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Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554
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IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
Libertarian Party Ohio,
Plaintiff,
v Case No. 16CVH-554 (Judge Young)
Ohio Secretary of State, et al..
Defendants.
ENTRY DENYING PLAINTIFF’S MOTION UNDER RULE 56(F) TO CONTINUE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
FILED MARCH 2, 2016
This matter is before the Court on Plaintiff's Motion under Rule 56(F) to Continue
Defendants’ Motion for Summary Judgment filed March 2, 2016. Defendants filed a
Memorandum Contra on March 9, 2016. Plaintiff then filed a Reply on March 14, 2016
Pursuant to Loc.R. 21.01, this matter is deemed submitted.
Civ.R. 56(F) provides:
Should it appear from the affidavits of a party opposing the motion for summary
judgment that the party cannot for sufficient reasons stated present by affidavit
facts essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits to be
obtained or discovery to be had or may make such other order as is just.
The decision to grant or deny a Civ.R. 56(F) continuance is within the trial court’s discretion.
Perpetual Fed. Sav. Bank v. TDS2 Prop. Mgmt., 10th Dist. Franklin No. O9AP-285,
2009-Ohio-6774, 11. The provisions contained in Civ.R. 56(F) are discretionary, not
mandatory. /d., citing ABN AMRO Mortgage Group, Inc. v. Roush, 10th Dist. No. 04AP-457,
2005 Ohio 1763, P23, and Martinez v. Yoho's Fast Food Equip., \0th Dist. No. 0O2AP-79, 2002
Ohio 6756, P14, and Carlton v. Davisson (1995), 104 Ohio App.3d 636, 648, 662 N.E.2d 1112.
“The party seeking the Civ.R. 56(F) continuance bears the burden of establishing why the
party cannot present sufficient facts to justify its opposition to a motion for summary judgment
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554
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without a continuance.” Fields v. Buehrer, 10th Dist. 13AP-724, 2014-Ohio-1382, 12, quoting
Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, § 100, 939 N.E.2d 891
(10th Dist.), citing Perpetual Fed. Sav. Bank v. TDS2 Prop. Mgt., LLC, 10th Dist. No.
O9AP-285, 2009-Ohio-6774, J 13, and Waverly City School Dist. Bd. of Edn. y. Triad Architects,
Inc., 10th Dist. No. O8AP-329, 2008-Ohio-6917, 4 17. “The moving party cannot meet this
burden with mere allegations; rather, the moving party must aver in an affidavit a particularized
factual basis that explains why further discovery is necessary.” J/d., quoting Ford Motor Credit
at § 100, citing Morantz v. Ortiz, 10th Dist. No. O7AP-597, 2008-Ohio-1046, § 22, and Hahn v.
Groveport, 10th Dist. No. O7AP-27, 2007-Ohio-5559, § 30. "Simply requesting a continuance in
order to conduct discovery is not a sufficient explanation for why a party cannot present
affidavits in opposition to the motion for summary judgment." /d., quoting Brown v. Ohio Dept.
of Rehab. & Corr., 10th Dist. No. 12AP-891, 2013-Ohio-4207, § 16, citing ABN AMRO Mige.
Group, Inc. v. Roush, 10th Dist. No. 0¢AP-457, 2005-Ohio-1763, § 22.
Plaintiff argues that discovery in this matter has just begun, as it was filed on January 19,
2016. The discovery cut-off in this matter is November 8, 2016. However, this case is unique.
Although it is new to this Court, the parties are not new adversaries. The first cause of action in
this matter, brought under Art.V § 7 of the Ohio Constitution, was pending in the United States
District Court Southern District of Ohio before Judge Michael H. Watson until it was dismissed
on or about October 14, 2015 for lack of jurisdiction. Libertarian Party of Ohio, et al. v. Husted,
et al., 2:13-cv-00953, October 14, 2015 Opinion and Order (attached to Defendants’ Memo in
Opposition to Plaintiff's Motion for TRO and Preliminary Injunction filed January 27, 2016 as
Exhibit 5). A federal equal protection claim was also before that court. The federal case was
initiated in November 2013. Parties conducted extensive discovery during the pendency of the
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554
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federal matter. Therefore, undue delay would result from the granting of a Civ.R. 56(F)
continuance.
Further, the Court finds Plaintiff has failed to meet its burden under Civ.R. 56(F). Upon
review of the Affidavit of Robert Bridges, the Court finds that Plaintiff is requesting a
continuance in order to conduct discovery without sufficiently explaining why it cannot present
affidavits in opposition to Defendants’ Motion for Summary Judgment. A particularized factual
basis that explains why discovery is necessary was not present.
For the foregoing reasons, the Court hereby DENIES Plaintiff's Motion under Rule
56(F) to Continue Defendants’ Motion for Summary Judgment filed March 2, 2016. The Court
notes that Plaintiff filed a timely Response to Defendants’ Motion for Summary Judgment on
March 2, 2016.
IT IS SO ORDERED.
Copies electronically to:
Mark Brown
Mark Kafantaris
Counsel for Plaintiff
Jordan Berman
Halli Watson
Counsel for Defendants
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554
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Franklin County Court of Common Pleas
Date: 04-18-2016
Case Title: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY STATE ET
AL
Case Number: 16CV000554
Type: DECISION/ENTRY
It Is So Ordered.
Hed} Gpsop
/s/ Judge David C. Young
Electronically signed on 2016-Apr-18 page 4 of 4
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554
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Court Disposition
Case Number: 16CV000554
Case Style: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY
STATE ET AL
Motion Tie Off Information:
1. Motion CMS Document Id: 16CV0005542016-03-0299970000
Document Title: 03-02-2016- MOTION FOR CONTINUANCE -
PLAINTIFF: LIBERTARIAN PARTY OHIO
Disposition: MOTION DENIED
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554 0D006 - Q8o IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO Libertarian Party Ohio, Plaintiff, v Case No. 16CVH-554 (Judge Young) Ohio Secretary of State, et al.. Defendants. ENTRY DENYING PLAINTIFF’S MOTION UNDER RULE 56(F) TO CONTINUE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FILED MARCH 2, 2016 This matter is before the Court on Plaintiff's Motion under Rule 56(F) to Continue Defendants’ Motion for Summary Judgment filed March 2, 2016. Defendants filed a Memorandum Contra on March 9, 2016. Plaintiff then filed a Reply on March 14, 2016 Pursuant to Loc.R. 21.01, this matter is deemed submitted. Civ.R. 56(F) provides: Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. The decision to grant or deny a Civ.R. 56(F) continuance is within the trial court’s discretion. Perpetual Fed. Sav. Bank v. TDS2 Prop. Mgmt., 10th Dist. Franklin No. O9AP-285, 2009-Ohio-6774, 11. The provisions contained in Civ.R. 56(F) are discretionary, not mandatory. /d., citing ABN AMRO Mortgage Group, Inc. v. Roush, 10th Dist. No. 04AP-457, 2005 Ohio 1763, P23, and Martinez v. Yoho's Fast Food Equip., \0th Dist. No. 0O2AP-79, 2002 Ohio 6756, P14, and Carlton v. Davisson (1995), 104 Ohio App.3d 636, 648, 662 N.E.2d 1112. “The party seeking the Civ.R. 56(F) continuance bears the burden of establishing why the party cannot present sufficient facts to justify its opposition to a motion for summary judgment Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554 0D006 - Q8l without a continuance.” Fields v. Buehrer, 10th Dist. 13AP-724, 2014-Ohio-1382, 12, quoting Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, § 100, 939 N.E.2d 891 (10th Dist.), citing Perpetual Fed. Sav. Bank v. TDS2 Prop. Mgt., LLC, 10th Dist. No. O9AP-285, 2009-Ohio-6774, J 13, and Waverly City School Dist. Bd. of Edn. y. Triad Architects, Inc., 10th Dist. No. O8AP-329, 2008-Ohio-6917, 4 17. “The moving party cannot meet this burden with mere allegations; rather, the moving party must aver in an affidavit a particularized factual basis that explains why further discovery is necessary.” J/d., quoting Ford Motor Credit at § 100, citing Morantz v. Ortiz, 10th Dist. No. O7AP-597, 2008-Ohio-1046, § 22, and Hahn v. Groveport, 10th Dist. No. O7AP-27, 2007-Ohio-5559, § 30. "Simply requesting a continuance in order to conduct discovery is not a sufficient explanation for why a party cannot present affidavits in opposition to the motion for summary judgment." /d., quoting Brown v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-891, 2013-Ohio-4207, § 16, citing ABN AMRO Mige. Group, Inc. v. Roush, 10th Dist. No. 0¢AP-457, 2005-Ohio-1763, § 22. Plaintiff argues that discovery in this matter has just begun, as it was filed on January 19, 2016. The discovery cut-off in this matter is November 8, 2016. However, this case is unique. Although it is new to this Court, the parties are not new adversaries. The first cause of action in this matter, brought under Art.V § 7 of the Ohio Constitution, was pending in the United States District Court Southern District of Ohio before Judge Michael H. Watson until it was dismissed on or about October 14, 2015 for lack of jurisdiction. Libertarian Party of Ohio, et al. v. Husted, et al., 2:13-cv-00953, October 14, 2015 Opinion and Order (attached to Defendants’ Memo in Opposition to Plaintiff's Motion for TRO and Preliminary Injunction filed January 27, 2016 as Exhibit 5). A federal equal protection claim was also before that court. The federal case was initiated in November 2013. Parties conducted extensive discovery during the pendency of the Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554 0D006 - Q82 federal matter. Therefore, undue delay would result from the granting of a Civ.R. 56(F) continuance. Further, the Court finds Plaintiff has failed to meet its burden under Civ.R. 56(F). Upon review of the Affidavit of Robert Bridges, the Court finds that Plaintiff is requesting a continuance in order to conduct discovery without sufficiently explaining why it cannot present affidavits in opposition to Defendants’ Motion for Summary Judgment. A particularized factual basis that explains why discovery is necessary was not present. For the foregoing reasons, the Court hereby DENIES Plaintiff's Motion under Rule 56(F) to Continue Defendants’ Motion for Summary Judgment filed March 2, 2016. The Court notes that Plaintiff filed a timely Response to Defendants’ Motion for Summary Judgment on March 2, 2016. IT IS SO ORDERED. Copies electronically to: Mark Brown Mark Kafantaris Counsel for Plaintiff Jordan Berman Halli Watson Counsel for Defendants Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554 0D006 - Q83 Franklin County Court of Common Pleas Date: 04-18-2016 Case Title: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY STATE ET AL Case Number: 16CV000554 Type: DECISION/ENTRY It Is So Ordered. Hed} Gpsop /s/ Judge David C. Young Electronically signed on 2016-Apr-18 page 4 of 4 Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Apr 18 11:48 AM-16CV000554 0D006 - Q84 Court Disposition Case Number: 16CV000554 Case Style: LIBERTARIAN PARTY OHIO -VS- OHIO SECRETARY STATE ET AL Motion Tie Off Information: 1. Motion CMS Document Id: 16CV0005542016-03-0299970000 Document Title: 03-02-2016- MOTION FOR CONTINUANCE - PLAINTIFF: LIBERTARIAN PARTY OHIO Disposition: MOTION DENIED