ORDER RE: REQUEST TO STAY ORDER AWARDING ATTORNEY'S FEES

WILLIAM B. SHUBB, District Judge.

On July 14, 2015, the court granted summary judgment in favor of plaintiff the National Grange's claims for trademark infringement and false designation of origin under the Lanham Act. (July 14, 2015 Order at 19-20 (Docket No. 60).) The court enjoined defendant "from using marks containing the word `Grange.'" (Sept. 30, 2015 Order at 6 (Docket No. 85).)

On April 20, 2016, the court found defendant in "deliberate and willful" violation of the court's injunction on the word "Grange" and held that plaintiff was entitled to attorney's fees under 15 U.S.C. § 1117(a) ("April 20 Order"). (Apr. 20, 2016 Order at 34, 36 (Docket No. 138).) The court awarded plaintiff $144,715.70 in fees on September 12 ("September 12 Order"). (Sept. 12, 2016 Order at 21 (Docket No. 154).)

On September 29, defendant filed a declaration stating that it is unable to pay the fees and requesting the court to stay enforcement of the September 12 Order. (Decl. of Robert McFarland ("McFarland Decl.") ¶ 12 (Docket No. 155).) According to defendant, "[m]ost of the funds held by the Guild are subject to a preliminary injunction issued in . . . [the underlying] State Court Action." (Id. ¶ 4.) Defendant alleges that its other sources of income are held in escrow subject to plaintiff's consent, subject to other injunction, or constitute necessary operating costs. (Id. ¶¶ 6-8.) Defendant attaches bank statements showing that the only bank accounts it currently has access to total $814.27 and $1,535.71 respectively. (Id. Exs. C-E.) The bank accounts subject to state court preliminary injunction total $2,427,436.15 and $105,385.49. (Id.)

On October 4, plaintiff filed a short statement opposing defendant's request and alleging that "Defendant does have funds available that were not disclosed in Mr. McFarland's Declaration." (Pl.'s Resp. (Docket No. 157).) The next day, the clerk of court issued a writ of execution on the September 12 Order. (Docket No. 159.)

On October 10, defendant appealed the September 12 and April 20 Orders to the Ninth Circuit. (Notice of Appeal (Docket No. 160).)

Defendant's request for stay is styled as a declaration. The declaration cites no law. Because defendant has appealed the April 20 and September 12 Orders to the Ninth Circuit, the standard set forth by the U.S. Supreme Court in Nken v. Holder, 556 U.S. 418 (2009) is appropriate here.

Under Nken, a court considers the following factors in deciding whether to grant a stay pending an appeal: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken, 556 U.S. at 426. "The first two factors . . . are the most critical. It is not enough that the chance of success on the merits be `better than negligible.'" Id. at 434. "[T]he stay applicant [must make] a strong showing that he is likely to succeed on the merits." Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012). Additionally, merely "showing some `possibility of irreparable injury' . . . fails to satisfy the second factor." Nken, 556 U.S. at 434-35.

Defendant has not attempted to argue that it will succeed in appealing the April 20 or September 20 Orders. Its request is based only on its alleged inability to pay. It has not demonstrated irreparable injury either. In the event defendant does not pay and plaintiff brings a second contempt motion, defendant will be free to argue inability to pay as a defense. See F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) ("A party's inability to comply with a judicial order constitutes a defense to a charge of civil contempt."); Cutting v. Van Fleet, 252 F. 100, 102 (9th Cir. 1918) ("[I]n cases of civil contempt for failure to comply with an order to pay money, the defendant may show in defense that he is financially unable to comply.").

It is not clear whether issuing a stay would substantially injure plaintiff or whether the public has an interest in issuing a stay. However, because defendant has not satisfied the two "most critical" factors of Nken, a stay is inappropriate here.

IT IS THEREFORE ORDERED that defendant's request to stay the court's September 12, 2016 Order (Docket No. 154) be, and the same hereby is, DENIED.