In Re: Ohio Execution Protocol Litigation

Filing 325

ORDER scheduling a Telephone Status Conference on 10/15/2013 12:00 PM before Judge Gregory L Frost. The Court DENIES WITHOUT PREJUDICE 290 MOTION to Intervene filed by Gregory Lott. Signed by Judge Gregory L Frost on 10/8/13. (sem1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

IN RE: OHIO EXECUTION
PROTOCOL LITIGATION

Case No. 2:11-cv-1016
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel

This document relates to: All Parties.

ORDER
On October 4, 2013, Defendants filed a notice indicating that the Ohio Department of
Rehabilitation and Correction has adopted a new execution protocol that will become effective
on October 10, 2013. (ECF No. 323.) Defendants had previously informed the Court that this
action would occur, which led the Court to state the following in its August 12, 2013 Order:
Following the adoption of the new protocol, the parties shall request a status
conference with this Court. At that conference, the Court will address with the
parties whether new pleading is necessary (likely leading to new motions) or whether
the Court can simply reactivate the terminated motions and proceed to dispose of
them on their merits.
(ECF No. 316, at Page ID # 9085.) The Court therefore sets a telephone status conference for
Tuesday, October 15, 2013, at 12:00 p.m. Counsel will be emailed the call-in information. The
parties must confer prior to the conference and come to agreement where necessary on (1)
whether new pleading is necessary; (2) how soon Plaintiffs can file any such new pleading; (3)
whether, instead of new pleading, the Court should reactivate the previously terminated motions
to dismiss; (4) whether, instead of new pleading and the reactivation of the motions to dismiss,
Defendants instead elect to file answers and obtain a trial date; and (5) any other issues that the
parties recognize the new protocol presents.
In the August 12, 2013 Order, the Court also addressed the April 26, 2013 motion to

intervene filed by Gregory Lott. (ECF No. 290.) This Court stated:
Lott’s proffered complaint targets the current protocol, which leads to at least two
possibilities. First, the motion may essentially be moot given the forthcoming new
protocol, which would mean that Lott would need to file a new motion targeting the
new protocol after its adoption if he is not permitted to intervene beforehand.
Second, even if Lott’s proffered complaint would remain viable, Defendants’
opposition to his intervention, largely predicated on a statute of limitations argument,
may have no application to the new protocol depending on the content of that
protocol. In light of Lott’s March 19, 2014 scheduled execution date, the Court is
reluctant to decide the merits of intervention at this time or to terminate the motion,
but this Court also recognizes that time is of the essence to Lott. The Court
reschedules the motion to intervene for a non-oral hearing on October 7, 2013, and
encourages the parties to discuss and then advise the Court whether it can proceed
to address the motion before that date or whether it would be a waste of resources
given the forthcoming new protocol.
(ECF No. 316, at Page ID # 9086-87.) In response to the foregoing, counsel for Lott filed an
October 7, 2013 notice in which he summarized what this Court had done and stated:
Gregory Lott now gives notice to this Court that the new protocol announced
on October 4, 2013, contains significant changes from the earlier protocol. It is
anticipated that the Consolidated Omnibus Complaint will almost certainly be
amended. These amendments will necessarily impact this Court’s decision on Lott’s
Motion to intervene.
(ECF No. 324, at Page ID # 9587.) Lott’s filing is remarkably unhelpful.
This Court already knows what it did. The Court also already knows that the new
protocol contains changes. And the Court already knows based on prior discussions with the
parties that amendment of the pleading is all but a certainty. What the Court wanted to know and
what Lott curiously declined to tell this Court is whether he wanted the Court to proceed to
address the motion to intervene or whether he agreed that it would be a waste of resources given
the new protocol. This is why the Court encouraged the parties to confer on the issues
surrounding the motion to intervene and to advise the Court on their thoughts on how to proceed.
The parties have elected not to provide the Court with any substantive guidance.
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Lott’s motion to intervene targets a moot protocol. Accordingly, the Court DENIES
WITHOUT PREJUDICE the motion to intervene. (ECF No. 290.) Lott remains free to file a
second motion to intervene targeting the new protocol. The parties also remain free to discuss
whether grounds exist for opposing such a motion in light of the adoption of the new protocol
and whether Defendants would oppose Lott simply joining the case by being added to a new
omnibus complaint if Plaintiffs intend to file such a pleading.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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