ORDER DENYING DEFENDANT'S MOTION TO STAY

EDWARD M. CHEN, District Judge.

For the reasons stated on the record during the October 27, 2016 hearing, the Court DENIES Defendant Cordis Corporation's motion to stay these proceedings pending appeal of the Court's prior Order remanding these related cases to state court for lack of subject matter jurisdiction. This order is intended to memorialize and supplement that ruling.

Supreme Court case law has "distilled" the legal principles that guide courts' discretion in issuing stays "into consideration of four factors: `(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 v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). "The first two factors of the traditional standard are the most critical." Id.

In applying these factors, the Ninth Circuit employs a "sliding scale" approach whereby "the elements of the . . . test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); see also Leiva-Perez v. Holder, 640 F.3d 962, 964-66 (9th Cir. 2011) (noting that the sliding scale test for preliminary injunctions described in Alliance for the Wild Rockies is the "essentially the same" as the test used in the stay context, and holding that this approach "remains in place" following the Supreme Court's decision in Nken). In other words, "the required degree of irreparable harm increases as the probability of success decreases." Nat. Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007).

As an initial matter, the Court notes that Cordis misstates the applicable test. Cordis argues that it is required to show either "a probability of success on the merits and the possibility of irreparable injury" or "that serious legal questions are raised and that the balance of hardships tips sharply in its favor." Docket No. 63 ("Reply") at 6 (quoting Golden Gate Rest. Ass'n v. City & Cty. of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008)). In fact, the Golden Gate test upon which Cordis relies is no longer good law. As the Ninth Circuit has since explained, the Supreme Court's decision in Nken overruled prior Ninth Circuit law "that permitted a stay to issue upon the petitioner `simply showing some possibility of irreparable injury.'" Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011) (quoting Nken, 556 U.S. at 434) (emphasis added in Leiva-Perez). Thus, while the sliding scale approach remains applicable (such that the robustness of the showing on the merits varies with how sharply the balance of hardship tips), "to obtain a stay . . . [a movant] must [in any event] demonstrate that irreparable harm is probable if the stay is not granted."1 Id.

A. Likelihood of Success on the Merits

Cordis asserts that under Leiva-Perez, "all that must be shown to justify a stay is a `fair prospect' of success, `a substantial case on the merits,' or that `serious legal questions are raised." Reply at 4 (quoting Leiva-Perez, 640 F.3d at 966-68). That is not entirely accurate, as it does not take into account the sliding scale balancing with the irreparable harm prong. In fact, the language that Cordis quotes represents Leiva-Perez's articulation of "the minimum quantum of likely success necessary to justify a stay." Leiva-Perez, 640 F.3d at 967 (emphasis added). In other words, to justify a stay on a showing merely of a "fair prospect" of success on appeal, a movant must show that the balance of hardship tips sharply in its favor. In any event, the Court finds that Cordis cannot satisfy either standard.

Cordis argues that it is likely to succeed on appeal for two reasons. First, Plaintiff reiterates the arguments it made previously that the Quinn consolidation motion constituted a request for a joint trial. Motion at 7-8. This argument fails for the reasons discussed in the Court's remand order including, most significantly, that Plaintiffs explicitly stated that they sought consolidation for pretrial purposes only. Cordis continues to insist that Plaintiffs never explicitly stated that they sought consolidation for pretrial purposes only. See Reply at 5 n.7. This contention is largely based on what can only be characterized as a willful misreading of the language of the petition. Cordis also continues to point to Plaintiffs request for a "bellwether trial process." But despite this Court's discussion in its remand order, Cordis still fails to recognize that unless the parties provide otherwise, a bellwether trial is a "pretrial" proceeding for every case other than the bellwether itself, as it functions typically only to provide information that will facilitate settlement, not to bind all subsequent cases. With respect to the Ninth Circuit's statement that "a bellwether trial is not, without more, a joint trial within the meaning of CAFA," Briggs v. Merck Sharp & Dohme, 796 F.3d 1038, 1051 (9th Cir. 2015), Cordis argues that what constitutes sufficiently "more" remains unsettled, presenting a "serious legal question." See Leiva-Perez, 640 F.3d at 966-68. But no such question is presented by this case. Plaintiffs clearly and explicitly stated that they sought consolidation only for pretrial purposes; whatever "more" might suffice to create an implicit request for a joint trial of other cases was not present in this case.

Second, Cordis argues that it is likely to succeed on appeal because a motion for consolidation pursuant to Cal. Civ. Proc. Code § 1048 — the provision under which the Quinn Plaintiffs sought consolidation — is per se a request for a joint trial. See Motion at 8-10; Reply at 5. Cordis never raised this argument in its briefing on the jurisdictional question, and only made a brief reference to it during the hearing. It thus waived the argument. In any case, Cordis does not have a "fair prospect" of success with this argument on the merits. Most significantly, it contravenes the clear text of the statute. Section 1048 provides:

The statute explicitly provides for consolidation for the purpose of a "hearing" (as opposed to a "trial") on "any" (as opposed to "all") of the matters at issue. This plainly authorizes limited consolidation short of a full trial.

Cordis's argument to the contrary relies entirely on a single statement from the California Supreme Court. In Hamilton v. Asbestos Corp., the court stated that:

In context, it is apparent that the Court's reference to "consolidation for purposes of trial only" refers to the portion of the statute that allows a court to "order a joint hearing or trial." It was not necessary for the Court to decide whether the statute allows consolidation for pretrial purposes, because the parties in that case agreed that consolidation had at least been requested for trial. This stray comment, which did not focus or used to address the issue presented here, cannot be construed to contravene the clear statutory text.2 The Court concludes that Cordis does not raise even a "serious legal question" on this point.

B. Irreparable Harm

A movant's "burden with regard to irreparable harm is higher than it is on the likelihood of success prong, as she must show that an irreparable injury is the more probable or likely outcome." Leiva-Perez, 640 F.3d at 968. As the Supreme Court has explained, the "key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough." Sampson v. Murray, 415 U.S. 61, 90 (1974).

Cordis asserts that it faces irreparable harm only because, if a stay is denied, it may have to spend some amount of time litigating concurrently in both state and federal court. Motion at 10-11. This would create the possibility that Cordis would be forced to making filings that would ultimately "have served no purpose," as well as "add[ing] unnecessary expense for both sides." Id. at 11. But this is the sort of mere injury "in terms of money, time and energy necessarily expended" that the Supreme Court has found insufficient to constitute an irreparable harm. It is true that some district courts have nonetheless found these concerns sufficient to warrant a stay. See Reply at 6-7. But significantly, as Cordis itself notes, "[b]ecause 28 U.S.C. § 1453(c)(2) provides for expedited [appellate] review, any delay would be short lived." Reply at 7. Courts have accordingly denied stays on the ground that "no irreparable harm will result since review is expedited." Manier v. Medtech Prod., Inc., 29 F.Supp.3d 1284, 1288 (S.D. Cal. 2014); see also Smith v. Am. Bankers Ins. Co. of Florida, No. 2:11-CV-02113, 2011 WL 6399526, at *2 (W.D. Ark. Dec. 21, 2011). Any harm to Cordis would be similarly limited. This is especially true since there will be no further proceeding in the federal district court. The only parallel proceeding is briefing of Cordis's appeal to the Ninth Circuit. Cordis thus cannot meet its burden to show irreparable harm in the absence of a stay. Nor has it shown the balance of hardship tips sharply or otherwise in its favor. The plaintiffs in this case have already seen their efforts to seek redress for their injuries substantially delayed by Cordis's removal. Adding further delay would only compound their injuries.

C. Injury to Plaintiffs and Public Interest

As noted above, the Supreme Court has explained that the first two factors in the traditional stay test are the most important. Indeed, a Court need not consider the third and fourth factors unless it concludes that the moving party has made an adequate showing on the first two. See Nken, 556 U.S. at 435 ("Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest."). Because Cordis cannot carry its burden with respect to either of the first two prongs, it is unnecessary for the Court to reach these additional issues. In any event, Cordis has failed to articulate any real injury to the public in failing to stay the matter.

For the foregoing reasons, the Court DENIES Cordis's motion for a stay pending appeal3 in the cases listed below.

IT IS SO ORDERED.