In 2004, Plaintiff Waleed Jaraysi bought an abandoned Chili’s Restaurant in Marietta, Georgia to develop into a banquet and wedding hall. On or about December 28, 2004, Mr. Jaraysi applied for and was issued a building permit to modify the restaurant shell into a mixed-use development. Plaintiffs’ permit application requested authorization to build an 8,700 square-foot addition to the building, however, the attached construction plans contemplated a 23,000 square-foot addition, and according to Plaintiffs, the City was aware of the discrepancy upon approval. Plaintiffs commenced construction in April 2005. After some time, the City declared its intent to demolish the property, and on July 16, 2010, the City Council appropriated funds to begin demolition. The City also issued a press release declaring the property an “eyesore” and announcing its plans to demolish it.
On July 19, 2010, the day of demolition, Mr. Jaraysi filed an Emergency Verified Complaint in the Superior Court of Cobb County. According to the Verified Complaint, Mr. Jaraysi sought (1) a temporary injunction to prevent demolition, (2) a declaration that the Consent Order was unenforceable, (3) a declaration of Plaintiffs’ property rights, and (4) other “just and proper” relief. He further alleged that the City’s actions amounted to an “illegal taking … without authority or compensation, in violation of the Fifth Amendment to the United States Constitution.” On June 19, 2012, two years from the day Plaintiffs initiated the emergency Cobb County Action naming the City and Mr. Clay as Defendants. Mr. Clay filed a Motion to Dismiss, invoking the statute of limitations, arguing that all claims against him were time-barred. The Court agreed and on December 21, 2012, dismissed Plaintiffs’ claims against him. The City counterclaimed to prevent Mr. Jaraysi from interfering with the demolition and the trial court denied Plaintiffs’ request for injunctive relief and issued a second order to enjoin Plaintiffs from interfering with the demolition. The Georgia Court of Appeals summarily affirmed the trial court’s judgment, and the Supreme Court of Georgia denied Plaintiffs’ certiorari petition.
The court reasoned that although Plaintiffs failed in their effort to avoid res judicata preclusion, the Plaintiffs’ last ditch effort to have the merits of their federal constitutional claims heard was understandable because the Cobb County Superior Court did not address Plaintiffs’ due process Fifth Amendment takings claim in its order of dismissal. Thus the Plaintiffs’ arguments against res judicata, though extremely weak, were not completely groundless. Accordingly, the Court would not grant attorney’s fees without first considering whether Plaintiffs’ underlying § 1983 claim was frivolous. Because the City did not meet its burden to establish that Plaintiffs’ § 1983 claim was groundless, and the City failed to directly challenge Plaintiffs’ precise theory of takings liability, the Court denied without prejudice the City’s Motion for Attorney’s Fees and granted the City leave to refile its Motion subject to the provisions of this Order.
Jaraysi v. City of Marietta, Ga. 2014 WL 1614349 (N.D. Ga. 2014)