Baseball at Trotwood, LLC v. Dayton Professional Baseball Club, LLC

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0816n.06
Filed: November 7, 2006
No. 05-4295
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BASEBALL AT TROTWOOD, LLC, ET AL.,
Plaintiffs-Appellants,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DAYTON PROFESSIONAL BASEBALL SOUTHERN DISTRICT OF OHIO
CLUB, LLC, ET AL., WESTERN DIVISION
Defendants,
THE CINCINNATI REDS, ET AL.,
Defendants-Appellees.
____________________________________/
BEFORE: SILER and CLAY, Circuit Judges; and STAFFORD,* District Judge.
STAFFORD, District Judge. Plaintiffs, Baseball at Trotwood, LLC ("BAT"), Rock
Newman, Inc. ("RNI"), and Sports Spectrum, Inc. ("SSI") (collectively, "Plaintiffs"), appeal the
district court's entry of summary judgment for The Cincinnati Reds, LLC ("Reds") and the City
of Dayton, Ohio, ("Dayton" or "City") (collectively, "Defendants") in this action arising from
Plaintiffs' unsuccessful effort to locate a Class A minor league baseball franchise in Dayton,
Ohio. We AFFIRM.
*
The Honorable William H. Stafford, Jr.,United States District Judge for the Northern District
of Florida, sitting by designation.
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I. BACKGROUND
A. Factual
By the mid-1990s, Dayton had become one of the most sought-after markets in the country
for minor league baseball teams seeking to relocate. Under the rules and agreements of Major
League Baseball ("MLB") and the entity that governs minor league baseball, the National
Association of Baseball Leagues, Inc. ("NAPBLI"), a would-be owner of a minor league team must
obtain a territorial waiver from the "local" major league team before locating a minor league team
in a new locale. The territorial rights to the Dayton market are owned by the Reds. At all times
relevant to this lawsuit, John L. Allen ("Allen") was the person designated by MLB to make the
decision about whether the Reds would grant a territorial waiver.
Starting in 1996, two separate groups approached Allen and expressed an interest in
purchasing and moving a minor league baseball team to Dayton: a group from SSI, including
principals Matt Perry ("Perry") and Richard Ehrenreich ("Ehrenreich"), and a group led by husband
and wife Tom Dickson ("Dickson") and Sherrie Myers ("Myers"). Each group wanted the Reds to
grant it a territorial waiver. Throughout discussions, Allen made clear that the Reds would only
grant a waiver to a group if the group (1) reflected the Reds' commitment to achieving minority
participation in team ownership; (2) had an achievable and realistic plan to finance a new stadium;
and (3) had a team to put in the stadium. The team, moreover, had to become a minor league
affiliate of the Reds.
In addition to obtaining a territorial waiver from the Reds, a would-be owner of a Dayton-
based minor league team had to survive a rigorous approval process by MLB, by NAPBLI, and by
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the Midwest League of Professional Baseball Clubs, Inc. ("Midwest League" or "League"), a Class
A minor league that operates in the geographical area encompassing Dayton and several abutting and
non-abutting states to the west and northwest. Specifically, to purchase a team within the Midwest
League, a would-be owner must file a Control Interest Transfer Application ("CIT") with the League.
The CIT must identify all prospective investors in the team to be purchased and must provide
evidence of the owner's plans to finance and operate a team. If approved by the League after
intensive review, the CIT is forwarded to NAPBLI for its consideration, which in turn forwards it
to MLB for its evaluation and recommendation. The ultimate decision rests with NAPBLI, but
NAPBLI cannot act until it has received MLB's recommendation.
A related process exists on the seller's end of a transaction that results in the relocation of a
team to another city. In essence, the seller of an existing team must submit an Application for
Relocation ("AFR") to the Midwest League. That application must be approved first by the Midwest
League, then by NAPBLI and by MLB.
In 1996, having learned that Dayton and the Downtown Dayton Partnership ("DDP")1 had
formed a task force to explore options for bringing a minor league team to downtown Dayton,
Dickson, then owner of a Midwest League minor league franchise located in Lansing, Michigan,
contacted City officials and the DDP. Dickson was not at the time seeking to move his Lansing
team, the Lansing Lugnuts ("Lugnuts"), to Dayton. Instead, he and his wife sought to operate, either
individually or in concert, both a Dayton team and the Lugnuts, provided they could do so without
violating the League's rule prohibiting anyone with an ownership, management, or employment
1
The DDP, a non-profit organization, was formed in 1992 for the purpose of encouraging
economic development in Dayton. It is comprised of prominent Dayton business and community
leaders and is neither a branch of, nor an agent of, the City of Dayton.
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interest in one team from having an ownership or proprietary interest in any other team in the same
league.
In early January 1997, SSI executed an option to purchase the Michigan Battle Cats ("Battle
Cats"), an existing team in the Midwest League. On January 13, 1997, SSI talked with Allen,
informing Allen about its option to purchase the Battle Cats, and again discussing the waiver.
According to SSI, Allen told Perry and Ehrenreich that if the Reds waived its protected territory,
which it was not obligated to do, the waiver would benefit SSI exclusively. SSI also approached the
DDP at or about the same time, discussing options for locating a minor league team in downtown
Dayton. Given Allen's purported promise to SSI, SSI was not concerned that it might be competing
with other groups for the privilege of locating a team in Dayton.
On March 7, 1997, relying on Allen's purported promise, SSI executed a Memorandum of
Understanding ("MOU") with Hara Complex, Inc. ("Hara") for a stadium project in Trotwood, a
suburb on the north side of Dayton. On March 21, 1997, SSI bought the Battle Cats for $3,300,000,
executing an asset purchase agreement to that effect and paying a non-refundable earnest money
deposit of $495,000.
In the meantime, the DDP selected Dickson and Myers as the City's partner in bringing
baseball to downtown Dayton. On March 28, 1997, the DDP formalized that selection by signing
a binding MOU with Dickson and Myers to that effect. On April 10, 1997, Dickson wrote to Allen,
confirming that DDP had selected Dickson and Myers over SSI in the bid for locating a minor league
baseball team in downtown Dayton. At Allen's direction, DDP, Dickson, and Myers thereafter met
with Marge Schott, then owner of the Reds, regarding a waiver. Notably, the DDP's selection of
Dickson and Myers did not affect SSI's continuing efforts to locate a team in Trotwood.
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On April 15, 1997, SSI and Rock Newman ("Newman"), an African-American and sole
shareholder of RNI, agreed that Newman would purchase a controlling interest in the Battle Cats,
the team that SSI was still attempting to bring to Trotwood, provided SSI's effort to relocate the team
succeeded. A few days later, an SSI representative wrote to Allen, advising Allen that SSI had sold
a majority interest of its team to an African-American. The name of the African-American was not
disclosed to Allen until some months later.
By letter dated May 30, 1997, after months of discussions with various parties, Allen advised
the DDP that the Reds would "consider waiving its territorial rights for a major league affiliated
minor league baseball team to play in Downtown Dayton provided certain conditions are met." J.A.
at 708. Specifically, Allen wrote:
In order to waive the Reds territorial rights to permit a downtown
minor league baseball team, at least the following conditions need to
be met by August 15, 1997 and until then the Cincinnati Reds will
work exclusively with the Downtown Dayton Partnership:
! An agreement to purchase an acceptable Midwest League
Team (A level) and relocate it to Dayton by April 1999 . . . .
! Funding commitments in place by August 15, 1997, which
would enable the Dayton community to proceed to build a
minor league stadium which meets or exceeds all baseball
requirements and which would be ready for play by April,
1999.
! A commitment to work together to market the proposed
minor league team in conjunction with the Cincinnati Reds.
! The ownership group of the proposed team would require
Reds and all appropriate baseball authorities approval. Our
organization, and all of professional baseball supports
diversity in ownership, employment and other matters. We
require that equal opportunity be exercised in the selection
process.
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J.A. at 708-09.
After learning about Allen's letter to the DDP, granting the DDP a conditional territorial
waiver, Newman met with the DDP. Members of the DDP suggested to Newman that he contact
Dickson if he wished to pursue an ownership interest in any team to be established in Dayton. After
meeting unsuccessfully with Dickson, Newman wrote to Allen, stating:
They [members of the DDP] all suggested that I meet with Lansing
Lugnuts' owner Tom Dickson, so that we might be able to accomplish
the letter and spirit contained in your correspondence to them. All
parties seemed genuinely interested and supportive of the Cincinnati
Reds' noble desire to broaden the ethnic base of ownership in Minor
League Baseball by encouraging African American and other
minority ownership in Dayton.
I flew from Dayton to Chicago and met with Mr. Dickson for several
hours. In that meeting it became crystal clear to me that Mr. Dickson
had no intention whatsoever of allowing me or anyone else to become
majority owner in Dayton if he could help it.
My naïve thoughts going into that meeting were that we could
collectively accomplish everything for everybody involved while
honoring all of the Cincinnati Reds' conditions for approval. Mr.
Dickson slammed the door. Informing me that the financial windfall
for himself that he anticipated would be compromised if I became
majority owner[,] [Mr. Dickson] . . . stated he could satisfy his dual
ownership and minority participation problems by inserting his wife
as a majority owner.
J.A. at 714-15.
By affidavit, Allen explained his reasons for granting a conditional waiver to the DDP-
selected group, Dickson and Myers. First, according to Allen, Dickson and Myers had an excellent
reputation and a proven track record as operators of a very successful Midwest team, the Lansing
Lugnuts, which was in a market similar to Dayton. Second, Dickson and Myers had the
overwhelming support of the Dayton financial, business, and governmental communities, the most
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obvious evidence of which was the decision by the DDP (comprised of Dayton's business and
government leaders) to partner with Dickson and Myers. Third, based on his review of the numerous
proposals and communications received from the competing groups, as well as his conversations
with Dayton's financial, government, and business leaders, Allen felt that the DDP-led group would
offer more long-term ownership stability and would more likely be able to achieve a realistic stadium
financing plan. In comparison, Allen knew that SSI (1) had a reputation for moving in and out of
franchises rather than owning a franchise in one location for the long-term, (2) did not have the same
level of community support held by the DDP/Dickson/Myers group, and (3) had provided no details
of any financing plan. In July 1997, Myers formed the Dayton Professional Baseball Club, LLC
("DPBC") for the purpose of acquiring and operating a minor league baseball team in Dayton. The
DPBC thereafter contracted to purchase the Rockford Cubbies, a Midwest League team, from the
Chicago Tribune. Because of Myers's agreement with the DDP to bring baseball to Dayton, the
DPBA was the de facto recipient of the Reds' protected territory waiver.
Also in July 1997, the Dayton City Commission voted four to one in favor of the DDB's
recommendation of Dickson and Myers as the City's partner in bringing a minor league team to
Dayton. The City thereafter entered into a MOU with the DPBC, the intent of which was to lay the
framework through which a lease agreement between Dayton and the DPBC could be negotiated.
J.A. at 1183. The MOU/DPBC provided that Dayton would own the stadium facility and site, while
the DPBC would lease the facilities. The MOU/DPBC further provided that Dayton would arrange
for funding of the project in an amount not to exceed $18.5 million; the DPBC would provide a
capital contribution of $1.5 million and prepaid rent in the amount of $4 million; and any cost
overruns would be borne by Dayton. The MOU/DPBC also required the DPBC to secure all
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necessary approvals from the Midwest League, NAPBLI, and MLB.
After receiving the conditional waiver letter from the Reds, the DDP-led group had
difficulties acquiring the necessary approvals from the baseball authorities, largely because of the
dual ownership issue. Thus, although the group had received extensions of the August 15 waiver
deadline, the DDP and the DPBC could not meet the Reds' waiver conditions in a timely manner.
The Reds accordingly notified the DDP in writing that it was terminating–as of September 26,
1997–any commitment the Reds had made to the DDP in its May 30, 1997 letter. Although Myers
thereafter continued to pursue efforts to obtain the necessary approvals, she ultimately held a press
conference on November 11, 1997, announcing that she was terminating her efforts to bring baseball
to downtown Dayton.
The City soon after sent Myers a Termination Agreement, the purpose of which was to
terminate the City's MOU with the DPBC. Myers never signed the Termination Agreement; indeed,
she declined the City's request for a mutual termination. The City, moreover, determined that it was
not in its best interests to unilaterally terminate the MOU/DPBC. While Myers indicated that she
would not personally bring a team to Dayton, her rights in the MOU/DPBC could be assigned to
somebody else who potentially could fulfill the obligations. The City thus determined that it would
explore such an option, an option that would permit the City "to have baseball played in downtown
in a stadium designed to its liking on a brown field site within the time lines desired by us all." J.A.
at 1157.
When Myers and the DDP failed to obtain the necessary approvals within the extended
waiver period, the Reds issued SSI a conditional territorial waiver until January 26, 1998. Among
other things, the waiver was conditioned on SSI's including a number of Dayton residents in its
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ownership group, on SSI's giving the Reds a small equity investment in the Club, and on SSI's
allowing the Reds to have input into the selection of any full time executive that SSI might appoint
to manage the club.
Having received the Reds' conditional territorial waiver, SSI again had discussions with the
DDP about bringing a team to downtown Dayton. By this time, the City had learned that newly-
disclosed environmental concerns with the site and expected financial shortfalls in the sources of
funding had significantly changed the budgetary and financial circumstances with regard to the
stadium. Accordingly, the City had decided to increase the budget cap on the project to $22.7
million, to decrease the stadium cap to $14.5 million, and to try to find third-party funding to cover
the $2.7 million shortfall. Because of the changed circumstances, the City determined that it would
need a larger capital contribution from SSI than had been proposed earlier for Myers and the DPBC.
Because of the City's increased financial demands, SSI ultimately decided to abandon its negotiations
with the City and the DDP.
Unable to reach an agreement with the City and the DDP, SSI returned to the City of
Trotwood and Hara, entering into a new arrangement with those entities to bring a minor league team
to Trotwood. In furtherance of that end, SSI and RNI formed BAT (Baseball at Trotwood, LLC) to
serve as the business entity responsible for bringing the Battle Cats to Trotwood. BAT thereafter
filed CIT and AFR applications with the Midwest League and with NAPBLI. Neither application
was approved before the protected territory waiver granted to SSI expired on January 26, 1998.
In early January 1998, Myers began actively pursuing a buyer for the DPBC. In February
1998, Mandalay Sports Entertainment ("Mandalay") bought the DPBC from Myers. At the same
time, Mandalay bought the assets of the Rockford Cubbies. Although the MOU/DPBC was still in
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effect, Mandalay assured the City that it was willing to adjust the financial aspects of the
arrangement. After completing extensive due diligence on the background, financial capabilities,
and experience of Mandalay, the City consented to the assignment of Myers's MOU/DPBC rights
to DPBC/Mandalay. Indeed, the agreement eventually negotiated with the DPBC under Mandalay's
management provided that Mandalay would cover stadium cost overruns exceeding $22.7; that
Mandalay would own, operate, and maintain the stadium; that Mandalay would be responsible for
all operations and capital maintenance costs as well as any subsequent upgrades to the stadium; and
that Mandalay would make an equity investment of $4 million. According to the City's Economic
Development Director, Joseph Tuss, these terms guaranteed that the City would have no unexpected
future costs.
B. Procedural
In 1998, Plaintiffs filed a nine-count complaint against twenty-seven defendants, including
the City of Dayton and the Reds. Among other things, Plaintiffs sued the Reds for: (1) tortious
interference with existing and prospective contractual and business relations (Count III); (2) civil
conspiracy (Count V); (3) promissory estoppel (Count VII); (4) contract discrimination in violation
of 42 U.S.C. § 1981 (Count VIII); and conspiracy to discriminate in violation of 42 U.S.C. § 1985
(Count IX). Plaintiffs sued the City of Dayton for: (1) tortious interference with existing and
prospective contractual and business relations (Count III); (2) detrimental reliance (Count IV); (3)
civil conspiracy (Count V); (4) contract discrimination in violation of 42 U.S.C. § 1981 (Count VIII);
and conspiracy to discriminate in violation of 42 U.S.C. § 1985 (Count IX).
The City and the Reds moved for summary judgment as to all claims. The district court
granted the City's motion for summary judgment in its entirety, explaining its decision in a 180-page
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opinion entered September 23, 2003. In that same opinion, the district court granted the Red's
motion for summary judgment as to the civil conspiracy, estoppel and § 1985 claims; granted the
motion in part and denied it in part as to the tortious interference claim; and denied the motion as
to the § 1981 claim.
At the district court's invitation, the Reds later filed a supplemental motion for summary
judgment, supported by two affidavits from John Allen. After Plaintiffs unsuccessfully moved to
strike the two Allen affidavits, the district court granted the Reds' supplemental motion. On
September 6, 2005, the district court entered judgment in favor of all defendants and against
Plaintiffs on all claims set forth in Plaintiffs' amended complaint. This appeal was filed on October
6, 2005.
II. DISCUSSION
A. Motion to Strike
This court reviews a district court's decision on a motion to strike an affidavit for abuse of
discretion. Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th Cir. 2003). "'[D]ecisions that are
reasonable, that is, not arbitrary, will not be overturned.'" Id. (quoting Collazos-Cruz v. United
States, 117 F.3d 1420 (Table), 1997 WL 377037, at *2 (6th Cir. July 3, 1997) (per curiam )).
In his affidavits, filed in support of the Reds' supplemental motion for summary judgment,
Allen explained why he chose to send–on May 30, 1997–a conditional territorial waiver to DDP-
backed Myers/Dickson instead of SSI. In essence, Allen stated that he believed that the DDP-backed
group (1) was the choice of the Dayton community, (2) would provide more long-term stability, and
(3) had a more realistic and achievable stadium financing plan. In contrast, Allen stated that he was
not confident that SSI could finance a new stadium, provide the stability that the Reds desired, or
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garner community support.
Plaintiffs moved to strike Allen's affidavits, arguing that many of Allen's statements were not
based on Allen's personal knowledge, did not set forth specific facts that would be admissible in
evidence, were contradictory to Allen's deposition testimony, and/or were not statements to which
Allen was competent to testify. The district court rejected these arguments and denied the motions
to strike. Concluding that Allen's affidavits constituted, in large measure, Allen's explanation about
why he issued the waiver to the DDP, the district court wrote:
Since the question [regarding Plaintiffs' section 1981 claim] is
whether the Reds have articulated a non-discriminatory reason for
choosing the DDP over the SSI group, which was affiliated with a
prominent African-American, the Court must consider Allen's
explanations concerning his beliefs or perceptions about the
circumstances surrounding that decision, rather than the truth of the
matters set forth in that affidavit. It bears emphasis that out of court
statements which are not offered for the truth of the matter asserted
therein do not constitute hearsay.
J.A. at 875. We agree with the district court's rationale, and we find no abuse of discretion in the
court's decision to deny Plaintiffs' motion to strike.
B. Summary Judgment for the Reds
Plaintiffs contend that the district court erred by entering summary judgment for the Reds on
Plaintiffs' § 1981, civil conspiracy and § 1985 conspiracy, promissory estoppel, and tortious
interference claims. This court reviews de novo a district court's grant of summary judgment.
Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004).
1. Section 1981 Claim
Claims of race discrimination under 42 U.S.C. § 1981 are analyzed using the familiar
burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Page 13 of 25
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989). Under McDonnell Douglas, if a
plaintiff sustains his or her burden of establishing a prima facie case of race discrimination, the
burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its
actions. If the defendant sustains this "extremely light" burden of production, Frazier v. Ford Motor
Co., 109 Fed. Appx. 718, 721 (6th Cir. 2004) (unpublished decision), the burden returns to the
plaintiff to prove by a preponderance of the evidence that "the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination." Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also Aquino v. Honda of Am., Inc., 158 Fed. Appx.
667, 675-76 (6th Cir. 2005) (unpublished decision) (holding that the Supreme Court's recent decision
in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), did not modify the McDonnell Douglas
framework for assessing circumstantial employment discrimination suits under § 1981). To prove
pretext, the plaintiff "must produce sufficient evidence from which the jury could 'reasonably reject
[the defendants'] explanation' and infer that the defendants 'intentionally discriminated' against her."
Balmer v. HCA, Inc., 423 F.3d 606, 614 (6th Cir. 2005) (quoting Woythal v. Tex-Tenn Corp., 112
F.3d 243, 246-47 (6th Cir. 1997)). As explained by the court in Balmer:
The plaintiff must submit evidence demonstrating that the employer
did not "'honestly believe' in the proffered non-discriminatory reason
for its adverse employment action." Braithwaite v. Timken Co., 258
F.3d 488, 494 (6th Cir. 2001) (citing Smith v. Chrysler, 155 F.3d 799,
806-07 (6th Cir. 1998)). To inquire into the defendant's "honest
belief," the court looks to whether the employer can establish
"reasonable reliance" on the particularized facts that were before the
employer when the decision was made. Smith, 155 F.3d at 807
("[T]he key inquiry is whether the employer made a reasonably
informed and considered decision before taking an adverse
employment action."). . . . If there is no reasonable dispute that the
employer made a "reasonably informed and considered decision" that
demonstrates an "honest belief" in the proffered reason for the
adverse employment action, the case should be dismissed since no
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reasonable juror could find that the employer's adverse employment
action was pretextual. See Braithwaite, 258 F.3d at 494.
Balmer, 423 F.3d at 614.
Here, through the affidavits of Allen, the Reds explained that a conditional waiver was
granted to the DDP-backed Dickson/Myers group because, in Allen's mind, (1) the DDP-backed
group was the choice of the Dayton community; (2) the DDP-backed group would provide more
long-term stability; and (3) the DDP-backed group had a more realistic and achievable stadium
financing plan. Plaintiffs do not appear to challenge the district court's conclusion that the Reds met
their burden of production by articulating non-discriminatory reasons for its waiver decision.
Instead, Plaintiffs appear to challenge the district court's conclusion that Plaintiffs failed to
demonstrate pretext. The record, however, more than adequately supports that district court's
decision in this regard. The evidence demonstrates, for example, that the DDP is comprised of
Dayton's business and civic leaders, including the City's mayor; that the DDP's Baseball Task Force
led the effort to bring a minor league team to downtown Dayton; that the DDP selected the
Dickson/Myers group over Plaintiffs as its partner in bringing baseball to downtown Dayton; that
the DDP selected the Dickson/Myers group following an extensive review of several groups,
including Plaintiffs; and that community leaders expressed their enthusiasm to Allen about the
DDP's plan to bring baseball to Dayton through a partnership with Dickson and Myers. Plaintiffs
produced little if anything to challenge Allen's quite understandable desire to work with an
ownership group that had the support of the DDP and its membership of business and community
leaders.
In addition, Plaintiffs offered no evidence to refute Allen's belief that ownership stability
could become an issue with SSI, based on SSI's history of buying and selling minor league
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franchises. To be sure, Plaintiffs may be correct in saying that, based on its history, SSI had more
baseball experience than either Dickson or Myers. Nonetheless, it is undisputed that Allen was less
interested in the relative inexperience of Dickson and Myers and more interested in the fact
that–unlike SSI's Perry–Dickson and Myers were not team brokers.2 The record is clear that the Reds
wanted franchise stability, and Plaintiffs presented nothing to undermine the legitimacy of Allen's
belief that the DDP-backed group was a safer bet for achieving that stability.
Plaintiffs, moreover, failed to refute Allen's belief that the stadium financing plan proposed
by Dickson and Myers, a plan that then included both actual and near commitments of significant
public funds, was more realistic and achievable than SSI's largely vague and speculative financing
plan. Taking issue with Allen's belief in this regard, Plaintiffs point to the Executive Summary that
they submitted to the Reds, a plan–they say–that "set out in detail the funding sources, local
municipalities and possibly private funding and [sic] the State of Ohio, for the construction of a $20
million stadium at Hara." Pl.'s Br. at 34. The Executive Summary, however, provided no
information about funding commitments. Instead, it described Plaintiffs' financing plan in terms of
possibilities. For example, it was stated in the Executive Summary that "[i]t is possible that the State
of Ohio might contribute capital funds;" J.A. at 749; "[o]ther private funding sources may also
become available;" id.; "Trotwood, Harrison Township and perhaps other communities in the area
. . . will agree to lend their credit to support bonds or certificates of participation . . . in the
approximate amount of $20 million;" id. at 748; "[i]t is anticipated that bonds will be issued tax-
free;" id.; and "[d]ebt service guarantees will be issued by the member municipalities in accordance
2
As he explained during his deposition, Perry "was in the business of buying and selling
teams and doing consulting." J.A. at 1309. Over time, Perry assisted in the purchase and/or sale of
six teams, including two hockey franchises. Id. at 1311.
 Page 16 of 25
with the contract [to be] entered into at the time of the formation of the [entity that will take title to
the new ballpark]." Id. Such possibilities do little to undermine the Reds' assertion that Allen had
an "honest belief" and made a "reasonably informed and considered decision" that the DDP-backed
groups had a more realistic and achievable stadium financing plan.
Finally, of particular relevance to their claim of race discrimination, Plaintiffs failed to
controvert the Reds' evidence that diversity in team ownership was significant to the Reds'
organization; that the Reds expected every group interested in locating a minor league team in
Dayton, including the DDP-backed group, to include African Americans in the team's "ownership,
employment and other matters;" that the DDP acknowledged and addressed the Reds' interest in
diversity by seeking the financial participation of African Americans;3 and that African Americans
(Archie Griffin and Magic Johnson) are, in fact, part owners of the Reds minor league team that
ultimately settled in Dayton. Such evidence greatly undermines Plaintiffs' claim that the Reds
discriminated against them on the basis of race.
2. Civil Conspiracy and Section 1985 Conspiracy Claims
In their amended complaint, Plaintiffs alleged that the Reds conspired with the DDP and
others "to prevent the Plaintiffs from owning and relocating the Michigan Battle Cats to the Dayton
Area" by "hamper[ing], impair[ing] and imped[ing] the [AFR] filed by BAT, Rock Newman, Inc.
3
In a letter to Allen dated April 22, 1997, the DDP assured Allen that "African-American
ownership of the minor league team by our local African-American leaders can be obtained." J.A.
at 724. The DDP also informed Allen that it had "had discussions with representatives of the
African-American CEO's organization which has already pledged $50,000 in financial support to our
endeavor." Id. Similarly, in a letter dated May 16, 1997, the DDP informed Allen that it had
"worked to satisfy the conditions we discussed: . . . [including] Identification of local, African
American business people who are ready and willing to financially participate in minor league
baseball in our downtown, including Mervyn Alphonso, Dayton President, Key Bank, as well as
numerous other local African-American CEOs." J.A. at 731.
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and the Michigan Battle Cats for the reason that Defendants . . . DDP, Myers, DPBC, Dickson, The
Reds [and others] prefer a white citizen-owned Minor League Baseball franchise." Am. Compl. at
¶¶ 140, 164; J.A. at 107, 112. Before the district court, Plaintiffs argued that "the Reds conspired
with at least the DDP to issue the conditional waiver contract the Reds had promised to SSI to the
DDP instead with the intention of interfering with the Plaintiffs' ability to enter into business
relationships by filing Applications with the Midwest League and the NAPBL. . . ." J.A. at 316.
To prove a civil conspiracy under Ohio law, a plaintiff must prove "a malicious combination
of two or more persons to injure another in person or property, in a way not competent for one alone,
resulting in actual damages." Williams v. Aetna Fin. Co., 700 N.E.2d 859, 868 (Ohio 1998) (internal
quotation marks and citation omitted). To prove a conspiracy under section 1985, a plaintiff must
show that (1) the defendants conspired together for the purpose of depriving, directly or indirectly,
a person or class of persons of the equal protection of the laws; (2) the defendants committed an act
in furtherance of the conspiracy which caused injury to person or property or a deprivation of any
right or privilege of a citizen of the United States; and (3) the conspiracy was motivated by racial,
or other class-based, invidiously discriminatory animus. Bass v. Robinson, 167 F.3d 1041, 1050 (6th
Cir. 1999).
Here, the district court disposed of Plaintiffs' conspiracy claims in the following words:
[A]s they have done throughout their various opposition briefs, the
Plaintiffs confuse business agreements with conspiracies. The two
are clearly not the same. The fact that an agreement between two
parties has a negative effect on a third party does not transform that
agreement into a conspiracy. Anyone is allowed to compete with
anyone else, within the bounds of the law, for the benefit of a bargain.
There is no evidence that the DDP was aware that the protected
territory waiver had been promised to SSI, such that it could enter
into an agreement with the Reds to interfere with the execution of that
promise. More importantly, there are not facts from which one could
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draw a reasonable inference that the Reds and the DDP agreed to
maliciously injure SSI.
J.A. at 572-73.
On appeal, based on evidence showing that Allen issued the waiver to DDP after he learned
that an African-American was the majority owner of Plaintiffs' Battle Cats team, Plaintiffs do little
more than suggest that "it is reasonable to infer that Allen never intended to consider any minority
ownership in a Dayton team." Pl.'s Br. at 43. While they assert–without citing to record
evidence–that Allen and the DDP "knew that if Allen issued the waiver to DDP, which had already
selected Dickson/Myers, a non-protected group, that a protected group would be prevented from
attaining a much-coveted business deal in Dayton," id., such assertion, even if true, does not provide
a basis for a conspiracy claim. Because Plaintiffs offer neither evidentiary support nor "developed
argumentation" regarding their conspiracy claims, and because they make no attempt to address the
deficiencies in proof found by the district court, we find no basis for disturbing the district court's
decision as to Plaintiffs' conspiracy claims. See United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.
1996) (explaining that it is a "'settled appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived'") (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
3. Promissory Estoppel Claim
Plaintiffs claim that, in January 1997, Allen promised that, if the Reds agreed to grant a
territorial waiver, the waiver would be granted in favor of SSI. In March 1997, allegedly in reliance
on Allen's promise, Plaintiffs entered into both an MOU with Hara regarding a stadium project as
well as an asset purchase agreement with the then-owners of the Michigan Battle Cats, paying
$495,000 as a non-refundable earnest money deposit for the latter. Plaintiffs claim that when Allen
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failed to grant them a territorial waiver, Plaintiffs were damaged by the loss of their earnest money
deposit. They seek relief based on the doctrine of promissory estoppel.
In Ohio, the elements necessary to establish a claim for promissory estoppel are: (1) a clear
and unambiguous promise; (2) reliance upon the promise by the promisee; (3) reliance by the
promisee that is both reasonable and foreseeable; and, (4) injury to the promisee as a result of the
reliance. Weiper v. W.A. Hill & Assocs., 661 N.E.2d 796, 803 (Oh. Ct. App. 1995).
The district court in this case assumed–for purposes of the Reds' motion for summary
judgment–that Allen did promise that, if the Reds granted a territorial waiver, it would be granted
to SSI. The district court nonetheless entered summary judgment in the Reds' favor on Plaintiffs'
promissory estoppel claim. Among other things, the district court noted that (1) Plaintiffs acquired
an option on the Battle Cats before Allen made any alleged promises to SSI, albeit their
nonrefundable deposit was paid after Allen made his alleged promise; (2) Allen made it perfectly
clear to Plaintiffs–and Plaintiffs conceded–that the Reds had not decided (both when Allen made his
alleged promise to SSI and when SSI entered into contracts with the owners of the Battle Cats and
Hara) whether a waiver would be granted to anyone, SSI included; (3) SSI ultimately received a
conditional waiver from the Reds; and (4) there was no evidence in the record to suggest that, when
the Reds granted a conditional waiver to SSI, SSI's investments–including its earnest money deposit
and its agreement with Hara–no longer retained their value. Under the circumstances, the district
court found it "illogical" to find that Plaintiffs either reasonably relied on or were harmed by Allen's
alleged promise.
On appeal, Plaintiffs baldly state that they relied on Allen's promise, but they utterly fail to
explain why this court should fault the district court either for concluding that "it would be illogical
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to find SSI's financial outlays were in reliance on Allen's conditional promise to grant it the waiver"
or for finding that "[t]he Plaintiffs have submitted no evidence that they suffered injury, pecuniary
or otherwise, because of the six months or so lapse of time between the time they expected to receive
the waiver and the time they actually received it." J.A. at 571-72. Lacking detail, citation to facts
in the record, and cogent argument, Plaintiffs' brief provides no basis for reversing the district court.
4. Tortious Interference Claim
Plaintiffs alleged in their amended complaint that the Reds tortiously interfered with
Plaintiffs' existing and prospective contractual and business relationships. Specifically, they alleged
that, by issuing a protected territory waiver to the DDP in May 1997, the Reds tortiously interfered
with Plaintiffs' contract to purchase the Battle Cats and Plaintiffs' MOU with Hara regarding the
Hara Arena. In addition, they alleged that the Reds exerted influence on the Midwest League and/or
NAPBLI, causing those organizations to refuse to review Plaintiffs' CIT and AFR applications.
Finding no record support for either allegation, the district court granted summary judgment to the
Reds on Plaintiffs' tortious interference claim. The district court did not err in this regard.
Under Ohio law, tortious interference with a business relationship and/or a contract occurs
"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, 651
N.E.2d 1283, 1294 (Ohio 1995); Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir.
1995).
Here, Plaintiffs have provided no evidence that Allen or anyone else with the Reds contacted,
much less exerted influence on, either the Midwest League or NAPBLI with regard to their review
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of Plaintiffs' CIT and AFR applications. Based on this record, we can only speculate about why the
League and NAPBLI failed to review Plaintiffs' applications. We can also only speculate about
whether the League and NAPBLI would have granted the applications even if Plaintiffs had been
granted a waiver by the Reds. Such speculation does not support a claim of tortious interference.
Furthermore, there is no evidence to suggest that the Battle Cats and/or Hara breached their
contracts, or ended their relationships, with Plaintiffs because of anything the Reds did or did not
do. When Plaintiffs entered into their respective business relationships/contracts with Hara and the
Battle Cats, they gambled that the Reds would grant them a territorial waiver. As explained by SSI
principal Perry during his deposition:
[Allen] had indicated to us that it was going to be his decision. Not
that he would waive it or not, but that it's [Allen's] decision and he's
considering very favorably waiving the territory.
....
. . . We knew the Reds' decision could be no, we're not waiving the
territory but we felt strong enough that things were looking positive
that we went ahead and put money in place [for the Battle Cats and
Hara Arena].
J.A. at 1319-20, 1321-22. Plaintiffs lost their gamble, but their loss was not the result of tortious
interference by the Reds.
C. Summary Judgment for the City of Dayton
On appeal, Plaintiffs assert that the district court erred in granting summary judgment to the
City of Dayton on Plaintiff's § 1981 and § 1985 claims. Plaintiffs do not appeal the district court's
ruling as to their tortious interference, detrimental reliance, and civil conspiracy claims against the
City.
1. Section 1981 Claim
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In essence, Plaintiffs alleged that the City failed to select Plaintiffs, the BAT entities, as the
City's partner in bringing baseball to Dayton based on Rock Newman's race. In moving for summary
judgment, the City proffered numerous legitimate reasons–largely financial–for its ultimate decision
to select Mandalay rather than Plaintiffs, and the district court found that Plaintiffs failed to
demonstrate that the City's articulated reasons for its actions were pretextual. The district court
accordingly entered summary judgment in favor of the City on Plaintiffs' § 1981 claim.
As noted by the district court, the City believed that it could not unilaterally terminate the
MOU/DPBC without incurring significant liquidated damages. Indeed, the MOU/DPBC provided
that, in limited defined circumstances, the "the City ha[d] the right, but not the obligation, to
withdraw from the Project upon a majority vote of the City Commission . . . and upon payment by
the City to the Tenant of $500,000 as liquidated damages for such withdrawal." J.A. at 1186.
Plaintiffs contend that Myers's November 1997 public announcement that she was terminating her
efforts to bring baseball to downtown Dayton constituted a de facto termination of the MOU/DPBC,
freeing the City from its obligation to pay liquidated damages. It is undisputed, however, that, when
the City asked Myers to memorialize what appeared to be her termination of the MOU/DPBC, she
refused to do so. Moreover, in a letter dated December 6, 1997, weeks after Myers made her public
announcement, SSI's Ehrenreich expressed concern about the continuing effect of the MOU/DPBC,
explaining to the City Manager that "we cannot present our proposal to the City until you formally
terminate the City's agreement with Tom Dickson and Sherrie Myers, which the City Commission
authorized weeks ago."4 J.A. at 1052. As correctly recognized by the district court, the City "had
4
By letter dated December 1, 1997, the Mayor of Dayton, Michael Turner, offered SSI the
City's assistance in "bringing minor league baseball to our downtown." J.A. at 1351. Prior to that
time, the City Manager had informed Ehrenreich that he could provide to the City, on "an unsolicited
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a genuine concern, from a legal perspective, that it could not terminate the DPBC MOU unilaterally
without incurring a $500,000 penalty." J.A. at 606.
Consistent with its concern about the continuing effect of the MOU/DPBC, the City decided
to explore the possibility that Myers might sell the Rockford Cubbies and assign the MOU/DPBC
to another group interested in bringing baseball to Dayton. BAT was one such group. Indeed, on
November 12, 1997, the day following the public announcement by Myers, Ehrenreich called
someone–he couldn't recall if it was Myers's attorney or "one of the guys at the Cubs"–to offer to
purchase Myers's interest in the Cubbies. The response was: "We're still taking [what happened
yesterday] all in and we'll call you if we're interested." J.A. at 1019. Ehrenreich never received a
call back and he never pursued the matter further. As he admitted in his deposition: "I was really
never interested in purchasing her interest." Id. at 1043. Thus, as proffered by the City and noted
by the district court, BAT failed to make itself a practicable option for the MOU/DPBC-bound City.
Mandalay, on the other hand, not only agreed to acquire the MOU/DPBC by purchasing the
DPBC; it also agreed to negotiate different financial terms with the City: namely, it agreed to
increase the stadium budget cap to $22.7 million (to reflect added environmental costs), decrease the
City's funding commitment to $14.5 million (to reflect the City's budget problems), and find a third
party (perhaps the team) to cover the shortfall. Thus, unlike BAT, Mandalay presented the City with
what the City considered to be a viable option, an option that not only resolved the contractual issues
with which the City struggled but also addressed the budgetary problems with which the City was
newly faced. Although Plaintiffs contend that the agreement reached with Mandalay was a "far
worse stadium deal" than the deal informally offered by BAT, BAT never presented the City with
basis," SSI's proposal for bringing baseball to downtown Dayton. Id. at 1148.
 Page 24 of 25
an option that was similar to the overall-acceptable option presented by Mandalay. As the district
court quite properly determined, Plaintiffs failed to demonstrate that the City's contractual and
financial reasons for choosing Mandalay were pretextual.
The district court was not persuaded otherwise by Plaintiffs' reference to a purportedly racist
comment made by the Mayor of Dayton. According to Ehrenreich, the Mayor at one time asked
Ehrenreich whether BAT would consider dealing with Dayton without the involvement of Newman.
The Mayor explained by saying: "[W]ell, [Newman] called me a racist and I resent that." J.A. at
1028. The district court determined that this statement constituted neither direct nor indirect
evidence of racial animus. Rather, the court wrote: "[I]t gives rise to a finding that Mayor Turner
did not like Newman." Id. at 610. The district court thus rejected Plaintiffs' argument that the
Mayor's resentment of Newman (for calling the Mayor a racist) was sufficient to give rise to an
inference that the Mayor himself was emoting racist sentiments. As the district court correctly
suggested, it is not unlawful to resent someone for the disparaging remarks he or she makes.
Plaintiffs contend that the district court failed to draw reasonable inferences in Plaintiffs'
favor, granted unwarranted deference to the City's business judgment, and ignored Plaintiffs'
evidence that, even if the City's proffered reasons had a basis in fact, those reasons were insufficient
to motivate the City's decision to award the minor league baseball franchise to Mandalay rather than
BAT. We find no merit to Plaintiff's arguments. The district court correctly found that the City was
entitled to summary judgment on Plaintiffs' § 1981 claim, Plaintiffs having utterly failed to establish
pretext.
2. Section 1985 Conspiracy Claim
The district court disposed of Plaintiff's § 1985 conspiracy claim by writing:
Page 25 of 25
The Plaintiffs have not adduced any evidence that the City entered
into an agreement to deprive them of their equal protections of the
law. There is also no evidence of racial animus. . . .[T]here being no
genuine issue of material fact, the City's Motion for Summary
Judgment is SUSTAINED.
J.A. at 611. We find no error in the district court's treatment of this claim.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the district court.