Initiating the Lawsuit

Let’s start at the beginning: a dispute between two or more parties. Depending on the nature and scope of the dispute, the parties may attempt to resolve the matter before involving attorneys.  Doing so is not without risks, however.  Engaging legal counsel at the outset of a dispute can help parties better understand both the immediate and long-term ramifications of a dispute and protect their interests.

If the dispute cannot be resolved in preliminary negotiations, the plaintiff will then file a complaint in a court of competent jurisdiction.  This kicks off the pleadings stage of a lawsuit, which is where the parties state their general positions.  The complaint sets forth the plaintiff’s version of the facts, along with any claims the plaintiff wishes to bring against the defendant. 

With the complaint, the plaintiff also files a request that a summons be issued to the defendant.  Upon being notified of the complaint, the defendant must then file an answer (typically within 28 days of being served).  In the answer, the defendant either admits or denies the plaintiff’s allegations.  The defendant can also file a counterclaim in order to bring their own claims against the plaintiff.  The plaintiff must then file an answer to the defendant’s counterclaim.

Alternatively, the defendant might file a motion to dismiss in response to a complaint, which, if granted, means the court will dismiss some or all of the plaintiff’s claims.  A motion to dismiss can be based on various grounds, from lack of subject matter or personal jurisdiction to insufficient service of process.  Frequently, a defendant will file a motion to dismiss on the grounds that the plaintiff failed to state a claim upon which relief can be granted.

Once the parties have exchanged pleadings, the court will typically hold a case management conference at which the parties address any initial issues, plan discovery, and set the general trajectory for the case.

Initiating a lawsuit involves a structured process that begins with a complaint and unfolds through a series of steps aimed at defining each party’s position. This stage is just the beginning of a complex journey that includes discovery, motions, potential settlements, and, in some instances, a trial or appeal. Whether you’re a party in a dispute or simple curious about the litigation process, understanding these stages can help demystify the legal process and illustrate how cases progress through the court system.

To seek counsel from our team of skilled litigation attorneys, please reach out to request a consultation or call us at 216-696-1422.

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First, you will want to review the ordinances – these can usually be found online through the municipality’s website. The ordinance should often include the procedure for zoning permit applications, as well as for appeals and variances. Second, you will want to look at the municipality’s zoning map, which should also be accessible online – if not, call your local municipality and have them provide you with the appropriate documentation.

When reviewing the ordinance and zoning map, consider which uses are permitted in your business’s proposed location. Most maps are divided between residential and commercial uses. Often times, these maps will also include mix-use zones, as well as other uses such as agricultural or historic zones. And, frequently, certain businesses are only conditionally permitted in a zoning district. That is, the business will need to satisfy certain requirements before the permit will be granted. For example, a liquor store may be permitted in a certain zone, but only if it is 1,000 feet from a school.

Then, it is time to begin filling out the permit application. While many applications are relatively straightforward, it is important to enlist the help of an attorney to review the application before submission. The details you provide in the application can make-or-break your chances of the permit being granted.

If you are seeking a variance, you may be asked to appear before your local planning commission. At the meeting, you or your attorney will give a presentation explaining your permit application. Then, you may be asked to field questions from members of the planning commission, after which they will render a decision. If they deny your permit, there is a legal process for appealing that decision.

But what if you think that the zoning code or the denial of your permit is unreasonable, unconstitutional, or otherwise improper? To better understand what a municipality can and cannot do when deciding to grant or deny your permit application, it is helpful to recap a brief history of zoning laws.

Zoning laws in America have deep ties to Northeast Ohio. In the early 20th Century, Cleveland was a booming industrial hub. The growth of the industrial sector was so precipitous, in fact, that it threatened to envelope surrounding residential communities. To combat this challenge, the Village of Euclid established a comprehensive zoning plan that regulated where certain industries and residential structures could be located. One landowner argued that the zoning plan was unconstitutional because it diminished property values by prohibiting the land from being developed for industrial purposes. This prompted a seminal case in zoning law: Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

The Supreme Court, in addressing the relatively new concept of zoning, held that the zoning plan was a reasonable and constitutional of the Village of Euclid’s police power. The zoning plan was not arbitrary, and it had a rational relation to the health and safety of the community.

Much has changed since the Supreme Court decided Euclid v. Ambler in 1926 – new industries; new understandings of public health and safety; and more developments in zoning law. The essence of Euclid v. Ambler, however, remains largely intact. To pass constitutional muster, a zoning ordinance cannot be unreasonable or arbitrarily enforced and must have a substantial relation to the public health, safety, morals, or general welfare of the community.

In conclusion, understanding and complying with local zoning ordinances is essential for business owners. Failure to adhere to these regulations can lead to significant consequences, including legal penalties and disruptions to business operations. By becoming familiar with local zoning codes, seeking legal guidance, and proactively addressing compliance issues, individuals can ensure a smoother process for setting up or expanding their businesses. Navigating local zoning ordinances is not just about avoiding trouble—it’s about laying the groundwork for long-term success and sustainability.

For more information or to seek counsel from our Real Estate & Construction attorneys, please reach out to request a consultation or call us at 216-696-1422.

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The case at issue revolved around a defendant who, during the protests and riots following the murder of George Floyd, broke the window of a bakery. This allowed the defendant and others to loot the store. Roughly $280,000 of store property – including electronics and cupcakes – were stolen. The store remained closed for four months following the incident. The defendant was later convicted of Hobbs Act Robbery. The district court sentenced the defendant to 48 months in prison and ordered the defendant to pay nearly $230,000 in restitution. Approximately $190,000 of the restitution order accounted for the bakery’s estimated lost profits for the four months it was closed following the riots.

In general, federal courts cannot issue a restitution order in criminal cases unless authorized to do so by statute. The Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, requires a district court (in certain criminal cases) to order restitution equal to the “value of the property” on the date of the loss or on the date of sentencing, whichever is greater, less the value of any property returned. However, the MVRA does not define the term “value.” Although the MVRA expressly permits lost profits for bodily injury offenses,[2] there is no consensus as to whether “value of the property” also impliedly entails lost profits from property offenses. Thus, the circuit split largely comes down to a matter of statutory interpretation.

Several circuits have determined that lost profits can be awarded as restitution.[3] For example, the Second adopted a broad interpretation of the MVRA’s language, noting that the statute did not explicitly prohibit recovery of lost profits. The Ninth Circuit, emphasizing that the offense was a direct and proximate cause of the losses, likewise authorized lost profits in a restitution order.

Meanwhile, the Fourth and Fifth [4] – and now the Sixth – Circuits have each rejected the premise that lost profits can be included in restitution orders—at least in some circumstances. The Fourth Circuit and Fifth Circuit relied heavily on the plain language of the MVRA. That is, because Congress could have authorized restitution for lost profits, but clearly did not do so, lost profits should not be included in a restitution order.

The Sixth Circuit weighed these competing decisions and ruled that lost profits, which represented lost potential income to the victim, could not be included in the restitution order. In doing so, the court echoed the Fourth and Fifth Circuits and found that the plain language of the MVRA clearly did not extend to property offenses and that such language should not be inferred. The court also noted that the MVRA requires more than mere speculation when calculating restitution. The lost profits at issue were simply too speculative to include in the restitution order.

Still, there remains pushback in the Sixth Circuit. In a concurring opinion, Judge McKeague of the Sixth Circuit emphasizes that the point of restitution and the MVRA is to make victims whole again. Courts, Judge McKeague argues, must be allowed to issue restitution orders with this end in mind. Accordingly, the concurrence echoes the more expansive statutory interpretation advanced by the Second, Ninth, and Tenth Circuits.

The Sixth Circuit’s recent decision thus represents a burgeoning divide among the courts regarding the propriety of lost profits in restitution orders. To an extent, the court’s decision can be read as merely requiring greater precision when calculating restitution damages. In other words, courts may not be categorically opposed to awarding lost profits in restitution orders so long as those lost profits are not purely speculative. For now, however, the circuits remain split.

For more information or to seek counsel from our criminal law attorneys, please reach out to request a consultation or call us at 216-696-1422.

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[1] United States v. Buchanan, 2023 U.S. App. LEXIS 22104
[2] 18 U.S.C. § 3663A(b)(2)(C)
[3] United States v. Milstein, 481 F.3d 132 (2d Cir. 2007); United States v. De La Fuente, 353 F.3d 766 (9th Cir. 2003); United States v. Wilfong, 551 F.3d 1182 (10th Cir. 2008)
[4] United States v. Sharp, 927 F.2d 170 (4th Cir. 1991); United States v. Mitchell, 876 F.2d 1178 (5th Cir. 1989)

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