Verhovec v. City of Trotwood et al
Filing
97
DECISION AND ORDER - The oral argument is rescheduled to 1:30 p.m. on June 23, 2015, in Courtroom No. 4, 200 West Second Street, Dayton, Ohio 45402. The Court will furnish Ms. Frick as trial attorney for Defendants with a copy of the transcript prep ared by the court reporter (Doc. No. 73). Ms. Frick will then show that transcript to Steven McHugh, Kevin Lantz, and Amelia Blankenship. Each of them will prepare an affidavit advising the Court whether the transcript conforms to their recollection of what was said and, if not, what their recollection is. Ms. Frick shall then file those affidavits with the Court; if any of them discloses a discrepancy from the transcript, that affidavit may be filed under seal. Walker's Motion to Dismiss (Doc. No. 96) is STRICKEN because it was filed four months after the deadline for filing such motions set in the Preliminary Pretrial Conference Order (Doc. No. 28, PageID 316, 5). Signed by Magistrate Judge Michael R. Merz on 6/19/2015. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
EDWARD VERHOVEC,
Plaintiff,
-
vs
:
Case No. 3:14-cv-363
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
-
CITY OF TROTWOOD, OHIO, et al.,
Defendants.
:
DECISION AND ORDER
This case came on for status conference by telephone at 2:30 p.m. on Thursday, June 18,
2015. Julius Carter participated on behalf of Plaintiff, Dawn Frick participated on behalf of
Defendants, and William Walker participated pro se .
To accommodate Mr. Carter’s pre-schedule court appearances in the Vandalia Municipal
Court and the Montgomery County Domestic Relations Court on June 23, 2015, the oral
argument is rescheduled to 1:30 p.m. on that day in Courtroom No. 4, 200 West Second Street,
Dayton, Ohio 45402. This slight continuance resolves Plaintiff’s Amended Motion to Continue
the Evidentiary Hearing (Doc. No. 95).
Mr. Walker explained the intended scope of his examination of his listed witnesses
(Messrs. McHugh and Lantz; Ms. Blankenship) was the context and content of the conversation
among them in Magistrate David Fuchsman’s conference room that is in issue in this case. The
Court finds testimony from these witnesses about the context of the discussion is unnecessary as
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the Court has listened to the whole recording of the meeting with Magistrate Fuchsman which
was provided to the Court. Respecting the content of that conversation, the Magistrate Judge has
already determined that was a privileged attorney-client communication and that the crime-fraud
exception does not apply. The Magistrate Judge will not permit Mr. Walker or Mr. Carter on
behalf of Plaintiff to hear that recording or read the transcript unless and until District Judge Rice
overrules the Magistrate Judge’s privilege rulings. Thus the only purpose which could properly
be served by having these witnesses testify live can be served in another way which does not
undermine those rulings. The Court will furnish Ms. Frick as trial attorney for Defendants with a
copy of the transcript prepared by the court reporter (Doc. No. 73). Ms. Frick will then show
that transcript to Steven McHugh, Kevin Lantz, and Amelia Blankenship. Each of them will
prepare an affidavit advising the Court whether the transcript conforms to their recollection of
what was said and, if not, what their recollection is. Ms. Frick shall then file those affidavits
with the Court; if any of them discloses a discrepancy from the transcript, that affidavit may be
filed under seal. This procedure will provide Judge Rice with a full record on which to decide
the privilege question. If Judge Rice overrules the Magistrate Judge’s privilege rulings, the
question of cross-examining these witnesses will be reconsidered.
Walker objected (Doc. No. 94) to the Magistrate Judge’s Scheduling Order (Doc. No.
87). He incorporated by reference the Objections he previously made at Doc. No. 78 and added
the objection that the Court’s Order was insufficient to compel Mr. Lantz to attend. It is
respectfully recommended that the District Judge overruled that objection because (1) having
identified Mr. Lantz as a witness, Walker had not as of June 18, 2015, issued a subpoena for
Lantz’s attendance; (2) Walker lacks standing to raise an objection on behalf of Lantz; and (3)
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Ms. Frick, who is associated with Mr. Lantz in the practice of law, advised on his behalf that he
had no objection to appearing pursuant to the Scheduling Order.
Defendants raised several discovery issues in their Brief Summary of Issues for
Discussion. After discussion, Ms. Frick agreed with Mr. Carter that she had not yet exhausted
efforts to resolve extrajudicially any issues with Plaintiff and efforts will now be made before
any motion to compel Plaintiff to provide discovery is filed. On the other hand, extrajudicial
efforts have been attempted with Mr. Walker but have not succeeded. Defendants were advised
to file their motion to compel promptly because the Preliminary Pretrial Conference Order
provides a discovery cut-off date of September 29, 2015 (Doc. No. 38, PageID 317, ¶ 11).
In preparation for the status conference, Mr. Walker advised the Court by email of his
intention to file a motion to dismiss under Fed. R. Civ. P. 12(b)(6). He has now done so (Doc.
No. 96). The Motion is STRICKEN because it was filed four months after the deadline for filing
such motions set in the Preliminary Pretrial Conference Order (Doc. No. 28, PageID 316, ¶ 5).
June 19, 2015.
s/ Michael R. Merz
United States Magistrate Judge
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