By Jeff Birren, Senior Writer
Introduction
The City of Cincinnati and FC Cincinnati agreed to create a new stadium. One local resident was sufficiently incensed by the undertaking that she sued the United States, the City, Club, and their respective officials, claiming that the project violated various laws, including the U.S. Constitution, and several Civil Rights’ Acts. Recently, the U.S. District Court dismissed the lawsuit, finding it frivolous because the plaintiff had previously made virtually identical claims in a prior dismissed case (Epps v. Carl Linder III, et al, 2022 U.S. Dist. LEXIS 230222, (12-21-2022)).
Background
FC Cincinnati began playing in the second division United Soccer League in 2016. The team played at the University of Cincinnati. Carl Linder III is the controlling owner. The team did well and set attendance records. In 2018, the MLS announced that the Club had been awarded an MSL expansion franchise to enter the MSL the following year. FC Cincinnati subsequently turned to building a new stadium.
The team focused on the City’s west end and agreed with Cincinnati to build a new privately funded soccer stadium costing over $250 million. The planned stadium would have 26,000 seats and 53 suites. As part of the process, the space for the stadium had to be cleared.
Groundbreaking began in December 2018, and the project successfully met its construction timetable. The first game in the new stadium took place on May 16, 2021. During construction, it was called the West End Stadium. Now, it is known as TQL Stadium. Many construction jobs went to union members. However, not all the city’s resident were pleased with the project.
On November 13, 2019, Alicia Epps filed a complaint and a request for a temporary restraining order in the local federal district court. She sued FC Cincinnati, Linder, and the City’s government including the mayor and city council. Her complaint had 441 paragraphs. It included claims for discrimination, conspiracy, and corruption by denying low-income families the benefits of federal housing programs and conspiring to profit off the public land by selling that land to build the soccer stadium. Epps asserted the project violated the U.S. Constitution, the Ohio Constitution, the National Recovery Action of 1933, the Federal Housing Act of 1937, and the Civil Rights Acts of 1866, 1937 and 1964.
The case was filed pro se, that is without counsel, so federal law requires a magistrate judge to conduct its own review of the complaint to determine if the action is frivolous or malicious; fails to state a viable claim; or seeks monetary relief against a defendant who is immune from such relief. While this was pending, Epps filed a motion for a preliminary injunction, a motion to amend her complaint, and a motion to proceed in forma pauperis. The Magistrate concluded that dismissal was warranted, and the case went before the District Court Judge. That Court ordered the case dismissed, denied the other motions, held that an appeal would not be “in good faith” and that the “case shall remain closed on the docket of this Court” (Epps v. Linder III, Case No. 1:19-cv-968, USDC, S.D. Ohio, Western Division, (12-22-2020)). Epps’ appeal to the Sixth Circuit was dismissed for want of prosecution in October 2021. Ordinarily, that would be the end of the matter.
Epps Tries Again
Yet, Epps is apparently determined. The following year, she sued again. This complaint “essentially realleges the claims in her original and amended complaint previously filed against the same defendants, and names the United States of America as a new defendant.” Epps admitted that she previously filed the same claims against the defendants, though not against the United States. The Magistrate noted that the first lawsuit was dismissed sua sponte (i.e., on its own accord) upon “screening of the original and amended complaints.”
An “in forma pauperis complaint that merely repeats pending or previously litigated claims may be considered abusive of the judicial process and may be dismissed as abusive.” The complaints do not need to be identical, but the focus is on the substance of the complaints. Accordingly, the new case “is duplicative of her previously filed complaints against the same defendants and must be dismissed. Both complaints stem from the alleged demolition of public housing in the West End of Cincinnati to build a soccer stadium.” The “complaint, which is based entirely on her previously litigated claims, should be dismissed” as “frivolous or malicious.”
The claims against the United States fared no better. The United States is immune from lawsuit unless immunity has been waived by statute. That waiver must be express and cannot be implied. In the absence an express waiver, “suits against the government or its agents must be dismissed.” Epps did not provide the Court with the requisite “statutory authority provision that unambiguously waives the government’s sovereign immunity” and consequently the “Court is without jurisdiction over plaintiff’s claims against the United States.” Thus, the Court dismissed the claims, ruled that an appeal to the District Court “would not be taken in good faith” and denied Epps’ “leave to appeal in forma pauperis.”Epps is free to appeal.
Conclusion
Soccer’s popularity in the U.S. continues to grow. Here, Cincinnati got a $250 million privately funded soccer stadium that provided many union construction jobs. FC Cincinnati has a new home in a stadium built primarily for soccer. But both the City and FC Cincinnati also got litigation that was intended to either stop the project, seek damages or both. Those seeking to create stadiums should understand that litigation may be a consequence of such undertakings, including delay and attorney’s fees. For those contemplating litigation to stop such projects, they need to understand that filing such lawsuits also can have consequences, including having the Court publicly call one’s efforts “frivolous” or “malicious”, and possibly worse consequences, such as paying the defendants’ court costs.
