IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION
ROBERT A. NEINAST Plaintiff,v.OHIO EXPOSITIONS COMMISSION
and
VIRGIL L. STRICKLER,
General Manager,
Defendants.:
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CASE NO. 09-CV-01-1082
Judge J. Lynch
MOTION OF PLAINTIFF ROBERT NEINAST TO STRIKE DEFENDANTS
OHIO EXPOSITIONS COMMISSION AND VIRGIL STRICKLER'S REPLY
IN SUPPORT OF THEIR MOTION TO DISMISS THE COMPLAINT
Pursuant to the Local Rules of the Franklin County Court of Common Pleas, Loc. R. 39.04(D) and 39.04(C)(ii), Plaintiff Robert A. Neinast moves to strike Defendants' Reply Memorandum in Support of their Motion to Dismiss the Complaint for exceeding the allowable page length under Loc. R. 12.02, and for failing to adhere to Loc. R. 12.03.
A memorandum in support is attached.
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
MEMORANDUM IN SUPPORT
Local Rule 12.02 specifically says:
A reply memorandum or brief including administrative appeals shall not exceed seven pages and shall be restricted to matters in rebuttal. Any reply memorandum or brief which exceeds seven pages shall not be accepted for filing without prior leave of the Court.
Expo's reply memorandum is nine pages long, and should not have been accepted. Furthermore, under Local Rule 12.03,
A motion for leave to file a memorandum or brief in excess of the page limitations set forth in 12.01 and 12.02 above shall be made by no later than seven days prior to the time for filing the brief and a time-stamped copy be hand delivered to the judge's chambers. Such motion shall set forth the unusual and extraordinary circumstances which necessitate exceeding the page limitation.
Not only has Expo failed to file a motion for leave to file a memorandum in excess of the page limitations, there are no unusual or extraordinary circumstances which necessitate exceeding the page limitations. In fact, in all probability, Expo would not have exceeded the page limitations if they
- had not argued the law, which is inappropriate for a Civ. R. 12(B) motion to dismiss;
- had not cited Abt v. Ohio Expositions Comm. (10th Dist. 1996), 110 Ohio App. 3d 696 (Reply, p. 3) without noting that Expo is specifically granted in O.R.C. § 991.05 the power to make Junior Livestock rules, while not similarly noting that there is no comparable rulemaking statute that might authorize the barefoot rule;1
- had not tried to mislead this Court by saying, "the Sixth Circuit also referenced claims based upon Article I of the Ohio Constitution," (Reply, p. 7) which, while technically true, fails to mention that these "references" were solely in the introduction and description of the case, and that the Sixth Circuit never addressed any issue under the Ohio Constitution;
- had not mistakenly claimed that "all of [Plaintiff's] claims were ultimately dismissed based on res judicata save his claim that the Library lacked statutory authority to make and enforce a rule requiring the wearing of shoes in the library," (Reply, p. 7) when none of his claims in that case were dismissed based on res judicata (and, in fact, Neinast specifically did not make any Ohio Constitutional claims in that lawsuit because he was well-aware that they were barred).2
Local Rule 39.04(D) states that "The Trial Judge, upon motion of a party or sua sponte, may impose sanctions for failure to comply with the local rules and/or a case schedule and/or the Civil Rules." Among the non-monetary sanctions allowed are "dismissal with or without prejudice of the case or any claim or counterclaim, or any part of the case or claim, default judgment, exclusion of evidence, issues, or testimony, an order that certain issues or facts be taken as established for the balance of the case, an order striking pleadings or parts of pleadings, and a stay pending compliance with a court order." Therefore, striking Expo's reply memorandum is appropriate.
For these reasons, Plaintiff respectfully requests that this Court strike Defendants' reply memorandum.
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served, by regular U.S. mail, upon Richard M. Jones, Assistant Attorney General, 30 East Broad Street, 26th Floor, Columbus, OH, 43215-3428, this 12th day of March, 2009.
___________________________
Robert A. Neinast
Footnotes:
1. In other words, for every other State Agency, when the General Assembly wanted that Agency to write rules, they explicitly provided a rulemaking statute, but when it came to Expo making police power regulations, the General Assembly just happened to forget to provide such a statute, and Expo should be provided that authority anyways. Or so implies Expo. [Back]
2. While the decision in Neinast v. Bd. of Trustees of the Columbus Metro. Library, Franklin County Court of Common Pleas. (C.P.C. No. O4CVH-06-6341) discusses res judicata, which may have misled Expo, neither Neinast's Complaint nor Briefs made any claims regarding the constitutionality of the Library shoe rule. [Back]