Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767
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IN THE COMMON PLEAS COURT
FRANKLIN COUNTY, OHIO
HONDROS COLLEGE, INC., CASE NO. 17 CV 009767
Plaintiff, JUDGE CHRIS BROWN
vs.
DAVIS COLLEGE, INC., ET AL.,
Defendants.
DEFENDANTS’ MOTION TO STAY TEMPORARY RESTRAINING ORDER
Defendants, Davis College, Inc. (“Davis”) and The CE Shop, Inc. (“CE Shop” and,
collectively with Davis, “Defendants”) hereby move the Court to stay the temporary restraining
order entered by the Court in this matter on November 2, 2017 (“TRO”). The basis for this
Motion is set forth in the attached Memorandum in Support. For the Court’s convenience, a
proposed entry granting the relief requested herein is being submitted through the Court’s
electronic filing system.
Respectfully submitted,
/s/ Stephen D. Jones
Stephen D. Jones (0018066)
Jeremy S. Young (0082179)
Roetzel & Andress, LPA
41 South High St., 21° Floor
Columbus, OH 43215
Telephone: 614.463.9770
Facsimile: 614.463.9792
E-mail: sjones@ralaw.com
jyoung @ralaw.com
andFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767
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Ronald S. Kopp (0004950)
Roetzel & Andress, LPA
222 South Main Street
Akron, Ohio 44308
Telephone: 330.376.2700
Facsimile: 330.376.4577
E-mail: rkopp@ralaw.com
Attorneys for Defendants, Davis College,
Inc. and The CE Shop, Inc.
MEMORANDUM IN SUPPORT
Defendants filed yesterday their Motion to Modify and/or Vacate Temporary Restraining
Order (“Motion to Modify/Vacate”), which is hereby incorporated by reference. Until the Court
can rule on the Motion to Modify/Vacate, it should stay the operation of the TRO in order to
preserve the status quo.
It is well-established that the primary purpose of a stay is “to preserve the status quo.”
See Laidlaw Waste Systems, Inc. v. Consolidated Rail Corp., 85 Ohio St.3d 413, 416 (1999)
(citing Reed v. Rhodes, 472 F. Supp. 603, 605 (N.D. Ohio 1979)). Here, as set forth in the
Motion to Modify/Vacate, Paragraph 2 on page 2 of the TRO would disrupt the status quo by
requiring Defendants to proactively send their students written notice of a purported, but non-
existent, dispute between Defendants and the Ohio State Board of Career Colleges and Schools
(“Board”).
Courts consider four factors in determining whether to grant a stay of a judgment or
order: (1) whether the moving party is likely to prevail on the merits; (2) whether the moving
party will be irreparably harmed if a stay is not granted; (3) whether the issuance of a stay will
harm other third parties; and (4) whether the stay would be in the public interest. International
Diamond Exchange Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App.3d 667,
672 (1st Dist. 1991). In ruling upon these factors, no one single factor can be determinative;Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767
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rather, this Court must weigh each factor in light of the particular circumstances of the case
presented. See Cleveland v. Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 14, 684 N.E.2d 343,
351 (8th Dist.1996) (citing Royal Appliance Mfg. Co. v. Hoover Co., Inc., 845 F.Supp. 469
(N.D.Ohio 1994); Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.
1982)).
The traditional four-factor test applicable to motions to stay favors staying the TRO in
this case. First, as set forth in the incorporated Motion to Modify/Vacate, Defendants have a
substantial likelihood of success on the merits of that Motion.
Second, Defendants will be irreparably harmed if the requested stay is not entered. The
requirement that Defendants notify all their students of a (nonexistent) dispute with the Board
regarding the appropriate certification for the real estate pre-licensure courses at issue
(“Courses”) will harm Defendants’ business reputations and goodwill. Indeed, it will likely
function to directly interfere with Defendants’ existing business and contractual relationships
with its students, who may choose to un-enroll and/or not further pursue the Courses out of
concern that completion of the Courses will not permit them to sit for the Ohio real estate exam.
The irreparable harm to Defendants in such a scenario is manifest.
Third, the issuance of the requested stay will not harm third parties. Quite to the contrary,
it would benefit third parties. If the TRO is not stayed, then the written notice to students
required by Paragraph 2 of the TRO will cause students to suffer confusion and consternation,
which is completely unnecessary and unwarranted in view of the prospect that—even assuming
that Board approval of the Courses is necessary, which Defendants dispute—the Board will
likely approve the Courses during its November 15, 2017 meeting. Thus, if written notice is sent
to students, they may very well be receiving another notice a matter of days later to the effectFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767
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that the Courses in fact do have Board approval. There is absolutely no justifiable reason to put
Defendants or their students through such an ordeal. Accordingly, the requested stay should
issue.
Fourth and finally, the requested stay would be in the public interest. As set forth in
Defendants’ contemporaneously filed Motion to Continue Hearing on Motion for Preliminary
Injunction, which is incorporated herein by reference, there is an existing administrative approval
procedure in place to consider the issues raised by Hondros’ Complaint in this case, which
Defendants initiated before this lawsuit was filed, is not yet complete, and may ultimately result
in an appeal to this Court. Indeed, Hondros acknowledges in its Verified Complaint that the
administrative approval procedure is the appropriate mechanism for Defendants to obtain
approval to offer the Courses. Plainly, the public interest favors permitting administrative
procedures to operate as they were intended by the Legislature, without undue interference by
temporary restraining orders entered in premature lawsuits.
Further, the public interest will be served by staying the TRO inasmuch as it does not
function to preserve the status quo, which as a matter of law is the fundamental purpose of a
temporary restraining order. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct.
1830, 1834, 68 L.Ed.2d 175 (1981); United States v. Edward Rose & Sons, 384 F.3d 258, 261
(6th Cir.2004); Gobel v. Laing, 12 Ohio App.2d 93, 94, 231 N.E.2d 341, 342 (10th Dist.1967).
For the foregoing reasons, this Court should enter an order staying the TRO.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767
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Respectfully submitted,
/s/ Stephen D. Jones
Stephen D. Jones (0018066)
Jeremy S. Young (0082179)
Roetzel & Andress, LPA
41 South High St., 21° Floor
Columbus, OH 43215
Telephone: 614.463.9770
Facsimile: 614.463.9792
E-mail: sjones@ralaw.com
jyoung @ralaw.com
and
Ronald S. Kopp (0004950)
Roetzel & Andress, LPA
222 South Main Street
Akron, Ohio 44308
Telephone: 330.376.2700
Facsimile: 330.376.4577
E-mail: rkopp@ralaw.com
Attorneys for Defendants, Davis College,
Inc. and The CE Shop, Inc.
PROOF OF SERVICE
A copy of the foregoing was served on November 9, 2017 pursuant to Civ. R. 5(B)(2), by
email to:
Thomas W. Hill
Timothy A. Kelley
Kegler, Brown, Hill & Ritter Co., L.P.A.
65 E. State Street, Suite 1800
Columbus, Ohio 43215
thill@keglerbrown.com
Attorneys for Plaintiff Hondros College, Inc., d/b/a
Hondros College of Business
/s/ Stephen D. Jones
Stephen D. JonesFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
HONDROS COLLEGE, INC., CASE NO. 17 CV 009767
Plaintiff, JUDGE CHRIS BROWN
vs.
DAVIS COLLEGE, INC., ET AL.,
Defendants.
JUDGMENT ENTRY GRANTING DEFENDANTS’ MOTION TO STAY
TEMPORARY RESTRAINING ORDER
This matter is before the Court pursuant to Defendants’ Motion to Stay Temporary
Restraining Order. For the reasons stated and for good cause shown, the Motion is hereby
GRANTED.
This Court’s November 2, 2017 Temporary Restraining Order entered in this case is
hereby stayed pending the Court’s ruling on Defendants’ Motion to Modify and/or Vacate
Temporary Restraining Order.
IT IS SO ORDERED.
Judge Chris Brown
Copies to all counsel of record
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767 0D893 - U69 IN THE COMMON PLEAS COURT FRANKLIN COUNTY, OHIO HONDROS COLLEGE, INC., CASE NO. 17 CV 009767 Plaintiff, JUDGE CHRIS BROWN vs. DAVIS COLLEGE, INC., ET AL., Defendants. DEFENDANTS’ MOTION TO STAY TEMPORARY RESTRAINING ORDER Defendants, Davis College, Inc. (“Davis”) and The CE Shop, Inc. (“CE Shop” and, collectively with Davis, “Defendants”) hereby move the Court to stay the temporary restraining order entered by the Court in this matter on November 2, 2017 (“TRO”). The basis for this Motion is set forth in the attached Memorandum in Support. For the Court’s convenience, a proposed entry granting the relief requested herein is being submitted through the Court’s electronic filing system. Respectfully submitted, /s/ Stephen D. Jones Stephen D. Jones (0018066) Jeremy S. Young (0082179) Roetzel & Andress, LPA 41 South High St., 21° Floor Columbus, OH 43215 Telephone: 614.463.9770 Facsimile: 614.463.9792 E-mail: sjones@ralaw.com jyoung @ralaw.com andFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767 0D893 - U70 Ronald S. Kopp (0004950) Roetzel & Andress, LPA 222 South Main Street Akron, Ohio 44308 Telephone: 330.376.2700 Facsimile: 330.376.4577 E-mail: rkopp@ralaw.com Attorneys for Defendants, Davis College, Inc. and The CE Shop, Inc. MEMORANDUM IN SUPPORT Defendants filed yesterday their Motion to Modify and/or Vacate Temporary Restraining Order (“Motion to Modify/Vacate”), which is hereby incorporated by reference. Until the Court can rule on the Motion to Modify/Vacate, it should stay the operation of the TRO in order to preserve the status quo. It is well-established that the primary purpose of a stay is “to preserve the status quo.” See Laidlaw Waste Systems, Inc. v. Consolidated Rail Corp., 85 Ohio St.3d 413, 416 (1999) (citing Reed v. Rhodes, 472 F. Supp. 603, 605 (N.D. Ohio 1979)). Here, as set forth in the Motion to Modify/Vacate, Paragraph 2 on page 2 of the TRO would disrupt the status quo by requiring Defendants to proactively send their students written notice of a purported, but non- existent, dispute between Defendants and the Ohio State Board of Career Colleges and Schools (“Board”). Courts consider four factors in determining whether to grant a stay of a judgment or order: (1) whether the moving party is likely to prevail on the merits; (2) whether the moving party will be irreparably harmed if a stay is not granted; (3) whether the issuance of a stay will harm other third parties; and (4) whether the stay would be in the public interest. International Diamond Exchange Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App.3d 667, 672 (1st Dist. 1991). In ruling upon these factors, no one single factor can be determinative;Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767 0D893 - U71 rather, this Court must weigh each factor in light of the particular circumstances of the case presented. See Cleveland v. Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 14, 684 N.E.2d 343, 351 (8th Dist.1996) (citing Royal Appliance Mfg. Co. v. Hoover Co., Inc., 845 F.Supp. 469 (N.D.Ohio 1994); Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). The traditional four-factor test applicable to motions to stay favors staying the TRO in this case. First, as set forth in the incorporated Motion to Modify/Vacate, Defendants have a substantial likelihood of success on the merits of that Motion. Second, Defendants will be irreparably harmed if the requested stay is not entered. The requirement that Defendants notify all their students of a (nonexistent) dispute with the Board regarding the appropriate certification for the real estate pre-licensure courses at issue (“Courses”) will harm Defendants’ business reputations and goodwill. Indeed, it will likely function to directly interfere with Defendants’ existing business and contractual relationships with its students, who may choose to un-enroll and/or not further pursue the Courses out of concern that completion of the Courses will not permit them to sit for the Ohio real estate exam. The irreparable harm to Defendants in such a scenario is manifest. Third, the issuance of the requested stay will not harm third parties. Quite to the contrary, it would benefit third parties. If the TRO is not stayed, then the written notice to students required by Paragraph 2 of the TRO will cause students to suffer confusion and consternation, which is completely unnecessary and unwarranted in view of the prospect that—even assuming that Board approval of the Courses is necessary, which Defendants dispute—the Board will likely approve the Courses during its November 15, 2017 meeting. Thus, if written notice is sent to students, they may very well be receiving another notice a matter of days later to the effectFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767 0D893 - U72 that the Courses in fact do have Board approval. There is absolutely no justifiable reason to put Defendants or their students through such an ordeal. Accordingly, the requested stay should issue. Fourth and finally, the requested stay would be in the public interest. As set forth in Defendants’ contemporaneously filed Motion to Continue Hearing on Motion for Preliminary Injunction, which is incorporated herein by reference, there is an existing administrative approval procedure in place to consider the issues raised by Hondros’ Complaint in this case, which Defendants initiated before this lawsuit was filed, is not yet complete, and may ultimately result in an appeal to this Court. Indeed, Hondros acknowledges in its Verified Complaint that the administrative approval procedure is the appropriate mechanism for Defendants to obtain approval to offer the Courses. Plainly, the public interest favors permitting administrative procedures to operate as they were intended by the Legislature, without undue interference by temporary restraining orders entered in premature lawsuits. Further, the public interest will be served by staying the TRO inasmuch as it does not function to preserve the status quo, which as a matter of law is the fundamental purpose of a temporary restraining order. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir.2004); Gobel v. Laing, 12 Ohio App.2d 93, 94, 231 N.E.2d 341, 342 (10th Dist.1967). For the foregoing reasons, this Court should enter an order staying the TRO.Franklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767 0D893 - U73 Respectfully submitted, /s/ Stephen D. Jones Stephen D. Jones (0018066) Jeremy S. Young (0082179) Roetzel & Andress, LPA 41 South High St., 21° Floor Columbus, OH 43215 Telephone: 614.463.9770 Facsimile: 614.463.9792 E-mail: sjones@ralaw.com jyoung @ralaw.com and Ronald S. Kopp (0004950) Roetzel & Andress, LPA 222 South Main Street Akron, Ohio 44308 Telephone: 330.376.2700 Facsimile: 330.376.4577 E-mail: rkopp@ralaw.com Attorneys for Defendants, Davis College, Inc. and The CE Shop, Inc. PROOF OF SERVICE A copy of the foregoing was served on November 9, 2017 pursuant to Civ. R. 5(B)(2), by email to: Thomas W. Hill Timothy A. Kelley Kegler, Brown, Hill & Ritter Co., L.P.A. 65 E. State Street, Suite 1800 Columbus, Ohio 43215 thill@keglerbrown.com Attorneys for Plaintiff Hondros College, Inc., d/b/a Hondros College of Business /s/ Stephen D. Jones Stephen D. JonesFranklin County Ohio Clerk of Courts of the Common Pleas- 2017 Nov 09 4:21 PM-17CV009767 OD893 - U74 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO HONDROS COLLEGE, INC., CASE NO. 17 CV 009767 Plaintiff, JUDGE CHRIS BROWN vs. DAVIS COLLEGE, INC., ET AL., Defendants. JUDGMENT ENTRY GRANTING DEFENDANTS’ MOTION TO STAY TEMPORARY RESTRAINING ORDER This matter is before the Court pursuant to Defendants’ Motion to Stay Temporary Restraining Order. For the reasons stated and for good cause shown, the Motion is hereby GRANTED. This Court’s November 2, 2017 Temporary Restraining Order entered in this case is hereby stayed pending the Court’s ruling on Defendants’ Motion to Modify and/or Vacate Temporary Restraining Order. IT IS SO ORDERED. Judge Chris Brown Copies to all counsel of record