IN THE SUPREME COURT OF OHIO CASE NUMBER STATE, EX REL. ELIZABETH A. KOBLY, ET AL. RELATORS. vs. YOUNGSTOWN CITY COUNCIL, ET AL.

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1 ORIGlNAC IN THE SUPREME COURT OF OHIO CASE NUMBER STATE, EX REL. ELIZABETH A. KOBLY, ET AL. RELATORS vs. YOUNGSTOWN CITY COUNCIL, ET AL. RESPONDENTS RESPONDENTS' MOTION IN OPPOSITION TO RELATORS' MOTION TO STRIKE EXHIBITS FROM ANSWER AND TO STRIKE RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS JOHN B. JUHASZ (23777) 7081 WEST BOULEVARD, SUITE 4 YOUNGSTOWN, OHIO (330) FAX: (330) jbjjurisdoc@yahoo.com ATTORNEY FOR RELATORS IRIS TORRES GUGLUCELLO LAW DIRECTOR (19416) ANTHONY J. FARRIS COUNSEL OF RECORD DEPUTY LAW DIRECTOR (55695) CITY OF YOUNGSTOWN 26 South Phelps Street Youngstown, Ohio (330) Fax: (330) irisq@cityofyounqstownoh.com a-jf@cityofyounqstownoh.com TTORNEYS FOR RESPONDENTS JUN 24?_0U00 CLERK OF COURT I SUPREME COURT OF OHIO I JUN ^ 4 Z009 CLERK OF COURT SUPREME COURT OF OHIO

2 IN THE SUPREME COURT OF OHIO STATE, EX REL. ELIZABETH A. KOBLY, ET AL. CASE NUMBER Relators vs. YOUNGSTOWN CITY COUNCIL, ET AL. Respondents RESPONDENTS' MOTION IN OPPOSITION TO RELATORS' MOTION TO STRIKE EXHIBITS FROM ANSWER AND TO STRIKE RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS Now come Respondents Youngstown City Council, City of Youngstown and Mayor Jay Williams, by and thtough counsel, and respond in opposition to Relators' motion to strike pursuant to Ohio Civ.R. 12(F). Rule 12(F) of the Ohio Rules of Civil Procedure does not authorize or require that the exhibits to Respondents' Answer nor Respondents' Motion for Judgment on the Pleadings be stricken. A Memorandum setting forth grounds in support of that conclusion is attached and incorporated in this Motion. For all the foregoing reasons, Respondents respectfully request that this Honorable Court overrule Relators' Motion to Strike Exhibits from Answer and to Strike Respondents' Motion for Judgment on the Pleadings in its entirety. Respectfully submitted, ANTHONY J^ L^ARRIS DEPUTY LA DIRECTOR CITY OF YOUNGSTOWN

3 MEMORANDUM Relators have moved, purportedly pursuant to Ohio Civ.R. 12(F), to strike exhibits attached to Respondents' Answer and a motion filed by Respondents. Rule 12(F) of the Ohio Rules of Civil Procedure allows a party to move to have "... stricken from the pleadings any insufficient claim or defense or any redundant, immaterial, impertinent or scandalous matter." It is unclear from reviewing Relators' Memorandum which, if any, of the bases for a motion to strike set forth in Ohio Civ.R. 12(F) Relators are suggesting apply to Respondents' exhibits. Exhibits are obviously not claims or defenses. Under Civ.R. 12(F),..`[r]edundant' matter consists of allegations which constitute a needless repetition of other averments. `Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded or a statement of unnecessary particulars in connection with and descriptive of that which is material.... `[I]mpertinent' matter consists of statements which do not pertain and are not necessary to the issues in question.... `[S]candalous' matter is that which improperly casts a derogatory light on someone, most typically a party to the action." 5A Wright and Miller, Federal Practice and Procedure (2d ed.), Civil Section It cannot be seriously maintained that the exhibits, which consist of a letter from the administrative director of the Ohio Supreme Court giving advice and offering assistance to remedy the situation (Exhibit A), a report providing an available option to remedy the situation (Exhibit B), and a City ordinance

4 appropriating funds for Relators to hire counsel (Exhibit C), are redundant or scandalous. These exhibits are material and pertinent to defenses alleged by Respondents. Respondents explicitly set forth as one of the defenses in its Answer that Relators have failed to state a claim upon which relief can be granted because they have and had an adequate remedy in the ordinary course of law available to them through availing themselves of the assistance offered by the Ohio Supreme Court. Exhibits A and B relate to and pertain to that defense and are not unnecessarily particular. Exhibit C relates and pertains to Respondents' defense, explicitly set forth in its Answer, that it has appropriated funds for Relators to hire special counsel and is not in any way unnecessary. The exhibits are therefore also not immaterial or impertinent. None of the types of materials that can be stricken pursuant to an Ohio Civ.R. 12(F) motion would include Respondents' exhibits. Rather than identifying any basis for striking Respondents' exhibits pursuant to Ohio Civ.R. 12, Relators instead focus on Ohio Civ.R. 10. Rule 10(D) identifies certain instances when items must be attached to a pleading. Amongst those items is a copy of the account or written instrument if a claim or defense is based on that account or written instrument. Rule 10(C) states that a written instrument attached to a pleading is a part of the pleading. Relators extrapolate from these simple statements to argue that only documents that they consider to be "written instruments" can become part of the pleadings and, therefore, be considered in deciding on a motion for judgment on the pleadings. Such is not now nor has it ever been the law in the State of Ohio.

5 The case law in Ohio reflects that a myriad of writings and materials attached to or incorporated into pleadings are subject to consideration in the determination of a motion for judgment on the pleadings. Determination of a motion for judgment on the pleadings is restricted solely to the allegations in the pleadings, as well as any material incorporated by reference or attached as exhibits to those pleadings. Ridenour v. Wilkinson, 10th Dist. No. 07AP- 200, 2007-Ohio-5695, at 9116, Curtis v. Ohio Adult Parole Auth., 10th Dist. No. 04AP-1214, 2006-Ohio-15, at 9124, Schuetz v. State Farm, 147 Ohio Misc. 2d 22, 890 N.E. 2d 374, 383, 2007-Ohio-7267, at 9[32. The determination of a motion for judgment on the pleadings is generally restricted solely to the allegations, but an exception exists which permits consideration of documents attached and incorporated into pleadings. Smith v. Nagel, 9th Dist. No , at 17. A court must limit its determination of a motion for judgment on the pleadings solely to the allegations in the pleadings and any writings attached to those pleadings. Ferchill v. Beach Cliff Bd. of Trustees, 162 Ohio App. 3d 144, 147, Ohio-3475, at 16, 832 N.E. 2d 1238, 1241, Vinicky v. Pristas, 163 Ohio App. 3d 508, 510, 2005-Ohio-5196, at 9[3, 839 N.E. 2d 88, 90, Drozeck v. Lawyers Title Ins. Corp. (2000), 140 Ohio App. 3d 816, 820, 749 N.E. 2d 775, 778, Amzee Corp. v. Comerica Bank-Midwest, 2002-Ohio-3084, at 134, 49 UCC Rep. Serv. 2d 833, Thomas v. Byrd- Bennett, 8th Dist. No , 2001-Ohio-4160, at 914, Workman v. Franklin County (August 28, 2001), 10th Dist. No. OOAP Relators are unable to cite any Ohio cases in which an exhibit was struck from a pleading because the court did not view it as a written instrument. If Relators' position were the law in the

6 State of Ohio, their own exhibits would have to be excluded. There is such a dearth of authority for Relators' position that they cannot even provide a definition of written instrument that has been used in Ohio courts for such a purpose. It is, therefore, by necessity that Relators seek to find some support in the federal court system. Relators describe at length a few cases from the small number of federal courts which have excluded exhibits under the federal rules of civil procedure because the court determined that they were not written instruments. Even within those cases however, one can find a recognition that the viewpoint being expressed is in conflict with the majority of federal courts. See, In re: Empyrean Biosciences, Inc. Securities Litigation (N.D. Ohio 2003), 219 F.R.D. 408 at 410, fn. 3 and fn. 4, 408 Fed. Sec. L. Rep. 9192, 629. Most federal courts either do not engage in this analysis or define the term so broadly that it would easily encompass Respondents' exhibits. See Northern Indiana Gun and Outdoor Shows, Inc. v. City of South Bend (1998), 163 F. 3d 449, Gant v. Wallingford (1995), 69 F. 3d 669, Branch v. Tunnel (1994), 14 F. 3d 449, overruled on other grounds, Galbraith v. County of Santa Clara (2002), 307 F. 3d 1119, In re Wade (1992), 969 F. 2d 241, Hall v. Bellman (1991), 935 F. 2d "Appended to... [the]... second amended complaint are a large number of exhibits. These documents are a part of the complaint for all purposes, including the purpose of determining what the complaint alleges. Fed R. Civ. P. 10(C); see Hall v. Bellman, 935 F. 2d 1106 (10th Cir. 1991) (written documents attached to the complaint as exhibits are considered part of the complaint for consideration in a rule

7 12(b)(6) dismissal); Goldman v. Belden, 754 F. 2d 1059, (2d Cir. 1985)(same). The Court does not look to any of the appended exhibits as `matters outside the pleading' for purposes of determining issues of fact; rather, the Court examines the exhibits solely for the purpose of determining the legal sufficiency of...[the]... claims, which are based on the facts and allegations documented in the exhibits. Thus, the Court does not convert... [the]... motion to dismiss into a motion for summary judgment pursuant to Fed. R. Civ. P. 12(b)...". Realtek Industries, Inc. v. Nomura Securities (1996), 939 F. Supp. 572, at fn. 1. There is obviously no basis for Relators' motion to strike Respondents' exhibits. Relators also however use their motion to insert an additional argument unrelated to the motion to strike. Relators suggest that it is "curious" that Respondents have chosen to make part of the pleadings exhibits which include a statement that does not coincide with Respondents' defenses. Relators clearly do not understand that making exhibits part of the pleadings because their existence supports Respondents' defenses does not mean that Respondents are asserting the truth of every statement contained within them. This can best be illustrated by examining the decision of the United States Court of Appeals for the Sixth Circuit in Jones v. City of Cincinnati (2008), 521 F. 3d 555. In Jones, numerous exhibits, including transcripts of interviews with police officers who had allegedly beaten the plaintiff and excerpts from the report of a citizen board regarding the incident, were attached to the complaint. "Defendants argue that because a`copy of a written instrument that is an exhibit to

8 a pleading is part of the pleading for all purposes,' Fed. R. Civ. P. 10(C), all the facts stated in the exhibits to the complaint must be assumed to be true for purposes of the motion to dismiss. Even if we assume that a transcript of an interview constitutes a `written instrument,' treating a transcript as part of a pleading does not mean that we assume everything the officers said in those interviews is true.... Rule 10(C) `does not require a plaintiff to adopt every word within the exhibits as true for purposes of pleading simply because the documents were attached to the complaint to support an alleged fact.' See N. Ind. Gun and Outdoor Shows, Inc. v. City of South Bend, 163 F. 3d 449, (7th Cir. 1998)." Jones at page Relators' motion to strike Respondents' exhibits has no merit. Relators' motion to strike Respondents' Motion for Judgment on the Pleadings is even more frivolous. Relators' motion to strike Respondents' Motion for Judgment on the Pleadings is dependent on Relators prevailing on their other motion to strike which has already been refuted. Further, Rule 12(F) of the Ohio Rules of Civil Procedure allows for certain things to be stricken from pleadings. Motion are not pleadings. Rule 7(A) of the Ohio Rules of Civil Procedure identifies the documents that are pleadings and those documents do not include motions for judgment on the pleadings. A motion for judgment on the pleadings is a motion as defined in Rule 7(B) of the Ohio Rules of Civil Procedure. A motion to strike enables a party to seek to have items stricken from a pleading, not a motion. Harrison v. Clemente (2000), 93 F. Supp. 2d 856, 857.

9 For all the foregoing reasons, Respondents move this Honorable Court for an Order overruling Relators' Motion to Strike Exhibits from Answer and to Strike Respondents' Motion for Judgment on the Pleadings. Respectfully submitted, ANTHONY J. RRIS DEPUTY LAW DIRECTOR CITY OF YOUNGSTOWN CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing RESPONDENTS' MOTION IN OPPOSITION TO RELATORS' MOTION TO STRIKE EXHIBITS FROM ANSWER AND TO STRIKE RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS was mailed by regular mail on this 23rd day of June, 2009, to JOHN B. JUHASZ ( ), 7081 WEST BOULEVARD, SUITE 4, YOUNGSTOWN, OHIO, , ATTORNEY FOR RELATORS. ANTHONY J.UMRRIS DEPUTY LAW DIRECTOR

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Payne v. Grant County Board of County Commissioners et al Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA SHARI PAYNE, Plaintiff, vs. Case No. CIV-14-362-M GRANT COUNTY,