IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RENAE CASTILLO, et al., : 

 : 

 Plaintiffs, : Case No. 12-cv-650 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

MORALES, INC., et al., : 

 : Magistrate Judge Terence Kemp 

 Defendants. :

OPINION AND ORDER 

I. INTRODUCTION 

 This matter is before the Court on Plaintiffs’ Motion to Strike Intervenor-Defendant’s 

Motion to Dismiss (the “Motion”) (Doc. 20). For the reasons stated herein, Plaintiffs’ Motion is 

GRANTED. 

II. BACKGROUND

 Plaintiffs originally filed the Complaint (Doc. 1) in this case against Defendant Morales, 

Inc., and a number of other entities, doing business as “El Vaquero,” for alleged violations of 

state and federal minimum wage and overtime laws. Count Ten of Plaintiffs’ Complaint called 

into question the constitutionality of Ohio Rev. Code § 4111.14(K)(2). This Court permitted the 

State of Ohio to intervene, pursuant to 28 U.S.C. § 2403(b), a federal statute that requires a court 

to permit a state to intervene in an action “for argument on the question of constitutionality.” 

Intervenor-Defendant, the State of Ohio, subsequently moved to dismiss Count Ten of 

Plaintiffs’ Complaint (Doc. 18) in a motion that did not address the constitutionality of O.R.C. § 

4111.14(K)(2). In the Motion sub judice, Plaintiffs ask the Court to strike Defendant’s Motion to 

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Dismiss or, in the alternative, to hold in abeyance Defendant’s Motion to Dismiss. Plaintiffs’ 

Motion to Strike has been fully briefed and is ripe for adjudication. 

III. STANDARD OF REVIEW 

 The Federal Rules of Civil Procedure provide for a motion to strike pleadings, but not 

other documents or parts of documents. See Fed.R.Civ.P. 12(f). Under the Federal Rules, a 

motion to dismiss is not a pleading. See Fed.R.Civ.P. 7. It is well settled, however, that “trial 

courts have inherent power to control their dockets.” Anthony v. BTR Autmotive Sealing 

Systems, Inc., 339 F.3d 506, 516 (6th Cir. 2003). Trial courts maintain the power to “manage 

their own affairs so as to achieve an orderly and expeditious disposition of cases.” Link v. 

Wabash R. Co., 370 U.S. 626, 630-31 (1962). This Court makes use of the inherent power to 

control the docket in determining whether to strike documents or portions of documents. See, 

e.g., Gruenbaum v. Werner Enterprises, Inc., 09-CV-1041, 2011 WL 379202 (S.D. Ohio Feb. 2, 

2011); Getachew v. Cent. Ohio Transit Auth., 2:11-CV-860, 2013 WL 819733 (S.D. Ohio Mar. 

5, 2013). 

IV. LAW & ANALYSIS

 In essence, the Motion asks this Court to strike the Intervenor-Defendant’s motion to 

dismiss for two reasons: (1) Intervenor-Defendant’s motion to dismiss vitiates the very purpose 

for which it was permitted to intervene; and (2) the issue addressed by the motion is not yet ripe. 

Plaintiffs first argue that while the State of Ohio was permitted to intervene to argue the question 

of constitutionality, the State’s Motion to Dismiss actually asks the Court to decline to consider 

the constitutionality of O.R.C. § 4111.14(K)(2). While there is logic to Plaintiffs’ position, they 

do not cite any case for the proposition that a state that intervenes to argue the constitutionality 

of a statute cannot take the position that the Court should decline to consider constitutionality. 

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Furthermore, issues such as standing can be raised at any time during litigation. The fact that the 

state intervened to argue constitutionality would not impact a court’s duty to consider whether a 

plaintiff has standing to pursue her complaint. For this reason, there is no blanket rule that a 

state intervening to argue the constitutionality of the statute cannot raise other defenses of the 

statute. 

 Plaintiffs do persuasively argue, however, that Defendant’s Motion to Dismiss is not 

timely. Plaintiffs’ Complaint seeks class relief pursuant to Fed.R.Civ.P. 23, but Plaintiffs have 

not yet moved for certification of a class. A looming issue in the anticipated motion for class 

certification is whether the class will be “opt-in” or “opt-out.” Fed.R.Civ.P. 23(b)(3) allows for 

an opt-out class, which Plaintiffs would prefer. O.R.C. § 4111.14(K)(2), however, requires that 

an “employee first gives written consent to become such a party plaintiff [in an Ohio wage class 

action] and that consent is filed with the court in which the action is brought,” apparently 

creating an opt-in class. Count Ten of Plaintiffs’ Complaint alleges that if O.R.C. § 

4111.14(K)(2) were applied to Plaintiffs in such a way that they were required to proceed as an 

opt-in class, that application of the law would violate Article II, § 34a of the Ohio Constitution. 

Since Plaintiffs have not yet moved to certify a class, there is no occasion for this Court 

to consider how O.R.C. § 4111.14(K)(2) might apply to Plaintiffs’ Complaint. Upon considering 

a motion to certify a class, this Court may find that this case does not present an actual conflict 

between Federal Rule 23 and O.R.C. § 4111.14(K)(2). At this time, however, any opinion this 

Court were to express would be an impermissible advisory opinion under Article III’s cases and 

controversies requirement. See U.S.C. Const. Art. III § 2, cl. 1. If Plaintiffs do move to certify a 

class, the constitutionality of O.R.C. § 4111.14(K)(2) as applied will be properly before this 

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Court. At that time, parties will have an opportunity to fully brief the question and the State of 

Ohio may simply refile its motion to dismiss. 

V. CONCLUSION 

Thus, the Plaintiffs’ Motion to Strike Intervenor-Defendant’s Motion to Dismiss is 

GRANTED. The State of Ohio’s Motion to Dismiss (Doc. 18) is hereby STRICKEN. The 

Court strikes the Motion to Dismiss WITHOUT PREJUDICE. Defendant may refile the 

Motion to Dismiss if Plaintiffs move to certify a class or the issue addressed by Defendant’s 

Motion otherwise ripens. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: September 3, 2013

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