Newman v. University of Dayton et al
ENTRY AND ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER GRANTING DEFENDANTS MOTION TO STRIKE 21 AND ORDERING PARTIES THAT ALL FURTHER COMMUNICATIONS WITH THE COURT SHOULD BE MADE THROUGH FILINGS IN THECOURT'S DOCKET OR ORALLY DURING SCHEDULED CONFERENCES OR HEARINGS BEFORE THE COURT. Signed by Judge Thomas M. Rose on 9-14-2017. (Attachments: # 1 Exhibit) (de)
Fwd: Judge Rose's granting Defendants ' Motion to Strike in Newman v .
University of Dayton , et. al. Case No. 3:17-cv-00179 -TMR
09/12/2017 11:16 AM
Nokes v. Miami Univ._ 2017 U.S. Dist. LEXIS 136880.pdf
Sent from my iPhone
Begin forwarded message:
From: Peter Newman
Date: September 11, 2017 at 12:49:14 PM EDT
Cc: "Dunlevey, Karen T. (Dayton)"
Subject: Judge Rose's granting Defendants' Motion to Strike in Newman v.
University of Dayton, et. al. Case No. 3:17-cv-00179 -TMR
This follows up on our brief telephone conversation on Friday regarding the above
referenced procedural matter.
As we discussed, in light of Judge Barrett's August 25, 2017 decision in Nokes v. Miami
University, 2017 U.S. Dist. LEXIS (copy attached), I respectfully submit that Judge
Rose erred in granting Defendants' Motion to Strike Plaintiff's Memorandum in
Opposition in our case, but reached the right result in granting me leave to file a revised
Memorandum in Opposition. To prevent defense counsel from accusing me of having an
improper ex parte c ommunication with the court, I am copying Karen Dunlevey on this
The following is the chronology of events leading up to Judge Rose's granting
Defendants' Motion to Strike:
July 14, 2014, Defendants filed their Motion to Dismiss
August 23, 2014, I filed Plaintiff's Memorandum in Opposition to Defendants'
Motion to Dismiss
August 25, 2017, Defendants filed their Motion to Strike Plaintiff's Memorandum
Shortly after Defendants filed their Motion to Strike, I was doing some research for my
Memorandum in Opposition to Defendants' Motion to Strike and ran across Judge
Barrett's August 25, 2017 decision in Nokes v. Miami University. This is how I found it:
I did a general LEXIS search of "motion to dismiss" within the Sixth Circuit;
I sorted by date (newest-oldest);
I then found Nokes as one of the most recent cases from the Southern District of
Ohio involving a motion to strike.
Judge Rose's decision is significant because he not only denied plaintiff's motion to
strike, but he also provided the following summary of the case law followed by every
district court in the Sixth Circuit holding that orders striking non-pleadings such as
memoranda are not a proper use of Rule 12(f):
Ultimately, the Court is firmly convinced that Defendants' memorandum violated
Local Rule 7.2; however, the Court is less convinced that the proper course of
action is to "strike" the document. Again, the local rules are silent on whether
courts should "strike" non-enumerated memoranda filed without leave.
Furthermore, the Federal Rules of Civil Procedure provide no mechanism for
"striking" documents other than pleadings. Fed. R. Civ. P. 12(f). Even though
parties (and sometimes even courts) frequently refer to all court filings as
"pleadings," such usage is imprecise and incorrect.7 The only documents that
qualify as "pleadings" are enumerated in Fed. R. Civ. P. 7(a) (e.g., complaint,
answer, crossclaim, etc.); memoranda are not listed. Thus, orders "striking"
non-pleadings such as memoranda are not a proper usage of Rule 12(f). Johnson v.
Wolgemuth, 257 F. Supp. 2d 1013, 1024 (S.D. Ohio Mar. 10, 2003) (Rice, J.)
(declining to "strike" expert report at summary judgment phase; reasoning that
Rule 12(f) only allows matters contained within the "pleadings" to be stricken, so
"the remedy is not to strike [the] affidavit; it is simply to ignore it"); Maxum
Indem. Co. v. Drive W. Ins. Servces, No. 1:13- cv-191, 2014 U.S. Dist. LEXIS
196740, at *6 (S.D. Ohio June 13, 2014) (Bowman, M.J.) (denying motion to strike;
agreeing with other courts in Sixth [*24] Circuit holding that "motions to strike are
inapplicable" where a non-pleading is the subject of the motion to strike); Dawson
v. City of Kent, 682 F.Supp. 920, 922 (N.D. Ohio 1988)("The federal rules make only
one reference to a motion to strike in Rule 12(f). This rule relates only to pleadings
and is inapplicable to other filings."); Johnson v. Manitowoc Boom Trucks, Inc., 406
F. Supp. 2d 852, 864 (M.D. Tenn. Dec. 13, 2005) (declining to rule on motion to
strike, because "[m]otions to strike relate only to 'pleadings,' a term which is
narrowly defined by Rule 7(a) of the Federal Rules of Procedure"). Accordingly, the
Court DENIES the Motion to Strike (Doc. 27). (See the attached copy of the case at p.
In the face of Judge Barrett's summary of the law within the Sixth Circuit, I am sure you
can understand how surprised I was when Judge Rose issued his August 30, 2017 Entry
and Order granting Defendants' Motion to Strike.
I suggest that the Court consider issuing a corrected Entry and Order, denying
Defendants' Motion to Strike and giving Plaintiff leave to file a revised Memorandum in
Opposition. Otherwise, Judge Rose's original Entry and Order will appear as an
Peter K. Newman, Esq.
The Newman Law Group LLC:
Solving your workplace problems
Employment Law & Litigation
Traditional Labor Law
HR Lifeguard: HR Counseling and Preventive Strategies
The Workplace Trainer
The Workplace Investigator
Corporate Compliance + Ethics Consulting
Title IX Advocacy, Investigations, and Litigation
Dispute Resolution: Arbitration and Mediation
I work with employers of all sizes, employees, and individuals to help them identify their legal
opportunities and risks. I then provide guidance on how they can effectively take
advantage of these opportunities and minimize their risks.
594 Garden Road
Dayton, OH 45419
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?