UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION. v. JUDGE WATSON MAGISTRATE JUDGE KEMP HUSTED, et al., Defendants.

Transcription

1 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 1 of 20 PAGEID #: 7169 LIBERTARIAN PARTY OF OHIO, et al. Plaintiffs, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Case No. 2:13-cv v. JUDGE WATSON MAGISTRATE JUDGE KEMP HUSTED, et al., Defendants. / PLAINTIFFS' REPLY TO FELSOCI'S RESPONSE (DOC. NO. 265) TO PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT (DOC. NO. 261) AND RESPONSE TO FELSOCI'S CROSS-MOTION FOR SUMMARY JUDGMENT (DOC. NO. 264) I. Proceeding to Final Judgment After Being Denied Preliminary Relief is Accepted Practice. Intervenor-Defendant-Felsoci ("Felsoci") argues that seeking summary judgment following a denial of preliminary relief is "remarkable." See Memorandum of Intervening Defendant Felsoci (1) In Opposition to Plaintiffs' First Motion for Summary Judgment and (2) In Support of Intervening Defendant Felsoci's Cross-Motion for Summary Judgment (hereinafter "Felsoci's Response"), Doc. No. 265, at PAGEID # According to Felsoci, plaintiffs who fail to win preliminary relief and then seek to "simply rehash their prior unsuccessful arguments" in a summary judgment motion, see Felsoci's Response at PAGEID # 7147, are in violation of Rule 11 of the Federal Rule of Civil Procedure. 1 1 Felsoci's Rule 11 threat is doubly ironic given that this case has not only absorbed a great deal of the Court's time, it has added to the development of constitutional principles, see, e.g., Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014), application for stay denied, 134 S. Ct (2014), and has also reiterated (in published opinions) several important points 1

2 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 2 of 20 PAGEID #: 7170 Plaintiffs who, after failing to win preliminary relief, seek summary judgment without a "new evidentiary or legal basis," he claims, are acting vexatiously in bad faith. See Doc. No (Felsoci's Letter Threatening Sanctions). 2 The proper course, according to Felsoci, is for plaintiffs who fail to win preliminary relief to immediately and voluntarily dismiss. See Doc. No They have no chance of winning, according to Felsoci. A denial of preliminary relief, after all, is dispositive. Appeal is an option only on an interlocutory basis. Plaintiffs cannot proceed to final judgment and then appeal. See Felsoci's Response, Doc. No. 265, at PAGEID # 7149 n.2. As explained in greater detail below, Felsoci is wrong. Very wrong. 3 There is absolutely nothing improper about moving for summary judgment following an unsuccessful motion for preliminary relief. The practice is standard; it is common. This was precisely the procedural posture, for example, in the well-known case of Citizens United v. Federal Election Commission, 558 U.S. 310, 322 (2010). There, the plaintiff about discovery and professional ethics. For instance, parties must sit for depositions without demanding to know the questions beforehand. See Libertarian Party of Ohio v. Husted, F.R.D. (S.D. Ohio, July 11, 2014) (Kemp, M.J.). Judicial-process privilege does not insulate administrative actors from depositions. See Libertarian Party of Ohio v. Husted, F. Supp.2d (S.D. Ohio, July 14, 2014) (Kemp, M.J.). Last but not least, a lawyer must disclose to his client the identity of the person paying him. This professional obligation creates an enforceable duty, and an opposing party can properly discover the identity of the person paying the lawyer through the lawyer's file if the client does not know or will not reveal it. See Libertarian Party of Ohio v. Husted, 2014 WL (S.D. Ohio, Aug. 12, 2014) (reported in ABA/BNA LAWYERS' MANUAL ON PROFESSIONAL CONDUCT, "Law Firm Must Reveal Identity of Client Who is Funding Another Client's Lawsuit," Aug. 27, 2014, Plaintiffs' case, which Felsoci voluntarily joined, is hardly frivolous. 2 Felsoci followed this letter with another hand-delivered letter on October 31, 2014 which included a copy of a formal motion for sanctions against Plaintiffs (and their lawyers). Felsoci promised on October 31, 2014 to file the formal motion for sanctions on November 21, 2014 unless Plaintiffs immediately dismissed all claims against him. Plaintiffs obviously have not done so. Felsoci's demand is made in bad faith and is specious to say the least. 3 Felsoci is so wrong that one wonders how he and his lawyers could in good faith formally threaten Plaintiffs and their lawyers with sanctions. 2

3 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 3 of 20 PAGEID #: 7171 (Citizens United) first sought a preliminary injunction, which was denied by the District Court. See Citizens United v. Federal Election Commission, 530 F. Supp. 2d 274 (D.D.C. 2008) (denying preliminary injunction). Citizens United then took an interlocutory appeal to the Supreme Court, which was refused. See Citizens United v. Federal Election Commission, 552 U.S (2008). Three or four months later, Citizens United cross-moved for summary judgment in the District Court on exactly the same grounds raised in its previously-denied motion for preliminary relief. The District Court denied this motion and granted summary judgment on the government's motion in a short opinion: This case returns to us on cross motions for summary judgment. Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. There are no genuine issues of material fact presented in this case. Based on the reasoning of our prior opinion, we find that the Federal Election Commission is entitled to judgment as a matter of law. See Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (denying Citizens United's request for a preliminary injunction). Therefore, plaintiff's motion for summary judgment will be DENIED, and defendant's motion for summary judgment will be GRANTED. Accordingly, judgment will be entered for defendant. Citizens United v. Federal Election Commission, 2008 WL , *1 (D.D.C. 2008) (citations and footnote omitted). Citizens United appealed to the Supreme Court and won. The Supreme Court reversed the three-judge District Court's denial of summary judgment. No mention was made by any of the three Judges on the District Court panel, or any of the Justices for that matter, that Citizens United's cross-motion for summary judgment was improper, let alone "remarkable." No one argued that the Supreme Court's prior refusal to hear the interlocutory appeal was dispositive. No Rule 11 threat was leveled. The parties, Judges and Justices understood the propriety and worth of proceeding to final judgment following a denial of preliminary relief. 3

4 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 4 of 20 PAGEID #: 7172 If Felsoci is to be believed, the Supreme Court in Citizens United erred. It should never have reached the merits; Citizens United, after all, should have voluntarily dismissed its case after failing to win preliminary relief. Even if this were not true, the Supreme Court's initial refusal to hear the case should have ended the matter. Felsoci's arguments are frivolous. He fails to cite a single authority for the proposition that seeking summary judgment following a denial of preliminary relief is improper. He cites no case stating that an appeal cannot be taken from final judgment following an unsuccessful interlocutory appeal. He offers no authority for the proposition that the Supreme Court's denial of certiorari, let alone a simple denial of a stay, is dispositive. He produces no authority at all. As explained in more detail below, there are several reasons a plaintiff who unsuccessfully seeks preliminary relief will still choose to proceed to final judgment. Among them: A grant or denial of preliminary relief is not a final decision on the merits. It is not dispositive, has no res judicata or collateral estoppel effect, and does not constitute the law of the case. See Wilcox v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989) (discussed, infra, at page 5). The standard for winning preliminary relief is different and "more stringent" than for winning summary judgment. See Leary v. Daeschner, 349 F.3d 888, 901 (6th Cir. 2003) (discussed, infra, at page 6). Thus, a plaintiff's lack of success seeking preliminary relief does not mean that he cannot prevail on precisely the same evidence and arguments in a motion for summary judgment. A plaintiff who unsuccessfully seeks preliminary relief still retains the right to take an appeal from a final judgment, the review standards of which are less demanding than those surrounding a denial of preliminary relief. See Weaver v. University of Cincinnati, 970 F.2d 1523, 1538 (6th Cir. 1992) (discussed, infra, at page 7-8). A plaintiff who unsuccessfully seeks preliminary relief retains the right to seek review of an adverse final judgment in the Supreme Court of the United States. The Supreme Court prefers to wait for final judgment before granting review. See Virginia Military Institute v. United States, 508 U.S. 946, 946 (1993) (Scalia, J.) (discussed, infra, at page 11). An appellant's chances of winning review from the Supreme Court are much better following final judgment as opposed to interlocutory appeal. 4

5 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 5 of 20 PAGEID #: 7173 A. Denial of Preliminary Relief Is Not a Decision on the Merits and Is Not the Law of the Case. The Sixth Circuit in Wilcox v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989), plainly stated that factual and legal conclusions rendered in the context of motions for preliminary injunctions are not decisions on the merits: Because of the lesser burden of proof required to support a motion for preliminary injunction as contrasted with a motion for summary judgment, a trial court's disposition of the substantive issues joined on a motion for extraordinary relief is not dispositive of those substantive issues on the merits. As a general rule, decisions on preliminary injunctions do not constitute law of the case and parties are free to litigate the merits. (Citations omitted). Further, the [r]efusal to stay a preliminary injunction pending appeal does not establish the law of the case since it rests on nothing more than a tentative appraisal of the probable result on the merits. Id. Consequently, the Court explained in Wilcox, "[t]he district court's conclusion in the denial of the preliminary junction... only demonstrated that Wilcox [the plaintiff] was unlikely to succeed on the merits." Id. The rule is well-established that preliminary factual and legal conclusions are not final and are not binding. Id. (quoting Technical Publishing Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984) ( A factual finding made in connection with a preliminary injunction is not binding on a motion for summary judgment.)). Factual and legal conclusions rendered in decisions on preliminary injunctions are not the law of the case. Id. (citing City of Angoon v. Hodel, 803 F.2d 1016, 1024 n.4 (9th Cir. 1986) (determinations corresponding to a preliminary injunction do not constitute the law of the case); Sierra Club v. U.S. Army Corps of Engineers, 771 F.2d 409, 413 (8th Cir. 1985) (same)). See also Overstreet v. Lexington-Fayette Urban County Govt., 115 Fed. Appx. 806, (6th Cir. 2004) ("This court's purpose at that point in the litigation was to determine whether the district court's order regarding the injunction 5

6 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 6 of 20 PAGEID #: 7174 constituted an abuse of discretion; such a review had no bearing on the merits of the case."). RESTATEMENT (SECOND) OF JUDGMENTS 13 ( The rules of res judicata are applicable only when a final judgment is rendered. ); University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) ("A party thus is not required to prove his case in full at a preliminary injunction hearing and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.") (emphasis added). Because factual and legal conclusions rendered in the context of preliminary injunction motions are not dispositive and do not constitute the law of the case, it is common for courts following the grant or denial of preliminary relief to proceed to dispositive motions, like those filed for summary judgment. See, e.g., Citizens United v. Federal Election Commission, 2008 WL , *1 (D.D.C. 2008) (discussed supra); Oglesby Const. Co. v. Skinner, 904 F.2d 707 (6th Cir. 1990) (table). As demonstrated by Citizens United v. Federal Election Commission, 2008 WL , *1 (D.D.C. 2008) (discussed, supra, at page 3), this remains true following an unsuccessful interlocutory appeal. In the Sixth Circuit, for instance, the Court in Leary v. Daeschner, 349 F.3d 888, 901 (6th Cir. 2003), described the procedural posture of the case before it: On the Plaintiffs' request for injunctive relief, the district court determined that Plaintiffs failed to make the showing of a substantial or motivating factor because the evidence that they were transferred for confrontations with Howard was undermined by Howard's resignation and because the protected speech occurred over a long period of time. We affirmed that decision on the basis that the district court's factual findings were not clearly erroneous. Because Plaintiffs failed to produce any new evidence on this issue in response to Daeschner's motion for summary judgment, the district court relied on its findings from the preliminary injunction hearing. (Citation and footnotes omitted). See also Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009) (final judgment entered following denial of preliminary injunction and unsuccessful interlocutory 6

7 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 7 of 20 PAGEID #: 7175 appeal); Libertarian Party of Louisiana v. Dardenne, 595 F.3d 215 (5th Cir. 2010) (final judgment entered following grant of preliminary injunction, stay on interlocutory appeal and dismissal of interlocutory appeal). 4 B. The Standards for Winning Summary Judgment And Appellate Relief Following Final Judgment Differ from those Surrounding Preliminary Relief. The Sixth Circuit in Daeschner, 349 F.3d at 901 n.16, observed: "Although we affirmed the district court's denial of a preliminary injunction, we clearly stated that the standard required for a preliminary injunction is more 'stringent' than that required for summary judgment. We explicitly declined to express an opinion on the merits of Plaintiffs' case." Not only is the standard for preliminary relief in the District Court "more stringent" than for summary judgment, the standard for reversal of a denial of preliminary relief on interlocutory appeal is more difficult to meet than the standard for review of final judgment. In Weaver v. 4 The undersigned (Brown) has participated as counsel for minor political parties in a number of ballot access suits that were procedurally no different from the present one. No court in the undersigned's experience has ever questioned the propriety of a party's proceeding to final judgment following a grant or denial of its motion for preliminary relief. Moore v. Hosemann, 591 F.3d 741 (5th Cir. 2009), and Libertarian Party of Louisiana v. Dardenne, 595 F.3d 215 (5th Cir. 2010), are illustrative. In Moore v. Hosemann, 591 F.3d 741, 743 (5th Cir. 2009), the plaintiff (the Socialist Party candidate for President) challenged a Mississippi election deadline and sought preliminary injunction. This was denied by the District Court. An interlocutory appeal was immediately taken. Following the Fifth Circuit's denial of emergency relief, plaintiff dismissed his interlocutory appeal and returned to the District Court to seek a final declaratory judgment. The District Court denied this based on mootness. Plaintiff appealed this final judgment. The Fifth Circuit ruled that the case was not moot and remanded for further proceedings. In Libertarian Party of Louisiana v. Dardenne, 294 Fed. Appx. 142 (5th Cir. 2008), the plaintiff challenged the exclusion from the ballot of its presidential candidate following the creation of a new deadline in the wake of Hurricane Gustav. After winning preliminary relief in the District Court, the injunction was set aside by the Fifth Circuit. Plaintiff and Defendant then dismissed the interlocutory appeal following the election, see Libertarian Party of Louisiana v. Dardenne, 308 Fed. Appx. 861 (5th Cir. 2009), and Plaintiff returned to the District Court in order to seek a final judgment in its favor. See Libertarian Party of Louisiana v. Dardenne, 595 F.3d 215 (5th Cir. 2010). The District Court entered final judgment on mootness grounds and the plaintiff appealed unsuccessfully to the Fifth Circuit. Id. 7

8 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 8 of 20 PAGEID #: 7176 University of Cincinnati, 970 F.2d 1523, 1538 (6th Cir. 1992),the Sixth Circuit explained the difference: That panel had before it an interlocutory appeal from a denial of a preliminary injunction. In such an appeal, the determinative question is whether the district court abused its discretion in denying an injunction at an early stage in the litigation. The merits of the case are not ripe for decision at that point in the proceedings. See also Overstreet v. Lexington-Fayette Urban County Govt., 115 Fed. Appx. 806, (6th Cir. 2004) ("This court's purpose at that point in the litigation was to determine whether the district court's order regarding the injunction constituted an abuse of discretion; such a review had no bearing on the merits of the case."). In the present case, of course, Plaintiffs failed to win preliminary relief under Counts Six, Seven, Eight and Nine. That failure was affirmed by the Sixth Circuit in regard to Counts Six and Eight. 5 See Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014), application for stay denied, 134 S. Ct (2014). Neither this Court's denial, the Sixth Circuit's affirming it, or the Supreme Court's refusal to accept the application for a stay, constitute decisions on the merits. None constitutes the law of the case. None of these constitutes claim preclusion (res judicata) or issue preclusion (collateral estoppel). A final judgment is still needed; both to bring an end to the case and to preserve Plaintiffs' right to appeal from final judgment. C. Refraining from Appealing a Denial of Preliminary Relief Does Not Preclude Appeal from Final Judgment. Contrary to Felsoci's claim, see Felsoci's Response at PAGEID # 7149 n.2, a party's ability to take an interlocutory appeal is not a substitute for the right to take an appeal from final 5 Plaintiffs did not take an as-applied appeal under Count Seven in Libertarian Party of Ohio v. Husted, 751 F.3d 403 (6th Cir. 2014), application for stay denied, 134 S. Ct (2014). Nor did they take an interlocutory appeal under Count Nine, which was added later on September 11, As explained in Chambers v. Ohio Department of Human Services, 145 F.3d 793, 796 (6th Cir. 1998), the decision to not take an interlocutory appeal on an issue does not prejudice a plaintiff's right to seek final judgment or take an appeal from final judgment on that issue. 8

9 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 9 of 20 PAGEID #: 7177 judgment. Nor does the failure to take an interlocutory appeal prejudice in any way a party's right to take an appeal from final judgment. The Sixth Circuit in Chambers v. Ohio Department of Human Services, 145 F.3d 793, 796 (6th Cir. 1998), stated that "[i]t is clear that parties are not required to file an interlocutory appeal; rather, a party may forgo an interlocutory appeal and present the issue to this court after final judgment." (Quoting 11A C. WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE 2962 (1973 & Supp. 1997) as "stating that 1292(a)(1) 'merely permits interlocutory appeal; a party does not waive any rights [of appeal of interlocutory orders at the time of final judgment] by failing to seek immediate review' ) (additional citations omitted). 6 One reason a party who is denied preliminary relief might choose not to take an interlocutory appeal, of course, is the more-difficult-to-overcome standard of review. Another problem is temporal; in the context of ballots and elections claims to preliminary relief can quickly become moot. See Bogaert v. Land, 543 F.3d 862, 864 (6th Cir. 2008). 7 Plaintiffs in this case chose not to take an interlocutory appeal because time was too short, the election was approaching, and their appeal risked being mooted before the Sixth Circuit could consider the case, let alone order relief. Chambers makes clear that Plaintiffs had 6 An appellant's decision not to raise all potential issues on interlocutory appeal does not constitute a waiver of those issues in future proceedings either in the District Court, see Overstreet v. Lexington-Fayette Urban County Govt., 115 Fed. Appx. 806, 810 (6th Cir. 2004) ("A decision not to appeal certain issues denied at the preliminary injunction stage in no way diminishes an individual's right to pursue those issues in the district court."), or on subsequent appeal from final judgment. Id. at ("such a review had no bearing on the merits of the case"). 7 As explained by the Sixth Circuit in Bogaert v. Land, 543 F.3d 862, 864 (6th Cir. 2008), while intervening elections often moot interlocutory appeals to awards and denials of preliminary relief, [d]ismissal of these preliminary-injunction appeals does not render moot the underlying district court litigation. Consequently, Plaintiffs' claims in the present case remain alive even though their motion for preliminary relief restoring Earl to the ballot is now moot. 9

10 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 10 of 20 PAGEID #: 7178 no obligation to take an interlocutory appeal. Their decision not to do so cannot waive anything. 8 Plaintiffs retain the right to appeal from final judgment if they so choose. Bogaert v. Land, 543 F.3d 862, 864 (6th Cir. 2008), meanwhile, makes clear that Plaintiffs' case remains alive in this Court, and that an appeal from final judgment would not experience the same temporal problems presented by an interlocutory appeal. D. The Supreme Court Prefers to Hear Appeals from Final Judgments. Felsoci suggests that the Supreme Court's refusal to stay the Sixth Circuit's decision 9 is somehow relevant to the propriety of Plaintiffs' proceeding to final judgment. See, e.g., Felsoci's Response at PAGEID # Felsoci is again wrong. The fact is that even if Plaintiffs had been denied certiorari, that would not have impacted in any way their right to seek final judgment in their favor. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310, 322 (2010) (discussed, supra, at page 3). A denial of certiorari is not a decision on the merits. Moreover, "[t]he rule that denial of certiorari does not import any view on the merits means that the Court is free to grant certiorari following a final judgment after denying a petition directed to an interlocutory court of appeals ruling in the same case." 16B C. WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE (3d ed. 2014). See also Washington v. Washington State Commercial Passenger Fishing Vessel 8 The District Court's denial of preliminary relief will merge into its final judgment. See 84 Video/Newstand, Inc. v. Santini, 2009 WL , *1 (6th Cir. 2009) ("The denial of injunctive relief has merged into the final judgment."). "Any issues that are not mooted may be raised in the plaintiffs' appeal from that judgment." Id. (citing McLaurin v. Fischer, 768 F.2d 98, (6th Cir. 1985) (holding that an appeal from a final judgment draws into question all prior nonfinal rulings and orders)). 9 Felsoci incorrectly states that Plaintiffs filed two emergency applications for relief with the Supreme Court. Felsoci's Response, Doc. No. 265, at PAGEID # Plaintiffs filed only one. By Supreme Court Rule it went first to Justice Kagan. The same application was then directed to Justice Thomas who referred it to the full Court. This single Application was denied. See Libertarian Party of Ohio v. Husted, 134 S. Ct (2014). 10

11 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 11 of 20 PAGEID #: 7179 Association, 443 U.S. 658, 672 n.19 (1979) ("Our earlier denial came at an interlocutory stage in the proceedings the District Court has retained continuing enforcement jurisdiction over the case so that we certainly are not required to treat the earlier disposition as final for our purposes."); Amcast Industrial Corp. v. Detrex Corp., 45 F.3d 155, 160 (7th Cir. 1995) ("A denial of certiorari from one of these nonfinal decisions does not preclude a grant of certiorari to review the identical issue at a later stage in the case."). The same is true where an interlocutory appellant simply chooses not to seek certiorari, as was the case here. 10 "[F]ailure to seek review, or an unsuccessful petition, do not preclude review of all issues in the case after complete disposition in further proceedings." 16B C. WRIGHT, supra, 4036 (3d ed. 2014); Major League Baseball Players Association v. Garvey, 532 U.S. 504, 508 n.1 (2001) ("we have authority to consider questions determined in earlier stages of the litigation where certiorari is sought from the most recent of the judgments of the Court of Appeals."). Indeed, the Supreme Court prefers to take cases following final judgment rather than on interlocutory appeal. Justice Scalia explained this in Virginia Military Institute v. United States, 508 U.S. 946, 946 (1993) (Scalia, J., statement respecting denial of certiorari), a federal case that was on interlocutory appeal from the Fourth Circuit when the Supreme Court denied certiorari: We generally await final judgment in the lower courts before exercising our certiorari jurisdiction. See, e.g., American Constr. Co. v. Jacksonville, T. & K.W.R. Co., 148 U.S. 372, 384 (1893); Locomotive Firemen v. Bangor & Aroostook R. Co., 389 U.S. 327, 328 (1967) (per curiam ); see generally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 4.18, pp (6th ed. 1986). He added: "I think it prudent to take that course here. Our action does not, of course, preclude VMI from raising the same issues in a later petition, after final judgment has been rendered." Id. 10 Plaintiffs only applied for a stay from the Sixth Circuit's decision. They did not petition for certiorari. 11

12 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 12 of 20 PAGEID #: 7180 II. Appeal from Final Judgment Requires That Arguments Be Properly Preserved. Plaintiffs believe that Counts Six through Nine present claims and arguments that might be of interest to the Supreme Court. Count Six's facial challenge to Ohio's employer-statement rule, in particular, presents an issue that presents a possible conflict in the Circuits. Counts Seven, Eight and Nine, meanwhile, present significant constitutional claims that have yet to be fully addressed by the Sixth Circuit. 11 They, too, could draw the Supreme Court's attention. In order to preserve their right to appeal and seek Supreme Court review, it is imperative for Plaintiffs to properly preserve their arguments and the factual record on which they rely. In order to do this, Plaintiffs have submitted the legal arguments and evidentiary support used to seek preliminary relief to this Court through their cross-motion for summary judgment. Felsoci goes to lengths to argue that Plaintiffs' motion for summary judgment was improperly pleaded. He even argues that it was pleaded for an improper purpose. See Felsoci's Response, Doc. No. 265, at PAGEID # Not one of his arguments has merit. Plaintiffs cross-moved for summary judgment under Counts Six, Seven, Eight and Nine and incorporated the legal arguments and factual proof they submitted in their motions for preliminary relief for two specific reasons: first, as explained above, winning summary judgment remains possible notwithstanding their having failed to garner preliminary relief. Second, Plaintiffs seek to insure that the legal arguments and factual proof they presented to the Court in their motions for preliminary relief are included in the summary judgment record to protect their right to take an appeal. 11 When Count Eight was first presented to the Sixth Circuit following this Court's denial of preliminary relief in March 2014, it did not have the benefit of discovery. Plaintiffs did not know that Professor Smith had first drafted a report concluding that Ohio's employer-statement rule did not apply to independent contractors. Armed with that fact, an appeal under Count Eight would now be an as-applied challenge, which the Sixth Circuit has yet to consider. 12

13 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 13 of 20 PAGEID #: 7181 Felsoci would have the Court believe that including legal claims and evidence in a summary judgment motion in order to insure that they can be considered on appeal is improper. See Felsoci's Response, Doc. No. 265, at PAGEID # 7149 n.2. As demonstrated by Citizens United v. Federal Election Commission, 558 U.S. 310, 322 (2010) (discussed, supra, at page 3), the argument contradicts established practice. Parties re-submit legal arguments rejected at the preliminary injunction stage for summary judgment in order to proceed on appeal from final judgment all the time. To not do so could (or would) constitute malpractice. Still, Felsoci attempts to support his claim by citing three cases, Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995); KiSKA Construction Corporation, U.S.A. v. Washington Metropolitan Transportation Authority, 321 F.3d 1151, 1163 n.15 (D.C. Cir. 2003); and SanDisk Corp. v. Kingston Technology Co., Inc., 695 F.3d 1348, 1355 (Fed. Cir. 2012), for his startling proposition. Not one of the cases offers any support. The question in Flynn v. Sandahl was whether an appellant's failure to raise issues in either a summary judgment motion or response precluded him from raising them on appeal. The Seventh Circuit ruled it did not. Id. at 288. It merely ruled that one need not necessarily preserve appellate issues through motions or responses to summary judgment. It nowhere stated that preserving appellate review by including issues in summary judgment motions was improper. It simply excused the failure to do so. Not all courts agree with the Seventh Circuit's forgiving standard for preserving issues on appeal. Some have ruled that where an appeal is taken from summary judgment, issues and facts must be properly presented to the District Court in either a summary judgment motion itself or a summary judgment response in order to be considered on appeal. For example, in Cox v. Desoto County, 564 F.3d 745, 749 n.4 (5th Cir. 2009), the Fifth Circuit expressly rejected the Seventh 13

14 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 14 of 20 PAGEID #: 7182 Circuit's holding in Flynn v. Sandahl. On appeal from summary judgment, claims must be raised at summary judgment: In a post-argument letter, [the appellant's] counsel contends that this court should consider the mixed-motive issue despite the absence of any raising of this issue before the district court, citing to certain Seventh Circuit cases [including Flynn v. Sandahl]. However, he concedes that Fifth Circuit precedent, by which we are bound, is to the contrary. Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005) ( It is well settled in this Circuit that the scope of appellate review on a summary judgment order is limited to matters presented to the district court. ). See also Potter v. District of Columbia, 558 F.3d 542, 547 (D.C. Cir. 2009) (holding that a court of appeals can only review arguments that were made in the district court). The additional cases relied on by Felsoci, KiSKA Construction Corporation, U.S.A. v. Washington Metropolitan Transportation Authority, 321 F.3d 1151 (D.C. Cir. 2003), and SanDisk Corp. v. Kingston Technology Co., Inc., 695 F.3d 1348 (Fed. Cir. 2012), add no further support to his remarkable claim. Indeed, SanDisk, a complicated patent case, contradicts Felsoci's point. The appellee there claimed that the appellant waived certain "constructions for claims" because it had not raised them at the summary judgment stage. The Court refused to find a waiver because the appellee had represented to the lower court that these "constructions" were the same as several constructions the appellant had raised. But for the appellee's representation, the appellant's failure to properly present the claims at the summary judgment stage would have likely constituted a waiver on appeal. KiSKA, meanwhile, supports the Fifth Circuit's conclusion in Cox that an appellant must raise issues at the summary judgment stage to preserve them for appeal. In KiSKA, the appellee argued that the appellant had waived a legal argument because it did not include it in its own motion for summary judgment. The court in a footnote rejected the waiver argument because the appellant had in fact fully raised the argument in its response to the appellee's motion for 14

15 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 15 of 20 PAGEID #: 7183 summary judgment: "once the district court held that the contract was 'ambiguous' in this regard, KiSKA did not need to file its own motion for summary judgment in order to preserve the issue for appeal." Id. at 1355 n.15. Had it not raised the argument at the summary judgment stage one way or the other, it would have been waived. For its part, the Sixth Circuit has made clear that appellants cannot "advance new theories or raise new issues in order to secure a reversal of the lower court's grant of summary judgment." Wright v. Holbrook, 794 F.2d 1152, 1157 (6th Cir. 1986); Pinney Dock & Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir. 1988) ( It is the general rule... that a federal appellate court does not consider an issue not passed upon below. ) (citation omitted); One Beacon Insurance Co. v. Chiusolo, 295 Fed. Appx. 771, 774 (6th Cir. 2008) ("In general, we are unwilling to consider an argument not raised in the district court and presented for the first time on appeal."). This appears to be the accepted rule. See 10A C. WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE 2716 (3d ed. 2014) ("The appellate court is limited in its review in two ways. First, it can consider only those papers that were before the trial court. The parties cannot add exhibits, depositions, or affidavits to support their position. Nor can they advance new theories or raise new issues in order to secure a reversal of the lower court's determination.") (footnotes omitted). In the present case, if Plaintiffs were not to have moved or cross-moved for summary judgment under Counts Six, Seven, Eight and Nine, while moving for summary judgment under the other Counts in their Third Amended Complaint, their failure might be perceived as an abandonment of those claims. Further, because Defendant-Secretary's motion for summary judgment was filed before the evidentiary hearing commenced on September 29, 2014, Plaintiffs' response to that motion did not include any reference to the evidence and arguments presented at 15

16 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 16 of 20 PAGEID #: 7184 that hearing. To guarantee that this evidence and the accompanying legal arguments are considered by this Court at the summary judgment stage, and to insure that they are properly preserved for any appeal that may follow, Plaintiffs included them in their cross-motion for summary judgment. 12 III. Incorporating Prior Arguments and Proof By Reference Following a Denial of Preliminary Relief is Common. Felsoci argues that Plaintiffs' cross-motion for summary judgment under Counts Six, Seven, Eight and Nine is improper because it incorporates legal arguments and evidentiary submissions included in other documents of record by reference. See Felsoci's Response, Doc. No. 265, at PAGEID # He claims that by doing so, Plaintiffs failed to specify the relevant legal issues and the relevant parts of the evidentiary record needed to resolve the dispute. Id. at PAGEID #7147. Incorporating legal arguments and proof previously submitted in a failed (or successful) motion for preliminary injunction into a subsequent motion for summary judgment is not uncommon. See, e.g., Salvagio v. Madison Realty Capital, L.P., 2012 WL , *4, *6 (S.D. Tex. 2012) (stating that arguments made in motion for preliminary injunction had been incorporated by reference into motion for summary judgment); Murphy v. Zoning Commission of the Town of Milford, 289 F. Supp. 2d 87, 112 (D. Conn. 2003) (same); Bronx Household of Faith v. Board of Education of New York, 876 F. Supp. 2d 419, 424 & n.6 (S.D.N.Y. 2012) (same); Hitachi Medical Systems America, Inc. v. Branch, 2011 WL , *11 (N.D. Ohio 2011) (same); Barnstead Broadcasting Corp. v. Offshore Broadcasting Corp., 886 F. Supp. 874, 882 (D.D.C. 1995) (same). 12 It is odd that Plaintiffs must justify why they seek summary judgment. One must remember, however, that Felsoci has threatened Plaintiffs and their lawyers with sanctions because he claims that Plaintiffs and their lawyers are proceeding to final judgment in bad faith. 16

17 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 17 of 20 PAGEID #: 7185 After all, the proof and legal arguments supporting one are often identical to the proof and legal arguments made in the other. The standards differ, but nothing is necessarily served by requiring the parties to restate that which has come before. See Citizens United v. Federal Election Commission, 2008 WL *1 (D.D.C. 2008) (discussed, supra, at page 3). Plaintiffs have already won preliminary relief under Counts One through Three. They failed to win preliminary relief under Counts Six through Nine. Plaintiffs offer no additional arguments in support of one or the other. Felsoci cites no authority for the proposition that the practice is improper or demonstrates bad faith. So long as the incorporated documents and evidence that were previously submitted via Plaintiffs' motion for preliminary injunction state the legal issues and identify the proof relied upon, as Plaintiffs' documents clearly do here, they can support summary judgment. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310, 322 (2010) (discussed, supra, at page 3). They may not, but that does not render the motion improper. Plaintiffs' incorporated documents specifically state the legal arguments made and evidence needed to support Plaintiffs' motion for preliminary relief. Those same legal arguments and evidence support Plaintiffs' cross-motion for summary judgment. The Court just conducted a two-day evidentiary hearing including several witnesses, has considered dozens of documents, and has read the full texts of numerous depositions. The Court, having just rendered a 36-page decision including detailed factual findings and considered legal conclusions, is obviously wellversed in the legal arguments presented in this case and the proof used to support them. See Doc. No. 260 (Opinion and Order). Felsoci may now want to waste the Court's time and fully relitigate the case and ask the Court to reconsider the proof; Plaintiffs do not Plaintiffs would be remiss if they did not respond to Felsoci's apparent concern over Bob Bridges's failure to testify at the hearing. See Felsoci's Response, Doc. No. 265, at 7158 n

18 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 18 of 20 PAGEID #: 7186 This Court has expressed a preference for brevity in briefs. Local Rule 7.2(a) states: "The Court prefers that memoranda in support of or in opposition to any motion or application to the Court not exceed twenty pages." Plaintiffs' memorandum in support of its motion for summary judgment on all nine Counts in the Third Amended Complaint totaled exactly 20 pages. Restating the legal arguments under Counts Six through Nine, not to mention the legal arguments supporting Counts One through Three, all of which have already been thoroughly addressed by the Court, would waste the Court's time. This case includes nine Counts. It would be physically impossible to do independently address summary judgment under each Count in a twenty-page brief. As for evidentiary submissions, Local Rule 7.2(d), states that "[w]hen proof of facts not already of record is necessary to support or oppose a motion, all evidence then available shall be discussed in, and submitted no later than, the primary memorandum of the party relying upon such evidence." (Emphasis added). Likewise, Local Rule 7.2(e) states in regard to the evidence needed to support a motion that "[u]nless already of record, such evidence shall be attached to the memorandum or included in an appendix thereto." (Emphasis added). Plaintiffs' supporting proof for their motion for summary is already in the record; re-submitting the proof would again waste the Court's time. * * * All parties to this proceeding appear to be interested in finality. Defendant-Secretary has moved for summary judgment under Counts Six through Nine, see Doc. No. 205, and is due to Felsoci mentions his same "troubling" concern in his threatened motion for sanctions. Bridges could not correctly remember, six months later, when precisely he learned of certain events. He stated at his deposition: "I don't recall the date, but I remember snow and cold." Doc. No at PAGEID # He made a mistake about the hearing before which he learned of Smith's involvement with the Ohio Attorney General. See Exhibit 1 at 6-10 (Bridges Declaration). 18

19 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 19 of 20 PAGEID #: 7187 Respond to Plaintiffs' cross-motion for summary judgment under these same Counts, see Doc. No. 261, by November 17, Plaintiffs have also moved for summary judgment under Counts One through Five, id., with Defendant-Secretary's Response being due on November 17, Plaintiffs will file any needed Reply in short order. Felsoci, too, has cross-moved for summary judgment under Counts Six through Nine. See Doc. No Intervenor-Defendant-Ohio and Intervenor-Plaintiffs (ACLU) have both crossmoved for summary judgment and completed briefing. See Doc. No. 165 (Intervenor-Plaintiffs' Motion for Summary Judgment); Doc. No. 185 (Intervenor-Defendant-Ohio's Response and Cross-Motion); Doc. No. 216 (Intervenor-Plaintiffs' Reply); Doc. No. 258 (Intervenor- Defendant-Ohio's Reply). Time remains of the essence in this matter, since Plaintiff-LPO's right to maintain its status as a political party and retain its members may soon expire if S.B. 193 takes effect. 14 Plaintiffs see no need to re-litigate the arguments and facts that have already been so thoroughly addressed by this Court. The only remaining question at this stage is who, given the facts and legal arguments previously made, is entitled to final judgment. 14 Following this year's primary, LPO's membership nearly doubled to over 9500 fully registered members. See Exhibit 1 at 5 (Bridges Declaration). The LPO will lose these members if S.B. 193 takes effect. 19

20 Case: 2:13-cv MHW-TPK Doc #: 266 Filed: 11/16/14 Page: 20 of 20 PAGEID #: 7188 CONCLUSION Plaintiffs respectfully cross-move for SUMMARY JUDGMENT. Respectfully submitted, s/ Mark R. Brown Mark G. Kafantaris Mark R. Brown, Trial Counsel Ohio Registration No Ohio Registration No City Park Avenue 303 East Broad Street Columbus, OH Columbus, OH (614) (614) (614) (fax) (614) (fax) CERTIFICATE OF SERVICE I certify that this Response/Reply was filed using the Court's electronic filing system and will thereby be electronically delivered to all parties through their counsel of record. s/mark R. Brown Mark R. Brown 20