MR/DAM/keh 01-09-06
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.
)
REPLY TO PLAINTIFF’S RESPONSE
TO
MOTION OF DEFENDANT CITY
Defendants
)
OF AKRON TO DISMISS PLAINTIFF’S
COMPLAINT
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 replies to Plaintiff’s
Response to the City of Akron’s Motion to Dismiss Plaintiff’s Complaint pursuant to Civil Rule 12(b)(6); or, in
the alternative, for judgment on the pleadings pursuant to Civil Rule 12(c).
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: (330) 375-2041
Case 5:05-cv-00866-DDD Document 55 Filed 01/09/2006 Page 1 of 4
REPLY MEMORANDUM
In Plaintiff’s opposition memorandum, Plaintiff essentially argues that state action must exist since
the City of Akron is a state actor.
In order to support a cause of action pursuant to the 42 U.S.C. Section 1983, state action is required, not
necessarily a state actor. All acts of a state actor are not state action as required by 42 U.S.C. Section 1983. In
its memorandum opinion at page 6 dismissing Time Warner from this case, this Court stated:
5. However, 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).
Interestingly, the foregoing quote from Wolotsky is from the United States Supreme Court case of Blum v. Yaretsky,
457 U.S. 991, 73 L.Ed 2d 534 (1982).
1
In Blum, the Defendant was a state actor - the State of New York. The Blum court found the acts of the State
of New York were not state action sufficient to support a 42 U.S.C. Section 1983 action.
As this Court already found the City of Akron’s mere approval of Time Warner’s initiatives did not
constitute state action when it granted Time Warner’s Motion to Dismiss, so too the very same act of approval by the
City does not constitute state action in its own Motion to Dismiss.
Finally, in regard to Plaintiff’s taxpayer’s claim, Plaintiff admits that Plaintiff did not comply
with the statutory prerequisites. Plaintiff now says that Plaintiff’s claim should survive as a common law taxpayer
action. First, Plaintiff did not plead a common law taxpayer action.
Second, Ohio courts which have converted statutory taxpayer actions into common law taxpayer actions have done
so within the courts’ discretion. Certainly, it is not incumbent on a court to
1
Cited with approval in Plaintiff’s Memorandum in Opposition.
2
Case 5:05-cv-00866-DDD Document 55 Filed 01/09/2006 Page 2 of 4
convert every flawed statutory taxpayer action into a common law taxpayer action. Otherwise, the statutory taxpayer
action would be rendered meaningless.
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: (330) 375-2041
Case 5:05-cv-00866-DDD Document 55 Filed 01/09/2006 Page 3 of 4
4
PROOF OF SERVICE
This is to certify that a true and accurate copy of the foregoing Reply was filed
electronically this 9th day of January, 2006. 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 55 Filed 01/09/2006 Page 4 of 4
