Joseph et al v. Hampton et al

Filing 15

OPINION AND ORDER denying 13 Motion to Strike 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Signed by Magistrate Judge Norah McCann King on 5/13/2015. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID A. JOSEPH, SR., et al.,
Plaintiffs,
vs.

Civil Action 2:15-cv-0085
Judge Watson
Magistrate Judge King

CHRISTIE HAMPTON, et al.,
Defendants.

OPINION AND ORDER
Only the claims of plaintiff David A. Joseph, Sr., a state inmate
who is proceeding without the assistance of counsel, remain.
and Order, ECF 5.

Opinion

This matter is before the Court on Plaintiff’s

Motion to Strike Defendants[’] Motion to Dismiss, ECF 13 (“Motion to
Strike”).

For the reasons that follow, the Motion to Strike is

DENIED.
On March 11, 2015, defendants filed a motion to dismiss
plaintiff’s claims pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.

Defendants’ Motion to Dismiss, ECF 9.

The

certificate of service represents that defendants served a copy of the
motion to dismiss on plaintiff by ordinary U.S. Mail to a P.O. Box at
Pickaway Correctional Institution (“PCI”).

Id. at 9.

On April 6,

2015, plaintiff notified the Court that his new address was at Marion
Correctional Institution (“MCI”) and asked the Clerk to send him a
copy of the docket in this case.

Notice, ECF 11.

Thereafter, when

plaintiff did not respond to the motion to dismiss, the Court granted

1

plaintiff additional time to respond, warning that his “failure to do
so will be construed by the Court as his abandonment of the action,
and may result in the dismissal of the case for want of prosecution.”
Order, ECF 12.
Instead of responding to defendants’ motion to dismiss, plaintiff
filed the Motion to Strike pursuant to Fed. R. Civ. P. 12 on April 15,
2015, contending that defendants “willfully failed to serve a copy of
the motion [to dismiss]” on plaintiff and contending that defense
counsel “falsified [that motion’s] certificate of service.”
Strike, p. 1.

Motion to

In support, plaintiff explains that when he filed the

Complaint, ECF 3, on January 15, 2015, he was incarcerated at PCI, but
that he was later transferred to MCI on February 26, 2015.

Id.

On

March 2, 2015, plaintiff wrote a letter addressed to the prosecutor
for Perry County, Ohio, mistakenly believing that the prosecutor
represented defendants in this action.
plaintiff’s new address at MCI.

Id.

Id.

This letter included

On March 9, 2015, defense

counsel responded by letter addressed to plaintiff at both his MCI
address and his former PCI address.

Id.; Exhibit A, attached thereto

(copy of letter from defense counsel dated March 9, 2015).

On March

12, 2015, plaintiff received a copy of this letter at MCI and received
a second copy of this letter a week later when it was forwarded from
PCI to plaintiff at MCI.

Motion to Strike, p. 1.

Apparently

believing that this history establishes that defendants should have
served plaintiff at MCI and/or that PCI would have forwarded a copy of
the motion to dismiss had one been served there, plaintiff asks the

2

Court to strike defendants’ motion to dismiss “and order the
Defendants to file a response to the Complaint, as if the Motion to
Dismiss had never been filed” and “further asks this Court to sanction
the Defendants [sic] attorney for his deceptive practices and for
making fraudulent certificates of service to this Court.”

Id. at 2.

On April 20, 2015, defendants opposed the Motion to Strike,
representing that they served plaintiff via U.S. Mail at the only
address plaintiff had placed on file with the Court at that time and
that this mailing was never returned as undelivered to defense
counsel.

Defendants’ Memorandum in Opposition to Plaintiff’s Motion

to Strike Defendants’ Motion to Dismiss, ECF 14, p. 2 (“Opposition”).
Defendants point out that plaintiff’s notice of change of address was
made on April 6, 2015, i.e., after the motion to dismiss had been
filed.

Id. (citing ECF 11).

Defendants acknowledge that, if

plaintiff did not receive the motion to dismiss following his transfer
to MCI, that failure stems from plaintiff’s own failure to timely
notify the Court and defense counsel of his new address and not from
any “willful or fraudulent” misconduct on the part of the defense.
Id. at 2-3.

Defendants note that, by attaching a copy of the motion

to dismiss to his Opposition, plaintiff has established that he now
has a copy of that motion.

Id.

Defendants therefore propose that the

Court grant plaintiff additional time to respond to the motion to
dismiss.

Id.

Plaintiff has not filed a reply to the Opposition.

Defendants’ arguments are well-taken.

Plaintiff has an

affirmative duty to advise the Court of any change in his address.

3

See, e.g., Barber v. Runyon, No. 93-6318, 1994 U.S. App. LEXIS 9709,
1994 WL 163765, at *1 (6th Cir. May 2, 1994) (“If [pro se Plaintiff’s]
address changed, she had an affirmative duty to supply the court with
notice of any and all changes in her address.”); Lewis v. Miller, 2013
U.S. Dist. LEXIS 158982, at *2 (S.D. Ohio Nov. 6, 2013) (“‘[I]t is the
obligation of every litigant to update the Court with his current
address, failing which, litigation may become subject to dismissal for
failure to prosecute.’”) (quoting Aden v. Herrington, No. 1:12-cv-86,
2012 U.S. Dist. LEXIS 153392, at *3 n.1 (S.D. Ohio October 25, 2012)).
See also A Guide for Pro Se Civil Litigants Representing Yourself in
the United States District Court for the Southern District of Ohio
(effective July 1, 2013), p. 14 (advising that pro se litigants must
promptly notify the Court and opposing parties in writing of any
change in address and warning that “[i]f you fail to keep the Court
informed of your current address/telephone number, your case may be
dismissed for lack of prosecution”) (emphasis in original).

The

record presently before the Court reflects that plaintiff’s address on
file with the Court at the time the motion to dismiss was filed on
March 11, 2015, was at PCI.

Plaintiff did not notify the Court of his

new address at MCI until April 6, 2015, i.e., nearly a month after the
motion to dismiss was filed on March 11, 2015.

Notice, ECF 11.

Defendants cannot be faulted for not serving plaintiff at the address
on file with the Court.

Although plaintiff also apparently believes

that defense counsel “fraudulently” represented that the motion to
dismiss was mailed to plaintiff at PCI, nothing in the present record

4

establishes that defendants failed to mail a copy of the motion to
dismiss to plaintiff at PCI.

In short, the fact that plaintiff may

not have received a copy of the motion to dismiss is not a function of
of any “fraudulent” or improper action on the part of the defendants.
In addition to enjoying no support in the record, the Motion to
Strike is not well-taken because it asks the Court to strike a motion
to dismiss.

Rule 12(f), which addresses only pleadings, is

inapplicable because a motion is not a “pleading” as defined by Rule 7
of the Federal Rules of Civil Procedure.

Fed. R. Civ. P. 7(a); Zep

Inc. v. Midwest Motor Supply Co., 726 F. Supp. 2d 818, 822 (S.D. Ohio
2010).

Although federal courts have the inherent power to strike

documents other than pleadings, Anthony v. BTR Auto. Sealing Sys., 339
F.3d 506, 516 (6th Cir. 2003), this Court declines to impose the
drastic remedy of striking the motion to dismiss based on the present
record.

Cf. Brown & Williamson Tobacco Corp. v. United States, 201

F.2d 819, 822 (6th Cir. 1953) (“[T]he action of striking a pleading
should be sparingly used by the courts” because it is “a drastic
remedy to be resorted to only when required for the purposes of
justice” and “only when the pleading to be stricken has no possible
relation to the controversy.”).

For all these reasons, the Motion to

Strike is without merit.
WHEREUPON, Plaintiff’s Motion to Strike Defendants[’] Motion to
Dismiss, ECF 13, is DENIED.

If plaintiff intends to respond to

defendants’ motion to dismiss, ECF 9, he must do so no later than May
26, 2015.

5

May 12, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

6