Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 336

ORDER denying as premature and unripe 261 Motion for Permanent Injunction. Plaintiffs may seek leave to file a renewed motion for permanent injunction subsequently. Signed by Chief Judge Algenon L. Marbley on 3/15/2021. (cw)

Case: 2:15-cv-02883-ALM-EPD Doc #: 336 Filed: 03/15/21 Page: 1 of 3 PAGEID #: 3593

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA HOGAN AND DEJHA
VALENTINE, et al.,
on behalf of themselves
and those similarly situated,
Plaintiffs,
v.
CLEVELAND AVE RESTAURANT,
INC., et al.,
Defendants.

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Case No. 2:15-cv-2883
CHIEF JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth P. Deavers

OPINION & ORDER
I.

INTRODUCTION

This matter comes before the Court on Plaintiffs’ Motion for a Permanent Injunction
pursuant to the Fair Labor Standards Act (“FLSA”) and analogous state wage-and-hour laws,
including the Ohio Constitution, the Ohio Minimum Fair Wage Standards Act (“OMFWSA”), and
Ohio’s Prompt Pay Act. (ECF No. 261). For the reasons that follow, Plaintiffs’ Motion for a
Permanent Injunction is DENIED AS PREMATURE AND UNRIPE, and this Court further
requests a revised scheduling order to be docketed by the magistrate judge reflecting such. (Id.).
II.

BACKGROUND

On April 21, 2020, Plaintiffs Jessica Hogan and DeJha Valentine moved for the instant
permanent injunction asking this Court to prohibit Defendants Greg Flair, the Buckeye Association
of Club Executives, and The Owners Coalition, as well as the House of Babes, Cheeks, Top Hat,
Private Dancer, Centerfold, and Fantasyland West from doing, attempting to do, or conspiring to
do certain behavior alleged as unlawful. (Id.).

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Defendants filed their response in opposition on October 16, 2020, arguing that the motion
is premature. (ECF Nos. 316, 317). Plaintiffs replied that the reason for the filing of the instant
motion was compliance with the December 18, 2019 scheduling order, which specified an April
21, 2020 deadline for motions for injunctive relief. (ECF No. 322 (citing ECF No. 234 at 2)).
III.

STANDARD OF REVIEW

The Supreme Court has set forth a four-factor test that a plaintiff must satisfy before
a permanent injunction may issue: (1) that she has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay
Inc., v. Mercexchange, L.L.C., 547 U.S. 388, 391 (2006); Audi AG v. D’Amato, 469 F.3d 534, 550
(6th Cir. 2006). Unlike a preliminary injunction, a permanent injunction requires Plaintiff to show
actual success on the merits, rather than a mere likelihood of success on the merits, as well as a
demonstration that she has already suffered irreparable injury. Amoco Prod. Co. v. Village of
Gambell, AK, 480 U.S. 531, 546 n.12 (1987); see also Audi AG, 469 F.3d at 550. Plaintiff bears
the burden of demonstrating the right to injunctive relief by clear and convincing evidence. See,
e.g., Chicago Title Ins. Corp. v. Magnusson, 487 F.3d 985 (6th Cir. 2007).
IV.

LAW & ANALYSIS

Issuance of a permanent injunction is not proper until some final entry in this matter. Here,
the merits of the case have not yet been adjudicated, and thus Plaintiffs cannot show “actual
success on the merits” as required to obtain a permanent injunction. Absent final judgment as to
some claims or parties under Fed.R.Civ.P. 54(b), the request for a permanent injunction is
premature and unripe. Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc., No. CIV. 09-1091

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JNE/JSM, 2011 WL 2533846, at *1 (D. Minn. June 27, 2011) (“No judgment has been entered in
Aviva’s favor, no trier of fact has found in Aviva’s favor, and no motion for judgment on the
pleadings or summary judgment has been granted in Aviva’s favor.”).
V.

CONCLUSION

This Court DENIES AS PREMATURE AND UNRIPE Plaintiffs’ Motion for Permanent
Injunction and requests a revised scheduling order to be docketed by the magistrate judge
reflecting such. Plaintiffs may seek leave to file a renewed motion for permanent injunction
subsequently. (ECF No. 261).
IT IS SO ORDERED.

ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: March 15, 2021

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