JAMES S. GWIN, UNITED STATES DISTRICT JUDGE
Plaintiff Janice Vary sues the City of Cleveland for damage that a January 2015 water main break caused to her Cleveland property.
The Court ordered additional briefing to address whether it is proper for this Court to issue a writ that would compel the City of Cleveland to institute another state court action.
For the following reasons, the Court
Plaintiff alleges that on or about January 9, 2015, a water main break in Cleveland, Ohio caused water and debris to flood Plaintiff's property.
Plaintiff brings this suit under diversity jurisdiction.
Plaintiff states that she is entitled to — among other forms of relief — a writ of mandamus to force Defendant to provide just compensation under Article I, Section 19 of the Ohio Constitution.
The Sixth Circuit has not directly addressed whether a district court can hear a prerequisite state claim for just compensation when sitting in diversity. The Fifth and Tenth Circuits have directly addressed the question. In both cases, the Circuits concluded that it was proper for federal courts to hear the state claim.
Ohio does not have an inverse condemnation statute. Rather, Ohio law requires a citizen to seek a writ of mandamus against the state actor who allegedly committed the taking.
In particular, when an Ohio government actor commits a taking, the state actor is under a duty to bring an appropriation proceeding against the landowner to determine and pay just compensation. Only the government actor can initiate the proceedings. If a property owner believes that his property has been taken without an appropriation proceeding, the property owner must seek a writ of mandamus "to force the government actor into the correct appropriation proceeding."
The plaintiff must apply for a writ of mandamus "by petition, in the name of the state on the relation of the person applying, and verified by affidavit."
A writ of mandamus "is an extraordinary remedy `to be issued with great caution and discretion.'"
The parties agree that this Court may issue the writ of mandamus.
The writ that Plaintiff seeks would be issued against a municipal actor, requiring Defendant City of Cleveland to begin appropriation proceedings. Under the Eleventh Amendment, states and state officials have sovereign immunity from suit in federal courts in certain circumstances.
Federal Rule of Civil Procedure 81(b) formally abolishes federal writs of mandamus. However, when a court sits in diversity, it acts as any other court of the state, and can issue writs that the state courts are empowered to grant.
This Court, sitting in diversity, can issue a writ of mandamus that Ohio courts are able to grant. Moreover, subject matter jurisdiction exists, here, under 28 U.S.C. § 1332(a) because it is undisputed that the parties have diverse citizenship. Accordingly, this Court has jurisdiction to issue a writ of mandamus.
The remaining question is whether this Court should nevertheless abstain from issuing a writ in the name of the State of Ohio, ordering the Defendant City of Cleveland to initiate appropriation proceedings.
District Courts have a "virtually unflagging" obligation to exercise the jurisdiction given to them.
Thibodaux abstention is based on two decisions decided by the Supreme Court on the same day — Louisiana Power & Light Company v. City of Thibodaux
The same day, the Supreme Court announced Mashuda. In Mashuda, the plaintiff challenged Allegheny County's use of eminent domain to enlarge the Greater Pittsburgh Airport.
In both Thibodaux and Mashuda, the Supreme Court addressed whether eminent domain raised unique justifications for abstention. In Thibodaux, the Supreme Court highlighted that the eminent domain proceedings were "special and peculiar" in nature compared to most suits at common law.
However, the Mashuda Court further refined this conclusion, holding that the more standard eminent domain issue in that case was no more "mystically involved with the `sovereign prerogative'" than other types of suits.
Under Thibodaux and Mashuda, a federal court should abstain in diversity cases if there are (a) uncertain questions of state law and (b) an important state interest that is intimately involved with the government's sovereign prerogative beyond
Unlike the Louisiana statute in Thibodaux, Ohio courts have previously interpreted Ohio law on the issuance of a writ of mandamus for an involuntary taking. But unlike the law in Mashuda, issuing a writ in this case is not a straightforward question of fact.
This Court would have to address questions of law in determining whether to issue the writ. For instance, to be entitled to a writ of mandamus, Plaintiff must demonstrate that she lacks "an adequate remedy in the ordinary course of law."
Moreover, this Court may also have to address mixed questions of fact and law. Plaintiff "must establish a clear legal right to compel the respondents to commence an appropriation action."
Most importantly, issuing a writ in the name of the State of Ohio that orders a municipal actor to institute state proceedings is intimately involved with the state's sovereign prerogative. Much like the interpretation of Louisiana's law, Plaintiff is asking a federal court to "apportion[] governmental powers between City and State."
Plaintiff's claim is not seeking a standard form of relief from a federal court sitting in diversity. Instead, Plaintiff seeks an "extraordinary remedy" to be issued by a federal court in the name of the State. That order would demand that another Ohio political subdivision commence a state court proceeding. Abstention is proper.
For the reasons above, this Court
IT IS SO ORDERED.