Preview
Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
THE CITY OF WOOSTER, OHIO, CASE NO. 13-CV-0657
EX REL. RICHARD R. BENSON, JR.,
LAW DIRECTOR, JUDGE SPITLER
Plaintiff, MEMORANDUM IN SUPPORT OF
PLAINTIFF’S MOTION TO STRIKE
v.
JAMES N. POOLER,
Defendant.
I. INTRODUCTION
Defendant’s Motion for Summary Judgment (“Motion”) does not comply with the
evidentiary requirements of Ohio Rule of Civil Procedure 56. The documents Defendant attached
to his Motion go beyond “pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence or written stipulations of fact.” Further, they are not attached
and served with an authenticating affidavit executed by the appropriate authority from each
municipality. Instead, Defendant merely attached what appear to be unauthenticated ordinances
of other municipalities. The proper remedy for non-compliance with Civil Rule 56(C) is to strike
the offending material.
{01660369 - {)Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio
Il. FACTS AND PROCEDURAL BACKGROUND
This is a declaratory judgment action brought by Plaintiff, The City of Wooster
(“Wooster”), seeking this Court’s judgment relative to the meaning and interpretation of Wooster
Codified Ordinance § 1173.09 (“Ordinance”). It was brought in response to Defendant Pooler’s
taxpayer demand to enjoin the Wooster City Council from taking certain action in reliance on the
Ordinance.
Pursuant to the Court’s case management schedule, the parties were to submit motions
for summary judgment by July 14, 2014, which deadline was extended by the Court to August
14, 2014. Wooster filed its Motion for Summary Judgment on August 14, 2014. Defendant also
filed his Motion on the same date. In his Motion he relied upon and attached six pages of
unauthenticated ordinances of various other municipalities. These documents form a large part of
Defendant’s argument as to how the Ordinance at issue should be interpreted. He attempts to use
the language from ordinances of other municipalities as evidence of what the City Council of
Wooster intended when it enacted § 1173.09. Setting aside the dubious relevance of such
evidence, Wooster moves to strike these unauthenticated documents in light of Defendant’s
failure to satisfy the requirements of Civil Rule 56(C).
Ill. LAW AND ARGUMENT
Civil Rule 56 imposes specific limitations on the types of documents that may be used to
support a motion for summary judgment. In pertinent part, Civil Rule 56 provides that:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact ... show that
there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. No evidence or stipulation
may be considered except as stated in this rule.
{01660369 - 1} 2Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio
Ohio R. Civ. P. 56(C) (emphasis added). Rule 56 is clear in stating that “[n]o evidence or
stipulation may be considered except as stated in this rule.” Civ. R. 56(C) (emphasis added).
The ordinances of other cities that Defendant attached to his Motion for Summary Judgment do
not fall within any of these categories.
Further, these documents were not attached to an affidavit as provided by Civil Rule
56(E). “The proper procedure for introducing evidentiary matter not specifically authorized by
Rule 56(C) is to incorporate it by reference in a properly framed affidavit pursuant to Rule
56(E).” Trubiani v. Graziani, No. 2629-M, 1998 WL 46795, at *2 (9th Dist. Jan. 21, 1998),
citing Biskupich v. Westbay Manor Nursing Home, 33 Ohio App.3d 220, 222, 515 N.E.2d 632
(8th Dist. 1986), citing State ex. rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423
N.E.2d 105 (1981). Rule 56(E) provides that “[s]worn and certified copies of all papers ...
referred to in an affidavit shall be attached to or served with the affidavit.” Ohio R. Civ. P. 56(E).
Here, Defendant did not attached an affidavit authenticating any of the documents in question.
Without such authentication, the attached ordinances have no evidentiary value. See Mitchell v.
Ross, 14 Ohio App.3d 75, 75, 470 N.E.2d 245 (8th Dist. 1984) (“Documents which are not
sworn, certified or authenticated by way of affidavit have no evidentiary value and shall not be
considered by the trial court.”).
In short, the documents proffered by Defendant do not comply with Civil Rules 56(C)
and (E) because Defendant did not attach any of the permissible forms of supporting documents
to his Motion, nor did he supply an authenticating affidavit. Instead, he simply attached the
unauthenticated documents. The documents do not fall within any of the categories which Rule
56 permits, and thus have no evidentiary value. Therefore, pursuant to Rule 56, these documents
{01660369 - 1} 3Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio
may not be considered by this Court. Accordingly, the Court should strike Defendant’s
attachments as improper.
IV. CONCLUSION
Based upon the foregoing, Wooster hereby respectfully moves this Court to strike the
unauthenticated ordinances attached to Defendant’s Motion for Summary Judgment pursuant to
Ohio Rule of Civil Procedure 56.
{01660369 - 1}
Respectfully submitted,
RICHARD R. BENS
Director of Law
City of Wooster
538 North Market Street
Wooster, OH 44691
Phone: 330-263-5248
Facsimile: 330-263-5247
E-mail: dbenson@woosteroh.com
STEPHEN L. BYRON (Reg. No. 0055657)
Direct Dial: 216-928-2892
DARRELL A. CLAY (Reg. No. 0067598)
Direct Dial: 216-928-2896
AIMEE W. LANE (Reg. No. 0071392)
Direct Dial: 216-928-2985
WALTER & HAVERFIELD LLP
The Tower at Erieview
1301 East Ninth Street, Suite 3500
Cleveland, OH 44114-1821
E-mail:sbyron@walterhav.com
E-mail:dclay@walterhav.com
E-mail: alane@walterhav.com
Facsimile: 216-575-0911
, IR~Reég. No. 0021968)
Attorneys for Plaintiff City of Wooster, OhioFiled on 08/29/2014 at 08:33 AM in Wayne County, Ohio
CERTIFICATE OF SERVICE
Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 28th day of August, 2014,
a true and correct copy of the foregoing Memorandum in Support Plaintiff’s Motion to Strike
was served by ordinary U.S. Mail, first-class postage prepaid, properly addressed, on the
following:
Jason M. Storck, Esq.
Storck Law Office, Ltd.
Post Office Box 1023
Wooster, Ohio 44691
e of the Attorneys for Plainti:
{01660369 - 1} 5
Preview
Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO THE CITY OF WOOSTER, OHIO, CASE NO. 13-CV-0657 EX REL. RICHARD R. BENSON, JR., LAW DIRECTOR, JUDGE SPITLER Plaintiff, MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE v. JAMES N. POOLER, Defendant. I. INTRODUCTION Defendant’s Motion for Summary Judgment (“Motion”) does not comply with the evidentiary requirements of Ohio Rule of Civil Procedure 56. The documents Defendant attached to his Motion go beyond “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence or written stipulations of fact.” Further, they are not attached and served with an authenticating affidavit executed by the appropriate authority from each municipality. Instead, Defendant merely attached what appear to be unauthenticated ordinances of other municipalities. The proper remedy for non-compliance with Civil Rule 56(C) is to strike the offending material. {01660369 - {)Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio Il. FACTS AND PROCEDURAL BACKGROUND This is a declaratory judgment action brought by Plaintiff, The City of Wooster (“Wooster”), seeking this Court’s judgment relative to the meaning and interpretation of Wooster Codified Ordinance § 1173.09 (“Ordinance”). It was brought in response to Defendant Pooler’s taxpayer demand to enjoin the Wooster City Council from taking certain action in reliance on the Ordinance. Pursuant to the Court’s case management schedule, the parties were to submit motions for summary judgment by July 14, 2014, which deadline was extended by the Court to August 14, 2014. Wooster filed its Motion for Summary Judgment on August 14, 2014. Defendant also filed his Motion on the same date. In his Motion he relied upon and attached six pages of unauthenticated ordinances of various other municipalities. These documents form a large part of Defendant’s argument as to how the Ordinance at issue should be interpreted. He attempts to use the language from ordinances of other municipalities as evidence of what the City Council of Wooster intended when it enacted § 1173.09. Setting aside the dubious relevance of such evidence, Wooster moves to strike these unauthenticated documents in light of Defendant’s failure to satisfy the requirements of Civil Rule 56(C). Ill. LAW AND ARGUMENT Civil Rule 56 imposes specific limitations on the types of documents that may be used to support a motion for summary judgment. In pertinent part, Civil Rule 56 provides that: Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. {01660369 - 1} 2Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio Ohio R. Civ. P. 56(C) (emphasis added). Rule 56 is clear in stating that “[n]o evidence or stipulation may be considered except as stated in this rule.” Civ. R. 56(C) (emphasis added). The ordinances of other cities that Defendant attached to his Motion for Summary Judgment do not fall within any of these categories. Further, these documents were not attached to an affidavit as provided by Civil Rule 56(E). “The proper procedure for introducing evidentiary matter not specifically authorized by Rule 56(C) is to incorporate it by reference in a properly framed affidavit pursuant to Rule 56(E).” Trubiani v. Graziani, No. 2629-M, 1998 WL 46795, at *2 (9th Dist. Jan. 21, 1998), citing Biskupich v. Westbay Manor Nursing Home, 33 Ohio App.3d 220, 222, 515 N.E.2d 632 (8th Dist. 1986), citing State ex. rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981). Rule 56(E) provides that “[s]worn and certified copies of all papers ... referred to in an affidavit shall be attached to or served with the affidavit.” Ohio R. Civ. P. 56(E). Here, Defendant did not attached an affidavit authenticating any of the documents in question. Without such authentication, the attached ordinances have no evidentiary value. See Mitchell v. Ross, 14 Ohio App.3d 75, 75, 470 N.E.2d 245 (8th Dist. 1984) (“Documents which are not sworn, certified or authenticated by way of affidavit have no evidentiary value and shall not be considered by the trial court.”). In short, the documents proffered by Defendant do not comply with Civil Rules 56(C) and (E) because Defendant did not attach any of the permissible forms of supporting documents to his Motion, nor did he supply an authenticating affidavit. Instead, he simply attached the unauthenticated documents. The documents do not fall within any of the categories which Rule 56 permits, and thus have no evidentiary value. Therefore, pursuant to Rule 56, these documents {01660369 - 1} 3Filed on 08/29/2014 at 08:33 AM in Wayne County, Ohio may not be considered by this Court. Accordingly, the Court should strike Defendant’s attachments as improper. IV. CONCLUSION Based upon the foregoing, Wooster hereby respectfully moves this Court to strike the unauthenticated ordinances attached to Defendant’s Motion for Summary Judgment pursuant to Ohio Rule of Civil Procedure 56. {01660369 - 1} Respectfully submitted, RICHARD R. BENS Director of Law City of Wooster 538 North Market Street Wooster, OH 44691 Phone: 330-263-5248 Facsimile: 330-263-5247 E-mail: dbenson@woosteroh.com STEPHEN L. BYRON (Reg. No. 0055657) Direct Dial: 216-928-2892 DARRELL A. CLAY (Reg. No. 0067598) Direct Dial: 216-928-2896 AIMEE W. LANE (Reg. No. 0071392) Direct Dial: 216-928-2985 WALTER & HAVERFIELD LLP The Tower at Erieview 1301 East Ninth Street, Suite 3500 Cleveland, OH 44114-1821 E-mail:sbyron@walterhav.com E-mail:dclay@walterhav.com E-mail: alane@walterhav.com Facsimile: 216-575-0911 , IR~Reég. No. 0021968) Attorneys for Plaintiff City of Wooster, OhioFiled on 08/29/2014 at 08:33 AM in Wayne County, Ohio CERTIFICATE OF SERVICE Pursuant to Civil Rule 5(B)(2)(c), I hereby certify that on this 28th day of August, 2014, a true and correct copy of the foregoing Memorandum in Support Plaintiff’s Motion to Strike was served by ordinary U.S. Mail, first-class postage prepaid, properly addressed, on the following: Jason M. Storck, Esq. Storck Law Office, Ltd. Post Office Box 1023 Wooster, Ohio 44691 e of the Attorneys for Plainti: {01660369 - 1} 5