Phelps v. Macconnell et al

Filing 25

ORDER DENYING 18 Plaintiff's Motion to Strike Attorney's Counterclaim Request for Attorney Fees; DENYING 19 Plaintiff's Motion to Strike Defendant's Amended Answer and Amended Motion to Dismiss; and DENYING 20 Plaintiff's Motion to Allow the Plaintiff to Serve Defendant Rion MacConnell with a Subpoena Ad Testificandum. Signed by Magistrate Judge Sharon L Ovington on 9/11/13.(mm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
COY PHELPS,

:

Plaintiff,

:

Case No. 3:12cv00344

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

vs.
RION MACCONNELL, et al.,
Defendants.

:
:

DECISION AND ENTRY

This matter is before the Court upon three Motions filed by Plaintiff. First, Plaintiff
has filed a Motion to Strike Attorney’s Counterclaim Request for Attorney Fees. (Doc. #18).
Plaintiff’s Motion arises in response to Defendant Rita MacConnell’s Motion for Attorney
Fees in which she requests “that the Plaintiff ... be ordered to pay her reasonable and
customary attorney fees in the amount of $5,000.00 or such an amount as this Court deems
fair and just.” (Doc. #17, PageID at 314). Plaintiff is not entitled to an Order striking
Defendant Rita MacConnell’s Motion for Attorney Fees because her Motion does not
contain redundant, immaterial, impertinent, or scandalous matter. See Fed. R. Civ. P. 12(f).
Although Plaintiff’s Motion to Strike lacks merit, his Motion asserts arguments in
opposition to Defendant Rita MacConnell’s Motion for Attorney Fees. (Doc. #s 12, 18).
Consequently, the Court will fully consider those arguments by Plaintiff when ruling on
Defendant Rita MacConnell’s Motion for Attorney Fees.

Second, Plaintiff has filed a Motion To Strike Defendant’s Amended Answer and
Amended Motion to Dismiss. (Doc. #19). Plaintiff contends that these materials should be
stricken because Defendants’ attorneys did not sign them. This, however, is incorrect.
Defendants’ counsel electronically signed and filed these documents as permitted by S.D.
Ohio Civ. R. 83.5(c). (Doc. #16, PageID at 309). Plaintiff also argues that the Amended
Answer and Amended Motion to Dismiss should be stricken because Defendants’ attorneys
failed to support their defenses with facts, evidence, arguments, or law. This contention is
pertinent to whether Defendants’ amended materials have or lack merit; it does not,
however, establish that striking Defendants’ amended materials is warranted. See Fed. R.
Civ. P. 12(f). Plaintiff further maintains, “The amended answer is mostly redundant and
repetitious of the previous motions to dismiss by the attorneys and which has already been
argued and submitted to this court.” (Doc. #19, PageID at 322). This contention appears to
arise from the fact that Rita MacConnell filed a single document containing both an Answer
and a Motion to Dismiss (Doc. #8), and later filed an Amended Answer and a separate
Motion to Dismiss. (Doc. #s 15, 16). Although these later filings repeat the same or similar
assertions raised in Defendant Rita MacConnell’s earlier-filed Answer and Motion to
Dismiss, no substantive ruling has yet been made in this case and Plaintiff will suffer no
prejudice from allowing Defendant Rita MacConnell to file her Amended Answer and a
separate Motion to Dismiss. Accordingly, Plaintiff’s Motion to Strike Defendant’s Amended
Answer and Amended Motion to Dismiss lacks merit.
Next, the case is pending on Plaintiff’s Motion To Allow The Plaintiff To Serve

2

Defendant Rion MacConnell With A Subpoena Ad Testificandum. (Doc. #20). Plaintiff
seeks Rion MacConnell’s testimony to support his opposition to Defendant Rita
MacConnell’s Motion to Dismiss. Such testimony is premature at this point in the case
because Defendant Rita MacConnell’s Motion seeks dismissal under Fed. R. Civ. P.
12(b)(6). When considering Rule 12(b)(6) Motions to Dismiss, the Court accepts Plaintiff’s
factual allegations as true and liberally construes his pro se Complaint in his favor. See
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Consequently, Plaintiff does not need
to provide evidence, such as Defendant Rion MacConnell’s testimony, to support his
opposition to Defendant Rita MacConnell’s Rule 12(b)(6) Motion to Dismiss.

IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s Motion to Strike Attorney’s Counterclaim Request for Attorney
Fees (Doc. #18) is DENIED;

2.

Plaintiff’s Motion To Strike Defendant’s Amended Answer and Amended
Motion to Dismiss (Doc. #19) is DENIED; and

3.

Plaintiff’s Motion To Allow The Plaintiff To Serve Defendant Rion
MacConnell With A Subpoena Ad Testificandum (Doc. #20) is DENIED.

September 11, 2013

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

3