Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 1 of 15 PAGEID #: 1232

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KIMBERLY HARSMAN, et al., : Case No. 1:21-cv-597

:
Plaintiffs, : Judge Timothy S. Black
:
vs. :
:
CINCINNATI CHILDREN’S :
HOSPITAL MEDICAL CENTER, et al., :
:
Defendants. :

ORDER DENYING PLAINTIFFS’ MOTION

FOR A TEMPORARY RESTRAINING ORDER

This civil case is before the Court on Plaintiffs’ Motion for Temporary Restraining

Order and/or Preliminary Injunction (Doc. 14), and Defendants’ 1 responsive memoranda

(Docs. 34, 35, 37, and 39). Plaintiffs seek an emergency order restraining Defendants

from requiring Plaintiffs to be vaccinated for COVID-19 prior to October 1, 2021, 2 and

from taking any adverse employment action against Plaintiffs for failing to be vaccinated

or refusing to disclose their vaccination status.

1
Defendants are five Cincinnati area hospital systems comprising Cincinnati Children’s Hospital
Medical Center (“CCHMC”); The Christ Hospital and The Christ Hospital Physicians, LLC
(“TCHHN”); TriHealth, Inc., TriHealth G, LLC, d/b/a TriHealth Physician Partners and Group
Health Physician Partners, Bethesda Hospital, Inc., Bethesda North and Good Samaritan
Hospital (“TriHealth”); UC Health, LLC, University of Cincinnati Medical Center, LLC and
University of Cincinnati Physicians Company, LLC (“UC”); and Mercy Health Cincinnati, LLC,
Mercy Health – Anderson Hospital LLC, Mercy Health – West Hospital LLC, Mercy Health
Physicians Cincinnati LLC and The Jewish Hospital, LLC, d/b/a The Jewish Hospital – Mercy
Health (“Mercy”) (collectively, “Defendants”).
2
October 1, 2021, which applies to the TCHHN and UC Defendants, is the earliest vaccination
deadline. The other Defendants have moved back their deadlines. TriHealth Defendants will
require vaccination by October 31, CCHMC by November 1, and Mercy by December 1, 2021.
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 2 of 15 PAGEID #: 1233

I. BACKGROUND

The factual background, though stated in a remarkable 570-paragraph complaint,

is straightforward in this case. (Doc. 13). On August 5, 2021, Defendants, five of the

major healthcare systems in the Cincinnati area, announced vaccine mandates for all of

their employees to combat the COVID-19 pandemic. The specific details of each

Defendant’s mandate vary, but the general thrust is that all of Defendants’ employees

would be required get a COVID-19 vaccine or else qualify for a medical or religious

exemption. (Id. at 9, ¶ 1). Plaintiffs, who are presumably healthcare workers for the

major healthcare systems, oppose the vaccine mandate. (See generally, id.). 3

The procedural background is more tortuous. On August 23, 2021, Plaintiffs’

counsel filed separate class action complaints against all five of the Defendants here, 4 and

one against Kentucky-based healthcare system St. Elizabeth Medical Center and Summit

Medical Group, d/b/a St. Elizabeth Physicians (“St. Elizabeth’s”). 5 On August 25, 2021,

Plaintiffs also filed a complaint in this Court alleging federal antitrust claims against

3
Plaintiffs do not actually allege that they are employees of the Defendants in their complaint or,
indeed, any facts about themselves. Nor is the class definition limited to employees of the
Defendants. (Doc. 13 at ¶ 6).
4
Aldridge v. Mercy Health Cincinnati, LLC, Case No. A2102965 (Hamilton Cnty. C.P.);
Alexander v. Cincinnati Children’s Hosp. Med. Ctr., Case No. 1:21-cv-00545 (S.D. Ohio)
(removed from Hamilton Cnty. C.P.); Allen v. TriHealth, Inc., Case No. A2102964 (Hamilton
Cnty. C.P.); Durrough v. Christ Hosp., Case No. 1:21-cv-00549 (S.D. Ohio) (removed from
Hamilton Cnty. C.P.); and Beier v. UC Health, LLC, Case No. 1:21-cv-00551 (S.D. Ohio)
(removed from Hamilton Cnty. C.P.).
5
Beckerich v. St. Elizabeth Med. Ctr., Inc., Case No. 2:21-cv-00100 (E.D. Ky.) (removed from
Boone Cnty. Cir. Ct.).

2
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 3 of 15 PAGEID #: 1234

Defendants and St. Elizabeth’s. 6 Over the next few days, UC, TriHealth, and CCHMC

each removed their cases to federal court. The case against the Mercy Defendants

remained in the Hamilton County Court of Common Pleas, where, on August 27, 2021,

Judge Jennifer Branch denied a request for a temporary restraining order. 7 Two days

later, Plaintiffs’ counsel voluntarily dismissed all of the complaints they had filed in all

three courts—state court, this Court, and the federal court in Northern Kentucky.

Plaintiffs’ counsel reappeared on September 3, 2021. They again filed a complaint

against St. Elizabeth’s in the federal district court for the Eastern District of Kentucky. 8

And in this Court, they filed another class action complaint against all of the present

Defendants and St. Elizabeth’s (but only alleged federal antitrust claims against St.

Elizabeth’s). 9 On September 10, 2021, this Court conferred with defense counsel and

Plaintiffs’ counsel in a Rule 65 teleconference. Later that day, Plaintiffs’ counsel

voluntarily dismissed their case in this Court a second time. The case against St.

Elizabeth’s in Kentucky carried on, however. On September 24, 2021, in a thoughtful

and well-reasoned Order, Judge Bunning denied injunctive relief to the Plaintiffs.

Beckerich v. St. Elizabeth Med. Ctr., No. CIV 21-105-DLB-EBA, 2021 WL 4398027

(E.D. Ky. Sept. 24, 2021).

6
Beckerich v. St. Elizabeth Med. Ctr., Inc., Case No. 1:21-cv-00548 (S.D. Ohio).
7
Aldridge, No. A2102965, Entry Denying Pls.’ Mot. Temp. Restraining Order, Aug. 27, 2021.
8
Beckerich v. St. Elizabeth Med. Ctr., Inc., No. 2:21-cv-00195 (E.D. Ky.).
9
Beckerich v. St. Elizabeth Med. Ctr., Inc., No. 1:21-cv-00576 (S.D. Ohio).

3
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 4 of 15 PAGEID #: 1235

Finally, on September 14, 2021, Plaintiffs filed the complaint in this this case.

Plaintiffs originally sued in Hamilton County, but Defendants removed on September 17,

2021. (Doc. 1). Though Plaintiffs challenged removal in a motion for remand (Doc. 21),

they abandoned that motion on the day their reply brief was due. (Doc. 42). Now, after

keeping Defendants and this Court in limbo for nearly a month, Plaintiffs and their

counsel are back where they started.

Just as before, Plaintiffs ask the Court to issue a temporary restraining order or a

preliminary injunction. (Doc. 14). Plaintiffs foresee that they will face adverse

employment action if they refuse to comply with Defendants’ mandates. (Id.) They ask

the Court to enjoin Defendants from requiring Plaintiffs to be vaccinated by Defendants’

deadline, and from taking any adverse employment actions against Plaintiffs for their

non-compliance. (Id.). For the reasons below, and those well-stated in Judge Bunning’s

Order, the Court DENIES Plaintiffs’ request.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 65 empowers district courts to issue temporary

restraining orders or preliminary injunctions “to preserve the status quo so that a reasoned

resolution of a dispute may be had.” Procter & Gamble Co. v. Bankers Trust Co., 78

F.3d 219, 227 (6th Cir. 1996). The standards for obtaining a temporary restraining order

or a preliminary injunction are the same. Workman v. Bredesen, 486 F.3d 896 (6th Cir.

2007). Courts consider four factors: “(1) whether the movant has a strong likelihood of

success on the merits; (2) whether the movant would suffer irreparable injury without the

injunction; (3) whether issuance of the injunction would cause substantial harm to others;

4
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 5 of 15 PAGEID #: 1236

and (4) whether the public interest would be served by issuance of the injunction.” City

of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per

curiam) (en banc). In the Sixth Circuit, “[t]hese factors are not prerequisites that must be

met, but are interrelated considerations that must be balanced together.” Commonwealth

v. Beshear, 981 F.3d 505, 508 (6th Cir. 2020).

A temporary restraining order or a preliminary injunction is an “extraordinary

remedy involving the exercise of a very far-reaching power, which is to be applied only

in the limited circumstances which clearly demand it.” Leary v. Daeschner, 228 F.3d

729, 739 (6th Cir. 2000). Accordingly, a party seeking an “injunction must establish its

case by clear and convincing evidence.” Honeywell, Inc. v. Brewer–Garrett Co., 145

F.3d 1331 (6th Cir.1998).

III. ANALYSIS

1. Likelihood of Success on the Merits

The first factor asks if “the movant has a strong likelihood of success on the

merits.” City of Pontiac Retired Emps. Ass’n, 751 F.3d at 430. This factor is often

determinative. Wilson v. Williams, 961 F.3d 829, 837 (6th Cir. 2020). In the Sixth

Circuit, this factor is so important that “a preliminary injunction issued where there is

simply no likelihood of success on the merits must be reversed.” Michigan State AFL-

CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997). To establish a likelihood of success,

a movant “need not prove his case in full,” but he “must show more than a mere

possibility of success.” Ne. Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 591 (6th

Cir. 2012). The “proof required for the plaintiff to obtain a preliminary injunction is

5
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 6 of 15 PAGEID #: 1237

much more stringent than the proof required to survive a summary judgment motion, for

example.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).

Here, Plaintiffs have not established that any of their claims are likely to succeed.

They haven’t even tried. In their motion, Plaintiffs correctly cite the legal standard for

injunctive relief, but they never connect the standard to any specific factual allegations

from their complaint. Instead, Plaintiffs invite the Court to see for itself “[t]he reasons

for this Motion [as] detailed in the attached Verified Complaint and Exhibits.” (Doc. 13

at 2). However, even if the Court were inclined to accept that invitation, the complaint

does not establish that success on any of its claims would be likely. For example, the

complaint alleges violations of Ohio law based on disability and religious beliefs. (Doc.

13 at 56, ¶¶ 431–36; 57, ¶¶ 437–44). But, in assessing Plaintiffs’ likelihood of success on

these claims, the Court is left to wonder what disability Plaintiffs allegedly have, or how

Plaintiffs account for the hundreds of religious and medical exemptions Defendants have

granted, including those of some of the named Plaintiffs and affiants. 10 The Court has

waded through the entire complaint, probing the seemingly insurmountable obstacles to

Plaintiffs’ likelihood of success of any of their claims, but the Court need not have done

so. As the law provides, “[t]he district court and defendants should not have to fish a gold

coin from a bucket of mud to identify the allegations really at issue.” Kensu v. Corizon,

Inc., 5 F.4th 646, 651 (6th Cir. 2021). Instead, “the substantial subsidy of litigation …

10
E.g., Hanlon-Bremer Decl. (Doc. 37-1 at 3, ¶ 12) (TriHealth has granted 88 medical and 481
religious exemptions), Hutchins Decl. (Doc. 39-1 at 2, ¶ 10) (TCHHN has granted 104 medical
and 348 religious exemptions); Crandell Decl. (Doc. 33-1 at 2, ¶ 6) (UC has granted 750
undifferentiated exemptions).

6
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 7 of 15 PAGEID #: 1238

should be targeted on those litigants who take the preliminary steps to assemble a

comprehensible claim.” U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378

(7th Cir. 2003).

The only basis for injunctive relief that appears on the face of the motion is

“[c]onstitutional violations.” (Doc. 14 at 2). Plaintiffs do not disclose what

constitutional provision, or even which constitution, is allegedly violated, but, in this

case, it does not matter. As Judge Bunning capably explained deciding a substantially

identical motion:

[A] well settled principle of constitutional law is that there

exists “a line between state action subject to Fourteenth
Amendment scrutiny and private conduct (however
exceptionable) that is not.” . . . Because of that principle,
generally known as the state action doctrine, the Court sees
Plaintiffs’ constitutional assertions as bearing more on their
likelihood of success than on the irreparable harm factor. Put
simply, without establishing that Defendants are state actors,
Plaintiffs’ constitutional claims cannot stand, and thus have
zero likelihood of success on the merits.

Beckerich v. St. Elizabeth Med. Ctr., No. CIV 21-105-DLB-EBA, 2021 WL 4398027, at

*3 (E.D. Ky. Sept. 24, 2021) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 297 (2001)) (emphasis supplied); accord Haddox v. Moreland, No.

95CA20, 1996 WL 451361, at *1 (Ohio Ct. App. Aug. 5, 1996) (“Generally, individual

rights and liberties protected by the United States and Ohio Constitutions, such as the

right to due process, apply only to actions of governmental entities.”) (citing State ex rel.

Howard v. Ferreri, 70 Ohio St. 3d 587, 1994-Ohio-130, 639 N.E.2d 1189).

7
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 8 of 15 PAGEID #: 1239

Because Plaintiffs cannot establish that Defendants are state actors, Plaintiffs’

likelihood of successfully proving “constitutional violations” is zero. But even if

Defendants were state actors, the overwhelming majority of courts to consider vaccine

mandates have found them constitutionally sound. In 1905, the Supreme Court of the

United States upheld a municipal vaccine mandate authorized by Massachusetts law.

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). The Court

unequivocally held that the mandate did not offend the Constitution:

[T]he liberty secured by the Constitution of the United States

to every person within its jurisdiction does not import an
absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the
common good. On any other basis organized society could not
exist with safety to its members. Society based on the rule that
each one is a law unto himself would soon be confronted with
disorder and anarchy. Real liberty for all could not exist under
the operation of a principle which recognizes the right of each
individual person to use his own, whether in respect of his
person or his property, regardless of the injury that may be
done to others. This court has more than once recognized it as
a fundamental principle that ‘persons and property are
subjected to all kinds of restraints and burdens in order to
secure the general comfort, health, and prosperity of the state;
of the perfect right of the legislature to do which no question
ever was, or upon acknowledged general principles ever can
be, made, so far as natural persons are concerned.

Id. at 12; see also Zucht v. King, 260 U.S. 174, 176 (1922) (it is “settled that it is within

the police power of a state to provide for compulsory vaccination”); Klaassen v. Trs. of

Indiana, 7 F.4th 592, 594 (7th Cir. 2021) (affirming that the Fourteenth Amendment

permits Indiana University to require its students to be vaccinated to protect the public

health of its students, faculty, and staff); Norris v. Stanley, No. 1:21-CV-756, 2021 WL

8
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 9 of 15 PAGEID #: 1240

3891615, at *1 (W.D. Mich. Aug. 31, 2021) (denying TRO to block university

employer’s vaccine requirement because plaintiff could not establish likelihood of

success on her constitutional claims).

2. Irreparable Harm

The Court is obligated to deny injunctive relief based on Plaintiffs’ unlikelihood of

success alone. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).

For the sake of completeness, however, the Court will analyze the remaining factors.

The next factor a court considers when deciding whether to grant injunctive relief

is irreparable harm. The Sixth Circuit considers irreparable harm “indispensable” such

that “even the strongest showing on the other three factors cannot eliminate the

irreparable harm requirement.” D.T. v. Sumner Cty. Sch., 942 F.3d 324, 326–27 (6th Cir.

2019). “If the plaintiff isn’t facing imminent and irreparable injury, there’s no need to

grant relief now as opposed to at the end of the lawsuit.” Id. A harm is “irreparable if it

is not fully compensable by monetary damages.” Overstreet v. Lexington-Fayette Urb.

Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). “Mere injuries, however substantial, in

terms of money, time and energy necessarily expended in the absence of a stay, are not

enough. The possibility that adequate compensation or other corrective relief will be

available at a later date, in the ordinary course of litigation, weighs heavily against a

claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). For that reason,

loss of employment is not an irreparable injury. Overstreet, 305 F.3d at 578–79;

Aluminum Workers Int’l Union, AFL-CIO, Loc. Union No. 215 v. Consol. Aluminum

Corp., 696 F.2d 437, 443 (6th Cir. 1982). Finally, the irreparable injury must be “certain

9
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 10 of 15 PAGEID #: 1241

and immediate, not speculative or theoretical.” Memphis A. Philip Randolph Inst. v.

Hargett, 978 F.3d 378, 391 (6th Cir. 2020).

In this case, Plaintiffs assert they will “suffer immediate and irreparable injury,

loss, and damage” as a result of “loss to their careers, reputations, privacy, health, and

face bankruptcy, foreclosure, and other losses.” (Doc. 14 at 2). Threats to Plaintiffs’

“careers,” “reputations,” and the risk of “bankruptcy” or “foreclosure” are

quintessentially compensable injuries. They are not irreparable. As for the threat to

Plaintiffs’ “privacy” or “health,” Plaintiffs avoid these issues by refusing to comply with

the mandate and accepting the resulting employment action. Again, Judge Bunning

frames the issue concisely:

Here, no Plaintiff is being imprisoned and vaccinated against

his or her will . . . . Rather, these Plaintiffs are choosing
whether to comply with a condition of employment, or to deal
with the potential consequences of that choice. Even if they
believe the condition or the consequences are wrong, the law
affords them an avenue of recourse—and that avenue is not
injunctive relief on this record.

Beckerich v. St. Elizabeth Med. Ctr., No. CIV 21-105-DLB-EBA, 2021 WL 4398027, at

*7 (E.D. Ky. Sept. 24, 2021). Injuries that Plaintiffs elected to sustain cannot be

irreparable. Accordingly, Plaintiffs have failed to show that they face irreparable injury.

3. Harm to Others and the Public Interest

Whether an injunction would cause substantial harm to others and whether an

injunction would serve the public interest may be discussed together because, in this case,

harm to non-parties is the same as harm to the public. Weighing these factors against

(1) a movant’s likelihood of success on the merits, and (2) the threat of irreparable harm,

10
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 11 of 15 PAGEID #: 1242

is known as “balancing equities.” Entm’t Prods., Inc. v. Shelby Cnty., 588 F.3d 372, 395

(6th Cir. 2009). Here, once again, Plaintiffs’ motion offers no argument. Regardless,

there is no question that balancing the equities requires the Court to deny Plaintiffs’

motion. Denying injunctive relief serves the public’s interest in combating COVID-19, at

an infinitesimally small risk to Plaintiffs’ health or liberty. The Court once again adopts

Judge Bunning’s view:

Actual liberty for all of us cannot exist where individual

liberties override potential injury done to others. For that
reason, the state of Massachusetts was permitted to impose a
vaccine mandate without exception, and with a penalty of
imprisonment, during the smallpox pandemic. [Jacobson, 197
U.S. at 26.] The case before this Court deals with a private
actor, and with no actual coercion. Being substantially less
restrictive than the Jacobson mandate, and being enacted by a
private actor, Defendants’ policy is well within the confines of
the law, and it appropriately balances the public interests with
individual liberties.

Beckerich v. St. Elizabeth Med. Ctr., No. CIV 21-105-DLB-EBA, 2021 WL 4398027, at

*8 (E.D. Ky. Sept. 24, 2021); see also Maryville Baptist Church, Inc. v. Beshear, 455 F.

Supp. 3d 342, 346 (W.D. Ky.), appeal dismissed, 977 F.3d 561 (6th Cir. 2020) (“a

temporary restraining order allowing large in-person gatherings would substantially harm

third parties by facilitating the spread of COVID-19, and the public interest thus does not

favor a temporary restraining order”).

The Court will not, however, adopt Judge Bunning’s charitable treatment of

Plaintiffs’ views on vaccination. Balancing the equities requires the Court to make

judgments about relative risk to Plaintiffs versus the risk to the community as a whole. In

our community, COVID continues to devastate. Since the start of August, our region has

11
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 12 of 15 PAGEID #: 1243

seen 448,599 new hospital admissions of patients with confirmed COVID-19. 11 The case

rate this month is roughly double what it was during the first six months of the

pandemic. 12 In Hamilton County alone this week, there were 2,304 new confirmed cases

of COVID-19, with 172 new hospital admissions, and 10 deaths. 13 Those deaths may

well have been preventable. Next month’s deaths still are.

Against this objective data, Plaintiffs allege unsupported conspiracy theories.

Rather than “suspicions” about the vaccine, (Beckerich, 2021 WL 4398027, at *8),

Plaintiffs’ allegations are falsehoods. The complaint contains too many for this Court to

review given the time constraints on this Order, but a few examples illustrate the

flimflam this Court is asked to weigh against the very real threat of COVID.

More than a dozen times, Plaintiffs allege the Pfizer vaccine has not been fully

approved by the FDA. (Doc. 13, ¶¶ 19, 27, 237, 321, 339, 434, 454, 459, 480, 509–16,

519, 548). This is false. The letter fully approving the vaccine is available from FDA. 14

11
COVID Data Tracker: New Hospital Admissions, Centers for Disease Control (last visited
Sep. 29, 2021), https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions.
12
COVID Data Tracker: COVID-19 Integrated County View, Centers for Disease Control (last
visited Sep. 29, 2021), https://covid.cdc.gov/covid-data-tracker/#county-
view|Ohio|39061|Risk|community_transmission_level.
13
Id.
14
Approval Letter from Mary Malarkey, Dir. Office of Compliance and Biologics Quality, and
Marion Gruber, Dir. Office of Vaccine Research and Review, to Amit Patel, Pfizer Inc. (Aug. 23,
2021), available at https://www.fda.gov/media/151710/download.

12
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 13 of 15 PAGEID #: 1244

Plaintiffs claim it is a “lie” that “Covid is still contagious when you’re asymptomatic.”

(Doc 13, ¶ 310). This is false too. 15

Plaintiffs assert that the statement, “Masks, social distancing and lockdowns have

helped ‘flatten the curve,’” is a “lie.” (Doc. 13, ¶319). This is not only false, 16 it flatly

contradicts Plaintiffs’ own allegations 58 paragraphs prior. (Doc. 13, ¶ 261) (“Scientific

evidence for the protective effect of face masks and respiratory virus infection in

healthcare and community settings is overwhelming.”); (see also id. ¶ 262) (“The

wearing of masks, along with the other safety protocols recommended by the CDC such

as the social distancing and frequent hand washing contributed to the significant

reduction of the spread of Covid-19 disease before vaccines were made available.”).

Finally, though it is hardly necessary to the Court’s disposition in this order, the

Court finds that the behavior of Plaintiffs’ counsel disfavors injunctive relief. “There is a

fundamental public interest in ending [] abuse of the judicial system, in conserving

judicial resources, and in preventing further confusion and disruption in this litigation.”

McGirr v. Rehme, 891 F.3d 603, 614 (6th Cir. 2018). Plaintiffs’ counsel set their Ohio

clients back nearly a month in time. In that month, counsel likely would have received a

15
Andrew Sayampanathan, Cheryl Heng, et al., Infectivity of Asymptomatic versus Symptomatic
COVID-19, 397 Lancet 10269 (2021), available at
https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32651-9/fulltext
(concluding that asymptomatic cases of COVID-19 are “a potential source of substantial spread
within the community setting.”).
16
Use of Cloth Masks to Control the Spread of SARS-CoV-2, Centers for Disease Control (May
7, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-
sars-cov2.html.

13
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 14 of 15 PAGEID #: 1245

decision, and, perhaps, appealed that decision to the Sixth Circuit. At the very least,

Plaintiffs might have proofread their complaint. Granting Plaintiffs injunctive relief,

after weeks of delays, diversions, confessed judge shopping, 17 and a flood of barely

relevant affidavits, would improperly countenance Plaintiffs’ gamesmanship to the

detriment of the public’s interest in a well-functioning judicial system.

IV. CONCLUSION

The Court finds that Plaintiffs have not met their burden of establishing

entitlement to a temporary restraining order. Accordingly, Plaintiffs’ motion for a

restraining order (Doc. 14) is DENIED.

A district court’s denial of a motion for a temporary restraining order generally is

not appealable. Office of Pers. Mgmt. v. Am. Fed’n of Gov't Employees, AFL–CIO, 473

U.S. 1301, 1304–06 (1985). Such a ruling is appealable, however, if it is tantamount to a

ruling on a preliminary injunction. Wilson v. Wilkinson, 28 Fed. App’x. 465, 466 (6th

Cir.2002) (citing Manbourne, Inc. v. Conrad, 796 F.2d 884, 887 n.3 (7th Cir.1986)); see

also Wong-Opasi v. Haynes, 8 F. App’x 340, 342 (6th Cir. 2001). This Court finds that

its instant Order denying Plaintiff’s motion for a temporary restraining order is

tantamount to an Order denying a motion for a preliminary injunction and, therefore,

certifies a finding that the Court’s Order denying Plaintiff’s motion for a temporary

restraining order is a final appealable order as there is no just reason for delay.

17
See Eric Deters, The Bulldog Show, Bulldog Show 1 | September 13, 2021, YouTube (Sep.13,
2021), https://youtu.be/Orxmwq2b5mk?t=570.

14
 Case: 1:21-cv-00597-TSB Doc #: 48 Filed: 09/30/21 Page: 15 of 15 PAGEID #: 1246

IT IS SO ORDERED.

Date: September 30, 2021

Timothy S. Black
United States District Judge

15