UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Brian Garrett, et al.,

Plaintiffs, Case No. 2:18-cv-692

V. Judge Michaei H. Watson

The Ohio State University Magistrate Judge Preston Deavers

Defendant.

Steve Snyder-Hiii, et al.,

Piaintiffs, Case No. 2:18-cv-736

V. Judge Michaei H. Watson

The Ohio State University Magistrate Judge Preston Deavers

Defendant.

Nichoias Nutter, et al.,

Piaintiffs, Case No. 2:19-cv-2462

V. Judge Michaei H. Watson

The Ohio State University Magistrate Judge Preston Deavers

Case Nos. 2:18-cv-692; 2:18-cv-736:

2:19-cv-2462; 2:19-cv-4746; 2:20-cv-3817:

2:21-cv-2121; 2:21-cv-2527; 2:21-cv-2542;

2:21-cv-2562; 2:21-cv-3838; 2:23-1048 Page 1 of 9

Case: 2:18-cv-00692-MHW-EPD Doc #: 212 Filed: 08/07/23 Page: 1 of 9 PAGEID #: 1603
Rocky Ratliff,

Plaintiff,

V.

The Ohio State University

Defendant.

Case No. 2:19-cv-4746

Judge Michaei H. Watson

Magistrate Judge Preston Deavers

John Does 151-161, ef a/.,

Piaintiffs,

V.

The Ohio State University

Defendant.

Case No. 2:20-cv-3817

Judge Michaei H. Watson

Magistrate Judge Preston Deavers

John Does 172-191, ef a/.,

Piaintiffs,

V.

The Ohio State University

Defendant.

Case No. 2:21-cv-2121

Judge Michael H. Watson

Magistrate Judge Preston Deavers

Case Nos. 2:18-cv-692; 2:18-cv-736;

2:19-cv-2462; 2:19-cv-4746; 2:20-cv-3817:

2:21-gv-2121; 2:21-cv-2527; 2:21-cv-2542:

2:21-cv-2562; 2:21-cv-3838; 2:23-1048 Page 2 of 9

Case: 2:18-cv-00692-MHW-EPD Doc #: 212 Filed: 08/07/23 Page: 2 of 9 PAGEID #: 1604
John Does 192-217,

Plaintiffs,

V.

The Ohio State University

Defendant.

Case No. 2:21-cv-2527

Judge Michael H. Watson

Magistrate Judge Preston Deavers

Michaei Aif, et al.,

Piaintiffs,

V.

The Ohio State University

Defendant.

Case No. 2:21-cv-2542

Judge Michaei H. Watson

Magistrate Judge Preston Deavers

Michaei Canaies, et al.,

Piaintiffs,

V.

The Ohio State University

Defendant.

Case No. 2:21-cv-2562

Judge Michaei H. Watson

Magistrate Judge Preston Deavers

Case Nos. 2:18-cv-692; 2:18-cv-736;

2:19-cv-2462: 2;19-cv-4746; 2:20-cv-3817;

2:21-cv-2121: 2:21-cv-2527; 2:21-gv-2542;

2:21-cv-2562; 2:21-cv-3838; 2:23-1048 Page 3 of 9

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Timothy Moxley, et al.

Plaintiffs,

V.

The Ohio State University

Defendant.

Case No. 2:21-cv-3838

Judge Michael H. Watson

Magistrate Judge Preston Deavers

John Doe,

Plaintiff,

V.

The Ohio State University

Defendant.

Case No. 2:23-cv-1048

Judge Michael H. Watson

Magistrate Judge Preston Deavers

OPINION AND ORDER

This Order is issued in response to the parties' joint notice, EOF No. 211

and is intended to address severai housekeeping matters.

First, the parties represent that there are approximateiy 236 individuai

piaintiffs who intend to continue iitigation, two of whom wish to represent a ciass.

Joint Notice 2, EOF No. 211. Those 236 piaintiffs are currentiy members of

^ For efficiency, aii references to the joint notice wili cite EOF No. 211 In Case No. 2:18-

cv-692, notwithstanding the fact that the joint notice was filed in multipie dockets.

Case Nos. 2:18-cv-692; 2:18-cv-736;

2:19-cv-2462; 2:19-cv-4746; 2:20-cv-3817;

2:21-cv-2121; 2:21-cv-2527; 2:21-cv-2542;

2:21-cv-2562; 2:21-cv-3838; 2:23-1048 Page 4 of 9

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eleven separate cases and are represented by five different plaintiffs' attorney

groups. Id. at 2-7.

The attorney groups seem to unanimously recommend^ that each attorney

group consolidate into one case, under one docket number, each action involving

a plaintiff that attorney group represents. Id. at 11. Thus, the eleven cases

would become five active cases, each with its own new docket number.

Defendant does not specifically opine whether the eleven cases should be

consolidated into five but, as noted below, does oppose consolidating all eleven

cases into a single docket. See id. at 16.

The Court approves the attorney groups' request to consolidate the eleven

active cases into five new cases, each with a separate case number. Each case

shall include all plaintiffs currently represented by that attorney group and no

additional plaintiffs. An Order to this effect will Issue in the future, and the filings

shall not be made until the issuance of said Order.

Second, on a going-fon/vard basis, some attorney groups recommend they

be permitted to add additional plaintiffs to their consolidated action without

moving to amend the pertinent complaint. Id. at 11.

Defendant opposes this approach and argues Plaintiffs should move for

leave to amend before adding plaintiffs in the future. Id. at 16.

2 Two attorney groups recommend it; none oppose.

Case Nos. 2:18-cv-692; 2:18-cv-736;

2:19-cv-2462; 2:19-cv-4746; 2:20-cv-3817;

2:21-cv-2121; 2:21-cv-2527; 2:21-cv-2542;

2:21 -cv-2562; 2:21 -cv-3838; 2:23-1048 Page 5 of 9

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The Court denies this aspect of the attorney groups' request. Counsei

must move for ieave to amend a Complaint before adding new plaintiffs.

Third, most attorney groups urge the Court to coordinate discovery among

the five to-be-docketed cases but to not consolidate those cases. Id. at 11-16.

One attomey group is open to consolidating the five cases for pretriai purposes

only. /of. at 15.

Defendant argues that discovery in the cases should be coordinated, but

the cases should not be consolidated. Id. at 16.

The Court agrees that discovery can be coordinated amongst the five tobe-filed cases without formally consolidating every case into one docket.

Coordination will be an iterative process between the Court and ail counsei. who

will work together to maximize efficiencies and minimize needless or repetitive

filings and hearings, not to mention billing, if any counsei wish to formally

consolidate the cases in the future, they shall bring the issue to the Court's

attention for further consideration.

Fourth, the responses by the Sharp, Public Justice, and Bianco attorney

groups sufficiently set forth their positions as to the revived claims and theories of

the same. Accordingly, it is the Court's understanding that, at this juncture, the

to-be-fiied Sharp, Public Justice, and Bianco cases will assert only a Title IX

claim that will proceed on only a pre-assauit/heightened risk theory. Id. at 8-10.

Case Nos. 2:18-cv-692; 2:18-cv-736;

2:19-cv-2462; 2:19-cv-4746; 2:20-cv-3817;

2:21-cv-2121; 2:21-cv-2527; 2:21-cv-2542;

2:21-cv-2562; 2:21 -cv-3838; 2:23-1048 Page 6 of 9

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The Wright & Schulte and Ratliff responses, however, were Insufficient. As

the Court told counsel, "I want to know what claims you believe are revived after

the Sixth Circuit's opinions. For example, claims dismissed on sovereign

Immunity might remain dismissed." 7/6/23 Hrg. Tr. 9:14-16, ECF No. 210. As

for the theory of liability on a given claim, the Court similarly stated, "I want clarity

on whether Plaintiffs are pursuing any post-assault claims or whether we're

moving fonvard only on pre-assault, heightened risk claims I want to know

who's pursuing which theory of liability." 7/6/23 Hrg. Tr. 9:17-24.

Nonetheless, Wright & Schulte's response stated merely that "all claims

are revived" and that It Is pursuing "all Title IX claims pled In the Complaints or

amended Complalnts[,]" including heightened risk and hostile environment. Joint

Notice 8-10, ECF No. 211. Similarly, Ratliff responded that "all Title IX claims

pled in the Complaints" were revived "to Include: pre-assault/helghtened risk,

post assault, as well as hostile envlronment[.]" id. 8,10.

The Court asked for clarity precisely because It was difficult to discern from

the existing Complaints and briefing on the prior motions to dismiss which claims

(and/or theories) different attorney groups were pursuing. See, e.g., Op. and

Order 1 n.1, ECF No. 39, Case No. 2:19-cv-4746. It Is therefore unhelpful for

counsel to use broad language and to simply refer to a Complaint. Moreover,

Case Nos. 2:18-cv-692; 2:18-cv-736:

2:19-cv-2462; 2:19-cv-4746; 2:20-cv-3817;

2:21-cv-2121; 2:21-cv-2527; 2:21-cv-2542;

2:21 -cv-2562: 2:21 -cv-3838; 2:23-1048 Page 7 of 9

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words like "including" are vague given the Court's attempt to solidify the existing

landscape.^

Accordingly, Wright & Schulte and Ratliff are ORDERED to supplement the

joint notice within TEN DAYS with a notice that states exactly which claims they

intend to pursue going forward that they believe were contained in the already

filed Complaints. Moreover, the notice shaii include an exhaustive identification

of the theories each attorney group intends to pursue for each claim.

Upon the filing of that supplement, the Court will issue an order directing

the attorney groups to file consolidated complaints into five separate actions.

Depending on the claims Wright & Schulte and Ratliff identify, the Court wiii

order, if necessary, expedited briefing regarding whether particular claims should

be immediately dismissed as not revived by the Sixth Circuit's Opinion and

Order.

Finally, Defendant represents that Plaintiffs have not yet disclosed the

identities of some of the John Doe Plaintiffs. Notice 16-18, EOF No. 211. The

Sharp and Public Justice Piaintiffs represent that they "are working to promptly

identify all undisclosed John Does to OSU." Id. at 18.

^ It is not the Court's intent at this point to prevent counsel from ever amending their

Complaints. Rather, it is imperative that the Court and all parties involved begin remand

proceedings with a shared understanding of the scope of claims and theories involved

and remain on the same page throughout these proceedings to avoid guesswork. E.g.,

Op. and Order 21, EOF No. 197, Case No. 2:18-cv-692 ("Plaintiffs also arguably allege

.. . .").

Case Nos. 2:18-cv-692: 2:18-cv-736;

2:19-cv-2462; 2:19-cv-4746; 2:20-cv-3817:

2:21-cv-2121; 2:21-cv-2527; 2:21-cv-2542;

2:21-cv-2562; 2:21-cv-3838; 2:23-1048 Page 8 of 9

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Within FIVE DAYS after the five to-be-filed cases are filed, the parties shall

file a joint notice outlining the status of the disclosures of John Doe Plaintiffs'

identities. If the parties believe they need Court intervention, they shall request

the same from Magistrate Judge Deavers.

IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

Case Nos. 2:18-cv-692: 2:18-cv-736:

2:19-cv-2462: 2:19-cv-4746: 2:20-cv-3817:

2;21-cv-2121: 2:21-cv-2527: 2:21-cv-2542:

2:21-cv-2562; 2:21-cv-3838: 2:23-1048 Page 9 of 9

Case: 2:18-cv-00692-MHW-EPD Doc #: 212 Filed: 08/07/23 Page: 9 of 9 PAGEID #: 1611