Huminski v. Heretia et al

Filing 74

ORDER denying 70 Plaintiff's Motion to Stay Pending Appeal. Plaintiff's Notice of Dismissal of Claims (Doc. 72) is ineffective. This case remains in existence and governed by the Case Management Order (Doc. 58). Signed by Judge David G Campbell on 10/27/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV11-0896 PHX DGC

Scott Huminski,
Plaintiff,

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vs.

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ORDER

Hector Heretia, et al.,

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Defendants.
Plaintiff Scott Huminski has filed a Motion To Stay Pending Appeal. Doc. 70.
For the reasons that follow, the motion will be denied.

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“The standard for evaluating stays pending appeal is similar to that employed by

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district courts in deciding whether to grant a preliminary injunction.” Lopez v. Heckler,

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713 F.2d 1432, 1435 (9th Cir. 1983). The moving party must show both a probability of

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success on the merits and irreparable injury, or the existence of serious questions and that

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the balance of hardships tips sharply in his favor. Id. As explained in the Court’s orders

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denying Plaintiff’s first and second motions for preliminary injunctions, Plaintiff has

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failed to meet this standard. See Docs. 42, 68. Plaintiff therefore has not shown that he is

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entitled to a stay pending appeal.

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Plaintiff has also filed a Notice of Dismissal of Claims. Doc. 72. The notice

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purports to dismiss “all claims in this suit that are not related to the issues presented in

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future decisions of the two appeals of this case now pending before the United States

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Court of Appeals for the Ninth Circuit or the Supreme Court.” Id. The notice is

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ineffective for two reasons.

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First, once defendants have filed an answer (as they have in this case), a plaintiff

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may dismiss claims only by filing a stipulation of dismissal signed by all parties or by

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obtaining a court order approving the dismissal. See Fed. R. Civ. P. 41(a)(1)(A) & (B).

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Plaintiff has not filed a stipulation or sought a ruling from the Court.

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Second, the notice does not clearly identify the claims Plaintiff attempts to

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dismiss.

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injunctive relief. Plaintiff states that he is dismissing all claims not related to the appeals

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of those orders, but the claims underlying Plaintiff’s requests for preliminary injunctive

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relief also underlie his requests for permanent injunctive relief. Thus, it is not clear from

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The Court’s previous orders denied Plaintiff’s requests for preliminary

the order precisely what claims Plaintiff is attempting to dismiss.

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IT IS ORDERED:

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1.

Plaintiff’s Motion to Stay Pending Appeal (Doc. 70) is denied.

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2.

Plaintiff’s Notice of Dismissal of Claims (Doc. 72) is ineffective. This case

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remains in existence and governed by the Case Management Order (Doc. 58).
Dated this 27th day of October, 2011.

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