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Motion No. 5069411
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION FOR...
February 27,2023 15:41
By: FRANK J. WITSCHEY 0059171
Confirmation Nbr. 2787153
ROE DENTAL LABORATORY, INC. CV 21 942702
vs.
Judge: NANCY A. FUERST
DANIEL NOWAK
Pages Filed: 23
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY
ROE DENTAL LABORATORY, INC. ) Case No. CV 21 942702
)
Plaintiff ) JUDGE NANCY A. FUERST
)
vs. )
)
DANIEL NOWAK ) PLAINTIFF, ROE LABORATORY,
) INC.’S MOTION IN AID OF
Defendant ) EXECUTION OF JUDGMENT VIA
ANTI-SUIT INJUNCTION
Now comes Plaintiff, ROE Dental Laboratory, Inc. (“ROE”) by and through its
undersigned counsel and pursuant to Administrative Judge Sheehan’s Journal Entry dated
February 17, 2023 notice ID\batch 49828.202-2335681 and pursuant to R.C. 2727.02 does hereby
motion this Honorable Court in aid of execution ofjudgment for an anti-suit injunction enjoining
Defendant, Daniel Nowak (“Nowak”), from continuing litigation of a second and duplicative case
in California contrary to this Cuyahoga County Common Pleas Court’s order ofjurisdiction over
this legal dispute. The Administrative Court Journal Entry exempted execution on thejudgment
from the “inactive” status of this case stating “THIS ENTRY SPECIFICALLY DOES NOT
PRECLUDE EXECUTION ON A JUDGMENT WHERE NO STAY OF EXECUTION
PENDING APPEAL IS IN EFFECT.” The Administrative Judge’s Journal Entry is consistent
with Ohio law which provides trial court jurisdiction over proceedings in aid of execution on a
judgment when, like here, no stay of execution is in effect. See Horvath v. Packo, 2013-Ohio-56,
958 N.E. 2d 966, 972 para 16. (“It is well settled that a trial court retains jurisdiction over
proceedings in aid of execution of itsjudgments, even while thosejudgments are on appeal.” Citing
R.C. 2505.09, the Horvath Court continued: “[A]n appeal does not operate as a stay of execution
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B. Anit-suit injunctions are appropriate in Ohio.
Many other courts across the country have also enjoined foreign parties from hauling native
parties into foreignjurisdictions in attempts to thwart and evade local laws, including all the states
surrounding Ohio. See e.g., Pere Marquette Ry. Co. v. Slutz, 268 Mich. 388, 256 N.W. 458
(1934); CloverleafEnterprises, Inc. v. Centaur Rosecroft, LLC, 815 N.E.2d 513 (Ind.App.2004);
Reed's Adm'x v. Illinois Cent. R. Co., 182 Ky. 455, 206 S.W. 794 (1918); St. Paul Fire andMarine
Insurance Co. v. AmerisourceBergen Drug Co., 868 S.E.2d 724 (W.Va. 2021); Monihan v.
Monihan, 438 Pa. 380, 264 A.2d 653 (1970).
As in those cases, here, one party, Nowak, is attempting to haul the other party, Roe, into
a foreignjurisdiction where it knows it can get a favorablejudgment and materially prejudice the
other party's rights. While granting an anti-suit injunction may be a case of first impression in Ohio
(though it is possible that injunctions have been granted with the same spirit under different
names), Ohio courts have considered its necessity and availability as a remedy. The Supreme Court
of Ohio has long recognized the importance of non-duplicativejurisdiction:
If these claims are not . . . litigated in one forum, the parties would be forced to
relitigate virtually the same facts and circumstances in several forums, possibly
with different outcomes. It is the very nature of and the factual similarity among all
seventeen causes of action that give rise to the court's interest in litigating them all
in one forum.
U.S. Sprint Commc'ns Co. P'ship v. Mr. K's Foods, Inc., 68 Ohio St.3d 181, 188, 624 N.E.2d 1048
(1994). The Sprint Court was consideringjoinder of cases which did not arise out of Ohio to cases
which Ohio had clear jurisdiction over because they all had nearly duplicative facts. The
underlying concern was avoidance of duplicative litigation with the possibility of contradictory
judgments. Id. Additionally, one Ohio court noted, "the trial court acknowledged its authority to
restrict a person over whom it hasjurisdiction from bringing and maintaining suit in a foreign state
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for the purpose of, or with the effect of, harassing or oppressing another party." Newcomer v. Roan,
56 N.E.3d 408, 2016-Ohio-541, ^85 (6th Dist.)(italics added).
Finally, the Ohio Revised Code allows injunctive relief in a case where a party is engaging
in an act during the pendency of the litigation that renders or “tends” to render a judgment
ineffectual. R.C. 2727.02 “Causes for Injunction” provides in pertinent part that such an order may
be granted restraining:
an act when it appears *** the plaintiff is entitled to the relief demanded, and such
relief, or any part of it, consists in restraining the commission or continuance of
such act, commission or continuance of which, during the litigation, would
produce great or irreparable injury to the plaintiff, or when, during the
litigation, it appears that the defendant is doing, threatens or is about to do, or is
producing or permitting to be done, such act in violation of the plaintiff’s rights
respecting the subject of the action and tending to render the judgment
ineffectual, (emphasis added)
So, while Ohio courts seem to have not expressly ordered by name an “anti-suit injunction”
previously, case law shows that avoiding duplicative litigation is a high priority of Ohio courts and
it has been held that anti-suit injunctions are available in Ohio to avoid “harassing” or “oppressive”
duplicative litigation. Moreover, R.C. 2727.02 provides a statutory context which fits perfectly for
the issuance of an anti-suit order restraining the defendant Nowak from his acts, namely
continuance of the California Case in violation of ROE’s rights in the Jurisdiction Order and which
seek to render the Jurisdiction Order issued by this Court ineffectual as ROE is forced to litigate
in a foreignjurisdiction using law adverse to it.
However, even though a party may be enjoined from suing in a foreign court, a few state
courts have held that they are not required to give deference to such an injunction. See, e.g., Hare
v. Starr Commonwealth Corp., 291 Mich. App. 206, 813 N.W.2d 752, 761 (2011); Abney v. Abney,
176 Ind. App. 22, 374 N.E.2d 264, 267 (1978). This has led to some states, such as Arkansas and
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North Carolina, to decide that this relief is not available against non-residents. See, e.g., Greer v.
Cook, 88 Ark. 93, 113 S.W. 1009 (1908); Carpenter, Baggott & Co. v. Hanes, 162 N.C. 46, 77
S.E. 1101 (1913). However, other states, such as Connecticut and Minnesota, have held that once
another court has jurisdiction over the defendant, that this relief is proper. See, e.g., Wehrhane v.
Peyton, 134 Conn. 486, 58 A.2d 698, 6 A.L.R.2d 887 (1948); Doerr v. Warner, 247 Minn. 98, 76
N.W.2d 505 (1956).
This discrepancy can be easily overcome and should not stand to prevent the injunction. It
is important to remember that the injunction is against the party, here Nowak, not the court, here
California Superior, and the enjoining state may hold the enjoined party in contempt of court for
not obeying the anti-suit injunction. Cole v. Cunningham, 133 U.S. 107, 10 S. Ct. 269, 33 L. Ed.
538 (1890); St. Paul Fire at 732-33. The basis of the authority of this remedy is not based upon a
right of the court “to interfere with a court of another state but, is instead, founded upon the equity
court's authority over persons within its own jurisdiction to protect its finding ofjurisdiction over
the party and ‘to restrain them from doing acts which will work wrong and injury to others, and
are contrary to equity and good conscience.’” Maryland Comm'n on Hum. Rels. v. Downey
Commc'ns, Inc., 110 Md. App. 493, 515 678 A.2d 55 (1996) citing Keyser v. Rice, 47 Md. 203,
213 (1877).
In Ohio, R.C. 2705.02(A) allows for a party to be punished for contempt if it disobeys “a
lawful writ, process, order, rule, judgment, or command of a court.” Further, an Ohio court may
take action to compel acquiescence to an injunction by way of contempt of court even against non
residents. Friedah v. Friedah, 11th Dist., Lake No. 2018-L-086, 2019-Ohio-1842, ^29. Therefore,
it does not matter whether the foreign court would give deference to an anti-suit injunction order
in Ohio because a contempt action in Ohio against the disobedient party would be the proper course
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of action/remedy if an anti-suit injunction is ignored.
While the remedy requested is extraordinary, it is applicable to this case. Nowak is
attempting to thwart this Court’s Order and Ohio’s laws allowing appropriate covenants not to
compete by gaining judgment in California where they are strictly prohibited. See CA Business
and Profession Code Section 16400. Moreover, the California case is duplicative and given
California’s different law will lead to inconsistent results. Nowak must be enjoined from
continuing the California suit as a matter of Ohio’s policies of enforcing appropriate restrictive
covenants and avoiding duplicative litigation, especially where it will lead to inconsistent results.
Moreover, R.C. 2727.02 empowers this court to protect the integrity of its Jurisdiction Order from
the conduct of Nowak which does not just “tend” to render its order ineffective, it destroys its
effectiveness.
Under Ohio law, a party requesting a preliminary injunction is required by Civ. R. 65 to
show that: (1) there is a substantial likelihood that the plaintiff will prevail on the merits, (2)
plaintiff will suffer irreparable injury if the injunction is not granted, (3) no parties will be
unjustifiably harmed if the injunction is granted, and (4) the public interest will be served by the
injunction. KLNLogistics Corp. v. Norton, 174 Ohio App.3d 712, 884 N.E.2d 631, 2008-Ohio-
212, ^11 (8th Dist.). No one factor is dispositive, and the court must balance all four “with
flexibility” to reach an equitable result. AIDS Taskforce of Greater Cleveland v. Ohio Department
ofHealth, 116N.E.3d 874, 2018-Ohio-2727, *'23 (8th Dist.).
C. All factors in Civ. R. 65 and R.C. 2727.02 favor an injunction against Nowak.
Civ. R. 65 and R.C. 2727.02 are remarkably similar in the elements for obtaining injunctive
relief. Together they provide this court with guidance on the appropriateness of an anti-suit
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injunction issued amid litigation to prevent actions causing “great” or “irreparable” injury and
which render this Court’s Judgment ineffectual.
1. ROE has already succeeded in establishing Ohio jurisdiction.
The first element to obtaining an injunction under Civ. R. 65 is that the party seeking it is
“likely to succeed” on the merits of the case. But, recall, this is a motion in aid of execution on
thejudgment already rendered. Here this Court has entertained a full breadth of litigation and has
issued summary judgment finding Ohio, and specifically this Court, has proper jurisdiction and
venue over Nowak and this case. ROE is not “ likely” to succeed on the merits of the case, it has
already succeeded. But, the Jurisdiction Order did not deter Nowak. In defiance of this Court’s
ruling, he has brazenly continued the California Case and is causing ROE tens of thousands, and
soon, hundreds of thousands of dollars of California litigation costs. Nowak is disrespecting this
Court’s finding ofjurisdiction. Now this Court needs to issue an order specifically prohibiting his
conduct in disobedience of the Jurisdictional Order. Nowak’s continuance of the California Case
following the issuance of an injunction will then be punishable by contempt of court.
2. There will be great and irreparable harm to ROE if the injunction is not granted.
"The plaintiff is required to establish actual irreparable harm or existence of an actual threat
or such injury when the equitable remedy of injunction is sought." Restivo v. Fifth Third Bank of
Northwestern Ohio, N.A. 113 Ohio App.3d 516, 519, 681 NE 2d 484 (1996). If Nowak is allowed
to proceed with the California suit and overtly disregard the Jurisdiction Order, ROE will be
adversely and irreparably injured.
Under Zilbert. supra, forum selection clauses are presumed to be valid and enforceable
absent a stated exception to the presumption. Nowak never argued any of those exceptions. Instead,
Nowak argued that CA. Labor Code 925 applied instead of Ohio law. However, that law even if it
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applied here requires both that the employee primarily work in California and that the claims and
controversies arise in California, neither of which apply to this case. This Court found Nowak
worked outside of California 57% of the time, as shown by travel reimbursement and calendar
entries. The controversy arose out of an employment contract with an Ohio company and trade
secrets that were acquired in Ohio, misappropriated from Ohio and from an Ohio resident
company. This Court granted ROE summary judgment on the jurisdiction issues.
Requiring ROE to litigate this matter in California will cause it irreparable injury.
Regardless of the parties' contractual rights in Ohio or California, irreparable harm can and does
result when a party is hauled into court in a foreign state where it will be subject to law adverse to
the contractually bargained for law applicable if the case were jurisdictioned in Ohio and using
Ohio law. ROE will be irreparably injured by being forced to litigate the same case in two different
jurisdictions and with different law applied to each case. The claims and any defenses must be
litigated in Ohio under Ohio law, as there is a valid forum selection clause. ROE is an Ohio
corporation, and there has been a Jurisdiction Order finding that Ohio holdsjurisdiction over this
case. Nowak’s disrespect for the Jurisdiction Order of this Court has, to this point, caused tens of
thousands, and if continued, hundreds of thousands of dollars of unnecessary and duplicative
expenses for ROE while it re-litigates the exact same matter in another court.
It should be noted that "other courts have held that, 'when there is a strong likelihood of
success on the merits, preliminary injunctive relief may bejustified even though plaintiffs case of
irreparable injury may be weak.'" McGarry v. Gross, 2006-0hio-1759 at P 19 (8th
Dist.) (quoting Blakeman's Valley Office Equip., Inc. v. Bierdeman, 152 Ohio App.3d 86
(2003) (quoting Cleveland Elec. Ilium. Co., supra)). ROE has already been successful on the
merits. ROE’s success on the merits of the action decreases its burden to show irreparable injury
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for issuance of an injunction. However, irreparable injury is still clearly shown in this case.
Further, courts find a party suffers irreparable harm simply by being forced to litigate in a
jurisdiction other than the one selected by a valid forum selection clause. See e.g. BE & KEng'g
Co., 2014 WL 186835, at *23. Specifically, they find injunctions are warranted in those situations
where foreign suits violate forum selection clauses. ASDC Holdings, LLC v. Richard J. Malouf
2008 All Smiles Grantor Retained Annuity Tr., No. CIV.A. 6562-VCP, 2011 WL 4552508, *4
(Del. Ch. Sept. 14, 2011).
It would be against public policy to allow Nowak to void ROE’s rights in Ohio. ROE is an
Ohio company and hired Nowak to work nation-wide. The fact that he chose to live in California
is unconnected to the case. As such, requiring ROE to defend this suit in California, under laws
that should not apply to this case, will cause it irreparable injury. Further, allowing a party to like
Nowak to obviate his substantive contractual responsibilities and his forum and choice of law
agreements by simply moving to a different jurisdiction would set a precedent detrimental to the
integrity and full faith and credit of Ohio law.
Finally, R.C. 2727.02 requires either “great” or “irreparable” injury. Any confusion
defining the more nebulous concept of “irreparable” damage or injury gives way to a lesser more
attainable concept of “great” harm or injury. Being forced to expend hundreds of thousands of
dollars to defend a second suit over the same subject matter in a jurisdiction not bargained for,
with law not bargained for, no doubt causes ROE “great harm.”
3. No party will be unjustifiably harmed if the injunction is granted.
Nowak will not be unjustifiably harmed by being forced to respect thejurisdiction and law
which he bargained for to which he agreed. Additionally, he will suffer no harm if enjoined from
continuance of litigation against ROE in the California courts. There is nothing preventing Nowak
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from pursing his claims in this matter in an Ohio court under Ohio law. In fact, the claims Nowak
brought against ROE in California are compulsory counterclaims in the present Ohio case.
This is not an extraordinary reach forjurisdiction. Nowak agreed to the venue of Cuyahoga
County Common Pleas Court and that any claim or controversy would be governed by Ohio law.
His attempts to slow the Ohio litigation so that the California suit will be decided first to skirt Ohio
law should not be permitted. Jurisdictions issuing anti-suit injunctions give no consideration to
any harm to the enjoined party when the foreign suit, like here, was filed later because all harms
or potential harms were “self-inflicted by the party choosing to file in another jurisdiction.
(Emphasis added) Carlyle Inv. Mgmt., L.L.C. v. Nat’l Indus. Grp., 2012 WL 4847089, at *11 (Del.
Ch. Oct. 11, 2012), aff’d, 67 A.3d 373 (Del. 2013). Additionally, as stated above, Nowak had not
argued that litigating in Ohio is so inconvenient as to be unreasonable when first determining
jurisdiction. There is no unjustifiable harm to Nowak because there is no good justification for his
filing the California suit after the commencement of the Ohio suit and especially since he agreed
to the Ohio forum.
4. The public interest will be served by this injunction.
As previously stated, Ohio public policy demands that this matter be litigated in an Ohio
court under Ohio law. Under Zilbert, Nowak had the opportunity to argue that the forum selection
clause was contrary to public policy of Ohio as an accepted exception to the presumption of
validity, but he did not. Also, all events that occurred relative to the transaction at issue were within
the State of Ohio. ROE had no knowledge or expectation that it would ever be hailed into a court
other than the agreedjurisdiction, Cuyahoga County, Ohio. This, coupled with the fact that Nowak
has strategized to delay the Ohio case in hope of obtaining application of law more favorable to
his position, is all against the public policy of Ohio to which Ohio courts are bound to protect.
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Both the California legislature and Nowak believe that a California resident employee can
harness the protection of a California court and California law against an Ohio employer despite
the employee’s breach of agreements and wrongful competition against the Ohio employer no
matter the number of contacts with Ohio and no matter a forum selection and choice of law clause
requiring him to answer for his conduct in Ohio. Apparently, they believe California’s policy of
protecting its resident employees is more important than Ohio’s policy of freedom of contract and
protection of its corporate citizen’s interests against the transgressions of that employee. But
binding authority on this court holds Ohio is the focus and its public policy is what this court is
bound to protect. The state of Ohio has an interest in providing a local forum for its residents.
Barret v. Picker Int'l., Inc. (8th Dist. 1990), 68 Ohio App.3d 820, 824; Intrasee, Inc. v. Ludwig
(9th Dist. 2012), WL 2236609 at *3. The Ludwig court held “Enforcing the forum selection clause
in Ludwig's employment agreement would not violate, but would instead, promote public policy
in Ohio.” Id. The same is true here. Further, in Ludwig the 9th District citing the United States
Supreme Court, held that individuals have the right to waive personal jurisdiction and consent to
it through a forum selection clause. Id. at *2, citing Burger King v. Rudzewicz (1985), 471 U.S.
462. Public policy of the nation, notjust Ohio, as expressed by the US Supreme Court, namely the
right of every individual to waivejurisdiction and contractually agree to a selectedjurisdiction, is
also served here if the Court grants the injunction. .
Ohio also has a very strong public policy of protecting an owner’s confidential and trade
secret information. One of the most important public policy considerations behind Ohio's trade
secret laws is the protection of the substantial investment of employers in their proprietary
information. Valco Cincinnati, Inc. v. N&D Machining Service, Inc. (1986), 24 Ohio St. 3d 41.
Here ROE has entered an exclusive license agreement to market, sell, manufacture, and further
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develop its “Guided Smile technology”. It has invested millions of dollars in its dental laboratory,
research, marketing, sales force and employees to develop, improve, sell and manufacture its
proprietary products. ROE employs some 250 employees, most of which are in Independence,
Ohio and all of which depend on ROE maintaining its trade secrets to prevent the “knock off’ of
its products and maintain its position as a premier manufacturer of the dental prosthetics it
manufactures in Ohio and sells throughout the country. Allowing Nowak to continue the foreign
litigation in a place that will ignore the protections afforded by Ohio’s Trade Secret Act will
jeopardize the demand for ROE’s products jeopardizing it and the welfare of its honest and law
abiding employees. Likewise, Ohio has a strong public policy to enforce covenants not to compete
which protect a “legitimate business interest”. AK Steel Corp. v. ArcelorMittal USA, LLC, (12th
Dist. 2016), 2016-Ohio-3285; Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21. California
strictly forbids such covenants. California Business and Profession Code Section 16400.
Therefore, it violates Ohio public policy to allow Nowak, a non-resident, to accept
employment within Ohio, receive rights and interests under a contract, obtain payment from an
Ohio company under the contract, agree to Ohiojurisdiction but then litigate his dispute with the
Ohio company in a foreign state that will not enforce critical provisions that favor the Ohio
employer in the contract. Public policy demands that Ohio companies, like ROE, who maintain
business in Ohio and have rights afforded by Ohio, be protected from those pursuing litigation in
foreignjurisdictions after the party agreed to and Ohio has orderedjurisdiction.
Ohio has a strong resolve to enforce its own public policies. Nowak contends that
California has a stronger public policy over how to treat California residents employed by an Ohio
company. The California legislature, through the California Labor Code, attempts to subvert the
public policy of any and all states where a California resident is employed and attempts to
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undermine the employer’s legitimate interests protected by a non-compete clause. The California
legislature does not believe that such clauses should apply to California residents, and so attempts
to override the policies and laws of every other state in our county, attempting to place itself and
its laws above all others.
D. Ohio needs to gain parity with the California Labor Code
This is not an extraordinary grab for compliance with the Court’s Jurisdiction Order. ROE
is simply asking for the ability to be able to litigate in the already agreed upon forum with agreed
upon law. While the Ohio case continues, Nowak is attempting to have the California court rule
the CA Labor Code Section 925 applies to his situation. If this strategy succeeds, and if this Court
does not grant an anti-suit injunction, ROE will face heavier consequences in California than
Nowak here. CA Labor Code Section 925(c) states that “[i]n addition to injunctive relief and any
other remedies available, a court may award an employee who is enforcing his or her rights under
this section reasonable attorney’s fees.” Not only is Nowak requesting the California court enjoin
ROE from continuing this Ohio suit filed first and properly under the authority of a forum selection
clause, but Nowak is seeking attorney fees against ROE under the California Labor Code. The
California legislature’s overreached grab of jurisdiction from other states has a full set of sharp
teeth to bite any employer who dare bring a California resident to court in an agreed-upon
jurisdiction outside California.
Now, Ohio needs to protect its interests by enforcing the forum selection clause, the choice-
of-law agreement, the non-competition agreement, and ROE’s trade secrets. Ohio’s jurisdiction
laws need the same “teeth.” There needs to be a real consequence for Nowak’s mocking this
Court’s Jurisdiction Order through continuance of the foreign suit. This is not an even playing
field. The only way for this Court to enforce itsjudgement, protect Ohio’s interest, and respect the
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Agreement between the parties is to, (like all state courts surrounding Ohio would do), grant an
anti-suit injunction precluding Nowak from continuing the California Case. Then, if Nowak
continues to ignore the decisions of this Court, he must be held in contempt of court and penalized
for continued indifference to it. Through an anti-suit injunction pursuant to R.C. 2727.02, Ohio
can gain the needed parity with the California Labor Code Nowak is using against ROE.
E. No Bond Should Be Required.
Although Civil Rule 65(C) regarding injunctive relief generally requires a moving party to
post bond as security for temporary or preliminary injunction pending the ultimate judgment of
injunction, this motion is made in execution of ajudgment rendered. Should Nowak desire to “stay
execution of the judgment” pending appeal, he can post a bond to secure ROE against damages
incurred by way of defending the duplicative California case and for losses sustained therein
should this Court’s Judgement Order of jurisdiction be affirmed. In the present case, no bond
should be required of ROE. Should Nowak seek to stay execution on the judgment so that he can
continue to pursue his California case, he should be made to post bond in an amount set after a full
hearing that will adequately secure ROE from the costs and damages it could sustain in California
litigating under laws to which it did not bargain. Plaintiff merely seeks an order prohibiting the
continued litigation of the California Case.
ROE respectfully requests, for the above reasons, the Court enter execution on this Court’s
judgment in the form of an anti-suit injunction enjoining Nowak from continuing to pursue the suit
filed in California against ROE.
Respectfully submitted,
/s/ Frank J. Witschey
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Frank J. Witschey, Esq. #0059171
Karan A. Moss, Esq. # 0087728
WITSCHEY WITSCHEY & FIRESTINE
CO., LPA
405 Rothrock Road, Suite 103
Akron, Ohio 44321
Tel.: (330) 665-5117
Fax: (330)665-7615
Email: fjw@witscheylaw.com
ATTORNEY FOR PLAINTIFF, ROE DENTAL
LABORATORY, INC.
CERTIFICATE OF SERVICE
I hereby certify that on the 27th Roe Nowak day of February, 2023 the foregoing was filed
electronically and that notice of this filing will be sent to all parties by operation of the Court’s
electronic filing system. Parties may access this filing through the Court’s electronic filing system.
Respectfully submitted,
/s/ Frank J. Witschey______________
Frank J. Witschey, Esq. #0059171
Attorney for Plaintiff
cli.roe.nowak.ohio.pleadings.motionforantisuitinjunctionlfinal
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Preview
Motion No. 5069411 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION FOR... February 27,2023 15:41 By: FRANK J. WITSCHEY 0059171 Confirmation Nbr. 2787153 ROE DENTAL LABORATORY, INC. CV 21 942702 vs. Judge: NANCY A. FUERST DANIEL NOWAK Pages Filed: 23 Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942702 / Confirmation Nbr. 2787153 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY ROE DENTAL LABORATORY, INC. ) Case No. CV 21 942702 ) Plaintiff ) JUDGE NANCY A. FUERST ) vs. ) ) DANIEL NOWAK ) PLAINTIFF, ROE LABORATORY, ) INC.’S MOTION IN AID OF Defendant ) EXECUTION OF JUDGMENT VIA ANTI-SUIT INJUNCTION Now comes Plaintiff, ROE Dental Laboratory, Inc. (“ROE”) by and through its undersigned counsel and pursuant to Administrative Judge Sheehan’s Journal Entry dated February 17, 2023 notice ID\batch 49828.202-2335681 and pursuant to R.C. 2727.02 does hereby motion this Honorable Court in aid of execution ofjudgment for an anti-suit injunction enjoining Defendant, Daniel Nowak (“Nowak”), from continuing litigation of a second and duplicative case in California contrary to this Cuyahoga County Common Pleas Court’s order ofjurisdiction over this legal dispute. The Administrative Court Journal Entry exempted execution on thejudgment from the “inactive” status of this case stating “THIS ENTRY SPECIFICALLY DOES NOT PRECLUDE EXECUTION ON A JUDGMENT WHERE NO STAY OF EXECUTION PENDING APPEAL IS IN EFFECT.” The Administrative Judge’s Journal Entry is consistent with Ohio law which provides trial court jurisdiction over proceedings in aid of execution on a judgment when, like here, no stay of execution is in effect. See Horvath v. Packo, 2013-Ohio-56, 958 N.E. 2d 966, 972 para 16. (“It is well settled that a trial court retains jurisdiction over proceedings in aid of execution of itsjudgments, even while thosejudgments are on appeal.” Citing R.C. 2505.09, the Horvath Court continued: “[A]n appeal does not operate as a stay of execution Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942702gn Nbr. 2787153 / BATCH B. Anit-suit injunctions are appropriate in Ohio. Many other courts across the country have also enjoined foreign parties from hauling native parties into foreignjurisdictions in attempts to thwart and evade local laws, including all the states surrounding Ohio. See e.g., Pere Marquette Ry. Co. v. Slutz, 268 Mich. 388, 256 N.W. 458 (1934); CloverleafEnterprises, Inc. v. Centaur Rosecroft, LLC, 815 N.E.2d 513 (Ind.App.2004); Reed's Adm'x v. Illinois Cent. R. Co., 182 Ky. 455, 206 S.W. 794 (1918); St. Paul Fire andMarine Insurance Co. v. AmerisourceBergen Drug Co., 868 S.E.2d 724 (W.Va. 2021); Monihan v. Monihan, 438 Pa. 380, 264 A.2d 653 (1970). As in those cases, here, one party, Nowak, is attempting to haul the other party, Roe, into a foreignjurisdiction where it knows it can get a favorablejudgment and materially prejudice the other party's rights. While granting an anti-suit injunction may be a case of first impression in Ohio (though it is possible that injunctions have been granted with the same spirit under different names), Ohio courts have considered its necessity and availability as a remedy. The Supreme Court of Ohio has long recognized the importance of non-duplicativejurisdiction: If these claims are not . . . litigated in one forum, the parties would be forced to relitigate virtually the same facts and circumstances in several forums, possibly with different outcomes. It is the very nature of and the factual similarity among all seventeen causes of action that give rise to the court's interest in litigating them all in one forum. U.S. Sprint Commc'ns Co. P'ship v. Mr. K's Foods, Inc., 68 Ohio St.3d 181, 188, 624 N.E.2d 1048 (1994). The Sprint Court was consideringjoinder of cases which did not arise out of Ohio to cases which Ohio had clear jurisdiction over because they all had nearly duplicative facts. The underlying concern was avoidance of duplicative litigation with the possibility of contradictory judgments. Id. Additionally, one Ohio court noted, "the trial court acknowledged its authority to restrict a person over whom it hasjurisdiction from bringing and maintaining suit in a foreign state Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 9427’0®pdonfi?&atiO>n Nbr. 2787153 / BATCH for the purpose of, or with the effect of, harassing or oppressing another party." Newcomer v. Roan, 56 N.E.3d 408, 2016-Ohio-541, ^85 (6th Dist.)(italics added). Finally, the Ohio Revised Code allows injunctive relief in a case where a party is engaging in an act during the pendency of the litigation that renders or “tends” to render a judgment ineffectual. R.C. 2727.02 “Causes for Injunction” provides in pertinent part that such an order may be granted restraining: an act when it appears *** the plaintiff is entitled to the relief demanded, and such relief, or any part of it, consists in restraining the commission or continuance of such act, commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, threatens or is about to do, or is producing or permitting to be done, such act in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, (emphasis added) So, while Ohio courts seem to have not expressly ordered by name an “anti-suit injunction” previously, case law shows that avoiding duplicative litigation is a high priority of Ohio courts and it has been held that anti-suit injunctions are available in Ohio to avoid “harassing” or “oppressive” duplicative litigation. Moreover, R.C. 2727.02 provides a statutory context which fits perfectly for the issuance of an anti-suit order restraining the defendant Nowak from his acts, namely continuance of the California Case in violation of ROE’s rights in the Jurisdiction Order and which seek to render the Jurisdiction Order issued by this Court ineffectual as ROE is forced to litigate in a foreignjurisdiction using law adverse to it. However, even though a party may be enjoined from suing in a foreign court, a few state courts have held that they are not required to give deference to such an injunction. See, e.g., Hare v. Starr Commonwealth Corp., 291 Mich. App. 206, 813 N.W.2d 752, 761 (2011); Abney v. Abney, 176 Ind. App. 22, 374 N.E.2d 264, 267 (1978). This has led to some states, such as Arkansas and Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 9427’0®pCOifi?&atiO>n Nbr. 2787153 / BATCH North Carolina, to decide that this relief is not available against non-residents. See, e.g., Greer v. Cook, 88 Ark. 93, 113 S.W. 1009 (1908); Carpenter, Baggott & Co. v. Hanes, 162 N.C. 46, 77 S.E. 1101 (1913). However, other states, such as Connecticut and Minnesota, have held that once another court has jurisdiction over the defendant, that this relief is proper. See, e.g., Wehrhane v. Peyton, 134 Conn. 486, 58 A.2d 698, 6 A.L.R.2d 887 (1948); Doerr v. Warner, 247 Minn. 98, 76 N.W.2d 505 (1956). This discrepancy can be easily overcome and should not stand to prevent the injunction. It is important to remember that the injunction is against the party, here Nowak, not the court, here California Superior, and the enjoining state may hold the enjoined party in contempt of court for not obeying the anti-suit injunction. Cole v. Cunningham, 133 U.S. 107, 10 S. Ct. 269, 33 L. Ed. 538 (1890); St. Paul Fire at 732-33. The basis of the authority of this remedy is not based upon a right of the court “to interfere with a court of another state but, is instead, founded upon the equity court's authority over persons within its own jurisdiction to protect its finding ofjurisdiction over the party and ‘to restrain them from doing acts which will work wrong and injury to others, and are contrary to equity and good conscience.’” Maryland Comm'n on Hum. Rels. v. Downey Commc'ns, Inc., 110 Md. App. 493, 515 678 A.2d 55 (1996) citing Keyser v. Rice, 47 Md. 203, 213 (1877). In Ohio, R.C. 2705.02(A) allows for a party to be punished for contempt if it disobeys “a lawful writ, process, order, rule, judgment, or command of a court.” Further, an Ohio court may take action to compel acquiescence to an injunction by way of contempt of court even against non residents. Friedah v. Friedah, 11th Dist., Lake No. 2018-L-086, 2019-Ohio-1842, ^29. Therefore, it does not matter whether the foreign court would give deference to an anti-suit injunction order in Ohio because a contempt action in Ohio against the disobedient party would be the proper course Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 9427>0®pCOifin Nbr. 2787153 / BATCH of action/remedy if an anti-suit injunction is ignored. While the remedy requested is extraordinary, it is applicable to this case. Nowak is attempting to thwart this Court’s Order and Ohio’s laws allowing appropriate covenants not to compete by gaining judgment in California where they are strictly prohibited. See CA Business and Profession Code Section 16400. Moreover, the California case is duplicative and given California’s different law will lead to inconsistent results. Nowak must be enjoined from continuing the California suit as a matter of Ohio’s policies of enforcing appropriate restrictive covenants and avoiding duplicative litigation, especially where it will lead to inconsistent results. Moreover, R.C. 2727.02 empowers this court to protect the integrity of its Jurisdiction Order from the conduct of Nowak which does not just “tend” to render its order ineffective, it destroys its effectiveness. Under Ohio law, a party requesting a preliminary injunction is required by Civ. R. 65 to show that: (1) there is a substantial likelihood that the plaintiff will prevail on the merits, (2) plaintiff will suffer irreparable injury if the injunction is not granted, (3) no parties will be unjustifiably harmed if the injunction is granted, and (4) the public interest will be served by the injunction. KLNLogistics Corp. v. Norton, 174 Ohio App.3d 712, 884 N.E.2d 631, 2008-Ohio- 212, ^11 (8th Dist.). No one factor is dispositive, and the court must balance all four “with flexibility” to reach an equitable result. AIDS Taskforce of Greater Cleveland v. Ohio Department ofHealth, 116N.E.3d 874, 2018-Ohio-2727, *'23 (8th Dist.). C. All factors in Civ. R. 65 and R.C. 2727.02 favor an injunction against Nowak. Civ. R. 65 and R.C. 2727.02 are remarkably similar in the elements for obtaining injunctive relief. Together they provide this court with guidance on the appropriateness of an anti-suit Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942%®PcWrfim?tibn Nbr. 2787153 / BATCH injunction issued amid litigation to prevent actions causing “great” or “irreparable” injury and which render this Court’s Judgment ineffectual. 1. ROE has already succeeded in establishing Ohio jurisdiction. The first element to obtaining an injunction under Civ. R. 65 is that the party seeking it is “likely to succeed” on the merits of the case. But, recall, this is a motion in aid of execution on thejudgment already rendered. Here this Court has entertained a full breadth of litigation and has issued summary judgment finding Ohio, and specifically this Court, has proper jurisdiction and venue over Nowak and this case. ROE is not “ likely” to succeed on the merits of the case, it has already succeeded. But, the Jurisdiction Order did not deter Nowak. In defiance of this Court’s ruling, he has brazenly continued the California Case and is causing ROE tens of thousands, and soon, hundreds of thousands of dollars of California litigation costs. Nowak is disrespecting this Court’s finding ofjurisdiction. Now this Court needs to issue an order specifically prohibiting his conduct in disobedience of the Jurisdictional Order. Nowak’s continuance of the California Case following the issuance of an injunction will then be punishable by contempt of court. 2. There will be great and irreparable harm to ROE if the injunction is not granted. "The plaintiff is required to establish actual irreparable harm or existence of an actual threat or such injury when the equitable remedy of injunction is sought." Restivo v. Fifth Third Bank of Northwestern Ohio, N.A. 113 Ohio App.3d 516, 519, 681 NE 2d 484 (1996). If Nowak is allowed to proceed with the California suit and overtly disregard the Jurisdiction Order, ROE will be adversely and irreparably injured. Under Zilbert. supra, forum selection clauses are presumed to be valid and enforceable absent a stated exception to the presumption. Nowak never argued any of those exceptions. Instead, Nowak argued that CA. Labor Code 925 applied instead of Ohio law. However, that law even if it Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 9427’0®pCOifi?&atiO>n Nbr. 2787153 / BATCH applied here requires both that the employee primarily work in California and that the claims and controversies arise in California, neither of which apply to this case. This Court found Nowak worked outside of California 57% of the time, as shown by travel reimbursement and calendar entries. The controversy arose out of an employment contract with an Ohio company and trade secrets that were acquired in Ohio, misappropriated from Ohio and from an Ohio resident company. This Court granted ROE summary judgment on the jurisdiction issues. Requiring ROE to litigate this matter in California will cause it irreparable injury. Regardless of the parties' contractual rights in Ohio or California, irreparable harm can and does result when a party is hauled into court in a foreign state where it will be subject to law adverse to the contractually bargained for law applicable if the case were jurisdictioned in Ohio and using Ohio law. ROE will be irreparably injured by being forced to litigate the same case in two different jurisdictions and with different law applied to each case. The claims and any defenses must be litigated in Ohio under Ohio law, as there is a valid forum selection clause. ROE is an Ohio corporation, and there has been a Jurisdiction Order finding that Ohio holdsjurisdiction over this case. Nowak’s disrespect for the Jurisdiction Order of this Court has, to this point, caused tens of thousands, and if continued, hundreds of thousands of dollars of unnecessary and duplicative expenses for ROE while it re-litigates the exact same matter in another court. It should be noted that "other courts have held that, 'when there is a strong likelihood of success on the merits, preliminary injunctive relief may bejustified even though plaintiffs case of irreparable injury may be weak.'" McGarry v. Gross, 2006-0hio-1759 at P 19 (8th Dist.) (quoting Blakeman's Valley Office Equip., Inc. v. Bierdeman, 152 Ohio App.3d 86 (2003) (quoting Cleveland Elec. Ilium. Co., supra)). ROE has already been successful on the merits. ROE’s success on the merits of the action decreases its burden to show irreparable injury Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942%®PcU&rffm?tibn Nbr. 2787153 / BATCH for issuance of an injunction. However, irreparable injury is still clearly shown in this case. Further, courts find a party suffers irreparable harm simply by being forced to litigate in a jurisdiction other than the one selected by a valid forum selection clause. See e.g. BE & KEng'g Co., 2014 WL 186835, at *23. Specifically, they find injunctions are warranted in those situations where foreign suits violate forum selection clauses. ASDC Holdings, LLC v. Richard J. Malouf 2008 All Smiles Grantor Retained Annuity Tr., No. CIV.A. 6562-VCP, 2011 WL 4552508, *4 (Del. Ch. Sept. 14, 2011). It would be against public policy to allow Nowak to void ROE’s rights in Ohio. ROE is an Ohio company and hired Nowak to work nation-wide. The fact that he chose to live in California is unconnected to the case. As such, requiring ROE to defend this suit in California, under laws that should not apply to this case, will cause it irreparable injury. Further, allowing a party to like Nowak to obviate his substantive contractual responsibilities and his forum and choice of law agreements by simply moving to a different jurisdiction would set a precedent detrimental to the integrity and full faith and credit of Ohio law. Finally, R.C. 2727.02 requires either “great” or “irreparable” injury. Any confusion defining the more nebulous concept of “irreparable” damage or injury gives way to a lesser more attainable concept of “great” harm or injury. Being forced to expend hundreds of thousands of dollars to defend a second suit over the same subject matter in a jurisdiction not bargained for, with law not bargained for, no doubt causes ROE “great harm.” 3. No party will be unjustifiably harmed if the injunction is granted. Nowak will not be unjustifiably harmed by being forced to respect thejurisdiction and law which he bargained for to which he agreed. Additionally, he will suffer no harm if enjoined from continuance of litigation against ROE in the California courts. There is nothing preventing Nowak Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942P0®P^lfi?mat0n Nbr. 2787153 / BATCH from pursing his claims in this matter in an Ohio court under Ohio law. In fact, the claims Nowak brought against ROE in California are compulsory counterclaims in the present Ohio case. This is not an extraordinary reach forjurisdiction. Nowak agreed to the venue of Cuyahoga County Common Pleas Court and that any claim or controversy would be governed by Ohio law. His attempts to slow the Ohio litigation so that the California suit will be decided first to skirt Ohio law should not be permitted. Jurisdictions issuing anti-suit injunctions give no consideration to any harm to the enjoined party when the foreign suit, like here, was filed later because all harms or potential harms were “self-inflicted by the party choosing to file in another jurisdiction. (Emphasis added) Carlyle Inv. Mgmt., L.L.C. v. Nat’l Indus. Grp., 2012 WL 4847089, at *11 (Del. Ch. Oct. 11, 2012), aff’d, 67 A.3d 373 (Del. 2013). Additionally, as stated above, Nowak had not argued that litigating in Ohio is so inconvenient as to be unreasonable when first determining jurisdiction. There is no unjustifiable harm to Nowak because there is no good justification for his filing the California suit after the commencement of the Ohio suit and especially since he agreed to the Ohio forum. 4. The public interest will be served by this injunction. As previously stated, Ohio public policy demands that this matter be litigated in an Ohio court under Ohio law. Under Zilbert, Nowak had the opportunity to argue that the forum selection clause was contrary to public policy of Ohio as an accepted exception to the presumption of validity, but he did not. Also, all events that occurred relative to the transaction at issue were within the State of Ohio. ROE had no knowledge or expectation that it would ever be hailed into a court other than the agreedjurisdiction, Cuyahoga County, Ohio. This, coupled with the fact that Nowak has strategized to delay the Ohio case in hope of obtaining application of law more favorable to his position, is all against the public policy of Ohio to which Ohio courts are bound to protect. Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 9427’0®pdOnfi?&atiO>n Nbr. 2787153 / BATCH Both the California legislature and Nowak believe that a California resident employee can harness the protection of a California court and California law against an Ohio employer despite the employee’s breach of agreements and wrongful competition against the Ohio employer no matter the number of contacts with Ohio and no matter a forum selection and choice of law clause requiring him to answer for his conduct in Ohio. Apparently, they believe California’s policy of protecting its resident employees is more important than Ohio’s policy of freedom of contract and protection of its corporate citizen’s interests against the transgressions of that employee. But binding authority on this court holds Ohio is the focus and its public policy is what this court is bound to protect. The state of Ohio has an interest in providing a local forum for its residents. Barret v. Picker Int'l., Inc. (8th Dist. 1990), 68 Ohio App.3d 820, 824; Intrasee, Inc. v. Ludwig (9th Dist. 2012), WL 2236609 at *3. The Ludwig court held “Enforcing the forum selection clause in Ludwig's employment agreement would not violate, but would instead, promote public policy in Ohio.” Id. The same is true here. Further, in Ludwig the 9th District citing the United States Supreme Court, held that individuals have the right to waive personal jurisdiction and consent to it through a forum selection clause. Id. at *2, citing Burger King v. Rudzewicz (1985), 471 U.S. 462. Public policy of the nation, notjust Ohio, as expressed by the US Supreme Court, namely the right of every individual to waivejurisdiction and contractually agree to a selectedjurisdiction, is also served here if the Court grants the injunction. . Ohio also has a very strong public policy of protecting an owner’s confidential and trade secret information. One of the most important public policy considerations behind Ohio's trade secret laws is the protection of the substantial investment of employers in their proprietary information. Valco Cincinnati, Inc. v. N&D Machining Service, Inc. (1986), 24 Ohio St. 3d 41. Here ROE has entered an exclusive license agreement to market, sell, manufacture, and further Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942%®PcH0?irffm?tibn Nbr. 2787153 / BATCH develop its “Guided Smile technology”. It has invested millions of dollars in its dental laboratory, research, marketing, sales force and employees to develop, improve, sell and manufacture its proprietary products. ROE employs some 250 employees, most of which are in Independence, Ohio and all of which depend on ROE maintaining its trade secrets to prevent the “knock off’ of its products and maintain its position as a premier manufacturer of the dental prosthetics it manufactures in Ohio and sells throughout the country. Allowing Nowak to continue the foreign litigation in a place that will ignore the protections afforded by Ohio’s Trade Secret Act will jeopardize the demand for ROE’s products jeopardizing it and the welfare of its honest and law abiding employees. Likewise, Ohio has a strong public policy to enforce covenants not to compete which protect a “legitimate business interest”. AK Steel Corp. v. ArcelorMittal USA, LLC, (12th Dist. 2016), 2016-Ohio-3285; Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21. California strictly forbids such covenants. California Business and Profession Code Section 16400. Therefore, it violates Ohio public policy to allow Nowak, a non-resident, to accept employment within Ohio, receive rights and interests under a contract, obtain payment from an Ohio company under the contract, agree to Ohiojurisdiction but then litigate his dispute with the Ohio company in a foreign state that will not enforce critical provisions that favor the Ohio employer in the contract. Public policy demands that Ohio companies, like ROE, who maintain business in Ohio and have rights afforded by Ohio, be protected from those pursuing litigation in foreignjurisdictions after the party agreed to and Ohio has orderedjurisdiction. Ohio has a strong resolve to enforce its own public policies. Nowak contends that California has a stronger public policy over how to treat California residents employed by an Ohio company. The California legislature, through the California Labor Code, attempts to subvert the public policy of any and all states where a California resident is employed and attempts to Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 Nbr. 2787153 / BATCH undermine the employer’s legitimate interests protected by a non-compete clause. The California legislature does not believe that such clauses should apply to California residents, and so attempts to override the policies and laws of every other state in our county, attempting to place itself and its laws above all others. D. Ohio needs to gain parity with the California Labor Code This is not an extraordinary grab for compliance with the Court’s Jurisdiction Order. ROE is simply asking for the ability to be able to litigate in the already agreed upon forum with agreed upon law. While the Ohio case continues, Nowak is attempting to have the California court rule the CA Labor Code Section 925 applies to his situation. If this strategy succeeds, and if this Court does not grant an anti-suit injunction, ROE will face heavier consequences in California than Nowak here. CA Labor Code Section 925(c) states that “[i]n addition to injunctive relief and any other remedies available, a court may award an employee who is enforcing his or her rights under this section reasonable attorney’s fees.” Not only is Nowak requesting the California court enjoin ROE from continuing this Ohio suit filed first and properly under the authority of a forum selection clause, but Nowak is seeking attorney fees against ROE under the California Labor Code. The California legislature’s overreached grab of jurisdiction from other states has a full set of sharp teeth to bite any employer who dare bring a California resident to court in an agreed-upon jurisdiction outside California. Now, Ohio needs to protect its interests by enforcing the forum selection clause, the choice- of-law agreement, the non-competition agreement, and ROE’s trade secrets. Ohio’s jurisdiction laws need the same “teeth.” There needs to be a real consequence for Nowak’s mocking this Court’s Jurisdiction Order through continuance of the foreign suit. This is not an even playing field. The only way for this Court to enforce itsjudgement, protect Ohio’s interest, and respect the Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 9427*02PC0fclff&aititan Nbr. 2787153 / BATCH Agreement between the parties is to, (like all state courts surrounding Ohio would do), grant an anti-suit injunction precluding Nowak from continuing the California Case. Then, if Nowak continues to ignore the decisions of this Court, he must be held in contempt of court and penalized for continued indifference to it. Through an anti-suit injunction pursuant to R.C. 2727.02, Ohio can gain the needed parity with the California Labor Code Nowak is using against ROE. E. No Bond Should Be Required. Although Civil Rule 65(C) regarding injunctive relief generally requires a moving party to post bond as security for temporary or preliminary injunction pending the ultimate judgment of injunction, this motion is made in execution of ajudgment rendered. Should Nowak desire to “stay execution of the judgment” pending appeal, he can post a bond to secure ROE against damages incurred by way of defending the duplicative California case and for losses sustained therein should this Court’s Judgement Order of jurisdiction be affirmed. In the present case, no bond should be required of ROE. Should Nowak seek to stay execution on the judgment so that he can continue to pursue his California case, he should be made to post bond in an amount set after a full hearing that will adequately secure ROE from the costs and damages it could sustain in California litigating under laws to which it did not bargain. Plaintiff merely seeks an order prohibiting the continued litigation of the California Case. ROE respectfully requests, for the above reasons, the Court enter execution on this Court’s judgment in the form of an anti-suit injunction enjoining Nowak from continuing to pursue the suit filed in California against ROE. Respectfully submitted, /s/ Frank J. Witschey Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942P0®pCo?iff?m?tibn Nbr. 2787153 / BATCH Frank J. Witschey, Esq. #0059171 Karan A. Moss, Esq. # 0087728 WITSCHEY WITSCHEY & FIRESTINE CO., LPA 405 Rothrock Road, Suite 103 Akron, Ohio 44321 Tel.: (330) 665-5117 Fax: (330)665-7615 Email: fjw@witscheylaw.com ATTORNEY FOR PLAINTIFF, ROE DENTAL LABORATORY, INC. CERTIFICATE OF SERVICE I hereby certify that on the 27th Roe Nowak day of February, 2023 the foregoing was filed electronically and that notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s electronic filing system. Respectfully submitted, /s/ Frank J. Witschey______________ Frank J. Witschey, Esq. #0059171 Attorney for Plaintiff cli.roe.nowak.ohio.pleadings.motionforantisuitinjunctionlfinal Electronically Filed 02/27/2023 15:41 / MOTION / CV 21 942P0®pCo?iff?m?tibn Nbr. 2787153 / BATCH