Newman v. University of Dayton et al

Filing 36

ENTRY AND ORDER FINDING PLAINTIFF PETER NEWMAN IN VIOLATION OF THE COURT'S SEPTEMBER 14, 2017 ORDER 28 INSTRUCTING THE PARTIES THAT ALL FURTHERCOMMUNICATIONS WITH THE COURT SHOULD BE MADE THROUGH FILINGS IN THE COURT'S DOCKET OR ORALLY DURING SCHEDULED CONFERENCES OR HEARINGS BEFORE THE COURT. Signed by Judge Thomas M. Rose on 10-4-2017. (Attachments: # 1 Exhibit) (de)

Subject
:

Fwd: Judge Rose's granting Defendants' Motion to Strike in Newman v. University of Dayton, et. al. Case No.
3:17-cv-00179 -TMR

From:

Peter Newman

To:

peter_snow, rose_chambers, "Dunlevey, Karen T. (Dayton)"

Date:

09/28/2017 01:43 PM

Pete:
You never responded to my September 11, 2017 message. Please respond at your earliest
opportunity.
Thank you, Peter Newman
---------- Forwarded message ---------From: Peter Newman <[e-mail]>
Date: Mon, Sep 11, 2017 at 12:49 PM
Subject: Judge Rose's granting Defendants' Motion to Strike in Newman v. University of
Dayton, et. al. Case No. 3:17-cv-00179 -TMR
To: [e-mail]
Cc: "Dunlevey, Karen T. (Dayton)" <[e-mail]>

Pete:
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 message.
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 in
Opposition.
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. 7).
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 aberration.
Peter.

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
Business Litigation
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
937.475.6282
[e-mail]

--

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
Business Litigation
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
937.475.6282
[e-mail]

Nokes v. Miami Univ._ 2017 U.S. Dist. LEXIS 136880.pdf