PLAINTIFF'S MOTION FOR THE COURT TO RECONSIDER GRANTING STAY ON DOCUMENT 19
Expedited Hearing Request
STACIE F. BECKERMAN, Magistrate Judge.
MOTION FOR RECONSIDERATION
On February 1st 2019, the defendant requested a motion for stay under document 19 on a normal proceeding of a motion to sanction (document 15) filed by Plaintiff alleging the defendant's 12(b)(6) motion (document 5) to "partially dismiss" was both knowingly frivolous and inappropriate and was filed with a knowingly false basis. In the defendant request the required four factor test was entirely absent which is the very basis that the court must consider in granting an OPPOSED motion for stay. Within a few short hours, the court immediately granted the entirety of the defendant's motion to stay without granting the plaintiff the legally required time to respond and without the defendant fulfilling the legal obligations of the four-factor test. Plaintiff is moving the court to reconsider and reverse its hasty position given that had the court actually looked to the four factor test it would have seen that the moving party which is the defendant, has entirely failed to meet the legal standard to request a motion for stay and that in the court granting the inappropriate motion for stay the court has unjustly prejudiced the non-moving party and has granted a clear and prominent tactical advantage in which the defendant's own motion even expressly states the nature of this tactical advantage. Additionally, the Supreme Court requires the four factor test be met or the motion for stay cannot be granted and since the Supreme Court is the binding authority and plaintiff is moving the court to abide by the Supreme law of the land and its decision the Supreme Court requires the court to reverse its decision immediately or not be in compliance with the Supreme Court's rulings.
LEGAL STANDARDS
I. The motion for stay fails the supreme courts 4 factor test which the court is bound by law to consider before granting a motion for stay and the defendant failed to confer in good faith as is required by LR 7-1.
On February 1st, the conferral process regarding the motion for stay lasted 12 minutes exactly and was abruptly cut short. The defendant's counsel refused to confer about the 4 factor test and other matters that are essential facts to whether or not they can pursue a motion for stay. At no time during this conferral process could the defendant articulate that in the absence of this motion to stay would the defendant be unjustly damaged, which is one of the four factors the court must consider.
Local Rule 7-1 requires that a moving party get the court involved only if the facts are still in dispute which would then require the courts involvement. However, the facts were not disputed or in dispute seeing as how the defendant never actually demonstrated the facts to be in dispute or even challenged the facts, but instead abruptly ended the conferral without ever challenging the facts to be in dispute. Namely, the four-factor test are the primary facts which determine whether the defendant can even file a motion for stay. The defendant refused to discuss the four factor tests and in fact admitted to expecting to receive a clear and tactical advantage once the stay would be granted which itself demonstrates the defendant's failure to meet at least one of the 4 factors which will be discussed further below. Plaintiff demonstrated the facts that the defendant failed to meet the legal requirement unless it could expressly demonstrate how it would be injured absent of stay. The defendant had no dispute that it was not going to be injured. Once again, the facts were not in dispute that the defendant certified they were under LR 7-1(a) in requesting the courts involvement. Because of this 7-1(a)(3) the court may deny any motion that fails to meet this certification requirements. Plaintiff is requesting at minimum that the court adhere to LR 7-1(a)(3) and reverse its hasty decision and at most that the court is bound by Supreme Court to reverse its hasty decision. At the very least, getting the court involved when the LR 7-1 has not been met would be in opposition to judicial economy.
The Supreme Court requires that a petitioner for a stay of proceedings must demonstrate satisfaction for a four factor test: "(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 interest in the preceding, and (4) where the public interest lies". Nken, 556 U.S. at 434.
In effectuating this test, the Ninth Circuit applies a sliding scale under which a petitioner seeking a stay must show irreparable harm and either: "(a) a strong likelihood of success on merit and at the public interest does not weight heavily against a stay; or (b) a substantial case on the merits and that the balance of hardship tips sharply in the petitioners favor." Leiva-Prez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011).
ARGUMENTS
As to the first factor requiring that the defendant make a strong showing that it will succeed on the merit of its claim, the defendant's brief five page request for motion offers nothing that could be conceived of as making a strong showing and in fact the defendant merely offers boilerplate arguments none of which suspiciously point to only precedent that is of paramount importance in a motion to stay, that being the Supreme Courts four factor test. To make a strong showing and to demonstrate the merit the defendant is legally required to show how it would be irreparably damaged in absence of a motion to stay. The defendant made no such argument.
The defendant's entire motion rests upon an erroneous argument of "judicial economy" being its basis. However, the defendant ironically fails to demonstrate how denying the general court proceeding only to request that the court grant them a special favor in order to protect and insulate them from any relief by having the court hear first a motion that has been challenged as being both frivolous and inappropriate with a knowingly false basis with which should the court grant any part of the frivolous and inappropriate motion before hearing the 11b motion to sanction responsive to that motion with likely have to retract any judgement produced which didn't take into consideration substantial facts which would have rendered the 12(b)(6) motion moot in the first place, put simply, there is no judicial economy in requesting the court make judgement on a moot motion only to later after hearing the 11(b) motion to sanction have to retract and readjust the order since orders on a moot motion become moot orders. There is no judicial economy in this thought process. True judicial economy would state that its much simpler to hear the Motion to Sanction filed under 11b and should the 11b succeed on its merit the court would have to waste no time hearing a moot and frivolous 12(b)(6) motion based on simple reasoning that anyone could see clearly and evidently the first factor has not been met because judicial economy is in favor of hearing the motion and not in favor of motion for stay.
As for the second factor being whether the defendant will be irreparably injured absent of stay: the defendant fails to make any argument in their five page motion demonstrating "irreparable damage" absent of stay. In fact, during the conferral within the very short 12 minutes of conversation Plaintiff expressly asked the defendant whether it believed it could defeat the 11b motion to sanction motion without issue. The defendant stated that yes it believed it could, the plaintiff then explained to the defendant that if they believed they were already going to win then they are admitting that their motion for stay is moot because they don't even believe that they could be irreparably damaged seeing as how they are fully confident that they will overcome the 11b motion to sanction.
Plaintiff would then asked the court if the defendant has admitted that moving forward in hearing the 11b motion to sanction would not irreparably damage them and that it thinks it was going to win anyway then what basis is there granting a motion to stay given that both the plaintiff and the defendant are in an agreement that moving forward with the 11b motion would in no way unjustly harm the defendant? However, by granting a motion to stay the plaintiff is substantially and irreparably damaged as is the public interest.
Regarding the third factor as to "whether issuance of the stay will substantially injure the other parties interest in the preceding": The court did not even allow the plaintiff an ability to respond to this factor however, even with that considered it is actually not the plaintiff's burden to demonstrate this. The burden rests entirely in the moving party's hand and, true to form the defendant itself in its meager five page motion, of the few arguments outside of the boilerplates the defendant does actually make for why it should be granted the motion to stay one of them expressly details how when the court grants its motion to stay the plaintiff will be unjustly and substantially injured when her 11b motion for relief will be rendered moot even if it would otherwise succeed on its merit absent of stay. The defendant's motion states: "to be clear, Western Union is seeking a stay as to Plaintiff's motion for sanction only, as that motion may become moot depending on the outcome of defendant's partial motion to dismiss" Dkt 19, at 2.
The quotation DKT 19 at 2 referenced above from the defendant's own reasoning demonstrates that the defendant does in fact expect that the court granting of the its motion for stay will in fact lead to a substantial injury for plaintiff and will provide the defendant with a clear and evident tactical advantage. The law permits plaintiff the right to sanctions so long as plaintiff has met all the legal requirements for filing of 11b sanction. Plaintiff has done exactly this, plaintiff has given the necessary 21 days safe harbor period and in fact even granted the defendant the additional days before filing the 11b motion and the defendant does not even once challenge whether or not plaintiff has met her burden but instead is asking the court to deny her the legal relief by putting a stay on her motion for relief in order to hopefully render it moot after the defendant is given a strategic clear and evident tactical advantage. Denying the legal rights of a citizen is not only a substantial injury but a matter of public interest.
As noted above regarding the 4th factor of "public interest": Plaintiff has already demonstrated at least one clear and evident way the granting of motion to stay would damage the public interest through undermining the judicial process itself and granting immunity to an offending party who has done the things in which relief can be granted but which court now denies the damaged party from relief. For the court to allow the defendant to refuse to answer the unchallenged claims to the pleading even when court ordered to do so on December 28th, 2018 through the filing a frivolous and inappropriate 12(b)(6) motion with a knowingly false basis not only undermines the entire legal process but grants special privileges to a single party which can and should be perceived as a substantial and unjust clear and evidence tactical advantage which would go against public interest at its core. Additionally, to allow a stay on motion (document 15) for relief which if heard could correct the error and the damage before it is allowed to compound itself solely benefits only the defendant while in the process denying normal "business as usual" proceedings and responsive motions to proceedings in order to allow the defendant to avoid its legal obligations, to file frivolous motions in order to avoid court orders, and when relief is required for the court to deny relief and allow the defendant anything and everything that it wants at the expense of justice, of the plaintiff herself and her good faith claims, and most importantly damage to public interest in that it sets a precedent that the law does not have to be followed one merely has to be well versed in loop holes and they can be excused from any and all legal obligation whether local or federal rules.
Based on the legal standard itself, which is binding to all federal courts as set forth from the Supreme Court itself, the four factor test itself requires that the court reconsider their motion and in fact not only reconsider it but completely strike it as if it never had occurred thus denying the request for motion to stay in its entirety and ordering the defendant respond to Motion for Sanction on February 8th when it is already due. As a matter of law the court must reverse its decision.
CONCLUSION
The plaintiff requests an expedited hearing, just like the court granted the expedited hearing before the 8th for the defendant; which is when the defendant's response is due. The plaintiff is requesting the same treatment so that the error can be corrected and that the defendant can still be required to respond on February 8th, which would be business as usual.
For the sake of judicial economy Plaintiff will sum up why the court must reverse its decision regarding motion to stay: The Supreme Court has issued the criteria for motion to stay which is the four factor test with which the defendant entirely ignored, as did the court in granting its OPPOSED motion for stay within a few hours of the defendant even asking for it. Failure to meet the four factor test automatically denies any motion for stay which is what happened here. Additionally, the defendant admitted that in granting the motion to stay the plaintiff would be substantially injured as would the public interest which was one of the key factors the Supreme court requires all federal judges to consider and weigh before granting a motion to stay. And further, the only other argument presented by the defendant is a mistaken one regarding their interpretation of judicial economy. Hearing the 11b motion to sanction in fact would be in the best interest of the judicial economy given that when the motion succeeds on its merit which it will, the court does not have to waste its time on a frivolous and improper 12(b)(6) motion filed under document 5, streamlining the process to discovery. By the defendant asking for the stay it is increasing the burden upon the judicial economy for the reasons mentioned above and in the process of asking the court for special treatment and privileges as well as immunity to the repercussions of which the law demands the court is taking action against the public interest as well as against the law. The Supreme Court has spoken for a very good reason and has provided all federal judges with the criteria that must be met and as such since the defendant has failed entirely to meet the burden required of the moving party to be granted any such motion the court must, as a matter of law and binding precedent of the Supreme Court, reverse its decision and it must do so in a very quick and timely manner so as not to unjustly disrupt the legal obligations of the defendant in responding on February 8th 2019 to document 15.
These are not the arguments or wishes of a mere plaintiff but the expectation of the Supreme Court of the United State of America and should the court wish to deny plaintiff request for reconsideration it does so only by denying the supreme court its authority, which no federal court can do. A reversal on motion to stay must be granted as matter of law.
