York v. Lucas County, Ohio et al
Filing
30
Memorandum Opinion and Order denying as premature plaintiff's motion for summary judgment and sanctions. re 27 . Judge Jeffrey J. Helmick on 7/22/2014. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Troy York,
Case No. 3:13 cv 1335
Plaintiff
v.
MEMORANDUM OPINION
AND ORDER
Lucas County, Ohio, et al.,
Defendants
BRIEF BACKGROUND
This case was commenced in state court and removed by Defendants in June 2013. The
Defendants promptly filed a motion to dismiss which was granted in part, and held in abeyance, in
part, in February 2014. Plaintiff sought reconsideration of that ruling and the same was denied in
March 2014. Plaintiff then sought a motion for default judgment as Defendants had not yet filed an
answer. I denied the motion for default in April 2014 and granted Defendants leave to file their
answer upon receipt of the Order. The next day Defendants filed their answer.
This matter is now before me on Plaintiff’s motion for summary judgment regarding
Defendants’ statute of limitations defense and his motion for sanctions under Fed. R. Civ. P. 11.
Also before me are Defendants’ opposition and Plaintiff’s reply thereto. This Court has jurisdiction
pursuant to 28 U.S.C. § 1331. For the reasons that follow, Plaintiff’s motion is denied.
DISCUSSION
One of the affirmative defenses asserted by Defendants states that “Plaintiff’s amended
complaint is barred by the applicable statute(s) of limitations and/or statutory period.” (Doc. No.
26 at ¶ 41). Plaintiff’s objection to this affirmative defense appears to be based upon the refusal to
immediately withdraw this affirmative defense:
The undersigned repeatedly requested opposing counsel to dismiss
the statute of limitations defense based upon the obvious timely filing
of the original and amended complaint. Opposing counsel’s
response was he most likely would not be pursing this affirmative
defense during the course of the litigation.
(Doc. No. 27 at p.3).
For these reasons, Plaintiff moves for summary judgment on this affirmative defense and
seeks sanctions under Rule 11.
The Defendants position can be summed up as follows: “[T]he defendants have agreed to
withdraw this defense after discovery if there are no facts to support it.” (Doc. No. 28 at p. 1).
According to the docket, discovery is set to close on September 2, 2014, and presumably the
parties are engaged in the pursuit of discovery. As noted by Fed. R. Civ. P. 12(b), “Every defense to
a claim for relief in any pleading must be asserted in the response pleading if one is required.”
Stated differently, “Rule 12(b) objections will be lost, however, if the defendant omits them from the
. . responsive pleading.” 2 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE §12.02[1] (3d
ed. 2014).
In this instance, the Defendants are not opposed to withdrawing the affirmative defense
once they confirm, through discovery, there is no factual basis to support their position. As
advocates for their clients and as responsible attorneys they are required to carry out that due
diligence. As officers of the Court, defense counsel’s affirmation of their intent to dismiss this
2
affirmative defense upon completion of their due diligence is sufficient to render the present motion
by Plaintiff as premature. See e.g., Tomason v. Stanley, 297 F.R.D. 541, 545 (S.D. Ga. 2014) (“courts are
reticent to strike a marginal defense as legally insufficient without allowing defendants some benefit
of discovery to develop that defense”).
CONCLUSION
Accordingly, Plaintiff’s motion for summary judgment and for sanctions (Doc. No. 27) is
denied as premature.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?