MEMORANDUM IN SUPPORT

Transcription

1 IN THE STATE OF OHIO, EX. REL. ROMAR MONTGOMERY, Relator, IN THE SUPREME COURT OF OHIO v. CASE NO LICKING COUNTY COURT HOUSE, Respondent. MOTION TO STRIKE MEMO OPPOSING MOTION TO DISMISS AND MOTION FOR LEAVE TO AMEND COMPLAINT, AND MEMORANDUM CONTRA MOTION FOR LEAVE TO AMEND COMPLAINT Now comes the undersigned, on behalf of the Licking County Clerk of Court for the Fifth District Court of Appeals, and hereby respectfully submits the following as its Motion to Strike Memo Opposing Motion to Dismiss and Motion for Leave to Amend Complaint, which were filed by Relator on August 13, 2009, and September 10, 2009, respectively; and as its Memorandum Contra Motion for Leave to Amend Complaint, which was filed by Relator on September 10, The motions are made pursuant to Civil Rule 12(F). The reasons for the same are more fully supported in the memorandum below. Respectfully submitted, LICKING COUNTY PROSECUTOR NEWARK, OH U SUIi B "s D. Miller ( ) 'sistant Prosecuting Attorney Licking County Prosecutor's Office 20 South Second Street, 4th Floor Newark, Ohio PH: FX: MEMORANDUM IN SUPPORT Relator filed a petition for a writ of mandamus in this Court on July 23, 2009, naming "Licking County Court House" as the respondent. Respondent filed a Motion to Dismiss Petition for Writ of FAX

2 Mandamus on August 7, 2009, and served the same upon Relator via ordinary U.S. mail on August 6, Apparently, Relator filed a Memo Opposing Motion to Dismiss on August 13, 2009, and a Motion for Leave to Amend Complaint on September 10, Respondent never received service of either of these filings. Further, Relator's Motion for Leave to Amend Complaint is wholly without merit, and should be denied by this Court. For the reasons outlined herein, Respondent respectfully requests that this Court strike both of Relator's filings, and hold them for naught. For the sake of judicial economy, Respondent also includes herein its Memorandum Contra Relator's Motion for Leave to Amend Complaint. 1. MOTION TO STRIKE MEMO OPPOSING MOTION TO DISMISS AND MOTION FOR LEAVE TO AMEND COMPLAINT Civil Rules 5(A), 5(B), and 5(D) govern service of pleadings subsequent to the original complaint. Civil Rule 5(A) requires service of "every written motion other than one which may be heard ex parte[.]" Civil Rule 5(B) provides that service shall be made upon a party's attorney of record by "delivering a copy to the person to be served, transmitting it to the office of the person to be served by facsimile transmission, [or] mailing it to the last known address of the person to be served[.]" Finally, Civil Rule 5(D) requires that such motions "shall be filed with the court within three days after service[.]" Here, Relator failed to adhere to the Civil Rules by failing to serve Respondent, via its attorney of record, by any means whatsoever as required by the plain language of the Rules. First, Relator's memo and motion clearly fall within the category of post-pleading papers that must be served upon each party, NEWABK, OH thereby requiring Relator to serve Respondent according to the procedure contained in the Rules. Second, Relator failed to serve the papers by way of any of the mechanisms provided by Civil Rule 5(B), even though Respondent's attorney's address was clearly located on its Motion to Dismiss, and, in fact, appears on Relator's certificates of service located on each paper, and therefore known by Relator. Lastly, Civil Rule 5(D) contemplates service of such papers to occur simultaneously to or prior to the actual filing of the TA%FORECLOSURES FAX

3 same with this Court by requiring that such papers be filed "within three days afterservice" Relator wholly failed to serve the papers at issue upon Respondent at all, let alone within three days prior to filing them. Respondent only became aware of Relator's filings while conducting a perfunctory review of the Court docket related to this matter online. If it weren't for this routine review, Respondent may well have not learned of Relator's filings until this Court rendered a final decision on the same, thereby denying it the opportunity to respond to its prejudice. Civil Rule 12(F) provides a remedy for a party aggrieved by another party's failure to follow pertinent rules, such as service rules, by way of striking the offending papers from the record. Respondent respectfully requests that this Court utilize its authority pursuant to Civil Rule 12(F) to strike Relator's Memo Opposing Motion to Dismiss and Motion for Leave to Amend Complaint, both insufficient for failure of service in violation of Civil Rule 5, disregard them, and hold them for naught. II. MEMORANDUM CONTRA MOTION FOR LEAVE TO AMEND COMPLAINT Notwithstanding Respondent's above-stated arguments outlining Relator's service deficiencies, and, arguendo, without waiving the same, Respondent reiterates that the act which Relator attempts to compel via his original Petition for a Writ of Mandamus, and continues to attempt to compel via his Motion for Leave to Amend Complaint, has been properly completed, and thus Relator has no further clear legal right subject to any clear legal duty on the part of Respondent. Accordingly, Respondent respectfully requests that this Court deny Relator's Motion for Leave to Amend Complaint, disregard it, and hold it for PRUSECUTING ATiORNEY naught. NEWARK, OR Civil Rule 15(A) governs amendments to complaints and states, in pertinent part: A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires FAX

4 However, although the Rule provides that leave should be "freely" given, such determination is well within the sound discretion of this Court, and is not required unless "justice so requires." Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 6, syllabus. Granting of leave to amend a complaint should be granted "unless the court determines that allegations of other statements or facts consistent with the challenged pleading could not possibly cure the defect." State ex. rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545. Here, Relator's motion should be denied based on the reasons set forth in Respondent's Motion to Dismiss Petition for Writ of Mandamus.' While Respondent will defer to its previous motion and not rewrite its arguments again here, there are no further statements or facts with which Relator may supplement or amend his original petition that could possibly cure its fatal defects. Not only has Relator failed to establish a clear legal right to which he is entitled and that Respondent is under a clear legal duty to perform an act related to such right, State ex. ret. Manson v. Morris (1993), 66 Ohio St.3d 440, but the act which Relator attempts to compel, via both his original petition and his motion for leave to amend complaint, has already been properly performed in accordance with all relevant laws, thereby precluding the issuance of a writ of mandamus. State ex. rel. Scruggs v. Sadler (2004), 102 Ohio St.3d 160. There are no further factual allegations or statements that Relator can assert that could possibly cure this defect in Relator's petition, as the requested act has been completed, and any allegation made in an attempt to compel the same has been permanently extinguished. NEWARK, OH III. CONCLUSION WHEREFORE, based on the foregoing reasons, in accordance with Civil Rule 12(F) and all other applicable law, the undersigned, on behalf of the Licking County Clerk of Court, respectfully requests thal this Court strike Relator's Memo Opposing Motion to Dismiss and Motion for Leave to Amend Complaint, 670, ' To ensure clarity, Respondent restates and reasserts all arguments set forth in its Motion to Dismiss Petition for Writ o Mandamus as if fully re-written herein. FAX

5 as Relator failed to serve the same upon Respondent, in violation of Civil Rule 5; and/or in the alternative, to deny Relator's Motion for Leave to Amend Complaint, as there are no further statements or facts with which Relator may supplement or amend his original petition that could possibly cure its fatal defects. Respectfully submitted, LICKING C4-IfNTY PROSECUTOR By:_"= Jam^s D. Miller ( ) Aistant Prosecuting Attorney Licking County Prosecutor's Office 20 South Second Street, 4'h Floor Newark, Ohio PH: FX: CERTIFICATE OF SERVICE This certifies that a true copy of the foregoing document was served upon Relator, Romar Montgomery # , Southeastern Correctional Institution, 5900 B.I.S. Road, Lancaster, Ohio 43130, by ordinary U.S. Mail, postage prepaid, on this 14th day of Septembe D. Miller ( ) istant Prosecuting Attorney 20 SOUTH SECOND Si. NEWARK, OH FAX