Shell v. Ohio Family Rights et al
Memorandum Opinion and Order that Defendant McAllister's motion to intervene (doc. 46 ) is DENIED as moot. Defendant Lautenschlager's motion for protective relief (doc. 49 ), Plaintiff Shells motion to strike (doc. 50 ), an d Defendant Lautenschlager's related motion to strike (doc. 54 ) are DENIED. The defendants' motions for summary judgment (doc. 47 , and 48 ) are DENIED, without prejudice to renew. Defendant McAllister's motion (doc. 53 ) to strike Shell' s response is DENIED as moot. Signed by Magistrate Judge Kenneth S. McHargh on 8/24/16. (M,De)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
OHIO FAMILY RIGHTS,
Case No. 1:15CV1757
Magistrate Judge Kenneth McHargh
The pro se plaintiff Suzanne Shell filed suit in this court against pro se
defendants Ray R. Lautenschlager and Rosalind (“Roz”) A. McAllister, as well as
against several parties who have since been dismissed. Shell filed an amended
complaint on January 19, 2016, alleging copyright infringement against the
defendants concerning three works with copyrights allegedly registered and owned
by Shell. (Doc. 15.) This should be a straightforward case.
However, the pro se plaintiff and the pro se defendants have filed a multitude
of motions, which do not serve to move the case forward.
The court scheduled a Case Management Conference (CMC) in this case,
which was held on July 1, 2016. (Doc. 65.) Before the court could conduct the Case
Management Conference, the purpose of which is to set the deadlines for the
progress of the case, McAllister filed a motion to intervene (doc. 46); Lautenschlager
and McAllister filed motions for summary judgment (doc. 47-48); Lautenschlager
filed a motion for protective relief (doc. 49), which was the subject of Shell’s motion
to strike (doc. 50); McAllister filed a motion to strike Shell’s response to her motion
for summary judgment (doc. 53); Lautenschlager filed a motion to strike Shell’s
motion to strike (doc. 54); Shell filed a motion for for protective order (doc. 56); and
The Case Management Order which followed the CMC provided that all
motions and related documents filed with the court must comply with the court’s
Local Rules. (Doc. 65, at 1.) The court also set a discovery deadline of December 12,
2016, and a dispositive motion deadline of September 26, 2016. Id.
As to discovery disputes, Local Rule 37.1 provides that parties shall first
make sincere, good faith efforts between themselves to resolve the dispute before
turning to the court. If the parties’ own efforts to resolve the dispute are
unsuccessful, the next step is to involve the judicial officer through a telephone
conference. If the judicial officer is still unable to resolve the dispute at the
telephone conference, at that point the parties may file discovery motions. Local
LR 37.1 is intended to streamline the resolution of discovery disputes by
involving the judge, and avoiding, in most instances, the filing of motions to compel
and similar motions. It does not appear that the parties attempted to confer with
each other to resolve their discovery disputes, nor did the parties attempt to
schedule a telephone conference with the court. Instead, Shell filed a motion to
compel (doc. 70).
The court recognizes that the parties have chosen to proceed pro se. However,
all parties are cautioned that a pro se litigant is expected to follow the rules of
court. McNeil v. United States, 508 U.S. 106, 113 (1993) (strict adherence to
procedural requirements); Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991). The
proper procedure (LR 37.1) to address future discovery disputes is set out above.
The court will now address several of the motions pending before the court.
I. MOTION TO INTERVENE
McAllister has filed a “motion to intervene” on behalf of former defendant
American Family Rights. (Doc. 46.) That defendant has been dismissed from the
case. (Doc. 45.) Thus, McAllister’s motion to intervene (doc. 46) is denied as moot.
II. “MOTION FOR PROTECTIVE RELIEF”
Lautenschlager filed a “motion for protective relief,” requesting that the court
not dismiss him until Shell has answered his motion for summary judgment. (Doc.
49.) Shell has filed a motion to strike same. (Doc. 50.)
The court assures the parties that judgment will not be granted until the
parties have had the opportunity to brief the issues in the usual manner. See Local
Rule 7.1. The motions (doc. 49, 50) are denied, and Lautenschlager’s related motion
(doc. 54) to strike Shell’s motion to strike is denied as well.
III. MOTIONS FOR SUMMARY JUDGMENT
As mentioned earlier, Lautenschlager and McAllister filed motions for
summary judgment (doc. 47-48) before the Case Management Conference had even
been held. Shell filed a response to the motions for summary judgment (doc. 51),
and Lautenschlager filed a reply to that (doc. 55). McAllister filed a motion to
strike Shell’s response. (Doc. 53.)
Summary judgment is appropriate when the record “shows that there is no
genuine dispute as to any material fact and that the movant is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Non-moving parties may rest
neither upon the mere allegations of their pleadings nor upon general allegations
that issues of fact may exist. See Bryant v. Commonwealth of Kentucky, 490 F.2d
1273, 1275 (6th Cir. 1974). The Supreme Court held that:
. . . Rule 56(c)1 mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The evidence need not be in a
form admissible at trial in order to avoid summary judgment, but Rule 56(e)
requires the opposing party:
Now Rule 56(a).
to go beyond the pleadings and by [his] own affidavits, or by the “depositions,
answers to interrogatories, and admissions on file,” designate “specific facts
showing that there is a genuine issue for trial.”
Id. at 324.
The Sixth Circuit in Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir.
1989), points out that the movant has the initial burden of showing “the absence of
a genuine issue of material fact” as to an essential element of the non-movant’s
case. This burden may be met by pointing out to the court that the respondent,
having had sufficient opportunity for discovery, has no evidence to support an
essential element of his or her case. Street, 886 F.2d at 1479.
Rule 56 provides that:
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1); Diaz v. Mitchell's Salon and Day Spa, Inc., No. 1:09CV882,
2011 WL 379097, at *1 (S.D. Ohio Feb. 2, 2011).
The defendants’ motions for summary judgment are DENIED, without
prejudice to renew, for several reasons. First and foremost, the motions were
prematurely filed; the court finds that the plaintiff has not “had sufficient
opportunity for discovery.” Street, 886 F.2d at 1479. Second, the motions do not
meet the movants’ initial burden, as outlined above.
The defendants make a number of factual assertions, without any evidence in
the record in support. For example, Lautenschlager asserts that the contested
“Letter to School” is actually identical to a letter authored by Senator Hatch. (Doc.
47, at 3.) He does not provide in support such a letter authored by Sen. Hatch, nor
does he indicate that such a letter is part of the record in this case. As another
example, Lautenschlager also asserts that a final decision in another federal court
resolves some of the issues in this case, but he does not provide a copy of that
decision. (Doc. 47, at 3, 5; see also doc. 48, at 2.) The defendants’ motions for
summary judgment are denied, without prejudice to renew.
The court will address other pending motions in a future memorandum.
McAllister’s motion to intervene (doc. 46) is DENIED as moot.
Lautenschlager’s “motion for protective relief” (doc. 49), Shell’s motion to strike
(doc. 50), and Lautenschlager’s related motion to strike (doc. 54) are DENIED.
The defendants’ motions for summary judgment (doc. 47, 48) are DENIED,
without prejudice to renew. McAllister’s motion (doc. 53) to strike Shell’s response
is DENIED as moot.
IT IS SO ORDERED.
Aug. 24, 2016
/s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
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