I. INTRODUCTION

Having already litigated his claims on every level of the federal court system, Plaintiff Robert A. Neinast remains fixed on maintaining this action. Because Mr. Neinast's proposed Amended Complaint would be futile, his Motion for Leave to File Amended Complaint should be denied.

II. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

A. Neinast's First Complaint

On April 3, 2001, Mr. Neinast filed an action with this Court (captioned 01 CV 04 3104) alleging that the Board of Trustees of the Columbus Metropolitan Library (the "Library") and then-Executive Director Larry Black had violated a panoply of Mr. Neinast's constitutional rights (including the right to freedom of personal appearance, freedom of expression, freedom of access to information, and the right to procedural due process) by creating and enforcing a rule that required patrons of the Library to wear shoes (a "barefoot rule") while using the Library's facilities.

At that time, the Library's barefoot rule resided in its Eviction Procedure, a document created by Mr. Black in his role as Executive Director. As a component of his procedural claims, Mr. Neinast asserted that the rule was not authorized by state law because the Board had no authority to delegate its rulemaking authority to Mr. Black. He also intimated that the Board had exceeded the authority given by its authorizing statute, O.R.C. § 3375.40(H), because the promulgation of any barefoot rule did not touch upon the "proper operation and management" of the Library.

The Library removed the action to the United States District Court of the Southern District of Ohio. Judge Marbley granted summary judgment in favor of the Library after considering the cross-summary judgment motions of both parties, dismissing Mr. Neinast' claims in their entirety. See Neinast v. Bd. of Trustees, 190 F.Supp. 2d 1040, 1047-48 (S.D. Ohio 2002) (internal citations omitted).

Mr. Neinast timely appealed Judge Marbley's judgment in favor of the Library to the Sixth Circuit Court of Appeals. The Sixth Circuit Court of Appeals affirmed Judge Marbley's decision in its entirety. See Neinast v. Board of Trustees, 346 F.3d 585, 597 (6^th Cir. 2003)

Following the Sixth Circuit's decision, Mr. Neinast timely filed a petition for certiorari to the United States Supreme Court. The Supreme Court unanimously denied his petition on April 19, 2004.

B. Mr. Neinast's Complaint in this Action and His Motion to Amend

On June 17, 2004, Mr. Neinast once again filed a Complaint against the Library with this Court. This time, Mr. Neinast requested that the Court issue a declaratory judgment finding that (1) the Library cannot give any rulemaking authority to its Executive Director, and (2) the promulgation of a rule requiring patrons to wear shoes is not an object of the "proper operation and management" of the Library under O.R.C. § 3375.40.

In late August 2004, the Library's Board of Trustees passed an official Code of Conduct, in effect officially adopting the Eviction Procedure as an act of the Board. In response, Mr. Neinast has filed a motion to amend his Complaint in this action. In essence, his proposed Amended Complaint merely alters the facts alleged so that it is now the Code of Conduct's barefoot rule, not that contained in the Eviction Procedure, which is the subject of his request for declaratory judgment.

For the reasons that follow, Mr. Neinast's Motion for Leave to File Amended Complaint should be denied.

III. LAW & ARGUMENT

A. The Legal Standard For Amending the Complaint

Civil Rule 15(a) provides that once a responsive pleading has been filed, a party may amend its pleading only by leave of the court and that such leave "shall be freely granted when justice so requires." ^Q> Geo-Pro Services, Inc. v. Solar Testing Laboratories, Inc., 145 Ohio App. 3d 514, 528 (Franklin 2001). Although Rule 15(a) favors a liberal policy in favor of allowing amendment of pleadings, see generally Peterson v. Teodosio, 34 Ohio St. 2d 161, ¶6 of syllabus (1973), the Ohio Supreme Court has specifically held that a trial court need not allow amendment of a complaint when the amendment would neither support existing claims or create a viable claim for relief. See Wilmington Steel Products v. Cleveland Electric Illuminating Co., 60 Ohio St. 3d 120 (1991) (finding no abuse of discretion in a trial court's denial of a motion to add a contract claim when such a claim was not factually viable). A trial court, therefore, may properly deny a motion to amend where the amendment would be futile. See Bushman v. Mid-Ohio Regional Planning Comm'n, 107 Ohio App. 3d 654, 659-60 (Franklin 1995); Welch v. Finlay Fine Jewelry, 2002 Ohio App. LEXIS 503 (Franklin 2002) (where plaintiff's complaint was not cognizable, and proposed amendment would not make the complaint cognizable, amendment would be futile); Wachunas v. MacMillan/McGraw Hill Co., 1993 Ohio App. LEXIS 4511, *4-*5 (Stark 1993) (noting that "[a]lthough the rule directs that leave of court [to amend] be liberally granted, nevertheless it is not given automatically," and affirming a denial of leave to amend because, inter alia, "[t]he theory of recovery had not changed" ^Q> and the same remedies were available when the plaintiff filed her original complaint).

The amendments that Mr. Neinast now proposes would be futile. The claims he asserted in his Complaint are not cognizable, for two reasons: (1) they are barred by the doctrines of res judicata and collateral estoppel, and (2) because the Library's passage of the barefoot rule (by whatever method it uses) has no impact on any right that Mr. Neinast possesses, he has not state a claim upon which relief may be granted. His proposed amendment—which would merely amend the name of the rule he is challenging, not the substance of his claims—would not repair either of these problems. Accordingly, his request for leave to amend should be denied.

B. Mr. Neinast's Proposed Amendment Would Be Futile Because His Claims are Barred by the Doctrine of Res Judicata

Mr. Neinast's claims are barred by the doctrines of res judicata and collateral estoppel, in that he has already litigated these claims before the United States District Court, and the Sixth Circuit Court of Appeals. Each time, the Library and its codefendents have received summary judgment on all Mr. Neinast's claims in their entirety. See Neinast v. Board of Trustees, 190 F.Supp. 2d 1040, 10498 (S.D. Ohio 2002) ("For the foregoing reasons, the Court grants Defendants' Motion for Summary Judgment in its entirety and denies Plaintiff's Motion for Summary Judgment in its entirety." see also Neinast v. Board of Trustees, 346 F.3d 585, 597 (6^th Cir.2003) Neither court remanded any claim to state court for resolution.

It is clear in Ohio that "an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit." ^Q> (emphasis added). Rogers v. Whitehall, 25 Ohio St. 3d 67, 69 (1986). Indeed, in National Amusements, Inc., v. Springdale, 53 Ohio St. 3d 60, 62 (1990), the Court stated that, the doctrine of res judicata requires a plaintiff "to present every ground for relief in the first action, or be forever barred from asserting it." ^Q>

Although the Complaint and Amended Complaint that Mr. Neinast filed in his previous action set forth a panoply of claims, they all arise from a single operative fact: the Library's creation, maintenance, and enforcement of a rule requiring patrons to wear shoes. The same barefoot rule (using virtually the same language, with precisely the same terms) forms the basis of his current Complaint. Moreover, it is undisputable that Mr. Neinast could have asserted the claim in his current Complaint in the previous litigation. He is "forever barred" from asserting it in subsequent litigation. Id.; Brown v. City of Dayton, 89 Ohio St. 3d 245, 248 (2000) (whether the original claim "explored all the possible theories of relief is not relevant. It has long been the law of Ohio that an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit." ^Q>; Grava v. Parkman Twp., 73 Ohio St. 3d 379 (1995).

Although Mr. Neinast may claim that he did assert his claims previously, but the federal courts did not address them, such claim is of no avail. Neither Judge Marbley nor the Sixth Circuit remanded any issues of state law for determination. Both simply dismissed Mr. Neinast's claims in their entirety. Mr. Neinast's claims therefore are barred by the doctrine of res judicata. See, e.g., Victor Mortg. Co. v. Arnoff, 120 N.E.2d 615, syllabus at 3, (Cuyahoga C.C.P. 1952) (The rule in such cases is that "when two causes of action are brought and a journal entry disposes of one but does not dispose of or mention the other, the silence of the journal entry as to the second is considered as dismissing it, and such dismissal is res adjudicata." ^Q>); Lehmann v. Har-Con Corp., 39 S.W. 3d 191, 197 (Tex. 2001) ("where the pleadings and judgment in evidence show that the pleadings . . . put in issue plaintiff's right to recover upon two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause" ^Q>); Lay Bros., Inc. v. Tahamtan, 236 Ga. App. 435 (1999); Succession of Foster, 240 La. 269, 276 (1960) ("It is true that where a judgment is silent with respect to any demand which was an issue in the case under the pleadings such silence constitutes an absolute rejection of such demand" ^Q>).

Mr. Neinast's proposed amendments do not fix this problem. They merely replace a challenge to the barefoot rule as it existed in the Eviction Procedure with a challenge to an identical barefoot rule in the Code of Conduct. The issue, as Mr. Neinast states it, is whether the Library has the ability to require shoes at all, an issue he raised (or could have raised) in all of the various previous iterations of this litigation. Amending this aspect of the Complaint will not make the claims the Complaint contains cognizable, and therefore amendment would be futile.

C. The Proposed Amendment does not state a claim upon Which Relief Could Be Granted

Even assuming that Mr. Neinast's claims are not barred by the doctrine of res judicata, the Court should reject his request for leave to amend his Complaint because such an amendment would not result in a cognizable claim. Mr. Neinast's proposed Amended Complaint, like his current Complaint, requests that the Court interpret the Library's authorizing statute, O.R.C. § 3375.40, and issue a declaratory judgment under Ohio's Declaratory Judgment Act, O.R.C. § 2721.01 et seq., stating that the Library has no ability to create a rule requiring patrons to wear shoes.

The Declaratory Judgment Act allows courts of record to declare "rights, status, or other legal relations, subject to [specific exceptions], whether or not further relief is or could be claimed." O.R.C. § 2721.02(A). It specifically authorized courts to declare the construction of any "constitutional provision, statute, rule . . ., municipal ordinance, [or] township resolution" on behalf of "any person whose rights, status, or other legal relations are affected." O.R.C. § 2721.03.

Under the terms of the statute, in order to state a claim for relief Mr. Neinast must demonstrate: (1) that a real controversy exists between the parties, (2) that the controversy is justiciable in character, and (3) that speedy relief is necessary to the preservation of rights which may be otherwise impaired or lost. See Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St. 2d 93, 97 (1973). A "real, justiciable" controversy is a "genuine dispute between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." ^Q> Wagner v. Cleveland, 62 Ohio App. 3d 8, 13 (Cuyahoga 1988).

Mr. Neinast has not stated such a claim. The declaratory judgment remedy is open only to those whose "rights, status, or other legal relations are affected" by the ordinance at issue. Mr. Neinast's legal interests must actually be impacted by the creation of the barefoot rule (or by the Library's ability to create such a rule). See Westgate Shopping Village v. City of Toledo, 93 Ohio App. 3d 507 (Lucas 1994). Those with "simply a practical interest" in the outcome of a declaratory judgment action cannot maintain such an action. Id. at 515; see also Driscoll v. Austintown Assoc., 42 Ohio St. 2d 263, 273 (1975).

Similarly, where there is neither a "judiciable issue nor an actual controversy between the parties requiring speedy relief to preserve rights which may other wise be lost or impaired" or . . . the declaratory judgment will not terminate the uncertainty or controversy," a declaratory judgment action should be dismissed. East Cleveland Firefighters, Local 500 v. Civil Serv. Comm'n, 2000 Ohio App. LEXIS 6023, 15-16 (Cuyahoga 2000). All of these tests require the existence of a legal interest or a right in the subject matter of the potential declaration. See In Defense of Deer v. Cleveland Metroparks, 138 Ohio App. 3d 153 (Cuyahoga 2000); see also Wilburn v. Ohio Dep't of Rehab & Corr., 2001 Ohio 4047 (Franklin 2001) (an inmate's declaratory judgment challenge to a parole board's use of new sentencing guidelines was improper, because the inmate had no right or legal interest in parole).

Mr. Neinast has not, and cannot, assert such a right. The only "right" even arguably impaired by the Library's decision to promulgate the barefoot rule (or the Ohio legislature's extension of the authority to make a barefoot rule) is Mr. Neinast's asserted right to use the Library barefoot. Both the Sixth Circuit and Judge Marbley specifically held that no such right exists. Thus, Mr. Neinast has no legal interest or right that will be affected by the construction of O.R.C. § 3375.40 that he requests.

Nor does his proposed amendment challenging the Code of Conduct instead of the Eviction Procedure change the essential deficiency of his claims. All the proposed amendment does is substitute one rule for another. The core of his claim—his challenge to the ability of the Library to create a barefoot rule—is not cognizable under Ohio law. His request for leave to amend should therefore be denied as futile.

IV. CONCLUSION

For the reasons set forth above, Mr. Neinast's Motion to Amend Complaint should be denied.

I hereby certify that a true and accurate copy of the foregoing Memorandum Contra Motion for Leave to File Amended Complaint was served by regular U.S. mail, postage prepaid, upon Robert A. Neinast, Plaintiff, 8617 Ashford Lane, Pickerington, Ohio 43147, this 24^th day of September, 2004.