UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 

EMERGENCY MOTION FOR INTERIM STAY

INTRODUCTION

A stay is ordinarily not granted, and should not be granted, simply because a party has 

filed a motion to dismiss. And an interim stay, based on the pendency of the meritless stay 

motion, is equally meritless. This case presents no reason to deviate from the normal practice, 

especially because Defendants have already delayed this case’s progression at every turn. 

The Complaint was filed on March 29, 2018. At Defendants’ request, Plaintiffs agreed to 

a twenty-one day extension (ECF No. 12), and then later an additional seventeen-day extension 

(ECF No. 16), for Defendants to respond to the Complaint. At the pretrial conference call on 

July 18, Defendants demanded a year-long discovery period for a case that they now concede is 

“primarily legal in nature[.]” (ECF No. 22 at 2.) In the meantime, they have refused to agree to 

exchange initial disclosures. (ECF No. 19 at 2.) And now they wish to stay discovery entirely.

Defendants’ Emergency Motion for Interim Stay (ECF No. 22, the “Motion”), the latest 

iteration of this delay strategy, is legally and factually baseless. The Motion relies on 

Defendants’ assumptions that its pending Motion to Stay (ECF No. 21) and Motion to Dismiss 

STACIE RAY,

et al.,

Plaintiffs, 

v.

LANCE HIMES,

et al.,

Defendants.

Case No. 2:18-cv-00272

Judge: Michael Watson

Magistrate Judge: Chelsey Vascura

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(ECF No. 18) will be granted. Yet, as this Court already noted during the pretrial conference 

call, stays of discovery pending resolution of a Rule 12(b)(6) motion are disfavored and highly

unusual in this district. Defendants point to no special circumstances that would justify making 

an exception here, aside from Defendants’ own belief in the merits of their Motion to Dismiss. 

Under this district’s precedent, that is not a relevant consideration for a stay.

Since Defendants’ request for a longer-term stay is meritless, the interim stay would 

serve no purpose. Further, Defendants have failed to meet their burden to show that Plaintiffs 

will not be harmed by further delay. The Motion should be denied.

LAW AND ARGUMENT

As a general matter, courts are cautioned to “tread carefully in granting a stay of 

proceedings since a party has a right to a determination of its rights and liabilities without undue 

delay.” Ferrell v. Wyeth-Ayerst Labs., Inc., No. 1:01-cv-447, 2005 U.S. Dist. LEXIS 25358, at 

*7 (S.D. Ohio Oct. 24, 2005) (quoting Ohio Envtl. Council v. U.S. Dist. Ct., 565 F.2d 393, 396 

(6th Cir. 1977)). To be entitled to a stay, a movant must demonstrate both (1) a need for delay 

and (2) that neither the nonmoving party nor the public will suffer harm from the stay. Dummen 

Na, Inc. v. Proven Winners N. Am. LLC, No. 2:16-cv-00709, 2017 U.S. Dist. LEXIS 217181, at 

*5 (S.D. Ohio May 3, 2017). As discussed below, Defendants have shown neither.

I. DEFENDANTS HAVE FAILED TO DEMONSTRATE ANY NEED FOR AN 

INTERIM STAY.

“[O]ne argument that is usually deemed insufficient to support a stay of discovery is that 

a party intends to file, or has already filed, a motion to dismiss for failure to state a claim under 

Rule 12(b)(6).” Williams v. New Day Farms, LLC, No. 2:10-cv-0394, 2010 U.S. Dist. LEXIS 

98934, at *3 (S.D. Ohio Sept. 7, 2010). As this Court has explained, to stay discovery on the 

basis of a pending motion to dismiss “would require the court to make a preliminary finding of 

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the likelihood of success on the motion to dismiss. This would circumvent the procedures for 

resolution of such a motion.” Boddie v. PNC Bank, NA, No. 2:12-cv-158, 2012 U.S. Dist. 

LEXIS 132195, at *4-5 (S.D. Ohio Sept. 17, 2012) (quoting Gray v. First Winthrop Corp., 133 

F.R.D. 39, 40 (N.D. Cal. 1990)). For that reason, “a stay should not ordinarily be granted to a 

party who has filed a garden-variety Rule 12(b)(6) motion.” Williams, 2010 U.S. Dist. LEXIS 

98934, at *5.

Defendants have offered nothing to distinguish their pending Motion to Dismiss from just 

such a garden-variety motion. Judicial economy and party resources—Defendants’ primary 

bases for seeking an interim stay—are no more at stake here than in any other action. See, e.g., 

Dummen Na, Inc. v. Proven Winners N. Am. LLC, No. 2:16-cv-00709, 2017 U.S. Dist. LEXIS 

217181, at *2-4 (S.D. Ohio May 3, 2017) (rejecting a stay requested on the basis of “judicial 

economy”). Defendants contend that discovery is unnecessary because they believe that their 

Motion to Dismiss is likely to succeed. It is well settled in this Court, however, that a party’s 

own perception of the strength of its dispositive motion is irrelevant to the issue of whether to 

grant a stay. See, e.g., Dummen, 2017 U.S. Dist. LEXIS 217181, at *4 (“it is unpersuasive for a 

party to rely on the strength of the motion to dismiss in moving for a motion to stay, unless the 

complaint is clearly frivolous”) (internal citations omitted); Ashland Hosp. Corp. v. RLI Ins. Co., 

No. 0:13-143-DLB, 2014 U.S. Dist. LEXIS 168873, at *8 (E.D. Ky. Dec. 5, 2014) (similar).

Defendants offer no precedent to suggest that an interim stay should be treated as 

automatic simply because Defendants have requested a longer stay. Since the underlying motion 

for a longer stay is baseless, an interim stay premised on it is equally baseless. See, e.g.,

Nationwide Recovery, Inc. v. City of Detroit, No. 17-cv-12378, 2017 U.S. Dist. LEXIS 200549, 

at *6 (E.D. Mich. Dec. 6, 2017) (denying interim stay as moot where motion to stay was 

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meritless). Defendants’ Motion should be denied. See Ferrell, 2005 U.S. Dist. LEXIS 25358, at 

*7.

II. THE DELAY CAUSED BY AN INTERIM STAY WILL HARM THE 

PLAINTIFFS.

As to prejudice, the Motion offers only Defendants’ conclusory assertion that it is 

“unlikely that Plaintiffs will suffer any prejudice” from the requested interim delay. (ECF No. 

22 at 4.) That is inadequate to meet Defendants’ burden. Plaintiffs and other members of the 

public who are similarly situated will suffer serious ongoing harm during any delay in 

adjudicating their rights. (E.g., ECF No. 1 at ¶¶ 54 (workplace harassment), 55, 85-87, 98 

(public humiliation and hostility), 74 (unnecessary expense).) Plaintiffs’ allegations suffice to 

show prejudice. E.g., Nationwide Recovery, Inc., 2017 U.S. Dist. LEXIS 200549, at *6 (denying 

interim stay pending a motion to stay, where plaintiffs would continue suffering reputational 

harm and lost profits); Dummen, 2017 U.S. Dist. LEXIS 217181, at *5 (ongoing patent 

infringement sufficient to show prejudice from a stay). The threat to Plaintiffs’ constitutional 

rights amplifies the need for expedience. E.g., Ohio State Conference of N.A.A.C.P. v. Husted, 

786 F.3d 524, 560 (6th Cir. 2014) (upholding preliminary relief because “when constitutional 

rights are threatened or impaired, irreparable injury is presumed.”). And “the public is always

served when an individual’s injuries are remedied in a timely manner.” Lenoir v. Ohio Dep’t of 

Rehab. and Corr., No. 1:17-cv-586, 2018 WL 3057720, at *2 (S.D. Ohio June 20, 2018) 

(internal citation omitted) (denying state’s motion to stay in civil rights claim). 

What Defendants predict would be an approximately-45-day stay, and characterize as 

“short,” (ECF No. 22 at 4) will result in tangible harm to Plaintiffs and to the public – harm that 

will only be compounded if Defendants’ continued delays ultimately lead them to seek an 

otherwise unnecessary extension of discovery and the case schedule. Up until this point, 

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Plaintiffs have acquiesced to Defendants’ requests for extensions as a matter of professional 

courtesy. Defendants’ continued attempts to stall this action, however, threaten Plaintiffs’ right 

to a prompt resolution. As an interim stay is unnecessary and harmful to Plaintiffs, who are 

suffering real injury on an ongoing basis, Defendants’ request should be denied.

CONCLUSION

For the foregoing reasons, Defendants’ Emergency Motion for Interim Stay should be 

denied.

Dated this 27th day of July, 2018.

 Respectfully submitted, 

Kara Ingelhart* (Illinois Bar No. 6321949)

Lambda Legal Defense and Education Fund, 

Inc.

105 W. Adams St., 26th Fl.

Chicago, IL 60603

Telephone: (312) 663-4413

Facsimile: (312) 663-4307

Email: kingelhart@lambdalegal.org

Peter C. Renn* (California Bar No. 247633)

Lambda Legal Defense and Education Fund, 

Inc.

4221 Wilshire Blvd., Suite 280

Los Angeles, CA 90010

Telephone: (213) 382-7600

Facsimile: (213) 351-6050

Email: prenn@lambdalegal.org

David J. Carey (0088787)

Thompson Hine LLP

41 S. High St., Ste. 1700

Columbus, OH 43215

Telephone: (614) 469-3200

Facsimile: (614) 469-3361

Email: David.Carey@thompsonhine.com

/s/ Freda Levenson

Freda Levenson, Trial Attorney (0045916) 

Susan Becker (0010205)

Elizabeth Bonham (0093733) 

ACLU of Ohio 

4506 Chester Ave. 

Cleveland, OH 44103 

Phone: 216-472-2220 

Facsimile: 216-472-2210 

Email: flevenson@acluohio.org 

Email: sbecker@acluohio.org

Email: ebonham@acluohio.org 

John Knight* (Illinois Bar No. 6201433)

American Civil Liberties Union of Illinois

180 N. Michigan Ave., Suite 2300

Chicago, IL 60601

Telephone: (312) 201-9740

Facsimile: (312) 288-5225

Email: jknight@aclu-il.org

Gabriel Arkles* (New York Bar No. 

4391918)

American Civil Liberties Union Foundation 

125 Broad St.

New York, NY 10004

Telephone: (212) 549-2569

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Facsimile: (212) 549-2650

Email: garkles@aclu.org

Attorneys for Plaintiffs

*Admitted pro hac vice

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CERTIFICATE OF SERVICE

I hereby certify that on July 27, 2018, I electronically filed the foregoing with the Clerk 

of the Court for the for the U.S. District Court for the Southern District of Ohio using the 

CM/ECF system and a copy was made available electronically to all electronic filing 

participants.

Dated this 27th day of July, 2018.

Respectfully submitted, 

Kara Ingelhart* (Illinois Bar No. 6321949)

Lambda Legal Defense and Education Fund, 

Inc.

105 W. Adams St., 26th Fl.

Chicago, IL 60603

Telephone: (312) 663-4413

Facsimile: (312) 663-4307

Email: kingelhart@lambdalegal.org

Peter C. Renn* (California Bar No. 247633)

Lambda Legal Defense and Education Fund, 

Inc.

4221 Wilshire Blvd., Suite 280

Los Angeles, CA 90010

Telephone: (213) 382-7600

Facsimile: (213) 351-6050

Email: prenn@lambdalegal.org

David J. Carey (0088787)

Thompson Hine LLP

41 S. High St., Ste. 1700

Columbus, OH 43215

Telephone: (614) 469-3200

Facsimile: (614) 469-3361

Email: David.Carey@thompsonhine.com

/s/ Freda Levenson

Freda Levenson, Trial Attorney (0045916) 

Susan Becker (0010205)

Elizabeth Bonham (0093733) 

ACLU of Ohio 

4506 Chester Ave. 

Cleveland, OH 44103 

Phone: 216-472-2220 

Facsimile: 216-472-2210 

Email: flevenson@acluohio.org 

Email: sbecker@acluohio.org

Email: ebonham@acluohio.org 

John Knight* (Illinois Bar No. 6201433)

American Civil Liberties Union of Illinois

180 N. Michigan Ave., Suite 2300

Chicago, IL 60601

Telephone: (312) 201-9740

Facsimile: (312) 288-5225

Email: jknight@aclu-il.org

Gabriel Arkles* (New York Bar No. 

4391918)

American Civil Liberties Union Foundation 

125 Broad St.

New York, NY 10004

Telephone: (212) 549-2569

Facsimile: (212) 549-2650

Email: garkles@aclu.org

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