KCI USA, Inc. v. Healthcare Essentials, Inc.

Filing 354

Memorandum of Opinion and Order For the reasons set forth herein, Interested Party Cavitch, Familo & Durkin, LPA's Motion to Strike (ECF No. 348 ) is denied. Judge Benita Y. Pearson on 2/21/2018. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KCI USA, INC.,
Plaintiff,
v.
HEALTHCARE ESSENTIALS, INC., et al.,

Defendants.

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CASE NO. 1:14CV549

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 348]

I.
Pending before the Court is Interested Party Cavitch, Familo & Durkin, LPA’s (the
“Cavitch Firm”) Motion to Strike Certain Arguments Made by KCI in its Reply Brief and
Memorandum in Support of its Omnibus Motion for Sanctions. ECF No. 348. Plaintiff KCI
USA, Inc. has filed its response. ECF No. 349. For the reasons provided below, the Cavitch
Firm’s motion (ECF No. 348) is denied.
II.
The Cavitch Firm moves the Court to strike portions of Plaintiff’s reply brief filed in
support of its Omnibus Motion for Sanctions against the Cavitch Firm. ECF No. 348.
Specifically, the Cavitch Firm moves to strike:

a) Footnote 1 and the claim of KCI that sanctions are appropriate against individual
attorneys Michael Rasor, Komlavi Atsou and Eric Weiss.

(1:14CV549)
b) The argument, that Cavitch’s 2014 letter to vendors of Defendant Healthcare
Essentials, Inc., constitutes additional grounds to support sanctions.
c) A newly presented argument and reference to Exhibit 11, claiming that Cavitch
had actual knowledge of inaccurate evidence.
d) A new claim that, by having Ryan Tennebar sign an affidavit about discovery,
Cavitch has knowingly prepared a false application.

Id. at PageID:# 6539.
The Cavitch Firm argues that Plaintiff improperly used its reply brief to “add claims
against new parties” not asserted in its Omnibus Motion for Sanctions (ECF No. 333). Id. The
Federal Rules of Civil Procedure do not provide for a motion to strike documents or portions of
documents other than pleadings. See Fed. R. Civ. P. 12(f) (limited to striking pleadings or
portions of pleadings). If a brief or affidavit refers to matters a court should not consider (such as
inadmissible evidence), while a court is free to exercise its discretion, the usual recourse is for
the court simply to disregard those matters, not to strike them. Lombard v. MCI Telecomm.
Corp., 13 F. Supp. 2d 621, 625 (N.D. Ohio 1998) (citing State Mut. Life Assurance Co. of Am. v.
Deer Creek Park, 612 F.2d 259, 264 (6th Cir. 1979)). Therefore, the Cavitch Firm’s motion
(ECF No. 348) is denied on this ground. For the sake of economy, the Court, nonetheless,
addresses the merits of the Cavitch Firm’s motion to strike, and explains why the motion is
baseless.
With respect to Plaintiff’s reference to individual attorneys Michael Rasor, Komlavi
Atsou, and Eric Weiss, Plaintiff merely reiterates its argument that sanctions should be issued
against counsel that previously represented Defendants. Those prior counsel are Rasor, Atsou,

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and Weiss of the Cavitch Firm. See ECF No. 346 at PageID#: 6508 (“For the removal of any
doubt, and as made clear in KCI’s Omnibus Motion, the Court should sanction Michael Rasor,
Komlavi Atsou, and Eric Weiss of the Cavitch firm—the same individuals who submitted
affidavits with Opposition (and, in fact attested to the statements made in the Opposition) . . . .”).
Plaintiff makes clear that it is because of prior counsels’ misconduct—making
misrepresentations to the Court and Plaintiff regarding Defendants’ document discovery
productions, that Plaintiff now seeks sanctions against the Cavitch Firm.
The three remaining requests to strike are equally frail. The mentions found
objectionable by the Cavitch Firm are related to and offer support for claims plainly set forth in
Plaintiff’s Omnibus Motion for Sanctions in which Plaintiff alleges that the Cavitch Firm
assisted Defendants in abusive discovery practices and commission of multiple frauds on the
Court. See ECF No. 333. Moreover, Plaintiff’s arguments pertaining to the Cavitch Firm’s
knowledge of and participation in the creation of inaccurate evidence, such as Defendant Ryan
Tennebar’s false affidavit, are in direct response to the Cavitch Firm’s contentions that it (1) did
not provide assistance in the creation of fabricated and inaccurate evidence to the Court, and (2)
had no reason to know or suspect that documents produced by Defendants were not authentic.
See ECF No. 341 at PageID#: 1690—93 (explaining that it, the Cavitch Firm, did not provide
direct assistance in the creation of fabricated evidence and had no reason to know that
Defendants produced inauthentic documents); see also Scottsdale Ins. Co. v. Flowers, 513 F. 3d
546, 553 (6th Cir. 2008) (noting that while a party may not raise an issue for the first time in a
reply brief, it may reply to arguments made in the response brief) (emphasis added).

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Accordingly, Plaintiff’s punctuation of arguments asserted in its motion is consistent with the
purpose of a reply brief.
III.
For the reasons stated above, Interested Party Cavitch, Familo & Durkin, LPA’s Motion
to Strike (ECF No. 348) is denied.

IT IS SO ORDERED.
February 21, 2018
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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