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Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
LIBERTARIAN PARTY OF OHIO, CASE NO.: 16-cy-554
Plaintiff,
JUDGE DAVID C. YOUNG
vs.
JON HUSTED, et al.,
Defendants.
PLAINTIFF'S MOTION UNDER RULE 56(F)
TO CONTINUE DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
Plaintiff respectfully moves the Court to continue Defendants' motion for summary
judgment under Rule 56(F) pending both the April 5, 2016 preliminary injunction hearing
ordered by this Court and the conclusion of discovery that may be needed to resolve the factual
issues in this case.
As explained in Plaintiff's attached affidavit and the accompanying Memorandum of Law
in Support of Plaintiffs Rule 56(F) motion, discovery has yet to commence and Plaintiff has no
access to the information and/or evidence needed to refute Defendants’ many denials in its
Answer filed on February 19, 2016. Plaintiff's Complaint was Verified, and numerous genuine
issues of material fact now exist.
Further, Defendants Motion for Summary Judgment argues that a balancing test -- the
Anderson/Burdick balancing test -- applies to this case. Although Plaintiff argues that
Defendants are incorrect, if this balancing test must be applied, discovery will be required to
determine Ohio's true objective behind S.B. 193. Plaintiff has no access to the documents and
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potential testimony needed to resolve this genuine issue of material fact. This case is therefore
not presently suitable for summary judgment.
In support of this Motion, Plaintiff proffers the attached affidavit and includes the
following Memorandum in Support.
Respectfully submitted,
s/_M.G. Kafantaris
Mark R. Brown (#81941) Mark G. Kafantaris (#80392)
303 E. Broad Street 625 City Park Avenue
Columbus, Ohio 43215 Columbus, Ohio 43206
Tel: (614) 236-6590 Tel: (614) 223-1444
Fax: (614) 236-6956 Fax: (614) 300-5123
E-mail: mbrown@law.capital.edu E-mail: mark @kafantaris.com
Attorneys for Plaintiff
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554
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MEMORANDUM IN SUPPORT
Ohio Rule of Civil Procedure Rule 56(F) states:
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.
"When a party opposing a summary judgment motion needs further evidence to sustain its case,
the proper remedy is to move the trial court to delay judgment pursuant to Civ. R. 56(F)." Drake
Construction Co. v. Kemper House Mentor, Inc., 865 N.E.2d 938, 942 (Ohio App. 2007).
"Under Civ. R. 56(F), ‘[a] party who seeks a continuance for further discovery is not required to
specify what facts he hopes to discover, especially where the facts are in the control of the party
moving for summary judgment’.” Id. at 943 (citation omitted). "[T]the trial court should
exercise its discretion in favor of a party seeking further time for discovery under Civ.R. 56(F). ”
Id. (citation omitted).
This Court on February 2, 2016 set a hearing on Plaintiff's Motion for Preliminary
Injunction for April 5, 2016. On February 19, 2016, Defendants answered Plaintiff's Verified
Complaint. In their answer, Defendants "deny the allegations in Paragraphs 12, 13, 14, 15, 16,
27, 31, 33, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 63, 64, 66, 67, and
68." Defendants’ Answer at {| 4. Defendants also "deny for lack of knowledge or information
the allegations contained in Paragraphs 5, 6, 21, and 24." Id. at | 3. Defendants further "deny
for want of knowledge” allegations in paragraphs 19 and 20 of the Plaintiff's Verified Complaint.
Id. at {| 14 & 15. Defendants also "deny that Plaintiff is entitled to any relief in this case." Id. at
423.
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Defendants have denied practically every allegation in Plaintiff's Verified Complaint.
These denials create a large number of genuine issues of material fact. Among these genuine
issues of material fact are the following, though there are many more:
1 Whether Article V, § 7 of Ohio's Constitution requires that political parties file "a
declaration of candidacy accompanied by a petition entitling one to be a participant in the
direct party primary wherein candidates from all political parties seek their nomination,"
as stated by the Ohio Supreme Court in State ex. rel. Gottlieb v. Sulligan, 193 N.E. 2d
270, 272-73 (Ohio 1963). See Plaintiff's Verified Complaint at {| 12.
2. Whether the Sixth Circuit in Libertarian Party of Ohio v. Blackwell, 462 F.3d
579, 582 (6th Cir. 2006), ruled that the Ohio Constitution "requires that all political
parties, including minor parties, nominate their candidates at primary elections." See
Plaintiff's Verified Complaint at J 13.
3 Whether but for Senate Bill 193's being preliminarily enjoined by the federal
District Court Plaintiff "would have been then barred from participating in Ohio's 2014
primary and general election as well as all subsequent primaries and general elections.”
See Plaintiff's Verified Complaint at {| 27.
4 Whether "Senate Bill 193 denies to all new political parties, including Plaintiff,
the right to nominate their candidates by primary." See Plaintiff's Verified Complaint at
133.
5 Whether "Plaintiff attempted to participate in Ohio's 2015 primary by qualifying
candidates for that primary but was denied access to this primary by Defendant Secretary
of State." See Plaintiff's Verified Complaint at J 35.
6 Whether "[c]andidates attempted to run in Plaintiff's 2015 primary but were
rejected by local election boards that were instructed to reject their candidacies by
Defendant Secretary of State.” See Plaintiff's Verified Complaint at J 36.
7
Whether "Plaintiff has attempted to participate in Ohio's March 15, 2016 primary
in order to nominate candidates for the 2016 election ballot in Ohio and to register
members but has been denied access by Defendant Secretary of State.” See Plaintiff's
Verified Complaint at J 37.
8 Whether Plaintiff's "[c]andidates were prepared to qualify and run in Plaintiff's
primary in 2016 but were not allowed to do so by Defendant Secretary of State." See
Plaintiff's Verified Complaint at J 38.
9 Whether "Plaintiff seeks to participate in Ohio's 2016 primary and all future
primary elections in Ohio and would be authorized to participate in these primaries by
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Directives 2009-21, 2011-01, 2011-38, and 2013-02 but for §§ 2 and 3 of S.B. 193." See
Plaintiff's Verified Complaint at {{ 39.
In its Motion for Summary Judgment, moreover, Defendants assert that Plaintiff "claims
that S.B. 193 prohibits it from ‘registering party members’ and interferes with its ability to
‘disseminate its views my. Motion for Summary Judgment at 6. Plaintiff "also inaccurately
contends,” Defendants claim, "that $.B. 193 leaves it with no mechanism to choose between two
candidates seeking the same office." Id. Rather than introduce evidence proving Plaintiff's
factual assertions are incorrect, Defendants assert that "[t]here is no genuine issue of material
fact that these claims all fail."' Id.
Defendants fail to explain, however, why if this were true the Secretary of State would
officially state that "[u]nder Ohio election law, you declare your political party affiliation by
requesting the ballot of a political party in a partisan primary election." Jon Husted, Ohio
Secretary of State, Frequently Asked Questions: General Voting & Voter Registration.” Nor do
Defendants distinguish O.R.C. § 3513.05, which states that "an elector is considered to be a
member of a political party if the elector voted in that party's primary election within the
preceding two calendar years."
As explained in Plaintiff's Response to Defendants’ Motion for Summary Judgment,
which is being filed contemporaneously with this Rule 56(F) Motion, Defendants now assert that
an interest-balancing test must be applied in this case. Plaintiff disagrees, but if Defendants are
' Defendants cite Secretary of State Advisory 2015-02 (which is their Exhibit 17). Motion for
Summary Judgment at 12. But they fail to point to any language in this Advisory that supports
their claim that Ohio law provides a mechanism directing how a minor party is to choose
between two candidates. The simple fact is that no such mechanism exists.
2 http://www.sos.state.oh.us/sos/elections/Voters/FAQ/genFAQs.aspx#declare(last visited Nov.
17, 2015).
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correct then Ohio's interest in passing S.B. 193 must be weighed against the burdens it imposes
on Plaintiff. There is evidence in the record establishing that S.B. 193 was passed for partisan
political reasons. In short, $.B. 193 was designed to remove Plaintiff from the ballot. Removing
a political competitor from a ballot is not a legitimate interest under the balancing test
Defendants propose (or under any test for that matter). "States do not have a valid interest in
manipulating the outcome of elections, in protecting the major parties from competition, or in
stunting the growth of new parties." Clingman v. Beaver, 544 U.S. 581, 609 (2005) (Stevens, J.,
dissenting)?
Senate Bill 193 was a controversial, partisan measure; no Democrats joined the six
Republicans who presented the bill as co-sponsors, and only one Democrat in either House voted
for it. In contrast, Republican support was enormous in both of the Houses it controlled. In the
Ohio Senate, 20 of 23 Republicans supported it.* In the Ohio House, 50 of 59 Republicans voted
for it.” Republican Governor Kasich signed it the same day it was passed.
After S.B. 193 was temporarily suspended by the federal District Court, Ohio's
Republican Party turned its attention to removing Plaintiff's candidate for Governor from
3 Justices Souter and Ginsburg joined Justice Stevens. Id. at 608. Justice O'Connor's concurring
opinion, which was joined by Justice Breyer, similarly explained that a state’ te & asserted interests
[in restricting the ballot] [cannot be] merely a pretext for exclusionary or anticompetitive
restrictions.” Id. at 598, 603 (O'Connor, J., concurring). Stevens thus spoke for a majority on
this point.
4
See Ohio Senate Journal, Nov. 6. 2013, at 1289
(hitpv/archives fevislature state. ob usJournal Text) 30/S3-11-06-13.ndf) 11, (last visited Dec.
2015) (officially reporting votes); https://legiscan.corn/OR/rolicall/SB193/id/304024 (identifying
votes by parties) (last visited Dec. 11, 2015).
5
See Ohio House of Representatives Journal, Nov. 6, 2013, at 1326
(htipsfarchives fegislature state ob usJournal Text IGHI- 11-06-13 df) (last visited Dec. 11,
2015) (officially reporting votes); btips:/Negiscan corn/OH/rolicall/SB193/id/372340 (identifying
votes by parties) (last visited Dec. 11, 2015).
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Plaintiff's own primary ballot. The Ohio Republican Party spent approximately $600,000 on this
effort. It then took extraordinarily “harassing and obstructive” steps to prevent Plaintiff from
uncovering its involvement. See, e.g., Doc. No. 260 at PAGEID # 7104 (Plaintiff's Exhibit 3);
Libertarian Party of Ohio v. Husted, 2016 WL 447566 at *4 (S.D. Ohio, Feb. 5, 2016)
(describing "a pattern of technical and begrudging responses and objections to discovery
requests, which pattern was clearly designed to delay or obstruct the Plaintiffs’ ability to learn
that the Ohio Republican Party was involved in the effort to keep Libertarian Party candidates
off the ballot"). The Ohio Republican Party's efforts and expenses corroborate the true objective
behind S.B. 193; to remove a troubling competitor from Ohio's ballot.
Senate Bill 193 lacks any legitimate justification. Plaintiff believes it cannot pass the test
proposed by Defendants. In order to prove this, discovery will likely be required.
Disputed facts render this case unsuitable for summary judgment at this stage. There has
been no discovery. Defendants just answered Plaintiff's Verified Complaint. A hearing on
Plaintiffs Motion for Preliminary Injunction is scheduled for April 5, 2016. This Court's Case
Schedule provides that the formal discovery cut-off is November 8. 2016 and dispositive motions
are not due until October 25, 2016. All of these reasons counsel continuing Defendants’ Motion
for Summary Judgment.
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CONCLUSION
WHEREFORE, Plaintiff prays that its Rule 56(F) Motion be GRANTED.
Respectfully submitted,
s/_M.G. Kafantaris
Mark R. Brown (# 81941) Mark G. Kafantaris (#80392)
303 E. Broad Street 625 City Park Avenue
Columbus, Ohio 43215 Columbus, Ohio 43206
Tel: (614) 236-6590 Tel: (614) 223-1444
Fax: (614) 236-6956 Fax: (614) 300-5123
E-mail: mbrown@law.capital.edu E-mail: mark @ksfantaris. com
Attorneys
for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that copies of this Motion were filed using the Court's electronic
transmission service and will be served on counsel of all parties of record.
s/M.G. Kafantari.
Mark G. Kafantaris
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - F34 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO LIBERTARIAN PARTY OF OHIO, CASE NO.: 16-cy-554 Plaintiff, JUDGE DAVID C. YOUNG vs. JON HUSTED, et al., Defendants. PLAINTIFF'S MOTION UNDER RULE 56(F) TO CONTINUE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Plaintiff respectfully moves the Court to continue Defendants' motion for summary judgment under Rule 56(F) pending both the April 5, 2016 preliminary injunction hearing ordered by this Court and the conclusion of discovery that may be needed to resolve the factual issues in this case. As explained in Plaintiff's attached affidavit and the accompanying Memorandum of Law in Support of Plaintiffs Rule 56(F) motion, discovery has yet to commence and Plaintiff has no access to the information and/or evidence needed to refute Defendants’ many denials in its Answer filed on February 19, 2016. Plaintiff's Complaint was Verified, and numerous genuine issues of material fact now exist. Further, Defendants Motion for Summary Judgment argues that a balancing test -- the Anderson/Burdick balancing test -- applies to this case. Although Plaintiff argues that Defendants are incorrect, if this balancing test must be applied, discovery will be required to determine Ohio's true objective behind S.B. 193. Plaintiff has no access to the documents and Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - F35 potential testimony needed to resolve this genuine issue of material fact. This case is therefore not presently suitable for summary judgment. In support of this Motion, Plaintiff proffers the attached affidavit and includes the following Memorandum in Support. Respectfully submitted, s/_M.G. Kafantaris Mark R. Brown (#81941) Mark G. Kafantaris (#80392) 303 E. Broad Street 625 City Park Avenue Columbus, Ohio 43215 Columbus, Ohio 43206 Tel: (614) 236-6590 Tel: (614) 223-1444 Fax: (614) 236-6956 Fax: (614) 300-5123 E-mail: mbrown@law.capital.edu E-mail: mark @kafantaris.com Attorneys for Plaintiff Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - F3 MEMORANDUM IN SUPPORT Ohio Rule of Civil Procedure Rule 56(F) states: 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. "When a party opposing a summary judgment motion needs further evidence to sustain its case, the proper remedy is to move the trial court to delay judgment pursuant to Civ. R. 56(F)." Drake Construction Co. v. Kemper House Mentor, Inc., 865 N.E.2d 938, 942 (Ohio App. 2007). "Under Civ. R. 56(F), ‘[a] party who seeks a continuance for further discovery is not required to specify what facts he hopes to discover, especially where the facts are in the control of the party moving for summary judgment’.” Id. at 943 (citation omitted). "[T]the trial court should exercise its discretion in favor of a party seeking further time for discovery under Civ.R. 56(F). ” Id. (citation omitted). This Court on February 2, 2016 set a hearing on Plaintiff's Motion for Preliminary Injunction for April 5, 2016. On February 19, 2016, Defendants answered Plaintiff's Verified Complaint. In their answer, Defendants "deny the allegations in Paragraphs 12, 13, 14, 15, 16, 27, 31, 33, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 63, 64, 66, 67, and 68." Defendants’ Answer at {| 4. Defendants also "deny for lack of knowledge or information the allegations contained in Paragraphs 5, 6, 21, and 24." Id. at | 3. Defendants further "deny for want of knowledge” allegations in paragraphs 19 and 20 of the Plaintiff's Verified Complaint. Id. at {| 14 & 15. Defendants also "deny that Plaintiff is entitled to any relief in this case." Id. at 423. Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - F37 Defendants have denied practically every allegation in Plaintiff's Verified Complaint. These denials create a large number of genuine issues of material fact. Among these genuine issues of material fact are the following, though there are many more: 1 Whether Article V, § 7 of Ohio's Constitution requires that political parties file "a declaration of candidacy accompanied by a petition entitling one to be a participant in the direct party primary wherein candidates from all political parties seek their nomination," as stated by the Ohio Supreme Court in State ex. rel. Gottlieb v. Sulligan, 193 N.E. 2d 270, 272-73 (Ohio 1963). See Plaintiff's Verified Complaint at {| 12. 2. Whether the Sixth Circuit in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 582 (6th Cir. 2006), ruled that the Ohio Constitution "requires that all political parties, including minor parties, nominate their candidates at primary elections." See Plaintiff's Verified Complaint at J 13. 3 Whether but for Senate Bill 193's being preliminarily enjoined by the federal District Court Plaintiff "would have been then barred from participating in Ohio's 2014 primary and general election as well as all subsequent primaries and general elections.” See Plaintiff's Verified Complaint at {| 27. 4 Whether "Senate Bill 193 denies to all new political parties, including Plaintiff, the right to nominate their candidates by primary." See Plaintiff's Verified Complaint at 133. 5 Whether "Plaintiff attempted to participate in Ohio's 2015 primary by qualifying candidates for that primary but was denied access to this primary by Defendant Secretary of State." See Plaintiff's Verified Complaint at J 35. 6 Whether "[c]andidates attempted to run in Plaintiff's 2015 primary but were rejected by local election boards that were instructed to reject their candidacies by Defendant Secretary of State.” See Plaintiff's Verified Complaint at J 36. 7 Whether "Plaintiff has attempted to participate in Ohio's March 15, 2016 primary in order to nominate candidates for the 2016 election ballot in Ohio and to register members but has been denied access by Defendant Secretary of State.” See Plaintiff's Verified Complaint at J 37. 8 Whether Plaintiff's "[c]andidates were prepared to qualify and run in Plaintiff's primary in 2016 but were not allowed to do so by Defendant Secretary of State." See Plaintiff's Verified Complaint at J 38. 9 Whether "Plaintiff seeks to participate in Ohio's 2016 primary and all future primary elections in Ohio and would be authorized to participate in these primaries by Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - F38 Directives 2009-21, 2011-01, 2011-38, and 2013-02 but for §§ 2 and 3 of S.B. 193." See Plaintiff's Verified Complaint at {{ 39. In its Motion for Summary Judgment, moreover, Defendants assert that Plaintiff "claims that S.B. 193 prohibits it from ‘registering party members’ and interferes with its ability to ‘disseminate its views my. Motion for Summary Judgment at 6. Plaintiff "also inaccurately contends,” Defendants claim, "that $.B. 193 leaves it with no mechanism to choose between two candidates seeking the same office." Id. Rather than introduce evidence proving Plaintiff's factual assertions are incorrect, Defendants assert that "[t]here is no genuine issue of material fact that these claims all fail."' Id. Defendants fail to explain, however, why if this were true the Secretary of State would officially state that "[u]nder Ohio election law, you declare your political party affiliation by requesting the ballot of a political party in a partisan primary election." Jon Husted, Ohio Secretary of State, Frequently Asked Questions: General Voting & Voter Registration.” Nor do Defendants distinguish O.R.C. § 3513.05, which states that "an elector is considered to be a member of a political party if the elector voted in that party's primary election within the preceding two calendar years." As explained in Plaintiff's Response to Defendants’ Motion for Summary Judgment, which is being filed contemporaneously with this Rule 56(F) Motion, Defendants now assert that an interest-balancing test must be applied in this case. Plaintiff disagrees, but if Defendants are ' Defendants cite Secretary of State Advisory 2015-02 (which is their Exhibit 17). Motion for Summary Judgment at 12. But they fail to point to any language in this Advisory that supports their claim that Ohio law provides a mechanism directing how a minor party is to choose between two candidates. The simple fact is that no such mechanism exists. 2 http://www.sos.state.oh.us/sos/elections/Voters/FAQ/genFAQs.aspx#declare(last visited Nov. 17, 2015). Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - F3 correct then Ohio's interest in passing S.B. 193 must be weighed against the burdens it imposes on Plaintiff. There is evidence in the record establishing that S.B. 193 was passed for partisan political reasons. In short, $.B. 193 was designed to remove Plaintiff from the ballot. Removing a political competitor from a ballot is not a legitimate interest under the balancing test Defendants propose (or under any test for that matter). "States do not have a valid interest in manipulating the outcome of elections, in protecting the major parties from competition, or in stunting the growth of new parties." Clingman v. Beaver, 544 U.S. 581, 609 (2005) (Stevens, J., dissenting)? Senate Bill 193 was a controversial, partisan measure; no Democrats joined the six Republicans who presented the bill as co-sponsors, and only one Democrat in either House voted for it. In contrast, Republican support was enormous in both of the Houses it controlled. In the Ohio Senate, 20 of 23 Republicans supported it.* In the Ohio House, 50 of 59 Republicans voted for it.” Republican Governor Kasich signed it the same day it was passed. After S.B. 193 was temporarily suspended by the federal District Court, Ohio's Republican Party turned its attention to removing Plaintiff's candidate for Governor from 3 Justices Souter and Ginsburg joined Justice Stevens. Id. at 608. Justice O'Connor's concurring opinion, which was joined by Justice Breyer, similarly explained that a state’ te & asserted interests [in restricting the ballot] [cannot be] merely a pretext for exclusionary or anticompetitive restrictions.” Id. at 598, 603 (O'Connor, J., concurring). Stevens thus spoke for a majority on this point. 4 See Ohio Senate Journal, Nov. 6. 2013, at 1289 (hitpv/archives fevislature state. ob usJournal Text) 30/S3-11-06-13.ndf) 11, (last visited Dec. 2015) (officially reporting votes); https://legiscan.corn/OR/rolicall/SB193/id/304024 (identifying votes by parties) (last visited Dec. 11, 2015). 5 See Ohio House of Representatives Journal, Nov. 6, 2013, at 1326 (htipsfarchives fegislature state ob usJournal Text IGHI- 11-06-13 df) (last visited Dec. 11, 2015) (officially reporting votes); btips:/Negiscan corn/OH/rolicall/SB193/id/372340 (identifying votes by parties) (last visited Dec. 11, 2015). Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - F40 Plaintiff's own primary ballot. The Ohio Republican Party spent approximately $600,000 on this effort. It then took extraordinarily “harassing and obstructive” steps to prevent Plaintiff from uncovering its involvement. See, e.g., Doc. No. 260 at PAGEID # 7104 (Plaintiff's Exhibit 3); Libertarian Party of Ohio v. Husted, 2016 WL 447566 at *4 (S.D. Ohio, Feb. 5, 2016) (describing "a pattern of technical and begrudging responses and objections to discovery requests, which pattern was clearly designed to delay or obstruct the Plaintiffs’ ability to learn that the Ohio Republican Party was involved in the effort to keep Libertarian Party candidates off the ballot"). The Ohio Republican Party's efforts and expenses corroborate the true objective behind S.B. 193; to remove a troubling competitor from Ohio's ballot. Senate Bill 193 lacks any legitimate justification. Plaintiff believes it cannot pass the test proposed by Defendants. In order to prove this, discovery will likely be required. Disputed facts render this case unsuitable for summary judgment at this stage. There has been no discovery. Defendants just answered Plaintiff's Verified Complaint. A hearing on Plaintiffs Motion for Preliminary Injunction is scheduled for April 5, 2016. This Court's Case Schedule provides that the formal discovery cut-off is November 8. 2016 and dispositive motions are not due until October 25, 2016. All of these reasons counsel continuing Defendants’ Motion for Summary Judgment. Franklin County Ohio Clerk of Courts of the Common Pleas- 2016 Mar 02 7:38 PM-16CV000554 0C936 - FA4l CONCLUSION WHEREFORE, Plaintiff prays that its Rule 56(F) Motion be GRANTED. Respectfully submitted, s/_M.G. Kafantaris Mark R. Brown (# 81941) Mark G. Kafantaris (#80392) 303 E. Broad Street 625 City Park Avenue Columbus, Ohio 43215 Columbus, Ohio 43206 Tel: (614) 236-6590 Tel: (614) 223-1444 Fax: (614) 236-6956 Fax: (614) 300-5123 E-mail: mbrown@law.capital.edu E-mail: mark @ksfantaris. com Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that copies of this Motion were filed using the Court's electronic transmission service and will be served on counsel of all parties of record. s/M.G. Kafantari. Mark G. Kafantaris