Case: 2:13-cv MHW-TPK Doc #: 271 Filed: 12/03/14 Page: 1 of 9 PAGEID #: 7318

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1 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 1 of 9 PAGEID # 7318 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., Plaintiffs, -vs- JON HUSTED, Ohio Secretary of State, Defendant, -and- STATE OF OHIO, et al., Intervening Defendants. Case No. 213-cv Judge Watson Magistrate Judge Kemp REPLY OF INTERVENING DEFENDANT GREGORY FELSOCI IN SUPPORT OF HIS CROSS-MOTION FOR SUMMARY JUDGMENT ON COUNTS SIX, SEVEN, EIGHT AND NINE OF PLAINTIFFS THIRD AMENDED COMPLAINT [DOC. 264] I. Plaintiffs Do Not Challenge The Substantive Merits Of Felsoci s Summary Judgment Motion The question raised by Felsoci s cross-motion is whether Felsoci is entitled to summary judgment on Counts Six through Nine of Plaintiffs Third Amended Complaint. In response to Felsoci s cross-motion, Plaintiffs pontificate about a series of straw-man procedure arguments (most of which weren t raised by Felsoci) examining why it might be theoretically proper for a litigant to seek summary judgment after failing to secure preliminary relief. As to what really matters the substantive merits of Felsoci s motion Plaintiffs offer virtually nothing. Plaintiffs only attempt to create one fact issue and, as discussed below, they go about it in an entirely improper fashion. Other than that, Plaintiffs do not even suggest that there is a fact issue to be decided at trial and nowhere do they contest any aspect of Felsoci s ten-page analysis

2 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 2 of 9 PAGEID # 7319 applying the undisputed facts to the pertinent law. It is almost as though Plaintiffs want the Court to enter summary judgment against them on Counts Six through Nine. [See Doc. 266 at 17 (conceding that Plaintiffs offer no additional arguments in support of Counts Six through Nine and that Plaintiffs do not ask the Court to reconsider the proof on those claims)] Under the well-established summary judgment standard, [o]nce the movant has met its burden, the nonmoving party must present significant probative evidence to demonstrate that there is [more than] some metaphysical doubt as to the material facts. Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009) (quoting Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993)). When the nonmoving party chooses not to respond to a point raised in a summary judgment motion, the nonmoving party has waived any response to that point. See, e.g., Guarino v. Brookfield Tp. Trustees, 980 F.2d 399, 405 (6th Cir. 1992) ( The non-moving party bears a burden. But if the non-moving party fails to discharge that burden for example, by remaining silent its opportunity is waived. ). 1 Plaintiffs do not contest and have therefore conceded the following dispositive points Felsoci was not acting under color of state law for purposes of Plaintiffs claims under 42 U.S.C and therefore each of Plaintiffs claims against him must fail as a matter of law. [Felsoci s Cons. Sum. J. Memo. (Doc. 265) at 7-10] Ohio Revised Code (E)(1) satisfies the applicable exacting scrutiny test and is therefore constitutional on its face. [Id. at 10-11] 1 Accord Steele v. Jennings, 2005 WL , at *5 n.6 (S.D. Ohio 2005) ( Defendant moved for summary judgment on [certain] claims, but Steele did not respond to Defendant s motion regarding those claims. Therefore, Steele waived those claims. ); Lees v. Thermo Electron Corp., 2008 WL , at *12 (S.D. Ohio 2008) ( Plaintiff does not oppose or otherwise address Defendants Motion as to Count 2 of the Amended Complaint in his Memorandum in Opposition. Having not addressed the argument in his responding memoranda, the Court concludes that Plaintiff waives his opposition to the Motion with respect to Count 2. ). 2

3 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 3 of 9 PAGEID # 7320 Ohio Revised Code (E)(1) is not unconstitutional as applied to Plaintiffs, nor was it selectively enforced against them. [Id. at 12-13] Plaintiffs theory that independent contractors were once exempt from Ohio Revised Code (E)(1) is nothing more than urban legend based upon a misreading of the case law and, thus, the statute was not retroactively applied to them. [Id. at 13-14] The protest hearing officer (Professor Smith) did not have a constitutionally debilitating conflict of interest, and even if he did, Plaintiffs waived the right to raise any conflict. [Id. at 15-16] 2 Given that Plaintiffs have conceded these dispositive points, Felsoci s cross-motion for summary judgment should be granted. II. Plaintiffs Incorporation Of Their Preliminary Injunction Briefing By Reference Into Their Own Summary Judgment Motion Does Not Satisfy Their Burden To Respond To Felsoci s Cross-Motion The fact that Plaintiffs had incorporated by reference eighty-five pages of prior unsuccessful briefing and all of the record evidence into their own summary judgment motion does not come close to satisfying their burden in responding to Felsoci s cross-motion. Just as a litigant cannot support a summary judgment motion by incorporating the entire record by reference, [see Doc. 265 at 5-6], a litigant cannot oppose a summary judgment motion in this manner The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Rather, the burden is on the non-moving party to present affirmative evidence to defeat a 2 Plaintiffs did not address the merits of any of these points in their response to Secretary Husted s cross-motion which also raised each of these points (other than the first point). [See Docs. 267, 268] 3

4 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 4 of 9 PAGEID # 7321 properly supported motion for summary judgment and to designate specific facts in dispute. [Arthur v. American Showa, Inc., 2014 WL , at *4 (S.D. Ohio 2014) (citations, quotations omitted)] The summary judgment procedures require the litigants not the Court to distill the record down to the key evidentiary and legal issues and to present them in a manner that allows the Court to determine whether a trial is necessary. See Guarino v. Brookfield Tp. Trustees, 980 F.2d 399, 406 (6th Cir. 1992) ( [Fed.R.Civ.P. 56] requires the non-moving party to do its own work, and to assist the trial court by responding to the motion, pointing out as specifically as is reasonably possible facts that might demonstrate the existence of genuine issues. ) (emphasis added). Allowing a party to rely on prior submissions that have nothing to do with the summary judgment standard improperly shifts the burden to the Court In opposing motions, parties cannot expect a trial court to do [their] homework for [them]. [A plaintiff] simply cannot expect to shirk its affirmative responsibility to put [its] best foot forward in an effort to present some legal theory that will support [its] claim, that [the defendant] is not entitled to summary judgment. The district court [is] under no obligation to rummage through [the plaintiff s] preliminary injunction filings made more than seven months earlier. Overburdened trial judges cannot be expected to be mind readers. [Plaintiff] cannot expect the district court to transform [its] preliminary injunction arguments into a substantive opposition to [defendant s] motion for summary judgment, speculating as to what [plaintiff] would argue and developing its arguments. [CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1526 (1st Cir. 1996) (citations, quotations omitted; emphasis added)] 4

5 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 5 of 9 PAGEID # 7322 These comments are equally applicable here. All that Plaintiffs have done to advance the merits of Counts Six through Nine at the summary judgment stage is to incorporate their prior unsuccessful preliminary injunction arguments. 3 Once Felsoci and Secretary Husted crossmoved for summary judgment, Plaintiffs should have attempted to respond with legal theories and evidentiary arguments that met their burden for opposing summary judgment. Instead, when it came to the fundamental merits of their claims, Plaintiffs chose to remain silent. 4 It is not up to the Court to transform Plaintiffs preliminary injunction briefs into a proper summary judgment opposition when Plaintiffs cannot be bothered to do their own work to oppose these case-dispositive motions. 3 Plaintiffs offer a string cite for the proposition that [i]ncorporating legal arguments and proof previously submitted in a failed (or successful) motion for preliminary injunction into a subsequent motion for summary judgment is not uncommon. [Doc. 266 at 16] If Plaintiffs cases demonstrate anything, it is that incorporating prior failed preliminary injunction briefing into a summary judgment brief is almost always a losing strategy. Compare Salvagio v. Madison Realty Capital, L.P., 2012 WL , *4 (S.D. Tex. 2012) (plaintiff incorporated by reference failed argument from preliminary injunction motion on claim that deed of trust was void and court entered summary judgment in defendant s favor on same claim); Murphy v. Zoning Commission of the Town of Milford, 289 F. Supp. 2d 87, 112 (D. Conn. 2003) (unsuccessful argument incorporated from preliminary injunction briefing was unsuccessful at summary judgment stage); Bronx Household of Faith v. Board of Education of New York, 876 F. Supp. 2d 419, 424 n.6 (S.D.N.Y. 2012) (same); Hitachi Medical Systems America, Inc. v. Branch, 2011 WL , *11 (N.D. Ohio 2011) (questioning why [plaintiff] made no effort to clarify its claims in its motion for summary judgment where the brief in support of the motion for preliminary injunction[] requires considerable speculation regarding the essential elements of the claims ). One of Plaintiffs cases does not stand for the proposition for which it is cited. In Barnstead Broadcasting Corp. v. Offshore Broadcasting Corp., 886 F. Supp. 874, 882 (D.D.C. 1995), the parties merely incorporate[d] by reference or restate[d] their arguments related to [a separate] motion for summary judgment. 4 As to Secretary Husted s motion, Plaintiffs only assert that Counts Six through Nine are not moot and that Count Nine is not barred by laches. At no point in over twenty-five pages of briefing in response to Secretary Husted s and Felsoci s respective summary judgment motions other than with respect to the Bridges Declaration (discussed in the next section) do Plaintiffs suggest there is a genuine issue of material fact such that Defendants are not entitled to judgment as a matter of law on Counts Six through Nine. 5

6 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 6 of 9 PAGEID # 7323 III. Plaintiffs Cannot Create A Genuine Fact Issue By Submitting A Declaration That Contradicts Prior Sworn Deposition Testimony Plaintiffs only attempt at identifying a fact issue is improper. In its October decision, the Court cited deposition testimony from Bob Bridges about how Bridges learned of Professor Smith s involvement in the Susan B. Anthony List case before the protest hearing. The deposition testimony on this point was clear A. He [Smith] was representing DeWine. Mr. Linnabary brought it to my attention and asked me if it was a conflict of interest. And I said to my limited legal knowledge, I said it looks like one, but you may want to bring it up to our lawyers. Q. When did this occur? A. Before the hearing. Q. Before the protest hearing before Mr. Smith s hearing? A. Uh-huh. Q. Before the hearing over which Mr. Smith presided? A. Correct. [Bridges Dep. (Doc. No. 201) at (emphasis added)] Plaintiffs now seek to contradict the deposition testimony. Now, according to Plaintiffs, Bridges supposedly learned of Smith s involvement in the Susan B. Anthony List case after the protest hearing, not before. Plaintiffs claim that Bridges was mistaken and that he could not correctly remember, six months later, when precisely he learned of certain events. [Doc. 266 at 18 n. 13] Now, nearly three months after his deposition, Plaintiffs want the Court to believe that Bridges s memory has miraculously cleared up such that he can declare under penalty of perjury that he first learned that Bradley Smith was involved in the Susan B. Anthony litigation one or two 6

7 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 7 of 9 PAGEID # 7324 days before the protest [sic] hearing that was held in this Court, which commmenced [sic] on March 13, 2014 and that during his deposition he mistakenly stated [he] learned of Bradley Smith s involvement in the Susan B. Anthony litigation before the hearing held before Bradley Smith. [Doc ] Of course, the tactic of creating fact issues on summary judgment by submitting declarations to contradict prior deposition testimony is improper. 5 As the Sixth Circuit has long held, a party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts [the affiant s] earlier deposition testimony. Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997) (citing Reid v. Sears, Roebuck & Co., 790 F. 2d 453, 460 (6th Cir. 1986)); accord Steele v. Jennings, 2005 WL , at *5 n.7 (S.D. Ohio 2005) ( Steele s affidavit contradicts his deposition testimony. Accordingly, the Court will only rely on Steele s deposition testimony and will disregard Steele s affidavit. ). This rule applies where, as here, the affiant claims that the deposition was mistaken. Kelley v. Unico Holdings, Inc., 2010 WL , at *4-5 (S.D. Ohio 2010) (holding that plaintiffs cannot rely on affidavit about prior mistaken deposition testimony By submitting [the] affidavit, plaintiffs are attempting to do precisely what Sixth Circuit law forbids. That is, they are attempting to create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts [the affiant s] earlier deposition testimony. ). 5 It is unusual that Plaintiffs would try to create a fact issue when they have actually moved for summary judgment in their favor. 7

8 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 8 of 9 PAGEID # 7325 By submitting the Bridges Declaration, Plaintiffs are attempting to do precisely what Sixth Circuit law forbids. Id. As a result, the Bridges Declaration should be disregarded. It cannot present a genuine fact issue. 6 IV. Conclusion For all of these reasons, Intervening Defendant Gregory Felsoci s Cross-Motion for Summary Judgment [Doc. 264] should be granted. Respectfully submitted, /s/ John W. Zeiger John W. Zeiger ( ) Steven W. Tigges ( ) ZEIGER, TIGGES & LITTLE LLP 41 South High Street, Suite 3500 Columbus, Ohio (614) (614) Facsimile zeiger@litohio.com tigges@litohio.com Attorneys for Intervening Defendant Gregory Felsoci 6 Even if the Bridges Declaration created a genuine issue about when he learned of Smith s involvement in the Susan B. Anthony List case, that fact issue would be immaterial. The undisputed evidence would still show that Plaintiffs counsel, Mark Brown, knew or was on inquiry notice of Smith s role in the Susan B. Anthony List case by the date of the protest hearing, and the undisputed evidence also demonstrates that Smith s interest, if any, was too remote to require him to recuse. 8

9 Case 213-cv MHW-TPK Doc # 271 Filed 12/03/14 Page 9 of 9 PAGEID # 7326 CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of December, 2014, the foregoing document was filed electronically with the Clerk of Court using CM/ECF system, and notice of this filing will be sent to all attorneys of record by operation of the Court s electronic filing system. /s/ John W. Zeiger John W. Zeiger ( )