International School of Management, Incorporated et al v. Accreditation Council for Business Schools and Programs

Filing 71

MEMORANDUM AND ORDER granting Defendant's 29 MOTION to Vacate Temporary Restraining Order. Further, Defendant's response deadline to the 65 Renewed Motion for Preliminary Injunction is 8/21/2015. Plaintiff's reply deadline is 9/4/2015. The Preliminary Injunction Hearing is set for 9/9/2015 at 09:00 AM in Courtroom 427 (JAR) before District Judge Julie A. Robinson. Signed by District Judge Julie A. Robinson on 08/03/2015. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

INTERNATIONAL SCHOOL OF
MANAGEMENT, INC., et al.,

)

)
)
Plaintiff,
)
)
vs.
)
)
ACCREDITATION COUNCIL FOR
)
BUSINESS SCHOOLS AND PROGRAMS,
)
)
Defendant. )
________________________________________ )

Case No. 15-cv-9084-JAR-GLR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Accreditation Council for Business Schools and
Programs’ Motion to Vacate TRO (Doc. 29). The matter is fully briefed and the Court is prepared to
rule. For the reasons explained in detail below, the Court grants Defendant’s motion to vacate and sets
this matter for a preliminary injunction hearing on September 9, 2015.
I.

Background
Plaintiff International School of Management, Inc. (“ISM”) is an executive education institution

established in the 1990s. The first ISM Master of Business Administration program officially began in
1998, and ISM has been expanding its international presence ever since. Plaintiff International School
of Management Association (“ISMA”) administers ISM’s programs in Paris, France. Since 2005,
Accreditation Council for Business Schools and Programs (“ACBSP”) has accredited ISMA. Plaintiffs
claim that without warning, in a letter dated May 5, 2015, ACBSP declared it was revoking ISMA’s
accreditation effective May 15, 2015, purportedly because ISMA did not have the right to confer

higher education degrees in France. Plaintiffs’ claim that their accreditation was wrongfully revoked
and that they were not afforded certain procedural guarantees provided under the bylaws before
ACBSP is permitted to revoke an accreditation.
ISM filed this action on Friday, May 22, 2015, alleging claims against Defendant ACBSP for
breach of contract, promissory estoppel, and equitable estoppel relating to the accreditation agreement
for ISMA’s programs in France. On the same day, ISM filed a Motion for a Temporary Restraining
Order and Preliminary Injunction, seeking an order requiring ACBSP to: (1) reaccredit ISMA for the
remainder of this case, and (2) reflect that reaccreditation on ACBSP’s website.1
The Court scheduled a TRO hearing for the following business day, which was Tuesday, May
26, 2015. On Tuesday morning, Defendant received notice of the Complaint and motion for injunctive
relief. The parties appeared that afternoon for the hearing and presented argument on the motion; no
evidence was presented. The Court asked whether the parties would be ready to proceed with a
preliminary injunction hearing in the short-term, to which Plaintiffs responded in the affirmative.
Plaintiffs’ counsel also represented that ISMA’s witnesses would probably come here from France for
the hearing. After hearing from the parties, the Court orally granted Plaintiffs’ motion. The Court
considered the factors for granting a temporary restraining order2 and found that on balance they
weighed in favor of issuing “a very short term” TRO until the Court could conduct a preliminary
injunction hearing. The Court acknowledged the limited record before it, and made clear that it may

1

Doc. 3.

2

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 389 F.3d 973, 975 (10th Cir.
2004) (en banc); Flying Cross Check, L.L.C. v. Central Hockey League, Inc., 153 F. Supp. 2d 1253, 1258 (D. Kan.
2001) (explaining preliminary injunction factors apply on motion for temporary restraining order).

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change its ruling as to likelihood of success on the merits once the parties presented evidence of the
process required by the bylaws.
The Court entered a written Temporary Restraining Order (“TRO”) on May 28, 2015. It
required Defendant “to reflect on its website that ISMA is accredited by Defendant.” It provided
further that the Order “remains in effect until the merits of the preliminary injunction are considered and
determined.”3 The Order did not require a security bond.
Because the parties indicated at the hearing that they intended to conduct limited discovery in
preparation for a preliminary injunction hearing, the Court set the matter for a telephonic status
conference on June 3. At the June 3 status conference, the parties updated the Court on their
discovery progress and the Court set another status conference for June 11. At the June 11
conference, Plaintiffs explained their objection to certain discovery requests based on the French
Blocking Statute and the Hague Convention. On June 22, 2015, Plaintiffs filed a motion to quash
notices of deposition issued to Jack Forget, the President of ISM, and Matthew Andrews, the
Academic Director of ISM, citing the French Blocking Statute and Hague Convention.4 Both sides
sought motions for extensions of time to file motions to compel.5
On June 23, 2015, twenty-eight days after the TRO was issued, Defendant filed its motion to
vacate. The matter became ripe on July 21, and the Court conducted another telephonic status
conference on July 31, 2015. At this status conference, Plaintiffs informed the Court that: (1) they

3

Doc. 11 at 2.

4

Doc. 26.

5

Docs. 38, 39, 49, 50.

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intended to file a motion for preliminary injunction that day; (2) they are now willing to bring their
French witnesses to the United States for deposition, despite their previous objection under the French
Blocking Statute and Hague Convention; and (3) Plaintiffs’ counsel is unavailable for a preliminary
injunction hearing during the month of August. The Court set a preliminary injunction hearing for
September 9, 2015, and urged Plaintiffs to make their French witnesses available to Defendant for
deposition by September 2.
II.

Discussion
The issuance of a temporary restraining order or other preliminary injunctive relief is within the

sound discretion of the district court.6 “TROs are supposed to be just what the name
suggests—temporary.”7 Under Fed. R. Civ. P. 65(b)(2), a TRO is to “expire[] at the time after
entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause,
extends it for a like period or the adverse party consents to a longer extension. The reasons for an
extension must be entered in the record.” In this case, the Court ordered that the TRO would remain in
effect until the merits of the preliminary injunction are considered and determined. The Court
understood that this timeframe would be short. At the time it issued the Order, Plaintiffs had
represented that they would be bringing their witnesses here from France and both parties appeared
willing to quickly prepare for a preliminary injunction hearing, at which time the Court could hear
evidence after Defendant had a full and fair opportunity to respond to the motion and obtain evidence

6

Tri–State Generation & Transmission Ass’n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 354 (10th
Cir. 1986).
7

ClearOne Commc’ns, Inc. v. Bowers, 509 F. App’x 798, 801 (10th Cir. 2013).

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to rebut Plaintiffs’ motion for injunctive relief.
The Court need not have proof of changed circumstances before altering or dissolving a
temporary injunction.8 Nonetheless, circumstances have changed since the TRO hearing. Plaintiffs’
position as to producing its French witnesses in this case has been a moving target. At the hearing,
Plaintiffs claimed they would produce them, but they later invoked the French Blocking Statute and
Hague Convention, claiming that producing these witnesses in the United States could subject them to
criminal liability in France. Then, at the July 31 status conference, Plaintiffs agreed to produce them in
order to expedite the preliminary injunction process. Moreover, Plaintiffs delayed filing a motion for
preliminary injunction and cannot make themselves available for a preliminary injunction hearing until
September. The Court and parties clearly anticipated briefing and hearing a motion for preliminary
injunction in a more expeditious manner, particularly given the short notice provided to Defendant on
the TRO. The Court did not contemplate a more than three-month lag time between its TRO and the
preliminary injunction hearing. For all of these reasons, the Court hereby dissolves the TRO under Fed.
R. Civ. P. 65. The Court will reconsider Plaintiffs’ motion for injunctive relief after the parties have
had a full and fair opportunity to brief the motion and present evidence to the Court at the September 9,
2015 hearing.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to Vacate
TRO (Doc. 29) is granted.
IT IS FURTHER ORDERED that Defendant shall have until August 21, 2015 to respond to
the Motion for Preliminary Injunction; Plaintiff shall have until September 4, 2015 to reply. The

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Id.

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preliminary injunction hearing is set for September 9, 2015 at 9:00 a.m.
Dated: August 3, 2015
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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