McGirr et al v. Rehme et al
Filing
75
TEMPORARY RESTRAINING ORDER. Signed by Judge Robert H. Cleland on 9/19/2016. (lgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CONNIE MCGIRR, et al.,
Plaintiffs,
vs.
THOMAS F. REHME, et al.,
Defendants.
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Civil Action No. 1:16-cv-464
Judge Robert Cleland
TEMPORARY RESTRAINING
ORDER
This matter is before the Court on the motion of Plaintiffs for Temporary
Restraining Order against Defendants Thomas Rehme (“Rehme”), Waite, Schneider,
Bayless, & Chesley, Co., L.P.A. (“WSBC”), and Stanley M. Chesley (“Chesley”). (Doc. 71).
Having considered the evidence and arguments of the parties, and being otherwise
sufficiently advised, the Court finds the motion to be well-taken.
The Court finds that the Rule 65 factors weigh in favor of granting a temporary
restraining order. To begin, Plaintiffs have proven a likelihood of success on the merits.
There is no dispute that WSBC filed a new action in the Hamilton County Probate Court.
(See Doc. 70). This filing followed Rehme’s attempt to transfer all assets of WSBC to a
new “Assignee,” Mr. Eric Goering. The Court notes that this transfer was without
consideration, and that this transfer appears to be with the intent to frustrate the
judgment creditors. This new action puts WSBC’s assets and transfers before another
court while these same issues are pending before this one. Importantly, this Court has
the power to order the same relief as sought in the probate court. The new Assignee is
akin to a receiver, albeit one that was hand-picked by WSBC and thus whose
impartiality Plaintiffs reasonably question, and Plaintiffs have already asked this Court
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to appoint a receiver.
This issue was discussed at length during the preliminary
injunction hearing.
It is not lost on the Court that WSBC appears to be forum shopping. The Court
finds the timing of this purported transfer particularly troubling, as this filing comes
while a motion for preliminary injunction is pending, after a two day hearing, and a
motion for leave to amend the complaint to assert new causes of action is also pending.
The purported transfer of assets and new litigation is nothing more than an attempt to
have an Ohio state court decide issues that are properly pending before this Court.
The Court further finds a significant danger of irreparable harm.
The
concealment or dissipation of assets constitutes irreparable harm. NCR Corp. v. Feltz,
No. 91-4011, 91-4033 and 91-4058, 1993 WL 11876, at *2 (6th Cir. Jan. 21, 1993);
Huntington Nat. Bank v. Guishard, Wilburn & Shorts, LLC, No. 2:12-CV-1035, 2012
WL 5902916, at *9 (N.D. Ohio Nov. 26, 2012). Plaintiffs argue that this new action gives
WSBC the power to dissipate its assets through use of the Assignee. Here, the terms of
the assignment and order filed by WSBC reveals that the new Assignee has the authority
to sell all of WSBC’s assets for the benefit of its creditors. (Doc. 70 at 1). But it is highly
unlikely that the new Assignee will recognize Plaintiffs as creditors of WSBC. Before
this Court, WSBC has repeatedly argued that Plaintiffs are not creditors of WSBC and
have no right to any WSBC assets, despite the fact that another court has expressly
ordered both that Chesley transfer his interest in WSBC to Plaintiffs and that Plaintiffs
can directly execute on the assets of WSBC. Plaintiffs’ status as a creditor of WSBC is
squarely before this Court. Thus, through this purported assignment, Rehme/WSBC
has attempted to remove this decision from this Court, place it in the plenary discretion
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of the new Assignee, who will have unfettered authority to deny Plaintiffs’ claim and sell
or liquidate all WSBC assets before a fair and impartial decision can be made.
Moreover, Chesley, who is integral to this dispute, is not a party to the probate
court litigation, and the fraudulent transfer claims currently pending before this Court
are certainly relevant to the probate court litigation.
Accordingly, the Court finds
without temporary injunctive relief, there is a significant risk that WSBC’s assets will be
liquidated without recognition of Plaintiffs’ claims and before a decision as to their
status can be made, and Plaintiffs will be left without any recourse. This factor weighs
in favor of temporary injunctive relief.
Considering the harm to others, the Court is not convinced that WSBC is at risk
for greater harm than that which was just described by the Court. As such, this factor
weighs in favor of granting the temporary restraining order.
Finally, the Court finds that, to the extent implicated, the public interest would be
served by deterring others from engaging in fraudulent transfer of funds. See Concheck
v. Barcroft, No. 2:10-cv-656, 2010 WL 4117480, at *3 (S.D. Ohio Oct. 18, 2010).
Similarly, forum shopping will not be tolerated. See Mitan v. Int’l Fidelity Ins. Co., 23 F.
App’x 292, 298-99 (6th Cir. 2001).
Accordingly,
IT IS ORDERED THAT, until further order by the Court:
1.
The Defendants, including all agents and assignees of Defendants, shall
not assign, disburse, distribute, transfer or take any action related to any asset of WSBC,
including money, outside of basic office expenses;
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2.
The Defendants, including all agents and assignees of Defendants, shall
not negotiate or enter into any agreements pertaining to income due WSBC and/or
Chesley;
3.
Chelsey, including his agents and assignees, shall not directly or through
anyone acting on his behalf or for his benefit take nor direct any money that could be
claimed by WSBC or anyone who may owe money to WSBC;
4.
WSBC, including its agents and assignees, shall not assign, disburse,
distribute, transfer or take any action on any assets, including money, outside of basic
office expenses;
5.
Rehme, including his agents and assignees, shall not, in his capacity as
secretary of WSBC and as Chesley’s trustee under the 2013 Wind-Up Agreement
transfer records of any kind or enter any agreements on behalf of WSBC or authorize the
assignment, disbursement, distribution, transfer or take any other action on any of
WSBC’s assets, including money, outside of basic office expenses;
6.
WSBC, including its agents and assignees, shall not make any
assignments, transfers, distributions, disbursements, or other payments to Chesley or
on behalf of or for the benefit of Chesley;
7.
Chelsey, for himself or anyone acting on his behalf or for his benefit shall
not enter agreements or take nor direct any money that could be claimed by WSBC or
any person or entity who may owe WSBC money; and
8.
Rehme shall not, in his capacity as secretary of WSBC and as Chesley’s
trustee under the 2013 Wind-Up Agreement authorize or facilitate any assignments,
transfers, distributions, disbursements, or other payments to Chesley or on behalf of
Chesley.
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Having carefully considered the facts of this matter, the Court finds that the bond
already posted by Plaintiffs in this litigation sufficient. No additional bond shall be
required.
SO ORDERED.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 19, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
and/or pro se parties on this date, September 19, 2016, by electronic and/or ordinary
mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
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