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Hill v. Ohio State University T&L

United States District Court, Sixth Circuit

May 29, 2013

JOHN HILL, Plaintiff,
v.
THE OHIO STATE UNIVERSITY T&L, et al., Defendants.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court for consideration of the following filings: a motion to dismiss (ECF No. 52) filed by Defendants Youth Education in the Arts, Inc.[1] and George Hopkins[2] (collectively, "the YEA Defendants"); a memorandum in opposition (ECF No. 57) filed by Plaintiff, John Hill; a reply memorandum (ECF No. 61) filed by the YEA Defendants; a motion to strike (ECF No. 63) filed by Hill; and a memorandum in opposition to the motion to strike (ECF No. 65) filed by the YEA Defendants. For the reasons that follow, the Court denies the motion to strike and finds the motion to dismiss well taken.

I. Background

According to the Amended Complaint, Plaintiff, John Hill, is the holder of multiple copyrights. Several of the copyrights are of The Ohio State University Marching Band uniform design and the remaining copyrights are for other marching band or drum corps uniforms from other institutions. Hill wants to start a business in Ohio in which he would incorporate the various marching band uniforms into what he describes as useful articles. He alleges that various defendants have acted to thwart his efforts. These efforts present two basic sets of facts: one centering around The Ohio State University and one centering around the Garfield Cadets.

In 1986, Hill allegedly approached The Ohio State University Band Director Dr. Jon Woods and the band's alumni group with a tee shirt that incorporated Hill's copyrighted Marching Band Uniform design. Hill avers that his efforts only met with restrictive tactics by these parties used to deter the marketing of his design. He has approached various defendants since 1989 about the use of his designs, but he has been unable to obtain a license for his products since approximately 1990.

Hill began to apply his designs on useful articles in 2005. He also designed a sweater vest bottle koozie in 2006 to 2007, which he presented via a mutual friend to the wife of The Ohio State University's former football coach.

In 2006, Hill then reportedly entered into an agreement with The Ohio State University Marching Band in which they would purchase koozies to sell. Woods subsequently allegedly called Hill to halt the purchase order and told Hill that the band would later re-order. Years passed without another order occurring. Meanwhile, The Ohio State University continued to produce products that Hill asserts infringe on his copyrights. At least some of the same stores that sold these products declined to carry Hill's products, which Hill characterizes as additional evidence of an overarching conspiracy against him.

In addition to approaching The Ohio State University, Hill also purportedly approached George Hopkins, the Director of the Garfield Cadets, with a tee shirt using a copyrighted design related to that particular group in 1988. In 1989, Hill then acquired a vendor's license to market his designs at various shows throughout Ohio. He pleads that "[o]nly one show was attended, due to rain and other circumstances." (ECF No. 10 ΒΆ 6.) In addition to the weather hindering his entrepreneurial efforts, Hill encountered a cease and desist letter from Youth Education in the Arts, Inc. ("YEA") and Hopkins sometime in the late 1980's or early 1990's. This resulted in Hill electing not to sell or promote his products, although Hill has continued his attempts to persuade YEA and Hopkins to sell his products when he has been contacted in fundraising efforts by those entities. In 2004 and again in 2011, Hill contends that he discovered evidence of YEA selling products that infringed on his copyright.

Proceeding pro se, Hill filed the instant action in October 2012. In his Amended Complaint (ECF No. 10), which must necessarily be read in conjunction with a list of defendants generally identified by numbers in his pleading (ECF No. 9), Hill apparently asserts five claims related to the foregoing allegations of copyright infringement and breach of contract. The YEA Defendants have filed a motion to dismiss all of the claims against them. (ECF No. 52.) The parties have completed briefing on that motion, which is ripe for disposition. Hill has also filed a motion to strike the YEA Defendant's motion to dismiss. (ECF No. 63.) This opinion addresses both motions.

II. Discussion

A. Motion to Strike

Rule 12(f) of the Federal Rules of Civil Procedure provides that, on motion of a party, the Court may "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." See Fed.R.Civ.P. 12(f) (permitting the striking pleadings or portions of pleadings). When courts are presented with a motion to strike for reasons that fall outside of those specified in the Rule, courts make use of their inherent power to control their dockets when determining whether to strike document or portions of documents. Anthony v. BTR Auto Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003); see also Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (trial courts possess the inherent power to "manage their own affairs so as to achieve an orderly and expeditions disposition of cases").

Hill asks this court to strike the YEA Defendant's motion to dismiss (ECF No. 52) on the grounds that the representation of the YEA Defendants by the same counsel creates an impermissible conflict of interest under Ohio Professional Conduct Rule 1.7(b). Disqualification of a party's attorney is a drastic remedy that should be reserved for cases in which an actual ethical impropriety would taint the trial by undermining a court's confidence in an attorney's representation of his client. See SST Castings, Inc. v. Amana Appliances, Inc., 250 F.Supp.2d 863, 865 (S.D. Ohio 2002) (citing Kitchen v. Aristech Chem., 769 F.Supp. 254, 257-59 (S.D. Ohio 1991)). See also Wilson v. Morgan, 477 F.3d 326, 345 (6th Cir. 2007) ("To prevail, plaintiffs must demonstrate that defense counsel actively represented conflicting interests and that an actual conflict of interest adversely affected [defense counselor's] performance.'" (quoting Gordon v. Norman, 788 F.2d 1194, 1198 (6th Cir. 1986)). Hill fails to meet the substantial hurdle that confronts motions to disqualify counsel. Hill's expressed "concern that there may be underlying information that will cause the course of a trial to get off track" and his contention that "any information that has not already been submitted or brought to light, may affect the outcome of this case" only speak to future conflicts that may or may not arise. Such wholly speculative ...


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