decision of the Moraine City Council to deny their replat request. The Plaintiffs specifically challenge the actions of Crafton, Trace and Riley, who cast three of the four votes against replatting the two lots. The Plaintiffs allege Crafton, Trace and Riley actively campaigned against replatting, and led a drive to have the issue brought before the City Council, so that they could vote on the issue and overturn the decision of the Moraine Planning Commission. The Plaintiffs contend that Crafton, Trace and Riley should have abstained from voting on the issue because they held leadership positions in the Heritage Estates Homeowners' Association, which vigorously opposed the replatting of the Plaintiffs' lots.
Pending before the Court is the Defendants' Motion to Dismiss two Counts of the Plaintiffs' Complaint, pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. #10). The Counts at issue allege tortious interference with business relations (Count 6) and having an unlawful interest in a public contract (Count 8).
I. Standard for Dismissal under Fed.R.Civ.P. 12(b)(6)
When considering a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court must "construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996), citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993); see also Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997) ("In considering a motion to dismiss for failure to state a claim, the Court is required to take as true all factual allegations in the complaint."); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1025 (6th Cir. 1990), cert. denied, 498 U.S. 1086 (1991).
II. Analysis
In their Motion to Dismiss, the Defendants first contend that the Plaintiffs' Complaint fails to state a claim for tortious interference with business relations. This argument implicates Count 6, which alleges, in relevant part:
57. Defendant Jill Crafton sought to rally support in opposition to Plaintiffs' proposal on numerous occasions between the months of February and May[,] 1997. Additionally, defendant Crafton actively sought to nullify previously authorized approval of Plaintiff's proposal by Moraine city staff and the Moraine Planning Commission so that the terms of Plaintiff's contract with the City of Moraine could not be fulfilled in all material respects.
58. Defendant Crafton, in her individual capacity and as an agent of the defendant municipality, improperly aided and assisted in an active manner to advance the institution of an appeal [on] which defendant Crafton herself would deliberate and vote.
59. Council members Crafton, Trace and Riley, in their individual capacities and as agents for the Heritage Estates Homeowner's Association, all improperly refused to abstain from City Council deliberations despite manifestly apparent conflicts of interest and thereby engaged in action designed to interfere with Plaintiffs' contract with Moraine. Furthermore, had the individual defendants refrained from improper conduct and participation, approval of Plaintiffs' replat application would not have been reversed and the agreement with the City of Moraine would have been fulfilled in all material respects.
60. The actions and misuse of office by Defendants Crafton, Trace and Riley were undertaken to impair Plaintiffs' business relationship with the City of Moraine. Furthermore, Defendants engaged in the interfering conduct with malice, wantonness and disregard of Plaintiffs' legal rights and further constituted an abuse of the public trust.
61. The actions undertaken by Defendants Crafton, Trace and Riley, as agents of the City of Moraine and in their individual capacities, were not justified or privileged.
62. The conduct undertaken by Defendants Crafton, Trace and Riley, as agents for the City of Moraine and in their individual capacities, has directly and proximately caused injury to Plaintiffs. . . .
(Doc. #1 at ¶ 57-62).
The Defendants contend that the foregoing allegations fail to state a viable claim for tortious interference with business relations. This tort "occur[s] when a person, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another, or not to perform a contract with another." A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr. Trades Council, 73 Ohio St.3d 1, 651 N.E.2d 1283 (1995) (Emphasis added). The Plaintiffs' Complaint and Memorandum make clear that Count 6 is based on alleged "tortious interference" with their real estate contract to purchase the two contiguous parcels of property from the City of Moraine. (Doc. #1 at 57-62). The Plaintiffs contend that the Defendants tortiously interfered with that contract by campaigning against, and ultimately voting against, the replatting of their property.
In their Motion to Dismiss, the Defendants advance two arguments. First, they contend that the City of Moraine and the individual Defendants, in their "official" capacities, cannot be liable for tortious interference, because a municipality cannot "interfere" with its own business relations. Second, Crafton, Trace and Riley argue that, even if they interfered with the Plaintiffs' business relations, they cannot be liable for tortious interference, in their "individual" capacities, because they were not "without privilege to do so."
Upon review, the Court finds the Defendants' first argument to be persuasive. The Sixth Circuit has recognized that "[t]he general rule of law in interference actions is that one contracting party cannot sue the other party for interference, that is, a party to a contract cannot be liable in tort for inducing his own breach." Battista v. Lebanon Trotting Assoc., 538 F.2d 111, 116 (6th Cir. 1976). Applied to the present case, this principle precludes the Plaintiffs from prevailing against the City of Moraine or the individual Defendants, in their "official" capacities, for tortious interference with business relations. It is axiomatic that a claim against Crafton, Trace and Riley, in their "official" capacities, is nothing more than a claim against their municipal employer, the City of Moraine, which is a party to the contract at issue in this litigation. See, e.g., Kentucky v. Graham, 473 U.S. 159 (1985) (recognizing that a suit against a government employee in his "official capacity" is nothing more than a suit against his employer). Given that the City cannot tortiously interfere with its own business relations, Count 6 of the Plaintiffs' Complaint will be dismissed, pursuant to Fed.R.Civ.P. 12(b)(6), insofar as it is directed toward the City of Moraine and the three individual Defendants, in their "official" capacities.
The Court will overrule the Defendants' Motion to Dismiss Count 6, however, insofar as it alleges tortious interference by Crafton, Trace and Riley in their "individual" capacities. These Defendants contend that they cannot be liable for tortious interference, even if they did "interfere" with business relations between the City of Moraine and the Plaintiffs, because they were privileged to do so. In support, they note that "`one is privileged to purposely cause another not to [enter into or continue a business relationship or not to] perform a contract with a third person where he in good faith is asserting a legally protected interest of his own, which he believes will be impaired or destroyed by the performance of the contract.'" Wright v. Metohealth Medical Center, 58 F.3d 1130, 1139 (6th Cir. 1995), quoting Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). The individual Defendants argue that they had a "legally protected interest" in the Plaintiffs' business relationship with the City by virtue of their leadership positions in the Heritage Estates Homeowners' Association. As a result, they contend that they were "privileged" to interfere with the Plaintiffs' real estate contract with the City.
Upon review, the Court finds this argument unpersuasive. AsWright demonstrates, a party is privileged to interfere with another's business relations only when, in good faith, he asserts a legally protected interest which may be impaired or destroyed. Wright, 58 F.3d at 1139. Construing the Plaintiffs' Complaint in a light most favorable to them, and accepting all of their factual allegations as true, they conceivably could establish that the Defendants were not acting in good faith when they voted against the replatting of the Plaintiffs' property.
In their Memorandum, the Plaintiffs suggest that the issue of privilege is an affirmative defense which cannot be invoked to support a Rule 12(b)(6) motion to dismiss for failure to state a claim. (Doc. #15 at 6 n. 1). The Court finds this argument unpersuasive. See, e.g., Kenty v. Transamerica Premium Ins. Co, 72 Ohio St.3d 415, 650 N.E.2d 863 (1995) (recognizing "lack of justification," i.e., lack of privilege, as a prima facie element of a tortious interference claim); Doyle v. Fairfield Machine Co., Inc., 120 Ohio App.3d 192, 697 N.E.2d 667, 683 (11th Dist. 1997) ("Although several Ohio appellate courts have interpreted privilege and justification as affirmative defenses . . . the law in this state imposes the burden of proving lack of privilege or justification upon the plaintiff.").
The Plaintiffs' tortious interference claim is based on two types of actions taken by the individual Defendants: (1) mounting a campaign on behalf of the Heritage Estates Homeowners' Association against the replatting of the Plaintiffs' real estate; and (2) voting against replatting as members of the Moraine City Council, after bringing the issue before that legislative body as representatives of the Homeowners' Association. Specifically, the Plaintiffs allege that Crafton, Riley and Trace "sought to rally support of landowners in the Heritage Estates subdivision against Plaintiffs' proposal on multiple occasions between the months of February and May[,] 1997." (Doc. #1 at ¶ 23). The Plaintiffs further allege that Crafton and a number of other individuals initiated an appeal to the Moraine City Council (of which she is a member). (Id. at ¶ 25). Crafton also allegedly "solicited property owners to initiate an appeal" to the Moraine City Council. (Id. at ¶ 26). The Plaintiffs allege that Crafton, Trace and Riley subsequently refused to recuse themselves from voting on the replatting issue when it came before them as members of the City Council. (Id. at ¶ 29-30).
Even assuming, arguendo, that the individual Defendants acted in good faith when they campaigned against replatting as representatives of the Heritage Estates Homeowners' Association, the Plaintiffs' Complaint nevertheless sufficiently alleges that they did not act in good faith when they subsequently voted against replatting at the meeting of the Moraine City Commission. Prior to that meeting, the Plaintiffs had received approval for replatting from numerous agents of the City of Moraine, including the Planning Commission. (Id. at ¶ 15-20). Moreover, the Plaintiffs' replatting request did not violate any applicable City zoning ordinances. (Id. at ¶ 16). Finally, in voting against the Plaintiffs' replatting request, the three individual Defendants relied on lay testimony from Crafton's husband and two other witnesses recruited by Crafton to testify. (Id. at ¶ 28). Construed most strongly in the Plaintiffs' favor, their Complaint simply reveals no legitimate reason for the rejection of their platting request. As a result, the Plaintiffs conceivably could prove that the individual Defendants acted in bad faith by rejecting the replatting request with no valid basis for doing so. At a minimum, the allegations in the Plaintiffs' Complaint are sufficient to survive a Rule 12(b)(6) motion. Given that the Defendants have presented no other arguments on this issue, their Motion to Dismiss (Doc. #10) will be overruled, insofar as it relates to the Plaintiffs' "tortious interference" claim against Crafton, Trace and Riley, in their "individual" capacities, set forth in Count 6 of their Complaint.
Indeed, the Montgomery County Court of Common Pleas reached essentially the same conclusion when it reversed the ruling of the Moraine City Council and reinstated the decision of the Moraine Planning Board, which had approved the Plaintiffs' replatting request. The court first noted that the Plaintiffs' request did not violate any local ordinances. The court also determined that Crafton, Trace and Riley should have recused themselves from voting on the replatting issue, given their outspoken opposition and their leadership positions with the Heritage Estates Homeowners' Association, which opposed replatting. Finally, the court noted that Crafton, Trace and Riley had relied on testimony from lay persons who lacked any urban planning or land valuation expertise. See McGuire v. Moraine City Council, City of Moraine, Ohio, Montgomery C.P. No. 97-6746 (Sept. 22, 1998) (Petzold, J.).
Although the Court has declined to dismiss Count 6, as it relates to the individual Defendants in their "individual" capacities, the Court nevertheless questions the viability of that claim. The only alleged contractual or business relationship between the City of Moraine and the Plaintiffs involved the sale of two parcels of real estate from the former to the latter. The Plaintiffs allege that they entered into a contract to purchase the real estate on January 22, 1997. (Doc. #1 at ¶ 15). The contract purported to be contingent upon the replatting of the two parcels of real estate on or before April 1, 1997. (Doc. #1 at Exh. A). The Plaintiffs appear to have waived that contingency, however, because they tendered the full purchase price to the City and, on April 1, 1997, they recorded a general warranty deed for the real estate, despite the fact that they had not yet obtained final approval of their replat request. (Id. at ¶ 19 and Exh. A). Given that the Plaintiffs and the City of Moraine fully completed their business or contractual relationship (i.e., the real estate transaction), the Court questions whether the individual Defendants can be said to have induced or caused the City not to enter into or to continue a business relationship with them, or not to perform a contract with them, as required to prevail on a "tortious interference" claim. The Court need not decide the issue at this time, because the Defendants have not moved to dismiss Count 6 on that basis. The issue is significant enough, however, that the Court hereby directs the Plaintiffs to show cause, within 21 days from date, why Count 6 should not be dismissed, pursuant to Rule 12(b)(6), because no tortious interference could have occurred when the Plaintiffs and the City of Moraine fully consummated their business relationship. The Defendants may respond to the Plaintiffs' filing within 14 days of their receipt of same, with the Plaintiffs having 14 days thereafter to file any reply memorandum deemed necessary.
The only remaining issue is whether Count 8 of the Plaintiffs' Complaint states a claim upon which relief may be granted. That Count, which alleges a violation of 2921.42, states in relevant part:
72. At the time Defendants Crafton, Trace and Riley participated in the review of the Planning Board decision granting approval of Plaintiff's replat request, each were [sic] simultaneously acting as fiduciary agents of the Heritage Estates Homeowners Association.
73. At the time Defendants Crafton, Trace and Riley participated in the review of the Planning Board approval of Plaintiff's replat request, the Defendants actively opposed Plaintiff's proposal in the Homeowner Association meetings.
74. Defendant Jill Crafton also held a personal interest in one or more of the parcels of real property in the Heritage Estates subdivision and resided in close proximity to Plaintiff's parcels.
75. The actions undertaken by Council members Crafton, Trace and Riley, by actively participating in the Council review of the appeal of the Planning Board decision approving the Plaintiffs' proposal, constituted an unlawful and impermissible personal interest in a public contract in contravention of Ohio Revised Code Section 2921.42.
76. The improper conduct undertaken by defendants Crafton, Trace and Riley, as agents of the City of Moraine and in their individual capacities directly and proximately caused injury to Plaintiffs. . . .
(Doc. #1 at ¶ 72-76).
In their Memorandum, the Plaintiffs allege that the foregoing language sets forth a violation of Ohio Rev. Code § 2921.42(A)(1) and (A)(4), a criminal statute which provides:
(A) No public official shall knowingly do any of the following:
(1) Authorize, or employ the authority or influence of his office to secure authorization of any public contract in which he, a member of his family, or any of his business associates has an interest;
. . .
(4) Have an interest in the profits or benefits of a public contract entered into by or for the use of the political subdivision or governmental agency or instrumentality with which he is connected.
Ohio Rev. Code § 2921.42(A)(1), (A)(4) (Emphasis added).
The phrase "public contract" is defined in § 2921.42(G), as follows:
(1) "Public contract" means any of the following:
(a) The purchase or acquisition, or a contract for the purchase or acquisition, of property or services by or for the use of the state, any of its political subdivisions, or any agency or instrumentality of either, including the employment of an individual by the state, any of its political subdivisions, or any agency or instrumentality of either;
(b) A contract for the design, construction, alteration, repair, or maintenance of any public property.
As set forth more fully, supra, the Plaintiffs contend that Crafton, Trace and Riley violated § 2921.42 by "actively participating in the Council review of the appeal of the Planning Board decision approving the Plaintiffs[`] proposal. . . ." (Doc. #1 at 75). In support, the Plaintiffs insist that their real estate contract with the City was a "public contract," within the meaning of § 2921.42(G)(1)(b), because it called for the "alteration" of "public land." More specifically, they argue that the contract involved land owned by the City, and that it was contingent upon the replatting (i.e., "alteration") of the two lots. The Plaintiffs also allege that the contract qualifies as a "public contract" despite that fact that the City was selling land rather than purchasing or acquiring it. Finally, the Plaintiffs contend that a violation of § 2921.42 constitutes negligence per se and gives rise to civil liability. (Doc. #15 at 13-15).
Upon review, the Court cannot agree with the Plaintiffs' assertion that Count 8 states a viable claim based on § 2921.42(A)(1) or (A)(4). As an initial matter, the Court concludes that the Plaintiffs' real estate contract does not constitute a "pubic contract," within the meaning of § 2921.42(G)(1). The Plaintiffs' primary argument is that § 2921.42(G)(1)(b) applies because the contract was one for the "alteration" of "public property." Even assuming, arguendo, that replatting constitutes "alteration," the Plaintiffs' contract called for the alteration of private property. According to the Plaintiffs' Complaint, they entered into the contract, and tendered payment, before even applying for approval of their replat request. (Doc. #1 at ¶ 15-16). Consequently, any subsequent replatting would have involved the "alteration" of private property, not property owned by the City of Moraine.
The Court finds § 2921.42(G)(1)(a) equally inapplicable. In relevant part, that provision defines a "public contract" as one for the purchase or acquisition of property or services by or for a political subdivision. In the present case, however, the real estate contract contemplated the fee simple sale of property by a political subdivision. Cf. VanMeter v. Lawrence County Board of Commissioners, 1994 WL 323703 at *7 n. 5 (4th Dist. July 8, 1994) (finding no "public contract" under § 2921.42 when "the only transaction apparent of record [was a county's] alienation of an estate for years rather than the acquisition of some tangible benefit"). Although the plain language of § 2921.42(G)(1)(a) appears to preclude its applicability herein, the Plaintiffs cite two Ohio Ethics Commission Advisory Opinions for the proposition that the statute does apply. Upon review, the Court finds both Opinions to be distinguishable. In Opinion No. 86-009, the Ethics Commission concluded that a lease of public land for farming purposes was a "public contract." In reaching this conclusion, the Commission reasoned:
. . . A lease of real property is a contractual agreement, and the lease and ordinance specify that it is for the farming of soybeans. The proceeds of the farming operation will be used to pay the rent at the end of the term of the lease. Thus, the transaction is a "public contract" as defined in Division (E)(1) [now (G)(1)] of Section 2921.42 of the Revised Code, since it is a contract for the purchase or acquisition of farming services or other productive use of public property by the city.
In the present case, however, the City sold the property to the Plaintiffs for their own residential use. Therefore, Advisory Opinion No. 86-009 is distinguishable in at least two respects: (1) the present case involves the sale of property to private parties, not the lease of public property; and (2) the City of Moraine did not purchase or acquire any "services" from the Plaintiffs. Given these distinctions, Advisory Opinion No. 86-009 does not support the proposition that the sale of government-owned land to a private party involves a "public contract," within the meaning of § 2921(G)(1)(a).
In Advisory Opinion No. 89-008, the Ethics Commission considered whether a city council member who is also employed by a private company may vote or deliberate on a tax abatement request made by that company. The Commission concluded that § 2921.42 would prohibit such a city council member from participating in the decision-making process with respect to the tax abatement. In reaching this conclusion, the Commission determined that the grant of a tax abatement qualifies as a "public contract," reasoning:
. . . The Commission has held that a political subdivision's purchase or acquisition of community and economic development services, or urban renewal or revitalization services through the use of grants, loans, land reutilization programs, and other similar programs constitutes a "public contract" for purposes of R.C. § 2921.42. . . .
Similarly, the purpose of a city's grant of a tax abatement may be to promote economic and community development within a city. For example, a business or corporation may enter into an agreement with the city to develop or redevelop property within the city, construct facilities or undertake various improvements and thereby improve or maintain employment opportunities, eliminate blight, or provide other community services in consideration for the city's agreement to provide a property tax abatement for a specified number of years on the new facilities or improvements, or a portion thereof. . . . It is apparent that a tax abatement which is granted by a city in exchange for a company's development or renovation of property, or the construction of facilities, is a "public contract" for purposes of R.C. § 2921.42 since it is the purchase of economic or community development, or urban renewal services by the city.
Unlike the foregoing situation, the City of Moraine did not purchase any "community or economic development services" or any "urban renewal services" from the Plaintiffs. Rather, the City merely sold them two vacant lots, which the Plaintiffs intend to use for their own private residential purposes. Nor does the Plaintiffs' Complaint suggest that the City gave them any special financial incentive to buy the real estate. In short, the Plaintiffs' Complaint suggests nothing more than an arms' length transaction for the sale of real estate by the City of Moraine. Given that § 2921.42(G)(1)(a) defines a "public contract" as one for the purchase or acquisition of property or services by a political subdivision, the Court concludes that the Plaintiffs' Complaint does not reflect the existence of a "public contract."
In any event, construing the Plaintiffs' Complaint in a light most favorable to them, and accepting their factual allegations as true, the Court cannot discern how the actions of Crafton, Trace and Riley could constitute a violation of § 2921.42(A), even if the contract at issue does qualify as a "public contract." As noted,supra, § 2921.42(A)(1) prohibits a public official fromauthorizing or securing authorization of any "public contract" in which he has an interest. Nothing in the Plaintiffs' Complaint remotely suggests that the Defendants either authorized or secured authorization of the real estate contract between the Plaintiffs and the City of Moraine. To the contrary, the Plaintiffs allege in Count 6 that the Defendants tortiously interfered with that contract. The Plaintiffs' reliance on § 2921.42(A)(4) is no more persuasive. As set forth above, that provision prohibits a public official from having an interest in the "profits or benefits" of a public contract entered into by a political subdivision with which he is associated. The Plaintiffs' Complaint does not identify any such "profits or benefits" which flowed to Crafton, Trace or Riley as a result of the real estate contract with the City of Moraine.Cf. VanMeter, 1994 WL at *7 (recognizing that the term "profit" as used in § 2921.42 "implies an advantageous gain or return from a transaction," and that "something is said to `benefit' an individual if that person gains some advantage"). To the contrary, the Complaint suggests that the individual Defendants vigorously opposed the contract or, more specifically, its contingency regarding replatting, because they believed that it was detrimental to them and to the Heritage Estates Homeowners' Association. As a result, even assuming, arguendo, that the contract does constitute a "public contract," as defined by § 2921.42(G)(1), Count 8 nevertheless fails to state a claim upon which relief may be granted. The factual allegations against Crafton, Trace and Riley simply do not fit within the language of § 2921.42. Accordingly, the Defendants' Motion to Dismiss (Doc. #10) will be sustained, insofar as it relates to Count 8 of the Plaintiffs' Complaint.
Crafton, Trace and Riley appear to have feared the diminution of their property value as a result of the Plaintiffs' real estate contract with the City of Moraine. In that respect, they had an "interest" in the contract. Such an interest, however, was not in the "profits or benefits" of the contract, but in a detriment flowing from the contract. The apparent purpose of § 2921.42 is to prevent public officials from using their positions for personal gain. The allegations in the Plaintiffs' Complaint demonstrate that Crafton, Trace and Riley had absolutely nothing to gain from the real estate contract. Consequently, the Court cannot discern how their opposition to the contract could violate the statute.
Given that the Plaintiffs cannot establish (1) the existence of a "public contract" or (2) any "interest" in such a contract by Crafton, Trace or Riley, the Court need not address the Plaintiffs' argument that a violation of § 2921.42 constitutes negligence per se. Construed most strongly in the Plaintiffs' favor, their Complaint fails to state a claim for violation of § 2921.42, regardless of whether a violation of that criminal statute constitutes negligence per se and gives rise to civil liability.
III. Conclusion
Based on the reasoning and citation of authority set forth above, the Defendants' Motion to Dismiss (Doc. #10) is sustained in part and overruled in part. The Motion is sustained, insofar as it relates to Count 8 of the Plaintiffs' Complaint. That Count is hereby dismissed from this action. The Motion to Dismiss is also sustained with respect to Count 6, insofar as that claim is directed toward the City of Moraine and the three individual Defendants, in their "official" capacities. The Defendants' Motion to Dismiss Count 6 is overruled, however, insofar as that Count is directed toward Defendants Crafton, Trace and Riley in their "individual" capacities. The Plaintiffs are directed to show cause, within 21 days from date, why Count 6 should not be dismissed, in its entirety, for failure to state a claim upon which relief may be granted.
March 27, 2000