Easterling v. State of Ohio

Filing 25

ORDER STRIKING 24 AMENDED MOTION FOR PRELIMINARY INJUNCTION. Signed by Magistrate Judge Michael R Merz on 5/6/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WARREN EASTERLING,
Petitioner,

:

Case No. 3:13-cv-024
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vs:
STATE OF OHIO,
Respondent.

ORDER STRIKING AMENDED MOTION FOR PRELIMINARY
INJUNCTION
This case is before the Court on Plaintiff’s Amended Motion for Preliminary Injunction
(Doc. No. 24).
On April 30, 2013, Easterling filed a Motion to Amend (Doc. No. 21) which the
Magistrate Judge denied without prejudice to its renewal if the renewed motion to amend was
accompanied by a proposed amended complaint (Doc. No. 22). In apparent response, Easterling
has filed what he styles an “Amended Motion for Preliminary Injunction.” That document is
STRICKEN for the following reasons:
1.

The “Amended Motion” purports to substitute Attorney General Mike Dewine for the

State of Ohio as “Defendant/Respondent” which cannot be done without court permission.
Easterling must file a formal motion to substitute a party in order to achieve this result.
2.

Instead of a plain and complete statement of Plaintiff’s claims as would be required in a

complaint, it very briefly makes the erroneous claim that the state of Ohio has admitted the

1

unconstitutionality of Ohio Revised Code § 2323.52 by failing to file an answer in Easterling’s
prior case, 3:12-cv-300. The State made no such admission. A party which files a motion to
dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b) is under no obligation to answer a
complaint unless and until the court overrules its motion to dismiss. In that case, the State had
no obligation to file an answer because its motion to dismiss was granted.
In fact, Easterling has never filed a complaint (or petition in mandamus) in this case; the
Court has dealt solely with Easterling’s Motion for Temporary Restraining Order as his initiating
document. The Court can no longer proceed in that fashion. Easterling must file a motion for
leave to file an amended complaint, accompanied by a proposed amended complaint, to which
the State of Ohio has an opportunity to respond.
May 6, 2013.
s/ Michael R. Merz
United States Magistrate Judge

2