DISTRICT COURT RECOMMENDATION

S. Arthur Spiegel, United States Senior District Judge.

This matter is before the Court on Defendants' Notices of Appeal (docs. 146 147); Plaintiffs' Motion to Dismiss the Section 1983 Claims Against Defendant Payton in His Individual Capacity (doc. 148) ; Defendants' Responses to Plaintiffs' Motion to Dismiss (docs. 149 152); the Sixth Circuit Court of Appeals' December 20, 2000 Order (doc. 153); Plaintiffs' Motion for a Court Order to Seek Remand From the Sixth Circuit Court of Appeals for the Purpose of Regaining Jurisdiction in Order to Approve Plaintiffs' Motion to Dismiss (doc. 156). In addition, the Court held a Status Conference, which was previously scheduled as a Final Pretrial Conference in our December 14, 2000 Order (see doc. 144), in this matter on December 21, 2000 (doc. 143).

On December 14, 2000, the Court issued an Order (see doc. 144) that granted-in-part and denied-in-part Defendants' Motions for Summary Judgment (see docs. 128 131).

In relevant part, this Court denied Defendants' Motions with respect to Plaintiffs' claims of substantive due process, pursuant to Title 42 U.S.C. § 1983 (doc. 144). Furthermore, we denied Defendant Payton's Motion for Summary Judgment on the basis of qualified immunity (Id.). With respect to the remaining Ohio state law claim of intentional infliction of emotional distress, this Court granted Defendant Village immunity pursuant to state law, but denied such immunity to Defendant Payton (Id.).

We concluded our Order by scheduling a Final Pretrial Conference in this matter for Thursday, December 21, 2000, at 10:00 A.M., setting a pretrial schedule for motions and jury instructions, and by informing the Parties that the trial on the merits remained scheduled for Monday, January 22, 2001 (Id.)

On December 18, 2000, Defendant Payton filed a Notice of Appeal to the Sixth Circuit in regards to our December 14, 2000 Order (doc. 146). In his Notice, Defendant Payton asserted that he wished to appeal that part of our Order "which denied [him] summary judgment based on qualified immunity with respect to plaintiffs' claims pursuant to 42 U.S.C. § 1983 and based upon sovereign immunity under R.C. Chapter 2744 with respect to plaintiffs' intentional infliction of emotional distress claim" (Id.)

On the same day, Defendant Village also filed a Notice of Appeal (doc. 147) from the denial of their Motion for Summary Judgment, and requested "that this Court exercise pendant appellate jurisdiction over its appeal since the issues on the two appeals are inextricably intertwined" (Id.).

Furthermore, on December 18, 2000, Plaintiffs filed a Motion to Dismiss the Section 1983 Claims Against Defendant Payton in His Individual Capacity (doc. 148), followed on the next day by Defendants' Responses to that Motion (docs. 149 152).

In their Motion to Dismiss, Plaintiffs advised this Court that they wanted to voluntarily and partially dismiss only Count II of the Complaint (see doc. 1), the federal substantive due process claim brought against Defendant Payton in his individual capacity (doc. 148). Plaintiffs indicated that their reason for the proposed voluntary entry of dismissal on the § 1983 claim against Defendant Payton in his individual capacity was because, they wished to keep the case in its present posture for the scheduled trial set for January 22, 2001 (Id.)

Shortly thereafter, Plaintiffs also filed with the Sixth Circuit their Emergency Motion to Dismiss the Interlocutory Appeal for Lack of Jurisdiction asserting the same or similar arguments that were already made in their Motion to Dismiss. See Culberson v. Doan, Nos. 00-4581/4582 (6th Cir. Dec. 20, 2000) (Martin, C.J.) (doc. 153).

At this point in time, this Court does not have jurisdiction to decide Plaintiffs' Motion to Dismiss (doc 148).

On December 20, 2000, Chief Judge Martin of the Sixth Circuit entered an Order addressing Plaintiffs' Emergency Motion. Chief Judge Martin stated, in pertinent part that:

the plaintiffs suggest that this court may itself wish to approve their motion for dismissal of the individual § 1983 claim against Payton under authority of Fed.R.Civ.P. 41(a)(2) or to remand to the district court for express consideration of the motion to dismiss. In fact, it does appear from the limited materials before the court that such a dismissal would possibly moot or require dismissal of both appeals now before the court. However, the district court has yet to address the plaintiffs' motion to dismiss the claim, and the best procedure is for that court to consider the motion in the first instance. The analogous procedure outlined in First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976) (per curiam) is appropriate here. There, this court held that when a party files a motion to vacate under Fed.R.Civ.P. 60(b) while an appeal is pending from the judgment, the district court may indicate by written order that it is disposed to grant the relief. At that time, the party may seek a remand from this court. Hirsch, 535 F.2d at 346; see also Good v. Ohio Edison Co., 149 F.3d 413, 417 n. 5 (6th Cir. 1998); Frye v. District 1199, Health Care and Social Services Union, 996 F.2d 141, 145 (6th Cir. 1193). In advance of such a certification, this court declines to remand this action to the district court to consider the motion.

This Court held a Status Conference with the Parties to this action on December 21, 2000. During the Conference, the Parties indicated that they had read Chief Judge Martin's December 20, 2000 Order, but also felt that there were various other issues that may require an immediate appeal to the Sixth Circuit, bifurcation of the claims and/or Parties to this action, and additional concerns of undue prejudice or delay.

Thereafter, the Court gave all of the Parties present an opportunity to be heard and place on the official record their issues and arguments in regards to Plaintiffs' pending Motion to Dismiss (doc. 148), the Sixth Circuit's Order (doc. 153), as well as any other concerns the Parties wanted to express in regards to going forward with the trial as now scheduled (see doc. 144) and on what issues would be presented to the jury at trial.

Specifically, Defendants expressed concern over the proposed admissibility into evidence of Defendant Payton's alleged "no contest" criminal plea and the prejudice that may be accorded Defendant Village if that evidence is eventually presented at trial. In addition, Defendants also expressed concern over Defendant Payton remaining as a Party to this action in either his individual and/or official capacity, as well as the possible need for further appellate review of certain disputed or dispositive issues before any trial on the merits could take place. In contrast, Plaintiffs expressed their concerns over any undue delay of the trial and the importance of preserving the substance due process claim against Defendant Village.

The Court finds that this matter is now ripe for our determination.

Having reviewed Plaintiffs' Motion to Dismiss (doc. 148), the Sixth Circuit's directions in this matter (doc. 153), our December 14, 2000 Order (doc. 144), as well as the concerns and objections of the Parties that were expressed and placed on the record during the Conference, the Court CONCLUDES and CERTIFIES the following: (1) we will GRANT Plaintiffs' Motion to Dismiss the Section 1983 Claims Against Defendant Payton in His Individual Capacity WITH PREJUDICE (doc. 148), if this matter is remanded by the Sixth Circuit to this Court; (2) we will also DISMISS-IN-PART and WITHOUT PREJUDICE COUNT II of the Complaint (see doc. 1), the substantive due process claim asserted against Defendant Payton in his official capacity; (3) we will DISMISS WITHOUT PREJUDICE Count III of the Complaint (see doc. 1), the intentional infliction of emotional distress claim asserted by Plaintiffs against Defendant Payton in his individual capacity.

Therefore, the Clerk of this Court is hereby DIRECTED to immediately docket, distribute to the Parties, and forward this RECOMMENDATION to the Clerk of Sixth Circuit Court of Appeals, in general, and Chief Judge Martin, in particular, for immediate review of this matter.

If the jurisdiction of this action is remanded by the Sixth Circuit to this Court for further proceedings, then we will AMEND our December 14, 2000 Order (doc. 144) in accordance with the conclusions stated above.

Finally, if this action is remanded and unless otherwise notified, the Court hereby SETS the following trial schedule for this action: (1) the Final Pretrial Conference is RESCHEDULED until Thursday, January 4, 2001, at 3:00 P.M.; (2) any additional pretrial motions or responses to the Parties' motions-in-limine are to be submitted with the proposed Joint Final Pretrial Order on the date of the Conference; (3) any proposed jury instructions with citations, specific jury interrogatories, or special verdict forms are to be submitted to the Court by no later than 10 days prior to the date of trial; and (4) the trial on the merits remains on schedule for Monday, January 22, 2001.

SO ORDERED.