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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SCHMITT, et al., 

Plaintiffs,

v. CASE NO.2:18-cv-966

Judge Edmund Sargus, Jr.

Magistrate Judge Elizabeth Deavers

LAROSE, et al.,

Defendants.

____________________________________________________/

PLAINTIFFS' MOTION TO STAY 

DEFENDANT-LAROSE'S APPLICATION FOR COSTS

Defendant-LaRose on August 20, 2019 applied to this Court pursuant to Federal Rule of 

Civil Procedure 54(d)(1) for costs in the above-styled case. A briefing schedule for that application 

was entered that same day by the Clerk, setting September 10, 2019 as the due date for Plaintiffs' 

Response and September 24, 2019 as the due date for Defendant-LaRose's Reply. See Doc. No. 

56. 

Plaintiffs respectfully move the Court to stay or otherwise modify the Clerk's briefing 

schedule so that it is temporally coordinated with briefing on Plaintiffs' previously-filed 

application for costs and attorneys' fees. This Court on April 1, 2019, with the agreement of the 

parties, stayed briefing on Plaintiffs' application for costs and attorneys' fees and directed the 

parties to resume briefing 45 days following issuance of mandate from the United States Court of 

Appeals. See Order, Doc. No. 49. Mandate in the present case cannot be issued until after seven 

days after the Sixth Circuit disposes of Plaintiffs'-Appellees' Petition for Rehearing En Banc, see

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Fed. R. App. P. 41(b), which was filed by Plaintiffs with the Sixth Circuit on August 13, 2019. 

Forty-five days from that issuance, even if it occurs tomorrow, will not come until mid-October, 

which is well after September 10, 2019 deadline scheduled by the Clerk. Plaintiffs respectfully 

request that briefing on both Defendants' application and Plaintiffs' previous application both be 

stayed and commence simultaneously 45 days after issuance of the Sixth Circuit's mandate

pursuant to this Court's April 1, 2019 Order. See Order, Doc. No. 49.

As Plaintiffs' explain in the attached Memorandum of Law, coordinating briefing of both 

applications is sensible for two reasons: first, whether Defendants are entitled to costs incurred in

the Court of Appeals lies in the discretion of this Court; and second, Plaintiffs are entitled to both 

costs and attorneys' fees for their successes in this Court, with the amount resting in the discretion 

of the Court. The merits of the two applications are accordingly interrelated, and any amounts 

awarded will likely off-set one another in some fashion. The two applications should therefore be 

briefed, addressed, and decided together.

Plaintiffs pursuant to Local Rule 7.3(a) state that they consulted in good faith with 

Defendant-LaRose in an effort to obtain Defendant-LaRose’s consent to this Motion. DefendantLaRose informed Plaintiffs that he opposes this Motion. 

Respectfully submitted,

s/Mark R. Brown 

Mark R. Brown, Trial Counsel

Ohio Registration No. 81941

303 East Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

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Mark G. Kafantaris

Ohio Registration No. 80392

625 City Park Avenue

Columbus, Ohio 43206

(614) 223-1444

(614) 300-5123(fax)

mark@kafantaris.com

MEMORANDUM OF LAW

After having lost in this Court, which entered both preliminary and permanent injunctive 

relief against him, Defendant-LaRose on August 7, 2013 prevailed before a three-judge panel of 

the United States Court of Appeals for the Sixth Circuit. On August 13, 2019, Plaintiffs petitioned 

the United States Court of Appeals for Rehearing En Banc. That Petition remains pending, and 

for that reason no mandate has yet to issue. Upon disposition of Plaintiffs' Petition for Rehearing 

En Banc, mandate will issue within seven days under Federal Rule of Appellate Procedure 41(b).

Plaintiffs in this case -- before Defendant-LaRose's appeal -- had won a temporary 

restraining order, see Opinion and Order, Doc. No. 22, a preliminary injunction, see Order, Doc. 

No. 28, and a permanent injunction both restoring their initiatives to Portage County ballots and 

enjoining enforcement of Ohio law. See Opinion and Order, Doc. No. 37. Based on this 

preliminary and permanent relief, Plaintiffs on March 15, 2019 moved for an award of costs and 

attorneys' fees from Defendant-LaRose and Defendant-Portage County Board of Elections. See

Motion for Attorneys' Fees, Doc. No. 45. Because of Defendant-LaRose's pending appeal, 1

 

1 Defendant-Portage County Board of Elections chose not to appeal, meaning that it remains bound 

by this Court's final judgment (as well as preliminary relief) and is necessarily responsible for 

Plaintiffs' costs and attorneys' fees incurred in the District Court for both (regardless of DefendantLaRose's successful appeal).

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Plaintiffs agreed to Defendant-LaRose's request that the Court stay briefing on their application 

until the conclusion of the appeal. The Court on April 1, 2019 accordingly stayed briefing on and 

resolution of Plaintiffs' application for costs and attorneys' fees until 45 days after a mandate is

issued by the United States Court of Appeals. See Order, Doc. No. 49.

On August 20, 2019, Defendant-LaRose applied to this Court for its costs incurred in 

prosecuting its successful appeal. See Fed. R. Civ. P. 54(d)(1). The Clerk on that day in this Court 

set a briefing schedule for Defendant-LaRose's application, with Plaintiffs' response due on 

September 10, 2019 and Defendant-LaRose's reply due on September 24, 2019. See Doc. No. 56. 

In contrast to the Clerk's briefing schedule for Defendant-LaRose's application, which requires 

Plaintiffs' response by September 10, 2019, Defendant-LaRose's response to Plaintiffs' application 

for costs and fees is not due until 45 days after the Sixth Circuit's issuance of its mandate. Even if 

the Sixth Circuit were to dispose of Plaintiffs' Petition for Rehearing 

En Banc tomorrow, Defendant's response to Plaintiffs' application for costs and fees would not be 

due until mid-October.

Whether Defendant-LaRose should be awarded costs is left to the discretion of the District 

Court. See Knology, Inc. v. Insight Communications Co., 460 F.3d 722, 728 (6th Cir. 2006). This 

includes costs incurred in the Court of Appeals. See, e.g., Libertarian Party v. Dardenne, 2010 

WL 2572114 * 1(M.D. La. 2010) (stating that "the presentation of close and difficult legal issues 

and good faith prosecution" may justify denial of costs to defendant/appellant in successful 

appeal). Among the factors that may be considered by the District Court in refusing costs to an 

otherwise successful party are: "the losing party's limited financial resources; misconduct by the 

prevailing party; whether the issues presented were very close or difficult; whether the litigation 

conferred a substantial benefit to the public; the wealth of the prevailing party; and whether the 

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losing party acted in good faith." STEVEN S. GENSLER, FEDERAL RULES OF CIVIL PROCEDURE:

RULES AND COMMENTARY 1056 (2014).

In the instant case, Plaintiffs satisfy several of these factors; they have limited resources; 

the issues were close and difficult; the litigation conferred a substantial benefit to the public in that 

two initiatives (which Defendant-LaRose admitted had been improperly removed) were restored 

to local ballots and one was enacted into law; and Plaintiffs acted in good faith. Consequently, 

there is considerable doubt about Defendant-LaRose's entitlement to an award of costs under Rule 

54(d)(1). Full and complete briefing on this issue is therefore required.

Further, Plaintiffs' application for costs and attorneys' fees based on their successes in 

winning both preliminary and permanent relief remains pending in this Court. Notwithstanding 

Defendant-LaRose's successful appeal from the permanent injunction, Plaintiffs are still entitled 

to the costs and attorneys' fees based they seek in that application based on their winning 

preliminary relief from Defendant-LaRose. See Libertarian Party of Ohio v. Husted, 2013 WL 

4833033 *2 -*3 (S.D. Ohio 2013) (awarding plaintiffs attorneys' fees and costs based on winning 

preliminary relief even though they did not succeed in permanently enjoining state law). Plaintiffs' 

initiatives were restored to local election ballots, both were voted on, and one of them was passed 

into law. No appeal was taken, meaning that the award of preliminary relief rendered Plaintiffs 

prevailing parties and entitles them to costs and attorneys' fees from Defendant-LaRose (as well 

as Defendant-Portage County Board of Elections, which has not joined Defendant-LaRose’s 

application).

Any award of costs to Defendant-LaRose will necessarily have to be offset against the 

award of costs and attorneys' fees Defendant-LaRose owes to Plaintiffs. Consequently, it is 

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sensible to coordinate Defendant-LaRose's application for costs with Plaintiffs' application for 

costs and fees and have them briefed, addressed and decided together. The Court’s existing stay 

on Plaintiffs’ application for costs and fees should be extended to Defendant-LaRose’s application 

for costs. Both should be stayed until 45 days following the Court of Appeals’ issuance of its

mandate. 

CONCLUSION

For the foregoing reasons, Plaintiffs' Motion should be GRANTED.

Respectfully submitted,

s/Mark R. Brown 

Mark R. Brown, Trial Counsel

Ohio Registration No. 81941

303 East Broad Street

Columbus, OH 43215

(614) 236-6590

(614) 236-6956 (fax)

mbrown@law.capital.edu

Mark G. Kafantaris

Ohio Registration No. 80392

625 City Park Avenue

Columbus, Ohio 43206

(614) 223-1444

(614) 300-5123(fax)

mark@kafantaris.com

CERTIFICATE OF SERVICE

I certify that this Motion and accompanying Memorandum of Law were filed using the 

Court's electronic filing system and thereby will be served on all parties to this proceeding. 

s/Mark R. Brown 

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