Plaintiffs' reply in support of their motion for partial summary judgment

Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 48 of 54
E. Freshwater’s Opposition Brief Is Not Supported By Proper Summary-
Judgment Evidence And Thus Fails To Demonstrate That Summary
Judgment Should Not Be Granted In The Dennises’ Favor.
When Freshwater’s Counsel filed a memorandum in opposition to the Dennises’ motion
for summary judgment on December 31, 2009, he filed no exhibits in support of that
memorandum. (See generally Hamilton Mem. in Opp.) Eight days after the deadline for filing
memoranda in opposition passed, the Court permitted defense counsel to file the missing exhibits,
but because those exhibits were untimely, because many of the documents contained therein
were never disclosed to the Dennises despite the documents’ clear responsiveness to discovery
requests, because many of the documents are unauthenticated, and because several of the
documents violate the Court’s Protective Order, those exhibits should be stricken from the record
and should not be considered by the Court. Plaintiffs respectfully request that the Court strike
from the record all exhibits that Freshwater filed on January 7, 2010. 4
1. All Exhibits Filed By Mr. Hamilton On January 7, 2010 Are Untimely
And Therefore Improper.
The Local Civil Rules require that all evidence be “submitted no later than [] the primary
memorandum of the party relying upon such evidence.” S. D. Ohio Civ. R. 7.2(d). Freshwater’s
counsel, R. Kelly Hamilton, filed Freshwater’s memorandum in opposition on December 31,
2009, but did not file the supporting exhibits until January 7, 2010—seven days later.
Mr. Hamilton’s claim that he inadvertently filed the wrong draft of his memorandum in
opposition in no way explains why he failed to timely file the 39 exhibits to that memorandum.
When electronically filing exhibits in the Southern District of Ohio, the document filing system
automatically prompts the filing party to attach exhibits to a main document. Even if Mr.
4 The Dennises intended to file a memorandum in opposition to Freshwater’s Motion for Permission to File
Out of Time to Amend/Correct (Doc. No. 71). While counsel were preparing their clients’ response for filing on
January 8, 2010, the Court issued its Order granting Freshwater’s motion. (See 1/8/10 Order (Doc. No. 72).) The
Dennises therefore raise their objections to Freshwater’s untimely filed exhibits in this Reply Memorandum.
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