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Lipman v. Budish

United States District Court, N.D. Ohio, Eastern Division

September 4, 2019

Kevin Lipman, et al., Plaintiff,
v.
Armond Budish, et al., Defendant.

          MEMORANDUM OF OPINION AND ORDER

          Patricia A. Gaughan, United States District Court Chief Judge.

         Introduction

         This matter is before the Court upon the plaintiffs' Rule 59(E) Motion to Alter or Amend Judgment Based in Part upon New Information and FRCP 15(A) Motion for Leave to File a First Amended Complaint Instanter (Doc. 22) and Cuyahoga County Defendants' Motion to Strike Plaintiffs' FRCP 59(E) and 15(A) Motion (Doc. 23). For the following reasons, the Motion to Strike is GRANTED and the Motion to Alter or Amend Judgment and Motion for Leave is DENIED.

         Discussion

         By prior Memorandum of Opinion and Order, this Court granted the County defendants' Motion to Dismiss as to the federal claim and dismissed the state law claims without prejudice. The Court will not re-state the facts or discussion set forth in that Opinion. Briefly, the Court determined that plaintiffs failed to state a § 1983 claim as alleged in Count One against the individual County defendants for a violation of substantive and procedural due process. In particular, the Court concluded that the Complaint did not plausibly allege either the custody exception or the state created danger exception to the established rule that a state's failure to protect an individual against private violence does not constitute a violation of the substantive due process clause. Nor did the Complaint state a plausible procedural due process claim. Additionally, the Complaint failed to allege a custom, policy, or practice to hold the County liable under § 1983.

         Plaintiffs now ask the Court to alter the judgment and grant plaintiffs leave to amend their Complaint based upon deposition testimony which was completed prior to the issuance of the ruling on the Motion to Dismiss. In addition to opposing the motion, defendants ask the Court to strike it. That request will be addressed first.

         Defendants ask the Court strike plaintiff's Motion which seeks reconsideration of this Court's Opinion and leave to amend the Complaint. Defendants argue that plaintiffs have filed their motion in violation of the protective order previously entered into by the parties, and have defied this Court's more recent ruling denying plaintiffs' request to file their motion for reconsideration under seal. For the following reasons, this Court agrees.

         On April 12, 2019, the parties filed a Joint and Stipulated Motion for Protective Order. (Doc. 14) This Court signed the Stipulated Protective Order submitted by the parties on that day (Doc. 15) which states in part:

1. Scope. All documents produced in the course of discovery, including initial disclosures, all responses to discovery requests, all deposition testimony and exhibits, other materials which may be subject to restrictions on disclosure for good cause and information derived directly therefrom (hereinafter collectively “documents”), shall be subject to this Order concerning confidential information as set forth below...

         This Court held a status conference on May 16, 2019, and issued its Memorandum of Opinion and Order on the Motion to Dismiss on May 23. On June 10, plaintiffs filed a Motion For Leave to File Under Seal which sought to file a motion to reconsider under seal. Plaintiffs stated therein:

3. A Stipulated Protective Order filed with the Court on 4/12/19 requires deposition testimony pertaining to this matter be filed under seal. (Dkt # 15.)
4. Plaintiffs seek to file a Motion to Reconsider, which cites deposition testimony and transcripts.
5. In order to maintain the confidentiality required by the Stipulated Protective Order, Plaintiffs respectfully request that their Motion to Reconsider be filed under seal.

(Doc. 21) This Court denied the motion stating, “Deposition testimony may not be considered on a Motion to Dismiss.” Several days later, plaintiffs filed their Rule 59(E) Motion to Alter or Amend Judgment Based in Part upon New Information and FRCP ...


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