Easterling v. State of Ohio

Filing 29

DECISION AND ORDER- Petitioner's Motion to Amend (Doc. No. 26) is GRANTED. Accordingly, Ohio Attorney General Mike Dewine is hereby substituted as the sole Respondent in this case. In addition, Petitioner shall file and serve theAmended Complaint forthwith. Respondent shall respond to the Amended Complaint within the time allowed by Fed. R. Civ. P. 15(a)(3). Signed by Magistrate Judge Michael R Merz on 7-8-2013. (kpf1)

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.

DECISION AND ORDER
This case is before the Court on Petitioner’s Motion to Amend (Doc. No. 26) and before
the Magistrate Judge on Judge Black’s Recommittal Order (Doc. No. 28) relating to the two
pending Reports and Recommendations (Doc. Nos. 15, 19) and Petitioner’s Objections thereto
(Doc. Nos. 16, 20).
The Motion to Amend was filed and served June 10, 20131. Under S. D. Ohio Civ. R.
7.2, Respondent’s memorandum in opposition was due to be filed by July 5, 2013, but no
opposition has been filed. The Motion to Amend is therefore ripe for decision.
As part of the Motion to Amend, Petitioner seeks to substitute Ohio Attorney General
Mike Dewine as the sole respondent in this case. Petitioner hopes thereby to eliminate the
Eleventh Amendment as a barrier to this case (Motion, Doc. No. 26, PageID 159). Insofar as this
case is a facial attack on the constitutionality of Ohio’s vexatious litigator statute, Ohio Revised
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Easterling states “THE PROPOSED AMENDMENTS WILL NOT BE SERVED UNTIL LEAVE IS GRANTED
BY THIS COURT.” Doc. No. 26, PageID 159. Although Petitioner has, in violation of Fed. R. Civ. P. 5, failed to
include a certificate of service of the Motion to Amend, the Motion was served electronically on Respondent’s
counsel by the Court’s CM/ECF system.

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Code § 2323.52, the Court finds that the Attorney General is the person with appropriate
standing under federal law to defend the statute.

See, e.g., discussion of standing in

Hollingsworth v. Perry, 570 U.S. ___, 2013 U.S. LEXIS 4919 (2013). Because the existing
Respondent in this case is represented by an Assistant Ohio Attorney General and she has raised
no objection within the time allowed, the Court concludes the Attorney General is the proper
party to defend the statute under Ohio law as well. Accordingly, the Motion to Substitute is
GRANTED and Ohio Attorney General Mike Dewine is hereby substituted as the sole
Respondent in this case.
Easterling is also correct that substitution of the Attorney General obviates the Eleventh
Amendment objection which the State of Ohio had raised and the Magistrate Judge had
recommended be sustained. See Ex parte Young, 209 U.S. 123 (1908); Cory v. White, 457 U.S.
85 (1982); Thomson v. Harmony, 65 F.3d 1314, 1320 (6th Cir. 1995).
Although he does not argue the point separately, Easterling has also eliminated the
Rooker-Feldman objection which the State made to his original Complaint in that the Proposed
Amended Complaint does not seek to have this Court interfere with any extant judgment
involving a determination that Easterling is a vexatious litigator under the statute, except by way
of seeking a permanent injunction against any enforcement of the statute.
Accordingly, the Report and Recommendations (Doc. No. 15) and Supplemental Report
and Recommendations which recommended that the case be dismissed for lack of subject matter
jurisdiction as a result of the Eleventh Amendment and the Rooker-Feldman Doctrine are
WITHDRAWN.
The general standard for considering a motion to amend under Fed. R. Civ. P. 15(a) was
enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):

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If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of any allowance of the
amendment, futility of amendment, etc.
-- the leave sought should, as the rules require, be "freely given."
371 U.S. at 182.

In considering whether to grant motions to amend under Rule 15, a court

should consider whether the amendment would be futile, i.e., if it could withstand a motion to
dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir.
1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v.
Centran Corp., 747 F.2d 1536 (6th Cir. 1984); Communications Systems, Inc., v. City of
Danville, 880 F.2d 887 (6th Cir. 1989). Roth Steel Products v. Sharon Steel Corp., 705 F.2d
134, 155 (6th Cir. 1983); Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21,
23 (6th Cir. 1980).
While it would be possible to consider the merits of Easterling’s claims on the Motion to
Amend, the Magistrate Judge finds it would be inappropriate to do so. Rather, the Attorney
General should be given an opportunity to present a full defense of the statute either by way of
an answer or a motion under Fed. R. Civ. P. 12(b)(6).
Accordingly, the Motion to Amend is GRANTED. Petitioner shall file and serve the
Amended Complaint forthwith. Respondent shall respond to the Amended Complaint within the
time allowed by Fed. R. Civ. P. 15(a)(3).
July 8, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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