City of Cincinnati v. Deutsche Bank National Trust Co.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0145p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CITY OF CINCINNATI, ┐
Plaintiff-Appellant, │
│
│
v. > No. 16-3752
│
│
│
DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., │
Defendants, │
│
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WELLS FARGO BANK, N.A.; WELLS FARGO BANK,
│
N.A., as Trustee,
│
Defendants-Appellees. ┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:12-cv-00104—Sandra S. Beckwith, District Judge.
Argued: May 3, 2017
Decided and Filed: July 11, 2017
Before: COLE, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Jessica L. Powell, CITY OF CINCINNATI, Cincinnati, Ohio, for Appellant. David
Dunn, HOGAN LOVELLS US LLP, New York, New York, for Appellees. ON BRIEF:
Jessica L. Powell, Jacklyn Martin, CITY OF CINCINNATI, Cincinnati, Ohio, for Appellant.
David Dunn, HOGAN LOVELLS US LLP, New York, New York, Sean Marotta, HOGAN
LOVELLS US LLP, Washington, D.C., James E. Burke, KEATING MUETHING &
KLEKAMP PLL, Cincinnati, Ohio, for Appellees.
SUTTON, J., delivered the opinion of the court in which KETHLEDGE, J., joined and
COLE, C.J., joined in part. COLE, C.J. (pp. 10–15), delivered a separate opinion concurring in
part and dissenting in part.
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 2
_________________
OPINION
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SUTTON, Circuit Judge. A bank customarily has the right to take title to a property if
the borrower fails to repay the loan used to purchase it. After the 2008 financial crisis, many
banks foreclosed on many properties used to secure the underlying loans. According to the City
of Cincinnati, one financial institution based out of State (Wells Fargo) and one based out of the
country (Deutsche Bank) adopted a policy of violating local and state property regulations when
the cost of compliance outweighed the value that could be recouped through the resale of a
foreclosed property. The policy, says the City, had two consequences. One was to violate local
and state public-safety laws that require owners to maintain their properties. The other was to
create a common law public nuisance that lowered property tax revenues, increased police and
fire expenses, and added other administrative costs.
As this case comes to us, the parties have resolved all claims arising from any individual
code violations and associated fines attached to properties named in the City’s complaint. The
City also has resolved the common law nuisance claims against Deutsche Bank. That leaves the
common law nuisance claims against Wells Fargo, which the district court eventually rejected as
a matter of law. The City appeals that ruling, and we affirm.
I.
The City’s complaint, several complaints in truth, alleged that the banks’ policy created a
common law absolute and qualified public nuisance, statutory public nuisance, interference with
fiduciary duty, and municipal code violations. It sought punitive and compensatory damages as
well as declaratory relief. By the time it filed the third amended complaint, the one pertinent
here, the City had dropped the interference and punitive damage claims as well as the claims
against some of the Deutsche Bank entities. But it still maintained claims for municipal code
violations (Claims 1–4), statutory public nuisance (Claim 5), common law public nuisance
(Claim 6), and declaratory relief (Claim 8) against Wells Fargo and its affiliates and some of the
Deutsche Bank entities. Though the second amended complaint contained separate claims for
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 3
common law public nuisance and common law absolute public nuisance, the third amended
complaint contained only the former (which apparently explains the absence of a seventh claim).
In addition to challenging Wells Fargo’s practice of non-compliance, the City attached a series of
exhibits naming several properties as common law and statutory nuisances as well as a number
of properties with outstanding code violations.
Developments since the City filed its third amended complaint have narrowed the dispute
still further. In connection with a settlement agreement, the City stipulated to the dismissal of
the rest of the Deutsche Bank entities and dismissed the claims arising from several Wells Fargo
properties. Both sides agreed to dismiss the statutory nuisance claim with prejudice (Claim 5)
and to stipulate to final judgment in favor of the City on the municipal code violations (Claims
1–4). The City has since disavowed any claims for injunctive and declaratory relief on appeal
(Claim 8).
That leaves Claim 6: the damages claim for common law public nuisance against Wells
Fargo. In rejecting this claim, the district court held that (1) the economic-loss doctrine
foreclosed recovery and (2) the City’s alleged damages―increased police and fire expenses, a
decrease in the City’s tax base, and an increase in the City’s administrative costs―were too
attenuated to establish proximate cause. The City appealed this ruling.
II.
Under Ohio law, a common law public nuisance is “an unreasonable interference with a
right common to the general public.” Kramer v. Angel’s Path, L.L.C., 882 N.E.2d 46, 51 (Ohio
2007). Examples of such rights, from Ohio and elsewhere, include: a right of public passage
(e.g., obstruction of highways); a right to use public space (e.g., pollution of fisheries); a right to
navigable waterways (e.g., obstruction of public streams); a right to public health (e.g., exposure
to diseased animals); a right to public safety (e.g., negligent marketing/sale of dangerous
weapons); a right to public morality (e.g., houses of ill-repute); a right to public peace (e.g.,
excessive noise); and a right to public comfort (e.g., excessive odors or fumes). Restatement
(Second) of Torts § 821B & cmt. a; see City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d
1136, 1142 (Ohio 2002).
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 4
Ohio law recognizes two types of public nuisances: qualified and absolute. A qualified
public nuisance mirrors a negligence tort. Kramer, 882 N.E.2d at 52; Beretta, 768 N.E.2d at
1143 n.4. It requires the plaintiff to show duty, breach, causation, and injury. Kramer,
882 N.E.2d at 53–54. An absolute public nuisance, sometimes called nuisance per se, comes in
two forms, one requiring more evidence of intent (akin to an intentional tort), the other requiring
less (akin to a strict liability tort). The action thus requires either the “intentional” creation of a
public nuisance or “an abnormally dangerous condition that cannot be maintained without injury
to property, no matter what care is taken.” State ex rel. R.T.G., Inc. v. State, 780 N.E.2d 998,
1010 (Ohio 2002); Kramer, 882 N.E.2d at 52.
The City’s nuisance claim has several flaws.
First, the economic-loss doctrine forecloses the City’s claim for damages for a qualified
public nuisance under Ohio law. The doctrine bars tort plaintiffs from recovering purely
economic loss that “do[es] not arise from tangible physical injury” to persons or property.
Queen City Terminals v. Gen. Am. Trans., 653 N.E.2d 661, 667 (Ohio 1995); see Corporex Dev.
& Constr. Mgmt., Inc. v. Shook, 835 N.E.2d 701, 704 (Ohio 2005). The premise of the
economic-loss rule is that tort law does not impose an independent duty to avoid consequential
economic damages. Queen City Terminals, 653 N.E.2d at 667; RWP, Inc. v. Fabrizi Trucking
& Paving Co., No. 87382, 2006 WL 2777159, at *4 (Ohio Ct. App. Sept. 28, 2006). In the
absence of such a duty, the plaintiff cannot show a breach, and thus tort liability is inappropriate.
The Ohio Court of Appeals has twice invoked the economic-loss rule to reject qualified
public nuisance claims like the one here. In one case, a contractor negligently severed several
grounded telephone cables, causing a local business to lose service for three days. RWP, 2006
WL 2777159, at *1–2. The business filed a claim for public nuisance against the contractor,
seeking damages for lost revenue. Id. at *1. The business acknowledged the economic-loss rule
and acknowledged that any damages were purely economic, but it argued all the same that the
rule applied only in contractual disputes. The court rejected the argument, holding that the rule
barred recovery in tort as well. Id. at *4.
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 5
In the other case, the City of Cleveland alleged that JP Morgan’s lending practices
created a public nuisance. City of Cleveland v. JP Morgan Chase Bank, No. 98656, 2013 WL
1183332, at *1 (Ohio Ct. App. Mar. 21, 2013). Here, too, the court held that the economic-loss
rule barred recovery. Id. at *8. What happened in RWP and JPMorgan should happen here.
The City of Cincinnati demurs. It points out that RWP and JP Morgan are unreported
cases and thus should hold little sway. But if the state supreme court has yet to resolve an issue,
we follow state appellate court decisions, whether reported or not. See Ziegler v. IBP Hog Mkt.,
Inc., 249 F.3d 509, 517 (6th Cir. 2001). In 2002, what’s more, Ohio abolished the distinction
between controlling and persuasive decisions based on the form of publication. Taylor Steel,
Inc. v. Keeton, 417 F.3d 598, 609 (6th Cir. 2005). Having no reason to believe the Ohio
Supreme Court would decide the issue differently, we apply the state law as we find it.
Second, the City’s absolute nuisance claim suffers from a different flaw. Some
uncertainty, it is true, exists under Ohio law over whether the economic-loss doctrine applies to
intentional torts or to absolute nuisance claims. Compare RWP, 2006 WL 2777159, at *4, with
Eysoldt v. Proscan Imaging, 957 N.E.2d 780, 785 (Ohio Ct. App. 2011). But we need not step
into that thicket because the City’s absolute nuisance claim has a deeper failing.
The third amended complaint does not contain an absolute nuisance claim. For reasons
of its own, the City removed that claim from its last amended complaint. All the complaint
mentions is a “common law public nuisance,” and the section mirrors the City’s ninth claim from
its second amended complaint, also labeled “Common Law Public Nuisance.” Compare R. 112
at 21–22, with R. 29 at 25. That section of the second amended complaint, with precisely the
same allegations, covered the City’s qualified nuisance claim, not its absolute nuisance claim,
which appeared in a separate section labeled Claim Eight. R. 29 at 22. Most importantly for our
purposes, the current claim for common law public nuisance does not contain the necessary
elements for an absolute nuisance claim: It does not say the nuisance is inherently dangerous or
that Wells Fargo intentionally created it. It says only that Wells Fargo “knew or should have
known that they created and maintained a public nuisance.” R. 112 at 22. Knowledge does not
equal intention. Absent allegations of an intentional nuisance or an inherently dangerous
context, the City cannot pursue an absolute nuisance claim.
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 6
Third, even if we assume that the complaint contains qualified and absolute nuisance
claims, both claims suffer from another flaw. They do not identify any Wells Fargo property that
endangers public health, safety, or well-being. As originally drafted, the third amended
complaint referenced an exhibit (Exhibit I) identifying nine properties owned by Wells Fargo
that (in the City’s view) amounted to common law public nuisances. It noted that these
properties “constitute[d] the world of known common law public nuisance properties owned by
either Wells Fargo or Wells Fargo, as Trustee.” R. 112 at 22. But in December of 2015, the City
agreed “to delete and dismiss with prejudice all references, allegations and claims arising from or
relating in any way to” certain listed Wells Fargo properties. R. 125 at 1. All nine of the
properties identified as nuisances in Exhibit I are on the list. Compare R. 112-9, with R. 125 at
Ex. A.
That means the complaint, as modified by the City’s stipulation, no longer identifies any
nuisance properties currently owned by Wells Fargo. In view of the stipulation, the City today
seeks damages only for unidentified “additional nuisance properties that will become known to
the City” through discovery. R. 112 at 22. But that is not how civil litigation or for that matter
nuisance law works. A plaintiff may use nuisance law only to remedy an existing nuisance, not
to sue someone who may one day own (or create) a nuisance property, a category that omits no
one, not least the City itself. In the absence of any factual allegations indicating why a particular
property owned by Wells Fargo endangers the public, we have no way of testing the plausibility
of the nuisance allegations or assessing the proximity of the City’s asserted damages. Proper
pleading, even notice pleading, requires more.
The most that can be extracted from the complaint is that some of the “[n]umerous
known and unknown properties” “were so deteriorated and dilapidated that they were declared
public emergencies.” Id. at 13. But which properties? And which ones were not covered by the
settlement? The complaint says that Exhibit I lists “the world of known common law public
nuisance properties.” Id. at 22 (emphasis added). And the City dropped its claims as to all nine
of those properties. An allegation about “unknown” public emergencies does not supply a
plausible factual predicate for a lawsuit.
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 7
The City tries to sidestep these problems by wrapping the violations into one overarching
nuisance: the “policy.” But bad intent alone does not a public nuisance make. Only where the
intent (the “policy”) creates a nuisance can it be said to interfere with a public right. Wells
Fargo’s intent may be relevant in determining whether it has acted negligently or intentionally in
allowing a particular property to fall into a dangerous state of disrepair, but a “policy” of
engaging in a cost-benefit analysis does not alone constitute a public nuisance. Many
homeowners with outstanding code violations, many indeed with no violations at all, presumably
have a similar policy too.
The City offers no evidence that this alleged “policy” of selective non-compliance with
health and safety codes will inevitably result in a public nuisance. A dilapidated building, to be
sure, has the potential to implicate the public’s rights to health and safety. But it does not
become a nuisance until the dilapidation interferes with health or safety. See Ohio Rev. Code
§ 3767.41; see also Donley v. Boettcher, 255 N.W.2d 574, 580 (Wis. 1977); Pucci v. Algiere,
261 A.2d 1, 10 (R.I. 1970). Not every code violation results in such a condition. It follows that
not every failure to comply with the code amounts to a public nuisance. Some of the code
provisions concern minor (if once a week) facets of property upkeep―such as failing to mow the
grass—and simply do not rise to the level of interfering with public health or safety. The City
admits as much by providing a long list of properties with outstanding code violations and a
short list of properties that constitute public nuisances.
Put another way, the City may not challenge Wells Fargo’s “policy” on its face because it
is not tortious in all of its applications. The decision to account for costs before making repairs
sometimes will create a nuisance. But sometimes it will not. It all depends on the properties, the
violations, and whether the combination produces unsafe or unsanitary conditions. If the policy
results in tall grass, that generally will not create a public nuisance. If the policy results in a
building on the verge of collapse, it will. The City at a minimum must connect the policy to the
existence of an actual nuisance. It failed to do so.
A related problem infects the City’s efforts to plead proximate cause. Proximate cause
requires “some reasonable connection between the act or omission of the defendant and the
damage the plaintiff has suffered.” Queen City Terminals, 653 N.E.2d at 670. In addition to
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 8
foreseeability, it requires “some direct relation” between the injury and the injurious conduct.
Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268 (1992); see also Bank of Am. Corp. v. City of
Miami, __ U.S. __, No. 15-1111/15-1112, slip op. at 11–12 (May 1, 2017); City of Cleveland v.
Ameriquest Mortg. Sec., Inc., 615 F.3d 496, 502 (6th Cir. 2010).
The City offers the verdict that it has “suffered damage as the direct and proximate result
of” Wells Fargo’s nuisances but supplies no factual allegations to support it. R. 112 at 2. The
failure to tether the damages to nuisance-related problems on Wells Fargo’s properties prevents
us from assessing the “directness” of the relationship between the two. That is particularly true
for the City’s attenuated theories of damage: decreased tax revenue, increased police and fire
expenditures, and increased administrative costs. R. 122 at 22–23. When tied only to a general
“policy” of non-conformance, these damages are difficult to connect to Wells Fargo’s actions
and nearly impossible to disaggregate from other potential causes of these costs.
Making matters worse, the City has settled its municipal code violation claims. See R.
155. That presumably means it has recovered the costs of abating the nuisances on the properties
listed in its complaint (in Exhibits A through I). Without knowing what conditions, or even what
properties, the City now challenges as dangerous, we cannot know if the alleged damages
remain.
Attempting to fill this gap, the City points to the 3,200 pages of code enforcement records
attached as an exhibit to its initial complaint. But these records catalog every code violation
issued with respect to a Wells Fargo-owned property, even properties long since sold to someone
else. They do not specify which violations make Wells Fargo’s current properties a danger to the
public.
The dissent to its credit recognizes that Ameriquest and JP Morgan Chase Bank
dismissed similar claims for lack of causation. Infra at 13–14. But with respect it fails to follow
the teachings of these cases by separating one interrelated inquiry (absence of proximate cause)
from the other (absence of pleading specifically affected properties). How can a court know
whether there are intervening factors—say difficult-to-disaggregate damages, apportionment
concerns, or better-positioned plaintiffs, Holmes, 503 U.S. at 269–71, 273–74; Ameriquest,
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 9
615 F.3d at 503—when it does not know what properties or conditions the City challenges? The
pleading and causation problems emerge from the same failing, and we cannot divide one from
the other in order to conquer both. To state a cognizable claim of causation, the claimant must
allege more than just a bad intent; it must identify the nuisance properties caused by that intent.
All of this does not leave Cincinnati in the cold. It has many existing tools to enforce
local and state property regulations. See Ohio Rev. Code §§ 715.26, 3767.41 (providing for
collection of abatement costs and statutory public nuisance claims); 6 Cincinnati Mun. Code
§ 1123-1–1123-5 (creating the Vacant, Foreclosed Properties Registry). And if it thinks these
means lack the heft needed to correct the problems, it has authority to improve or expand the
available enforcement mechanisms, including adding punitive damages or attorney’s fees to the
damages and costs recoverable for violations. But it cannot use nuisance law to single out a
particular person or entity and selectively target its holdings for additional scrutiny with the mere
allegation of a cost-benefit “policy.” The City may use nuisance law to address an actual
nuisance. But alleged bad intent or alleged code violations by themselves do not suffice in the
absence of an unsafe or unsanitary condition associated with an identifiable property.
For these reasons, we affirm.
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 10
_________________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_________________________________________________________
COLE, Chief Judge, concurring in part and dissenting in part. I concur in the majority’s
conclusion that the economic-loss doctrine bars the City’s qualified public nuisance claim.
However, I respectfully dissent from the majority’s resolution of the absolute public nuisance
claim.
I.
The issue before us is whether the district court erroneously dismissed the City’s third
amended complaint for failure to state a claim upon which relief can be granted under Federal
Rule of Civil Procedure 12(b)(6). We review such dismissal de novo. Kottmyer v. Maas, 436
F.3d 684, 688 (6th Cir. 2006). To survive dismissal, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (“Courts must construe the complaint in
the light most favorable to plaintiff.”) (internal quotation marks omitted). A claim is facially
plausible when the facts allow the court to reasonably infer that the defendant is liable for the
alleged wrongdoing. Iqbal, 556 U.S. at 678. While “detailed factual allegations” are
unnecessary, “facts that are ‘merely consistent with’ a defendant’s liability” are insufficient. Id.(quoting Twombly, 550 U.S. at 555, 557). So too are “[t]hreadbare recitals” of the elements of
the claim, supported by “conclusory statements” alone. Id.As the majority acknowledges, an absolute public nuisance is 1) the intentional creation
of a public nuisance, which is an unreasonable interference with a right common to the general
public or 2) an abnormally dangerous condition bound to injure property. Maj. Op. 3–4 (citing
rights to public safety and health as examples of rights common to the general public). The
City’s complaint alleges that Wells Fargo has created an absolute public nuisance by deliberately
leaving its many foreclosed properties vacant, unsound, or decrepit, which has led to numerous
safety hazards, crime, and the diversion of scarce public resources. (Third Am. Compl., R. 112,
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 11
PageID 8202, 8206, 8208, 8210–12, 8218–20.) These allegations meet both definitions of an
absolute public nuisance.
The parties agree that to plead an absolute public nuisance claim adequately, the City’s
complaint must also allege facts that, if established, would show that Wells Fargo’s management
of its foreclosed properties proximately caused the City’s asserted injuries. “Although not the
sole element, the requirement of a direct injury is a ‘central element’ of proximate cause.” City
of Cleveland v. Ameriquest Mortg. Sec., Inc., 615 F.3d 496, 502 (6th Cir. 2010) (quoting Perry v.
Am. Tobacco Co., 324 F.3d 845, 848 (6th Cir. 2003)).
The Ohio Supreme Court has adopted the U.S. Supreme Court’s method for determining
whether alleged misconduct directly caused an asserted injury. City of Cincinnati v. Beretta
U.S.A. Corp., 768 N.E.2d 1136, 1148–49 (Ohio 2002) (applying the factors detailed in Holmes v.
Sec. Investor Prot. Corp., 503 U.S. 258, 269–70 (1992)). Under this approach, courts consider
1) whether there are intervening factors between the stated wrongdoing and injury, 2) the
difficulty of determining the extent to which any damages stemmed from the wrongdoing as
opposed to entirely other factors, 3) whether the court would have to apportion the damages
among different plaintiffs to avoid multiple full recoveries, and 4) the availability of directly
injured parties better positioned to sue. See Holmes, 503 U.S. at 269–71, 273–74. Courts need
not decide that every factor applies to conclude that the connection between a defendant’s
alleged misconduct and plaintiff’s asserted injury is too remote for recovery. See, e.g., Anza v.
Ideal Steel Supply Corp., 547 U.S. 451, 458–61 (2006) (holding that plaintiff’s claim failed to
“satisfy the requirement of proximate causation” “[n]otwithstanding the lack of any appreciable
risk of duplicative recoveries”).
We conducted the directness inquiry adopted by the Ohio Supreme Court in Ameriquest.
There, the city of Cleveland alleged that financial entities created a qualified public nuisance by
financing subprime loans that caused a foreclosure crisis. Ameriquest, 615 F.3d at 498–99.
Cleveland alleged essentially the same injuries as the City, including numerous safety hazards
generating maintenance and demolition costs. Id. at 499. We affirmed the dismissal of the
qualified public nuisance claim on proximate cause grounds, observing that “[h]omeowners . . .
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 12
were responsible for maintaining their properties” and the availability of more immediate
victims, including those who had suffered foreclosure. Id. at 504–07.
At least some of the City’s allegations in its third amended complaint significantly differ
from Cleveland’s and adequately plead proximate cause. Here, unlike in Ameriquest, the
defendant owns the dilapidated foreclosed properties. Thus, there are no intervening factors
between its alleged failure to maintain the properties and the costs of repeated municipal
inspections for safety hazards, clean-up and utilities expenses incurred to prevent further hazards,
and the costs of barricading or demolishing irreparable homes. (See Third Am. Compl., R. 112,
PageID 8211–12, 8214, 8216, 8218–20.) Further, a lower court could easily trace these damages
to Wells Fargo and award them to the City without worrying about apportionment among
different plaintiffs. Finally, the City is not only best positioned to pursue these damages; it is the
only entity that could. For these reasons, the City adequately pleads proximate cause as to the
above injuries under its absolute public nuisance claim.
The majority concludes that the City has altogether dropped its absolute public nuisance
claim. Maj. Op. 5. The majority reasons that the City’s second amended complaint contains a
“common law public nuisance” claim and a “common law absolute public nuisance” claim
whereas its third amended complaint contains only the former. Id. at 2–3, 5. (Compare Second
Am. Compl., R. 29, PageID 5333–36, with Third Am. Compl., R. 112, PageID 8218–20.) This
analysis suffers two infirmities.
First, claim six of the third amended complaint sets forth a claim for a “common law
public nuisance,” which encompasses both an absolute and qualified public nuisance claim, not a
common law qualified public nuisance. (Third Am. Compl., R. 112, PageID 8218.) More
importantly, the third amended complaint meets both definitions of an absolute public nuisance
and the proximate cause requirement. (See id. at 8202, 8208, 8210–12, 8216, 8218–20 (offering
Wells Fargo’s intentional “fail[ure] to take responsibility for the . . . upkeep of [its] properties,”
such as “fail[ing] to properly secure” them and rendering them “uninhabitable,” which requires
the City to continually inspect, maintain, and demolish the properties, as deliberate interference
with public safety and an abnormally dangerous condition harming property).)
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 13
Second, Wells Fargo never disputed (until oral argument) that the City’s third amended
complaint incorporates the former complaint. See, e.g., Def.’s Br. 3 n.1 (“[G]iven the case’s
procedural posture, we relate disputed facts as the City has alleged them in its second and third
amended complaints.”). (See Third Am. Compl., R. 112, PageID 8220 (“The City restates its
claims for damages . . . for Defendants’ common law public nuisance properties.”) (emphasis
added).)
The majority affirms the dismissal of the City’s absolute public nuisance claim on a
separate, equally flawed basis: the City has not identified the specific properties causing it harm.
Maj. Op. 6. This ignores the City’s exhibits D, F, and H, which reference properties “so
deteriorated and dilapidated that they were declared public emergencies”; the over 3,000 pages
of code enforcement records citing properties threatening public health and safety; and Wells
Fargo’s admission that the City’s allegations continue to apply to nineteen specific properties.
(See Third Am. Compl., R. 112, PageID 8200, 8207, 8210–11, 8216; see, e.g., Code
Enforcement, R. 14-3, PageID 3860 (finding 6611 Vine St. with an “electrical service cable . . .
hanging loosely from the building,” which “poses a serious threat to the life [sic] safety of
anyone around”); Code Enforcement, R. 15-1, PageID 4037 (noting 3907 W. Liberty St. “has a
hazardous failing foundation,” “deteriorated materials,” and “broken windows”); Code
Enforcement, R. 15-3, PageID 4328 (finding 2768 Queen City “poses a serious threat to anyone
who may be in or around it” and “is likely to . . . collapse”); Code Enforcement, R. 16-1, PageID
4541 (noting 1733 Westwood Avenue “has been vacant for at least two years,” is “a vandalized
dilapidated structure,” and thus “indecent, unsafe and insanitary [sic] for human habitation”).)
The City’s third amended complaint also recounts the frequency with which banks
acquire and dispose of properties, and the lag between such acquisitions and dispositions and
recording with the Hamilton County Auditor. (See id. at 8207–08.)
Additionally, and of even more importance, the notion that proper pleading—even notice
pleading—requires the City to identify specific properties to survive a Rule 12(b)(6) motion has
no basis in law. Contra Maj. Op. 6–7; cf. Ameriquest, 615 F.3d at 506–07 (affirming dismissal
of complaint under federal pleading standards for failure to meet proximate cause requirement
rather than the omission of specific properties); City of Cleveland v. J.P. Morgan Chase Bank,
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 14
N.A., No. 98656, 2013 WL 1183332, at *3–6, *8 (Ohio Ct. App. Mar. 21, 2013) (affirming
dismissal of similar complaint under notice pleading standards for failure to meet proximate
cause requirement and because the economic-loss doctrine barred damages rather than the
omission of specific properties). At oral argument, Wells Fargo conceded that no court has
required such specificity in a complaint. Wells Fargo itself never raised the City’s purported
failure to delineate properties in its complaint.
The City’s allegations that Wells Fargo deliberately leaves its many foreclosed properties
vacant, unsound, and decrepit, which forces the City continuously to inspect, tend, barricade and
raze them, are worlds apart from the “[t]hreadbare recitals” and “conclusory statements”
insufficient to survive a motion to dismiss. Iqbal, 556 U.S. at 678; see Courtright v. City of
Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016) (construing allegation that plaintiff “suffered
injuries” because of “[d]efendants’ unlawful actions” as a threadbare recital of an element of an
excessive force claim). (Third Am. Compl., R. 112, PageID 8202, 8206, 8208, 8210–12, 8214,
8216, 8218–20.) Questions about which properties have caused which damages (if any) are
more suited for discovery. As such, the City’s third amended complaint states a claim for relief
that is clearly plausible on its face.
II.
The final question is whether the economic-loss doctrine applies to absolute public
nuisance claims. The Supreme Court of Ohio has not addressed this question. At least two Ohio
courts of appeals, however, have recognized that the rule excludes all intentional torts. Ineos
USA L.L.C. v. Furmanite Am., Inc., No. 1-14-06, 2014 WL 5803042, at *6 (Ohio Ct. App. Nov.
10, 2014); Eysoldt v. ProScan Imaging, 957 N.E.2d 780, 785 (Ohio Ct. App. 2011); see
Angerman v. Burick, No. 02CA0028, 2003 WL 1524505, at *2 (Ohio Ct. App. Mar. 26, 2003)
(identifying absolute nuisance as an intentional tort).
In arguing that Ohio courts of appeals have held that “the economic-loss doctrine applies
to nuisance claims,” Wells Fargo conflates absolute and qualified public nuisances. Def.’s Br.
14–15 (citing RWP, Inc. v. Fabrizi Trucking & Paving Co., Inc., No. 87382, 2006 WL 2777159,
at *4 (Ohio Ct. App. Sept. 28, 2006) and J.P. Morgan, 2013 WL 1183332, at *8, both of which
No. 16-3752 City of Cincinnati v. Deutsche Bank Nat’l Trust Co., et al. Page 15
involved qualified public nuisance claims). RWP suggests, to the contrary, that the economic-
loss doctrine excludes absolute public nuisance claims. 2006 WL 2777159, at *4 (denying
plaintiffs could evade the doctrine by alleging an absolute rather than qualified public nuisance,
not because both claims are subject to the doctrine, but because plaintiffs had not sustained the
injury needed for an absolute public nuisance claim). I agree that, in Ohio, the doctrine does not
apply to absolute public nuisance claims. Accordingly, the City’s third amended complaint
sufficiently pleads a claim for absolute public nuisance.
For these reasons, I respectfully concur in part and dissent in part.