United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. Pearson United States District Judge
before the Court is Interested Party Cavitch, Familo &
Durkin, LPA's (the “Cavitch Firm”) Motion to
Strike Certain Arguments Made by KCI in its Reply Brief and
Memorandum in Support of its Omnibus Motion for Sanctions.
ECF No. 348. Plaintiff KCI USA, Inc. has filed its
response. ECF No. 349. For the reasons provided
below, the Cavitch Firm's motion (ECF No. 348)
Cavitch Firm moves the Court to strike portions of
Plaintiff's reply brief filed in support of its Omnibus
Motion for Sanctions against the Cavitch Firm. ECF No.
348. Specifically, the Cavitch Firm moves to strike:
a) Footnote 1 and the claim of KCI that sanctions are
appropriate against individual attorneys Michael Rasor,
Komlavi Atsou and Eric Weiss.
b) The argument, that Cavitch's 2014 letter to vendors of
Defendant Healthcare Essentials, Inc., constitutes additional
grounds to support sanctions.
c) A newly presented argument and reference to Exhibit 11,
claiming that Cavitch had actual knowledge of inaccurate
d) A new claim that, by having Ryan Tennebar sign an
affidavit about discovery, Cavitch has knowingly prepared a
Id. at PageID:# 6539.
Cavitch Firm argues that Plaintiff improperly used its reply
brief to “add claims against new parties” not
asserted in its Omnibus Motion for Sanctions (ECF No.
333). Id.The Federal Rules of Civil Procedure
do not provide for a motion to strike documents or portions
of documents other than pleadings. See Fed.R.Civ.P.
12(f) (limited to striking pleadings or portions of
pleadings). If a brief or affidavit refers to matters a court
should not consider (such as inadmissible evidence), while a
court is free to exercise its discretion, the usual recourse
is for the court simply to disregard those matters, not to
strike them. Lombard v. MCI Telecomm. Corp., 13
F.Supp.2d 621, 625 (N.D. Ohio 1998) (citing State Mut.
Life Assurance Co. of Am. v. Deer Creek Park, 612 F.2d
259, 264 (6th Cir. 1979)). Therefore, the Cavitch Firm's
motion (ECF No. 348) is denied on this ground. For
the sake of economy, the Court, nonetheless, addresses the
merits of the Cavitch Firm's motion to strike, and
explains why the motion is baseless.
respect to Plaintiff's reference to individual attorneys
Michael Rasor, Komlavi Atsou, and Eric Weiss, Plaintiff
merely reiterates its argument that sanctions should be
issued against counsel that previously represented
Defendants. Those prior counsel are Rasor, Atsou, and Weiss
of the Cavitch Firm. See ECF No. 346 at PageID#:
6508 (“For the removal of any doubt, and as made
clear in KCI's Omnibus Motion, the Court should sanction
Michael Rasor, Komlavi Atsou, and Eric Weiss of the Cavitch
firm-the same individuals who submitted affidavits with
Opposition (and, in fact attested to the statements made in
the Opposition) . . . .”). Plaintiff makes clear that
it is because of prior counsels' misconduct-making
misrepresentations to the Court and Plaintiff regarding
Defendants' document discovery productions, that
Plaintiff now seeks sanctions against the Cavitch Firm.
three remaining requests to strike are equally frail. The
mentions found objectionable by the Cavitch Firm are related
to and offer support for claims plainly set forth in
Plaintiff's Omnibus Motion for Sanctions in which
Plaintiff alleges that the Cavitch Firm assisted Defendants
in abusive discovery practices and commission of multiple
frauds on the Court. See ECF No. 333. Moreover,
Plaintiff's arguments pertaining to the Cavitch
Firm's knowledge of and participation in the creation of
inaccurate evidence, such as Defendant Ryan Tennebar's
false affidavit, are in direct response to the Cavitch
Firm's contentions that it (1) did not provide assistance
in the creation of fabricated and inaccurate evidence to the
Court, and (2) had no reason to know or suspect that
documents produced by Defendants were not authentic. See
ECF No. 341 at PageID#: 1690-93 (explaining that it, the
Cavitch Firm, did not provide direct assistance in the
creation of fabricated evidence and had no reason to know
that Defendants produced inauthentic documents); see also
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th
Cir. 2008) (noting that while a party may not raise an issue
for the first time in a reply brief, it may reply to
arguments made in the response brief) (emphasis added).
Plaintiff's punctuation of arguments asserted in its
motion is ...