WALTER H. RICE, District Judge.
Following their removal from the Montgomery County Board of Elections ("the Board") by Defendant Jon Husted, Plaintiffs Dennis Lieberman and Thomas Ritchie, Sr., filed suit against Husted, individually
In addition to money damages, Plaintiffs sought temporary and permanent injunctive relief in the form of an order deferring any action to replace them as members of the Board and requiring the Secretary of State to restore them to their previous positions. This matter is currently before the Court on Plaintiffs' request for a preliminary injunction. The Court held a hearing on September 21, 2012, and the parties subsequently filed post-hearing briefs.
Under Ohio law, each county Board of Elections consists of two Republicans and two Democrats. See Ohio Revised Code § 3501.06. In the months leading up to this lawsuit, members of the Montgomery County Board of Elections included Republicans Greg Gantt and Kay Wick, and Democrats Thomas Ritchie, Sr., and Dennis Lieberman. Plaintiff Ritchie, the Chairman of the Board, was first appointed to the Board in 1995, having been appointed to his current term of four years on February 28, 2010. Plaintiff Lieberman has served on the Board since 2001, having been appointed to his current four-year term on February 28, 2012.
In many places throughout the State of Ohio, the 2004 presidential election was plagued by long lines at the polls. In an effort to remedy the problem, the State decided to allow county boards of elections to establish early voting hours, whereby voters could appear in person to cast absentee ballots in the weeks leading up to an election. Since 2005, early voting, including early weekend voting, has been offered in Montgomery County and elsewhere around Ohio. Hr'g Tr. at 44-46.
In Montgomery County, 29,000 people cast early in-person votes in the 2008 presidential election. Of those, 12,000 people, many of them minorities, cast their votes on the weekends. Lieberman Aff. ¶¶ 12-13; Hr'g Tr. at 57. In December of 2011, after the Ohio legislature sought, ultimately unsuccessfully, to eliminate the last three days of early in-person voting, the Montgomery County Board of Elections unanimously voted to continue early in-person weekend voting for the 2012 presidential election, except for the last weekend before the election, relying on Ohio Revised Code § 3509.03, which requires the polls to close by 6:00 p.m. on the last Friday before the election. Defs.' Ex. 3. By spreading out the voting over the course of several weeks, the Board was able to eliminate some precincts and polling places on Election Day, saving the county almost $200,000. Hr'g Tr. at 46.
On August 15, 2012, the Ohio Secretary of State, Republican Jon Husted, issued Directive 2012-35 to all county boards of elections. Defs.' Ex. 4. The Directive concerned "In Person Absentee Voting Days and Hours." In that Directive, Husted acknowledged that local boards of elections have the authority to set their own hours of operation for in-person absentee voting, but noted that this leads to a "patchwork" of policies that vary from county to county. Seeking "to level the playing field on voting days and hours during the absentee voting period in order to ensure that the Presidential Election in Ohio will be uniform, accessible for all, fair, and secure," Husted directed all county boards of elections to adopt the "regular business hours" set forth in the Directive, on Mondays
The Board met early on the morning of Friday, August 17, 2012, to discuss Directive 2012-35. According to the transcript of that meeting, Lieberman, referring to the Directive, initially stated, "from my read of this he's eliminated all weekend early voting." Defs.' Ex. 6, at p. 6. Lieberman believed that Husted lacked authority to eliminate early weekend voting. In Lieberman's view, eliminating early weekend in-person voting would be unconstitutional because it would disparately impact minority voters. In addition, each local board of elections was required to "keep its offices and rooms open for a period of time that the board considers necessary for the performance of its duties," Ohio Revised Code § 3501.10(B), and to "[f]ix and provide the places ... for holding elections," Ohio Revised Code § 3501.11(B). In 2011, the Board determined that early weekend in-person voting was necessary for the 2012 presidential election.
Lieberman therefore stated that he was "going to move that we do not follow the directive when it comes to weekend voting and that we keep our schedule for weekend voting." Defs.' Ex. 6, at p. 6-7. He explained that, in his opinion, because the Directive was completely silent on the subject of weekend voting, his motion was not inconsistent with it.
The vote split down party lines, with Ritchie and Lieberman voting in favor of the motion, and Gantt and Wick voting against it. Under Ohio law, in cases of a tie vote, the Board is to submit the matter to the Secretary of State within 14 days, "who shall summarily decide the question" and whose decision is final. Ohio Revised Code § 3501.11(X). The parties agreed to submit their position papers on the tie vote to the Secretary of State by August 22, 2012, and then agreed to recess the meeting. Defs.' Ex. 6, at p. 11-12.
Shortly after the morning meeting ended, Betty Smith, the Director of the Montgomery County Board of Elections, notified the Secretary of State's Office of the tie vote. Later that same morning, Matt Damschroder, Director of Elections for the Ohio Secretary of State, sent a letter to Ritchie, with copies to the other Board members.
Lieberman nevertheless refused to rescind the motion. After expressing his belief that no other board member had authority to rescind a motion that he alone had made, Lieberman moved to adjourn the meeting. Gantt seconded the motion and the Board voted in favor of adjournment. Id. at 11-12.
At that point, the Board assumed that they would submit position papers on the issue as originally planned, so that the Secretary of State could break the tie vote. At 6:00 that same evening, however, before any briefs had been submitted, the Secretary of State sent a letter to Betty Smith, breaking the tie. He determined that no early weekend voting would be allowed. Husted stated, "[g]iven that only 45 days remain until in person absentee voting begins (October 2, 2012) and the unmistakable clarity provided by my office both in Directive 2012-35 and my Director of Elections' letter to the Montgomery County Board of Elections earlier today (attached), it is unnecessary to wait another two weeks to resolve this matter." Defs.' Ex. 9.
By separate letter, also dated August 17, 2012, Husted notified Lieberman and Ritchie that, pursuant to Ohio Revised Code § 3501.16, he was beginning the process of removing them as members of the Board for nonfeasance, citing their refusal to act in accordance with Directive 2012-35.
Allison issued a 15-page Report and Recommendation on August 27, 2012, recommending that the Secretary of State remove Lieberman and Ritchie from their positions as Board members. He acknowledged that it was clear that Lieberman and Ritchie believed that Lieberman's motion, made on the morning of August 17, 2012, was consistent with Directive 2012-35. However, Allison rejected their argument that the Directive was ambiguous concerning weekend hours for in-person absentee voting, particularly when read in conjunction with Damschroder's letter. Regardless of whether Plaintiffs had acted in good faith in the morning, Damschroder's letter left no doubt as to the meaning of the Directive. Allison concluded that Lieberman, "in making his motion, voting for it and later refusing to rescind it did so in contravention of Directive 2012-35 and in violation of R.C. 3501.11," and that Ritchie, "who seconded the motion and voted for it, also did so in contravention of R.C. 3501.11."
On August 28, 2012, Husted, following Allison's recommendation, dismissed Lieberman and Ritchie from the Board for their failure to follow Directive 2012-35. In the letter of dismissal, Husted stated:
Defs.' Ex. 14.
On August 30, 2012, Husted directed the Montgomery County Democratic Party to nominate successor Board members no later than September 12, 2012. Defs.' Ex. 15.
On September 10, 2012, Lieberman and Ritchie filed their Complaint, along with their motion for a temporary restraining order. Docs. ## 1, 2. Noting that the election was just around the corner, they argued that if the requested relief were not granted, the Board would lack a quorum and would be unable to function. In addition, Plaintiffs noted that, between them, they have almost thirty years of experience managing elections in Montgomery County. They maintained that because any newly-appointed members would face a steep learning curve, public interest demanded that Plaintiffs be reinstated to their positions on the Board.
During a conference call with counsel on September 11, 2012, the Court acknowledged that the Democratic Party had nominated successor Board members and that Husted had issued their certificates of appointment earlier that day. Accordingly, counsel for Plaintiffs amended their request for a temporary restraining order to include rescission of those new appointments. The successor appointees, Rhine
In their Fourth Claim for Relief, Plaintiffs requested "temporary and permanent injunctive relief." Compl. ¶ 66. Although Plaintiffs did not file a separate motion for a preliminary injunction, the Court proceeded in accordance with this prayer for relief, and set the matter for a preliminary injunction hearing, which was held on September 21, 2012.
Federal Rule of Civil Procedure 65 allows the Court, in its discretion, to issue a preliminary injunction.
In determining whether a preliminary injunction should be granted, the Court must consider and balance the following four factors: "(1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief." Hamilton's Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir.2007) (quotation omitted). The movant must make a "clear showing" that he or she is entitled to injunctive relief. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
The first factor to be considered is whether Plaintiffs can establish a substantial likelihood or probability of success on the merits of their claims.
In Count I of their Complaint, Plaintiffs allege procedural and substantive due process violations. They maintain that they were not given a meaningful hearing prior to their removal from the Board, and that their removal was arbitrary, lacked a statutory basis, and was based on political and personal motivations.
The Fourteenth Amendment to the United States Constitution prohibits states from depriving "any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1. The Due Process Clause has a procedural component and a substantive component. As the Sixth Circuit explained in Howard v. Grinage, 82 F.3d 1343, 1349-50 (6th Cir.1996), "substantive due process prohibits the government's abuse of power or its use for the purpose of oppression, and procedural due process prohibits arbitrary and unfair deprivations of protected life, liberty, or property interests without procedural safeguards."
The Substantive Due Process Clause protects against "government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). These include "the specific freedoms protected by the Bill of Rights," as well as the right to marry, have children, direct the education and upbringing of those children, marital privacy, the use of contraception, bodily integrity, and abortion. Id. As a general rule, the Substantive Due Process Clause does not protect any state-created rights. Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir.1990). The Sixth Circuit has held that "[a]bsent the infringement of some 'fundamental' right, it would appear that the termination of public employment does not constitute a denial of substantive due process." Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1351 (6th Cir.1992).
In this case, in the context of their substantive due process claim, Plaintiffs have failed to identify any fundamental right or liberty interest that was violated by their removal from the Board. Under the circumstances presented here, Plaintiffs have failed to establish a substantial likelihood or probability of success on the merits of their substantive due process claim.
The procedural component of the Due Process Clause requires an individual to be given the opportunity to be heard "in a meaningful manner" before the government infringes on a protected life, liberty, or property interest. Howard, 82 F.3d at 1349 (quoting Loudermill v. Cleveland Bd. of Educ, 721 F.2d 550, 563 (6th Cir.1983), aff'd, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). In Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), the United States Supreme Court explained:
Thompson, 490 U.S. at 460, 109 S.Ct. 1904.
Under the first step, "an individual claiming a protected interest must have a legitimate claim of entitlement to it." Id. That claim of entitlement may arise from a
In the Court's view, this "good cause" requirement creates a legitimate expectation of continued employment and a protectible property interest. See Loudermill, 470 U.S. at 538-39, 105 S.Ct. 1487 (holding that the Ohio statute providing that classified civil service employees could not be dismissed except for misfeasance, malfeasance, or nonfeasance in office created a protected property interest in continued employment).
Plaintiffs must also show, however, that they were denied adequate notice and the opportunity to be heard in a meaningful manner prior to their removal from the Board. At a minimum, due process requires that the employee be given "oral or written notice of the charges against him or her, an explanation of the employer's evidence, and an opportunity to present his or her side of the story to the employer." Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th Cir.1990). Pre-deprivation proceedings "need not be elaborate," particularly when state law provides for full post-termination proceedings. Id. at 494-95 (citing Loudermill, 470 U.S. at 545, 105 S.Ct. 1487). "[P]redeprivation hearings are intended only to be an `initial check' on the employer's decision, and `need not definitively resolve the propriety of the action." Leary v. Daeschner, 228 F.3d 729, 744 (6th Cir.2000) (quoting Loudermill, 470 U.S. at 545, 105 S.Ct. 1487).
Plaintiffs in this case clearly received adequate notice. It is undisputed that they were warned that failure to rescind the motion in question would subject them to possible removal from their positions on the Board. It is also undisputed that on August 17, 2012, after they refused to rescind the motion, they were given written notice that they were being charged with "nonfeasance," and that a pre-disciplinary hearing would be held on August 20, 2012. Plaintiffs argue that it was not initially clear to them whether the alleged "nonfeasance" stemmed from their conduct at the morning meeting, the afternoon meeting, or both. At the beginning of the show cause hearing, however, counsel for Defendant clarified that both were at issue and the hearing subsequently proceeded on that basis.
Plaintiffs maintain, however, that they were given insufficient time to prepare for the hearing and to brief the issues. Compl. ¶ 53. They received notice on Friday evening and had to appear for the hearing the next Monday morning. It is undisputed, however, that Plaintiffs testified
Plaintiffs also argue that Allison, the hearing officer, "has a history of active involvement in Republican politics," Lieberman Aff. at ¶ 31, and was "simply an alter-ego of Mr. Husted who attempted to put a gloss of due process on Mr. Husted's previously made decisions to terminate the Plaintiffs' service as members of the Board." Compl. ¶ 54.
Plaintiffs' speculation of bias does not render the hearing constitutionally deficient. Unlike a post-deprivation hearing, which must be conducted by an impartial judge, a pre-deprivation hearing is designed simply to give the employer an opportunity to reconsider its decision after hearing the employee's side of the story. As a general rule, the employee is not entitled to a neutral, impartial decisionmaker at this stage of the proceedings. See Duchesne v. Williams, 849 F.2d 1004, 1007-08 (6th Cir.1988). Moreover, although Plaintiffs clearly did not agree with Allison's recommendation, there is no evidence in the record, either in the transcript of the show cause hearing or in Allison's report to Husted, to support a finding that Allison failed to perform his duties in a fair, impartial and judicious manner.
Under the circumstances presented here, the Court concludes that it is unlikely that Plaintiffs will be able to prove that the pre-deprivation hearing fell short of procedural due process requirements.
In Count II of their Complaint, Plaintiffs allege that, in making the motion to the Board and voting on that motion, they were exercising their First Amendment right to freedom of speech. They maintain that Husted retaliated against them by ordering Lieberman to rescind his motion and by terminating them before the relevant issues were fully briefed and resolved through the established procedures for breaking a tie vote. Plaintiffs further allege
To succeed on this claim, Plaintiffs must show that: (1) they engaged in constitutionally protected conduct; (2) they were subjected to an adverse employment action that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was taken at least in part because of the protected conduct. Holzemer v. City of Memphis, 621 F.3d 512, 520 (6th Cir.2010).
Plaintiffs' First Amendment retaliation claim appears to be foreclosed by the Supreme Court's holding in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In that case, a deputy district attorney filed suit against the county and his supervisors, alleging that they retaliated against him after he wrote a memorandum challenging inaccuracies contained in an affidavit used to obtain a critical search warrant. The Court held that because he made the statements at issue pursuant to his official duties, he was not speaking as a private citizen for First Amendment purposes, and his speech was therefore not protected from employer discipline. Id. at 421, 126 S.Ct. 1951.
In this case, Lieberman made the motion at issue pursuant to his official duties as a member of the Board. Likewise, Ritchie voted on that motion pursuant to his official duties as a Board member. Under the holding in Garcetti, the speech at issue does not appear to be constitutionally protected.
In Count III of their Complaint, Plaintiffs allege that Defendant denied them equal protection of the law. Under the Equal Protection Clause of the United States Constitution, "states cannot make distinctions which either burden a fundamental right, target a suspect class, or intentionally treat one differently from others similarly situated without any rational basis for the difference." Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir.2005).
Here, Plaintiffs argue that Husted removed them from the Board after they failed to rescind the motion, but took no comparable disciplinary action against the Republican board members who voted to adjourn the meeting on Friday afternoon, instead of moving to rescind Lieberman's motion. Plaintiffs maintain that Damschroder essentially ordered the entire Board to "undo" what had been done at the morning meeting, yet only Plaintiffs were punished for failing to do so. According to Plaintiffs, there was no rational basis for the difference in treatment.
Defendant Husted argues that Plaintiffs cannot show a likelihood of success on this claim because the Supreme Court has held that "class-of-one" equal protection claims are not cognizable in the public employment context. See Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)). Plaintiffs have offered no argument or authority to the contrary.
In Count IV of their Complaint, Plaintiffs generally allege wrongful termination "in violation of the Constitution and Employment Law of the State of Ohio." Compl. ¶ 69. As Defendants note, the exact contours of this claim remain very unclear, even after post-hearing briefing. Plaintiffs have not yet identified which state constitutional provisions or which employment laws were allegedly violated.
Defendant Husted argues that Plaintiffs cannot prevail on this claim for two reasons. He first argues that because Plaintiffs initially failed to seek a judicial determination of statutory immunity in the Ohio Court of Claims, this Court lacks jurisdiction over the wrongful termination claim. See Ohio Revised Code § 2743.02(F) (providing that the Court of Claims has exclusive, original jurisdiction to determine whether a state officer is entitled to personal immunity under Ohio Revised Code § 9.86). Husted also argues that, to the extent that Plaintiffs allege wrongful termination in violation of public policy, they have failed to identify any clear public policy that was jeopardized by their removal. See Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 151, 677 N.E.2d 308 (1997) (setting forth elements of such a claim). Defendant maintains that, because this is a required element, Plaintiffs' claim is not viable.
The Court notes that Plaintiffs have not responded to either of these arguments. This, combined with Plaintiffs' failure to identify the relevant state constitutional provisions or employment laws allegedly implicated by Husted's conduct, makes it nearly impossible for the Court — at this juncture — to find that Plaintiffs have satisfied their burden of establishing a substantial likelihood or probability of success on the merits of this state law claim.
Even if Plaintiffs had established a substantial likelihood of success on the merits of any of their claims, the other factors weigh against the issuance of a preliminary injunction.
The next factor that the Court must consider is the threat of irreparable harm to Plaintiffs if the requested relief is not granted. Traditionally, equity requires that irreparable harm be shown before a preliminary injunction may be issued. See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57, 95 S.Ct. 2069, 45 L.Ed.2d 12 (1975). Harm is irreparable if it cannot be fully compensated by money damages, or if the nature of the injury makes money damages difficult to calculate. See Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 578 (6th Cir.2002); Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir.1992).
Irreparable injury is presumed when constitutional rights are implicated. Nevertheless, because the Court has already determined that Plaintiffs are unlikely to succeed on their constitutional claims, that presumption is inapplicable here. See Overstreet, 305 F.3d at 578. Therefore, evidence of irreparable injury must be shown.
Plaintiffs further argue that they will suffer irreparable harm because the damage to their reputations and to their families as a result of their highly-publicized removal from the Board is difficult to quantify and is not fully compensable by money damages. In Sampson v. Murray, 415 U.S. 61, 92, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), however, the Supreme Court held that humiliation and damage to reputation resulting from termination typically does not rise to the level of irreparable harm. The Court did leave open the possibility that "in the genuinely extraordinary situation," injunctive relief may be warranted. Id. at 92 n. 68, 94 S.Ct. 937. In Bedrossian v. Northwestern Memorial Hospital, 409 F.3d 840, 845 (7th Cir.2005), the court, citing Sampson, held that when damage to reputation forms the basis for a claim of irreparable harm, "the type of irreparable injury required must really depart from the harms common to most discharged employees."
Here, Lieberman argues that, as an attorney, his reputation in the legal community is crucial to his success. Likewise, Ritchie, who conducts negotiations and mediations in the labor union arena, argues that his reputation for integrity is critical. Both maintain that their removal from the Board has tarnished their reputations and could jeopardize their ability to continue to earn a living.
There is no doubt that Plaintiffs are engaged in professions where reputation is extremely important to continued success, but the same can be said for a great many jobs. In the Court's view, Plaintiffs have failed to demonstrate that their circumstances are truly distinguishable from the harms suffered by any other discharged employee, or that theirs is a "genuinely extraordinary situation."
Even assuming arguendo that the nature of their alleged injury is "genuinely extraordinary," they have failed to demonstrate that irreparable injury is likely if injunctive relief is not granted. In Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), the Supreme Court held that it is not enough for a party seeking injunctive relief to show a "possibility" of irreparable harm; instead, it must be shown that irreparable injury "is likely in the absence of an injunction." The harm alleged cannot be "speculative or theoretical." Rather, "[i]n order to substantiate a claim that irreparable injury is likely to occur, a movant must provide some evidence that the harm has occurred in the past and is likely to occur again." Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir.1991).
Plaintiffs have failed to satisfy this burden. At the evidentiary hearing, Lieberman testified about the "possible impact" of his removal from the Board. He speculated that he could be subjected to disciplinary action as an attorney for violating the law. Hr'g Tr. at 72. He also testified that the allegations against him "could conceivably" damage his reputation as attorney.
Id. at 74-75. In a similar vein, Ritchie testified, "I think that I've been tainted," and "what's happened is going to be life changing for that reputation that I tried to build." Id. at 161-62.
While both Plaintiffs speculated as to the possible impact their removal might have on their careers, their families, and their reputations, they presented no evidence that the alleged harms were likely to actually materialize. No current or potential clients testified that Plaintiffs' removal from the Board eroded any faith they had in Plaintiffs' abilities, or would deter them from engaging Plaintiffs' services. Lieberman presented no evidence that disciplinary proceedings against him were actually contemplated, that he was subject to removal from the Miami University Board of Trustees, or that voters would think twice about voting for his wife because he had been removed from the Board of Elections. Likewise, Ritchie presented no evidence that his removal from the Board would actually have a negative impact on his career.
Under the circumstances presented here, the Court finds that Plaintiffs have failed to show that they would suffer irreparable harm if the preliminary injunction is not issued.
The next factor to be considered is whether the issuance of the requested injunction will cause substantial harm to others. Plaintiffs argue that, if the Court orders them reinstated, there is no risk of substantial harm to anyone else. They note that the successor board members have gladly agreed to step aside if Plaintiffs, who are much more experienced in election matters, are reinstated.
Plaintiffs further argue that Defendant Husted will not be substantially harmed since he still has the power to issue Directives. They also maintain that he would actually benefit from having more experienced board members reinstated. Defendant Husted, however, argues that granting the requested injunctive relief would undermine his authority and limit his future ability to enforce Directives.
In the Court's view, in comparison to the other factors, this factor is not particularly important to the issues presented here, and does not weigh heavily in favor of either party.
Finally, the Court must consider whether it is in the public interest to issue a preliminary injunction. Plaintiffs maintain that, without their expertise and experience on the Board, there is a risk that the upcoming presidential election process will suffer. Doll and McLin both testified about the steep learning curve they face as newly-appointed board members. Hr'g Tr. at 10-12, 19.
Defendant Husted denies that reinstatement of Plaintiffs is in the public interest.
In the Court's view, this factor tips slightly in Plaintiffs' favor. Nevertheless, because Plaintiffs have failed to establish a likelihood of success on the merits of their claims, and have failed to establish irreparable harm, this factor does not constitute an adequate basis for granting their request for a preliminary injunction.
Having fully considered the four factors set forth above, the Court finds that Plaintiffs have failed to make a clear showing that they are entitled to the requested relief. The Court therefore OVERRULES Plaintiffs' request for a preliminary injunction.
Counsel of record will note that a telephone conference call will be convened, beginning at 1:00 p.m. on Tuesday, November 13, 2012, for the specific purpose of setting an early trial date and other dates leading to the resolution of this lawsuit.
On October 1, 2012, Defendant Husted filed a Motion to Dismiss Plaintiffs' Complaint (Doc. # 20), a motion which is not yet fully briefed and upon which the Court does not rule herein. However, Defendant's arguments therein, to the extent they were referenced in his post-hearing memoranda, were fully considered. During the conference call set above, the Court will establish a briefing schedule for said motion. The motion, once at issue, will be decided prior to discovery and motion practice on the merits of the litigation.
