Games Galore of Ohio, Inc. v. Masminster, No. C-1-00-696.

154 F.Supp.2d 1292

GAMES GALORE OF OHIO, INC., Plaintiff, v. Christopher MASMINSTER, et al., Defendants.

No. C-1-00-696.

United States District Court, S.D. Ohio, Western Division.

July 3, 2001.

COPYRIGHT MATERIAL OMITTED

Gregory Reynolds Wilson, Kenneth Grant Hawley, Cincinnati, OH, for Games Galore of Ohio Inc, plaintiffs.

Konrad Kircher, Cincinnati, Jeffrey Charles Turner, Jenks, Surdyk & Cowdrey, Dayton, Richard Ganulin, Assistant City Solicitor, Alan C Triggs, City of Cincinnati, Department of Law, Cincinnati, OH, for Christopher Masminster, in his personal and official capacities, Colerain Township, Cincinnati City of, defendants.

ORDER

SPIEGEL, Senior District Judge.

This Matter is before the Court on Defendant City of Cincinnati's Motion for Judgment on the Pleadings (doc. 9); Plaintiff's Response (doc. 13); and Defendant City of Cincinnati's Reply (doc. 14).

BACKGROUND

A. Introduction

On August 25, 2000, Plaintiff Games Galore of Ohio, Inc. filed suit against Defendants Christopher Masminster, Colerain Township, and the City of Cincinnati alleging that Defendants violated its federal civil rights and converted or "conspired to convert" certain corporate assets in violation of state common law (see doc. 1). See Title 42 U.S.C. § 1983. Specifically, this action arises out of the allegedly unlawful conversion of all of the corporate inventory and business assets of Plaintiff Games Galore during the night hours of August 25, 1998, "by individuals named Raymond and Carolyn Becker, with the alleged knowledge, complicity, and active assistance of, and under color of law provided by, defendants Masminster, Colerain Township and [the] City of Cincinnati" (Id.).

All of the named Defendants to this suit have filed separate Answers asserting general denials of Plaintiff's claims of civil rights abuse and conversion (see docs. 2, 5 & 6). In addition, Defendant City of Cincinnati filed a Motion for Judgment on the Pleadings moving for this Court to dismiss the Plaintiff's claims asserted against the Defendant City of Cincinnati in its Complaint (see doc. 9). See also Fed.R.Civ.P. 12(c).

In its Complaint, Plaintiff asserts that it is bringing this action for deprivation of its "Constitutionally-protected property rights by the defendants under color of state law, pursuant to 42 U.S.C. § 1983, and for conversion, pursuant to the common law of the State of Ohio" (see doc. 1). This Court has subject matter jurisdiction over Plaintiff's Constitutional and federal law claims, pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and supplemental jurisdiction over Plaintiff's state law claims, pursuant to 28 U.S.C. § 1367(a) (Id.).

The following facts are based on the allegations in Plaintiff's Complaint (Id.). On a motion for judgment on the pleadings, as well as a motion to dismiss, this Court is required to accept all of Plaintiff's allegations as true. See Fed.R.Civ.P. 12(b)(6) & (c); see also Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir.1999).

B. Factual History

Plaintiff Games Galore of Ohio, Inc. is an Ohio corporation, which formerly did business at 7000 Vine Street in Cincinnati, Ohio under the trade name of "Games Galore." Defendant Christopher Masminster is, and was at all times material to the Complaint, a police officer employed by the Colerain Township Police Department. Defendant Colerain Township is a political and municipal "person" with the capacity to sue and be sued under Ohio Rev.Code § 503.01. Defendant City of Cincinnati is a political and municipal "person" with the power to sue and be sued under Ohio Rev.Code § 715.01. Raymond C. Becker, Jr. and Carolyn Becker had been officers, directors, and shareholders of the Plaintiff-corporation, but are not presently listed as Parties to this action (see doc. 1).

Sometime during the night hours of August 25, 1998, Raymond and Carolyn Becker, Colerain Township Police Officer Masminster, and other unnamed persons appeared at the business location of Games Galore with several trucks and vehicles. Raymond Becker allegedly advised the landlord of the corporation's premises that he was acting to prevent a "hostile takeover" of the Plaintiff-corporation, and requested that the landlord let them onto the premises in order to remove the inventory and assets of Games Galore. Officer Masminster allegedly wore his gun and displayed his police badge to the landlord in an effort to ensure that the landlord would allow the Beckers entry onto the Games Galore premises.

Prior to their actually removing any inventory and assets from the Games Galore premises, Officer Masminster allegedly advised certain unnamed police officers employed by the City of Cincinnati Police Department by telephone that the Beckers owned 51% of Games Galore, and that he and the Beckers were acting to prevent a hostile takeover of Games Galore. Officer Masminster also allegedly warned the Cincinnati police officers that other persons claiming to be corporate officers, shareholders, and/or directors of Games Galore might call in an effort to complain of or prevent the removal of the corporation's inventory and assets. Nonetheless, Officer Masminster allegedly advised the Cincinnati police officers that, since the Beckers owned 51% of Games Galore, the Beckers were entitled to remove the corporation's inventory and assets, and the officers should ignore any complaints by the corporation's other officers and shareholders, since there was no criminal activity taking place.

While the Beckers, Officer Masminster and others were removing the corporation's inventory and assets, the landlord of the premises called Games Galore's unnamed manager and advised him of what was happening at that time. The landlord allegedly explained to the corporate manager that, since Raymond Becker's name was on the lease and was accompanied by Officer Masminster, he had no choice but to allow the Beckers and Officer Masminster into the premises. The landlord also allegedly said that he believed that something about the situation wasn't right and thought the other corporate officers, shareholders, and directors should know what the Beckers were attempting to do.

The corporate manager contacted the unnamed chairman and principal officer of Games Galore, who immediately telephoned the Cincinnati Police Department to advise of a burglary and theft in progress, then went to the corporate premises to investigate the situation himself. The corporate chairman arrived at the premises to allegedly find that the corporation's entire inventory and assets had been removed, and that Raymond Becker had allegedly left a note on the door stating that Games Galore was closed and had gone out of business.

While the corporate chairman was at the premises, Officer Ruff of the Cincinnati Police Department had arrived at the site as well. Officer Ruff allegedly refused to investigate the matter, refused to accept the chairman's charges of criminal theft against Raymond Becker, and refused to take any action upon the chairman's complaint. Instead, Officer Ruff allegedly said that she "already knew the whole story" about the Beckers owning 51% of the business and were acting to prevent a "hostile takeover," and that, as such, the Beckers were entitled to do what they did. Officer Ruff allegedly also confirmed to the corporate chairman that the Cincinnati Police Department had been warned in advance by Officer Masminster by means of a telephone call that other corporate officers, shareholders, or directors of Games Galore would likely call to complain, and that since the Beckers owned a majority of the corporation, any such complaints by other corporate officers, shareholders, or directors should be ignored.

The corporate chairman then went to the City of Cincinnati's District 4 Police Station in order to personally file criminal charges against the Beckers, but again, the desk officers at the Station allegedly refused to accept his criminal complaint against the Beckers. The police officers on duty at District 4 allegedly informed the corporate chairman that they too "knew the whole story" concerning the Beckers, and that there was nothing the Cincinnati Police Department could do about it as well. The Complaint further asserts that, "[b]ecause the City of Cincinnati failed and refused to accept or investigate the plaintiff's proffered criminal charges, the Beckers were able to remove the plaintiff's inventory and assets from the place where they initially stored it, and disposed of it for their own use and benefit" (doc. 1).

C. Procedural History

Thereafter, Games Galore filed suit against Raymond and Carolyn Becker in the Hamilton County Court of Common Pleas, Ohio, in the case captioned as Games Galore of Ohio, Inc., et al. v. Raymond C. Becker, Jr., et al., Case No. A-98-04978, alleging, among other things, that the Beckers unlawfully converted the corporation's inventory and assets without the permission of the corporation's manager and chairman (see doc. 1). Games Galore obtained a temporary restraining order against the Beckers requiring them to return all of the corporation's inventory and assets immediately, which restraining order and injunction the Beckers allegedly ignored (Id.).

Thereafter, the Hamilton County Court of Common Pleas found the Beckers in contempt of the court's orders and fined them for violating its restraining order and injunction, which order of contempt and fines the Beckers allegedly further ignored (Id.). On August 16, 2000, Hamilton County Judge David P. Davis entered his Final Judgment Entry against the Beckers and in favor of Games Galore, finding that the Beckers were liable for unlawful conversion of the corporation's inventory and assets in the amount of $40,000.00 (Id., Ex. A). Judge Davis further found that the Beckers committed such acts of conversion "intentionally and with utter disregard" for the rights of Game Galore and awarded the corporation an additional $7,500.00 in punitive...