IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

 

)

STEVE SNYDER-HILL, et al., 

Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

Defendant. 

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)

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 )

 

Case No. 2:18-cv-00736 

Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. 

Deavers 

 ) 

PLAINTIFFS’ MOTION REQUESTING PERMISSION 

TO SUBMIT RESPONSE TO 

DEFENDANT’S OCTOBER 26, 2020 SUBMISSION 

In the guise of responding to Plaintiffs’ single-paragraph notice of Dutchuk v. Yesner, No. 

3:19-CV-0136-HRH, 2020 WL 5752848 (D. Alaska Sept. 25, 2020), on October 26, 2020, OSU 

submitted a supplementary brief with extensive legal discussion and citations to six additional 

cases. This violated Local Rule 7.2(a), as the Court has previously made clear. Nokes v. Miami 

Univ., No. 1:17-CV-482, 2017 WL 3674910, at *7 (S.D. Ohio Aug. 25, 2017) (Barrett, J.) 

(admonishing defendants for submitting “three pages of additional briefing” in response to 

plaintiff’s short notice of supplemental authority). 

None of the additional cases OSU cites supports OSU’s argument and none was 

appropriate for submission in response to Plaintiffs’ notice of Dutchuk. Because OSU’s response 

to Plaintiffs’ short citation of supplementary authority was, in fact, a legal brief citing six 

(inapplicable) cases, in the interest of fairness and to correct OSU’s misleading discussion of 

these cases, Plaintiffs ask the Court for permission to submit the following short response to 

Case: 2:18-cv-00736-MHW-EPD Doc #: 142 Filed: 11/05/20 Page: 1 of 7 PAGEID #: 2626
OSU’s October 26 submission. Plaintiffs emailed Defendant as to its position, and, as of the 

filing of this motion, Defendant had not provided its position. 

 

Dated: Columbus, OH Respectfully submitted, 

 November 5, 2020 

By: /s/ Scott Smith, with email permission to 

Debra L. Greenberger 

SCOTT ELLIOTT SMITH, LPA 

Scott E. Smith (0003749) 

Michael L. Dillard, Jr. (0083907) 

5003 Horizons Drive, Suite 100 

Columbus, Ohio 43220 

Phone: (614) 846-1700 

Fax: (614) 486-4987 

E-Mail:ses@sestraillaw.com 

E-Mail: mld@sestriallaw.com 

Ilann M. Maazel (admitted pro hac vice) 

Debra L. Greenberger (admitted pro hac vice) 

Marissa Benavides (admitted pro hac vice) 

EMERY CELLI BRINCKERHOFF ABADY 

WARD & MAAZEL LLP 

600 Fifth Avenue, 10th Floor 

New York, New York 10020 

Phone: (212) 763-5000 

Fax: (212) 763-5001 

E-Mail: imaazel@ecbawm.com 

E-Mail: dgreenberger@ecbawm.com 

E-Mail: mbenavides@ecbawm.com 

Adele P. Kimmel (admitted pro hac vice) 

Alexandra Brodsky (admitted pro hac vice) 

PUBLIC JUSTICE, P.C. 

1620 L Street, NW, Suite 

630 Washington, DC 20036 

Phone: (202) 797-8600 

Fax: (202) 232-7203 

E-mail: akimmel@publicjustice.net 

Attorneys for Plaintiffs

Case: 2:18-cv-00736-MHW-EPD Doc #: 142 Filed: 11/05/20 Page: 2 of 7 PAGEID #: 2627
RESPONSE TO DEFENDANT’S OCTOBER 26, 2020 SUBMISSION 

OSU concedes that Dutchuck found similar “heightened risk”/“pre-harassment” Title IX 

claims to be timely. Dkt. 140 at 1. All Plaintiffs assert these Title IX claims. Dutchuck is 

squarely on point. No. 3:19-cv-0136-HRH, 2020 WL 5752848 (D. Alaska Sept. 25, 2020). 

To avoid Dutchuk, OSU cites cases far afield. Poloceno v. Dallas Indep. Sch. Dist., an 

unpublished opinion, did not abrogate the Baylor line of cases, as OSU claims. No. 20-10098, 

2020 WL 5494511 (5th Cir. Sept. 10, 2020). Poloceno does not concern sexual assault at all. It 

held that Title IX does not cover allegations of disparate impact and dismissed plaintiff’s claim 

that punishing students with certain exercises disproportionately impacted girls given their 

physiology. Id. at *2-3. The Fifth Circuit then rejected Ms. Poloceno’s attempt to “repackage[]” 

her disparate-impact claim as a heightened risk claim, because that theory applies only to 

discrimination such as “sexual assault” claims. Id. at *3. In dicta, the Fifth Circuit described 

heightened risk claims stemming from student-on-student sexual assaults (many assault-based 

claims, including Baylor, stem from student-on-students assaults). It did not exclude employeeon-student sexual assault cases as a species of heightened risk claims. Id. In any event, 

Plaintiffs do not bring a disparate impact claim; the claims against OSU are, inter alia, based on 

its intentional indifference to the risk of Plaintiffs being assaulted by Dr. Strauss. 

The remaining cases OSU cites are similarly inapposite. Not one rejects or even 

considers the argument Dutchuk found persuasive, i.e., that plaintiffs’ Title IX claims do not 

accrue until the plaintiffs “know, or have reason to know . . . that the University had been 

ignoring complaints of sexual harassment.” 2020 WL 5752848 at *5. In some of these cases, the 

plaintiff alleged no facts supporting delayed accrual and did not even argue delayed accrual; 

Case: 2:18-cv-00736-MHW-EPD Doc #: 142 Filed: 11/05/20 Page: 3 of 7 PAGEID #: 2628
others further support Plaintiffs’ position as to the relevant legal standard and/or are not 

supplemental authority as the relevant decision pre-dated OSU’s motion. 

 Ikedilo v. Statter, No. 19-CV-9967 (RA), 2020 WL 5849049, at *7 (S.D.N.Y. Sept. 30, 

2020): Plaintiff made no argument that claim accrued within the statute of limitations. 

 Washington v. Univ. of Maryland, E. Shore, No. CV RDB-19-2788, 2020 WL 5747199, 

at *1, *5 (D. Md. Sept. 24, 2020): Question was whether two- or three-year limitations 

period applied; plaintiff conceded that two-year limitations period would preclude claims. 

 Choi v. Reed Inst., 822 F. App’x 572, 576 (9th Cir. 2020): Claim untimely where plaintiff 

had not pleaded facts supporting liability (i.e. did not allege abusing professor had abused 

other students or defendant college “turned a blind eye” to the professor’s abuse), did not 

allege delayed accrual, and did not allege college made any misrepresentations to 

students. 

 Doe v. Colorado Cmty. Coll. Sys., No. 18-CV-1068-WJM-NRN, 2020 WL 5320810, at 

*1 (D. Colo. Sept. 4, 2020): The court adhered without explanation to its July 10, 2019 

decision. The July 10 decision (i) pre-dated OSU’s motion to dismiss and is on PACER, 

Dkt. 58 at 8-0, and (ii) is irrelevant, as it concerned whether a Title IX claim based on the 

school’s discipline of plaintiff only accrued after criminal proceedings terminated in 

plaintiff’s favor. 

 Mazza v. Tarleton State Univ.-Waco, No. 619CV00373ADAJCM, 2020 WL 5997049, at 

**3-4 (W.D. Tex. Aug. 20, 2020): Mazza supports Plaintiffs’ argument that Title IX 

claims do not accrue until a plaintiff “becomes aware that he has suffered an injury.” Id. 

at *3 (internal quotations omitted). Mazza held that the plaintiff knew he was expelled at 

the time of the expulsion, and the appeal of the expulsion decision did not delay the 

accrual of plaintiff’s claims. 

 Burke v. Basil, No. SACV20635JVSJDEX, 2020 WL 4435138, at *5 (C.D. Cal. July 23, 

2020): Burke supports plaintiffs’ argument that the discovery rule “delays accrual until 

the plaintiff has, or should have, inquiry notice of the cause of action” (though Burke 

relied on state law for that holding). The plaintiff in Burke was accused (allegedly 

falsely) of sexual abuse, and the court held that because plaintiffs knew of each 

defendant’s role in the abuse investigation at the time, there was no basis for delayed 

accrual or equitable tolling. 

Case: 2:18-cv-00736-MHW-EPD Doc #: 142 Filed: 11/05/20 Page: 4 of 7 PAGEID #: 2629
Respectfully submitted, 

 

By: /s/ Scott Smith, with email permission to 

Debra L. Greenberger 

SCOTT ELLIOTT SMITH, LPA 

Scott E. Smith (0003749) 

Michael L. Dillard, Jr. (0083907) 

5003 Horizons Drive, Suite 100 

Columbus, Ohio 43220 

Phone: (614) 846-1700 

Fax: (614) 486-4987 

E-Mail:ses@sestraillaw.com 

E-Mail: mld@sestriallaw.com 

Ilann M. Maazel (admitted pro hac vice) 

Debra L. Greenberger (admitted pro hac vice) 

Marissa Benavides (admitted pro hac vice) 

EMERY CELLI BRINCKERHOFF ABADY 

WARD & MAAZEL LLP 

600 Fifth Avenue, 10th Floor 

New York, New York 10020 

Phone: (212) 763-5000 

Fax: (212) 763-5001 

E-Mail: imaazel@ecbawm.com 

E-Mail: dgreenberger@ecbawm.com 

E-Mail: mbenavides@ecbawm.com 

Adele P. Kimmel (admitted pro hac vice) 

Alexandra Brodsky (admitted pro hac vice) 

PUBLIC JUSTICE, P.C. 

1620 L Street, NW, Suite 

630 Washington, DC 20036 

Phone: (202) 797-8600 

Fax: (202) 232-7203 

E-mail: akimmel@publicjustice.net 

 Attorneys for Plaintiffs

 

Case: 2:18-cv-00736-MHW-EPD Doc #: 142 Filed: 11/05/20 Page: 5 of 7 PAGEID #: 2630
CERTIFICATE OF SERVICE 

 It is hereby certified that a true and correct copy of the foregoing document was filed and 

served, via the Court’s CM/ECF system on November 5, 2020, on all counsel of record. 

 By: /s/ Debra L. Greenberger 

 Attorney for Plaintiffs 

 

Case: 2:18-cv-00736-MHW-EPD Doc #: 142 Filed: 11/05/20 Page: 6 of 7 PAGEID #: 2631
IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN (COLUMBUS) DIVISION 

 

)

STEVE SNYDER-HILL, et al., 

Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

Defendant. 

)

)

)

)

)

)

)

)

 )

 

Case No. 2:18-cv-00736 

Judge Michael H. Watson 

Chief Magistrate Judge Elizabeth P. 

Deavers 

 ) 

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION TO FILE RESPONSE 

 Upon review of Plaintiffs’ Motion to file response to OSU’s October 26, 2020 

submission, and for good cause shown, IT IS HEREBY ORDERED THAT: 

 Plaintiffs’ Motion to file response is GRANTED. 

IT IS SO ORDERED. 

Dated: ________________ _____________________________________ 

Michael W. Watson 

UNITED STATES JUDGE 

Case: 2:18-cv-00736-MHW-EPD Doc #: 142 Filed: 11/05/20 Page: 7 of 7 PAGEID #: 2632