The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CBIZ, INC., et al., ) Case No. 1:24-CV-1027
)
Plaintiffs, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge
) Jonathan D. Greenberg
GREGORY J. CRYAN, et al., )
)
Defendants. )
)
OPINION AND ORDER
At the outset of this litigation Plaintiffs CBIZ, Inc., CBIZ Benefits &
Insurance Services, Inc., and CBIZ Insurance Services, Inc. sought a temporary
restraining order against Defendants Gregory Cryan, J. Keith Bowman, William
Haynes, Matthew McCoun, Phillip Leek, and Steven Fischer, who previously worked
for CBIZ and who now work for a competitor, Edgewood Partners Insurance Centers,
known as EPIC, to enforce certain restrictive covenants. (ECF No. 2, PageID #: 229.)
On June 28, 2024 and July 2, 2024, the Court held a hearing on Plaintiffs’ motion for
a temporary restraining order and ultimately granted the motion in part and denied
the motion in part. (ECF No. 24.) On July 23, 2024, the Court entered an amended
temporary restraining order. (ECF No. 39.) By agreement of counsel, that amended
order ran through a status conference held on August 7, 2024. (See ECF No. 39,
PageID #1334.)
At the status conference on August 7, 2024, the Court scheduled a preliminary
injunction hearing to begin on November 4, 2024—the first date on which the Court
and counsel agreed that the parties could reasonably complete enough of the
voluminous discovery necessary to have a meaningful hearing. Further, counsel
agreed that direct discussions between the principals with their lawyers might prove
productive, and the parties agreed to extend the amended temporary restraining
order through those direct discussions. (See ECF No. 49, PageID #1432–33.) Those
discussions ended up taking place over a couple days, and the parties agreed to
extension of the amended temporary restraining order during the discussions.
On September 6, 2024, the parties conducted a second settlement conference
and reached impasse. (Minutes, Sept. 6, 2024.) Defendants declined to consent to
the extension of the amended temporary restraining order, and Plaintiffs sought to
extend the order or convert it to a preliminary injunction (see ECF No. 45). Counsel
stated their respective views on the record. For the reasons stated on the record, the
Court extended the amended temporary restraining order through 11:59 pm on
September 20, 2024. (See also Minutes, Sept. 6, 2024.) In doing so, the Court stated
its view that the amended temporary restraining order, which the Court anticipates
will remain in force and effect through a ruling following the preliminary injunction
hearing subject to reexamination every fourteen days, is appropriate for interlocutory
review pursuant to 28 U.S.C. § 1292(b).
Under Section 1292(b), a district court may certify an order for interlocutory
appeal. Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 36 (1995). Certification under
the statute is granted sparingly and only in exceptional cases. Kraus v. Board of
Cnty. Rd. Comm’rs for Kent Cnty., 364 F.2d 919, 922 (6th Cir. 1966). Certification is
appropriate where (1) the order involves a controlling question of law; (2) a
substantial ground for difference of opinion exists regarding the correctness of the
decision; and (3) an immediate appeal may materially advance the ultimate
termination of the litigation. West Tenn. Chapter of Associated Builders &
Contractors, Inc. v. City of Memphis (In re City of Memphis), 293 F.3d 345, 350 (6th
Cir. 2002) (citing 28 U.S.C. § 1292(b) and Cardwell v. Chesapeake & Ohio Ry. Co.,
504 F.2d 444, 446 (6th Cir. 1974)).
In the Court’s opinion, the questions of law addressed in the amended
temporary restraining order present substantial grounds for differences of opinion
among reasonable jurists and lawyers on controlling questions of law. For example,
the restrictive covenants at issue raise questions about their temporal duration and
geographic reach. At this stage of the proceedings, based on the record as it presently
stands, the Court found these covenants enforceable under Ohio law (though
Defendants contend Georgia law applies and would not countenance their
enforcement). Also, EPIC has issues regarding the status of a number of its current
clients—former clients of CBIZ—who supplied broker of record letters to change their
broker during the relatively brief period between the events at issue and the issuance
of a temporary restraining order. Although the Court will soon conduct a preliminary
injunction hearing, the parties’ good-faith discussions to try to reach a business
resolution of their dispute shows that interlocutory review, even of the amended
temporary restraining order, might materially advance those efforts.
For all these reasons, as well as those stated on the record on September 6,
2024, the Court declines to convert the amended temporary restraining order into a
preliminary injunction (ECF No. 45) and certifies the amended temporary restraining
order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
SO ORDERED.
Dated: September 9, 2024
J.Philip Calabrese —~™S
United States District Judge
Northern District of Ohio