Plaintiff's Response

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROSE WILCHER ) CASE NO.: 5:05 CV 0866

Plaintiff, ) JUDGE DAVID D. DOWD, JR.

) MAGISTRATE JUDGE JAMES GALLAS

v. )

CITY OF AKRON, et al., ) PLAINTIFF'S OPPOSITION TO THE CITY

Defendants. ) OF AKRON'S RULE 12(b)(6) MOTION TO

) DISMISS

Plaintiff Rose Wilcher, by and through undersigned counsel, hereby opposes Defendant The City of Akron’s Motion to Dismiss her amended complaint under Fed.R.Civ.P. 12(b)(6). As Plaintiff will more fully set out in the Memorandum of Law that follows, Plaintiff has stated claims upon which relief may be granted by this Court, rendering dismissal inappropriate.

Respectfully submitted,

/s/ Jacquenette S. Corgan and

WARNER D. MENDENHALL (0070165) DANIEL J. LEFFLER (0076540)

JACQUENETTE S. CORGAN (0072778) Union Point

Union Point 190 North Union St., Suite 201

190 North Union St., Suite 201 Akron, Ohio 44304

Akron, Ohio 44304 330-253-5996

330-535-9160 Fax: 330-762-9743

Fax: 330-762-9743 danielleffler@sbcglobal.net

warnermendenhall@hotmail.com

j.corgan@justice.com

ATTORNEYS FOR PLAINTIFF

MEMORANDUM OF LAW

The City of Akron has brought an abbreviated motion before the court, seeking to dismiss Rose Wilcher’s claims against the City on the same grounds under which the court granted a similar motion brought by co-Defendant Time Warner Cable. Because the court has already heard Wilcher’s recitation of the facts and the standard courts apply when deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), she will not repeat them here.

I. The City is not Time Warner

The City of Akron cannot rely upon many of Time Warner’s arguments or this court’s ruling regarding those arguments because the City of Akron is distinctly dissimilar to Time Warner for the purposes of 42 U.S.C. § 1983. Under that statute, the City of Akron is by definition a state actor. The City of Akron’s acts are automatically "state action," giving rise to liability under § 1983 for violations of Wilcher’s free speech and press rights under the First Amendment. As stated in the Complaint, Akron Mayor Donald Plusquellic ratified the regulations at issue in this suit. As the court will recall, Time Warner and Wilcher wrangled over the question of whether Time Warner – usually a private entity – had become so entangled with the City of Akron that its acts became action under color of law, a struggle that required application of three tests. Those tests were the public function test, the state compulsion test, and the symbiotic relationship test. See Brentwood Academy v. Tennessee Secondary School Athletic Assoc., 180 F.3d 758, 763 (6th Cir. 1999); Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). See also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49, 119 S.Ct. 977, 142 L.Ed.2d 130 (1999); Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Lugar v. Edmondson Oil Col, 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982).

Time Warner’s argument was that the City of Akron’s involvement in the promulgation and ratification of the new PEG channel rules did not convert Time Warner into a public actor for § 1983 purposes. The City of Akron cannot rely upon the same arguments. It is without cavil that the City is a governmental/state actor; therefore, no matter how Time Warner’s actions may be characterized, the City’s actions in ratifying and promulgating the PEG channel restrictions onstitute state action. This court specifically did not address the question of whether Wilcher may prove that the PEG channel restrictions may violate her rights under the First Amendment (See Memorandum Opinion, Doc. 49, p. 7, FN2.); therefore, the question of whether the City of Akron’s acts violated Wilcher’s constitutional rights is still open, and is not appropriate for dismissal under Rule 12(b)(6). See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

As to whether Wilcher has a cause of action against the City of Akron for violation of the Cable Act and as a taxpayer in Ohio contract law, Wilcher respectfully refers the court to the arguments she made in her brief in opposition to Time Warner’s motion to dismiss, but reminds the court that, again, the City of Akron is a governmental entity in an entirely different legal position than was Time Warner.

Furthermore, as to Wilcher’s taxpayer action, under Ohio common law, she has a cause of action as a taxpayer on behalf of the City – not just under statute. Even if she does not meet the statute’s prerequisites, she is still permitted by repeated Ohio decisions to bring a common-law taxpayer action; in fact, Ohio’s courts have routinely converted flawed statutory taxpayer claims into viable common-law taxpayer claims. See, e.g, State ex rel. Citizens for a Better Portsmouth v. Sydnor, 61 Ohio St.3d 49, 54, 572 N.E.2d 649 (Ohio 1991) (allowing common-law claim despite relators’ failure to meet R.C. § 733.59 requirement of security); State ex rel. Spencer v. East Liverpool Planning Comm’n, 80 Ohio St.3d 297, 299, 1997-Ohio-77, 685 N.E.2d 1251 (Ohio 1997) (failure to make written demand prior to lawsuit not dispositive); see also Internat’l Assn. of Firefighters Local No. 136 v. Dayton Civ. Serv. Bd., 157 Ohio App.3d 236 (Ohio 2004); City of Cleveland ex rel. O’Malley v. White, 148 Ohio App.3d 564, 570, 2002-Ohio-3633, ¶ 34, 774 N.E.2d 337 (Ohio 2002); Jenkins v. Eberhart, 71 Ohio App.3d 351, 594 N.E.2d 29 (Ohio 1991); State ex rel. White v. Cleveland, 34 Ohio St.2d 37, 295 N.E.2d 665 (1973); State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1, 215 N.E.2d 592 (1966). Even if Wilcher’s claim would fail under the statute for failure to write a demand letter to the City prior to filing suit, Ohio precedents mandate that her claim survive nonetheless.

CONCLUSION

For these reasons, Plaintiff Wilcher respectfully asks this honorable Court to DENY the City of Akron’s Motion to Dismiss.