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Motion by City of Akron To Dismiss

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City of Akron moves to dismiss suit brought by Rose Wilcher on behalf of citizens

MR/DAM/SAF/keh 12-12-05

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROSE WILCHER             )           CASE NO. 1:05 CV 866

Plaintiff                            )

v.                                    ) JUDGE DOWD

CITY OF AKRON, et al.    ) MOTION OF DEFENDANT CITY OF AKRON

                                         TO DISMISS PLAINTIFF’S COMPLAINT

Defendants                        ) CIVIL RULE 12(b)6; OR IN THE

                                          ALTERNATIVE, FOR JUDGMENT ON THE

                                         ) PLEADINGS CIVIL RULE 12(c)

Now comes the Defendant, City of Akron, by and through undersigned counsel and

respectfully requests that this Honorable Court dismiss Plaintiff’s Complaint pursuant to Civil

Rule 12(b)(6); or, in the alternative, pursuant to Civil Rule 12(c), grant the City of Akron

judgment on the pleadings.

A memorandum in support is attached hereto.

Respectfully submitted,

Max Rothal – No. 0009431

Director of Law

___S/DMuntean__________________________

David A. Muntean – No. 0038580

Munteda@ci.akron.oh.us

Stephen A. Fallis – No. 0021568

Fallist@ci.akron.oh.us

Assistant Directors of Law

161 S. High Street, Suite 202

Akron, Ohio 44308

(330) 375-2030 FAX: (33) 375-2041

Case 5:05-cv-00866-DDD Document 52 Filed 12/12/2005 Page 1 of 5

MEMORANDUM IN SUPPORT

I. INTRODUCTION

On April 1, 2005, Plaintiff filed her complaint against Defendants Time Warner and the

City of Akron. Pursuant to leave of court, Plaintiff filed an Amended Complaint on September

8, 2005. The City of Akron filed an Answer to Plaintiff’s Amended Complaint. Time Warner

filed a Motion to Dismiss. On December 12, 2005 this Court granted Time Warner’s Motion to

Dismiss.

Pursuant to leave of court, the City of Akron now files the within Motion to Dismiss or in

the alternative, Motion for Judgment on the Pleadings.

II. DISCUSSION

Plaintiff states three joint causes of action in her amended complaint against Time

Warner and the City of Akron: (1) a violation of her first amendment rights pursuant to 42

U.S.C. Section 1983; (2) a violation of the Cable Communications Policy Act, 47 U.S.C. Section

531; and (3) a private taxpayer’s suit against Defendants for failing to protect her rights pursuant

to their contractual relationship.

With respect to Plaintiff’s first amendment claim, Plaintiff claims that her first

amendment rights were violated when Time Warner implemented new public access rules for the

public access channel. This Court dismissed Plaintiff’s first amendment claim by finding that

under the facts alleged by Plaintiff, the implementation of the new public access rules was not

state action.

Likewise, because the City of Akron did not propose or implement the new public access

rules, no state action can be attributed to the City of Akron.

2

Case 5:05-cv-00866-DDD Document 52 Filed 12/12/2005 Page 2 of 5

As this Court noted in its opinion

"…Plaintiff alleges that it was only Defendant Time Warner who proposed

community programming rules to the City of Akron in response to those citizen

complaints and that the Mayor of Akron approved those proposed changes to the

franchise agreement. Doc. No. 39, Amendment Complaint at paragraph 25."

Memorandum Opinion at page 5.

This allegation does not transform the actions of a private entity, i.e., Time Warner’s

implementation of the new public access rules, into state action of the City of Akron.

As this Court explained: "…as stated in the Sixth Circuit: "More than mere approval or

acquiescence in the initiatives of the private party is necessary to hold the state responsible for

those initiatives." Wolotsky, 960 F.2d at 1335 (citations omitted)." Id. Accordingly, the City of

Akron’s limited role in approving Time Warner’s new public access rules does not constitute

state action necessary to support Plaintiff’s first amendment claims against the City of Akron.

This Court dismissed Plaintiff’s Cable Act claim against Time Warner stating that there

is no private cause of action under the Cable Act. Likewise, this claim should be dismissed

against the City of Akron on the same basis.

This Court dismissed Plaintiff’s public contract claim against Time Warner on the basis

that Plaintiff has not complied with the statutory procedure. Likewise, this claim should be

dismissed against the City of Akron on the same basis.

3

Case 5:05-cv-00866-DDD Document 52 Filed 12/12/2005 Page 3 of 5

As this Court noted in its opinion

"…Plaintiff alleges that it was only Defendant Time Warner who proposed

community programming rules to the City of Akron in response to those citizen

complaints and that the Mayor of Akron approved those proposed changes to the

franchise agreement. Doc. No. 39, Amendment Complaint at paragraph 25."

Memorandum Opinion at page 5.

This allegation does not transform the actions of a private entity, i.e., Time Warner’s

implementation of the new public access rules, into state action of the City of Akron.

As this Court explained: "…as stated in the Sixth Circuit: "More than mere approval or

acquiescence in the initiatives of the private party is necessary to hold the state responsible for

those initiatives." Wolotsky, 960 F.2d at 1335 (citations omitted)." Id. Accordingly, the City of

Akron’s limited role in approving Time Warner’s new public access rules does not constitute

state action necessary to support Plaintiff’s first amendment claims against the City of Akron.

This Court dismissed Plaintiff’s Cable Act claim against Time Warner stating that there

is no private cause of action under the Cable Act. Likewise, this claim should be dismissed

against the City of Akron on the same basis.

This Court dismissed Plaintiff’s public contract claim against Time Warner on the basis

that Plaintiff has not complied with the statutory procedure. Likewise, this claim should be

dismissed against the City of Akron on the same basis.

4

III. CONCLUSION

For the foregoing reasons, the City of Akron respectfully requests that Plaintiff’s

Complaint be dismissed, or, in the alternative, have judgment rendered in its favor on the

pleadings.

Respectfully submitted,

Max Rothal – No. 0009431

Director of Law

___S/DMuntean__________________________

David A. Muntean – No. 0038580

Munteda@ci.akron.oh.us

Stephen A. Fallis – No. 0021568

Fallist@ci.akron.oh.us

Assistant Directors of Law

161 S. High Street, Suite 202

Akron, Ohio 44308

(330) 375-2030 FAX: (33) 375-2041

5

PROOF OF SERVICE

This is to certify that a true and accurate copy of the foregoing Motion to Dismiss, or, in

the Alternative, Motion for Judgment on the Pleadings was filed electronically this 12th day of

December, 2005. Notice of this filing will be sent to all parties by operation of the Court’s

electronic filing system. Parties may access this filing through the Court’s system.

____S/DMuntean___________________

David A. Muntean

Case 5:05-cv-00866-DDD Document 52 Filed 12/12/2005 Page 5 of 5

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