Gibson et al v. Poirier

Filing 32

ORDER that Real Party in Interest John Doe's Motion to Stay Order Denying Motion to Quash Subpoena (Doc. 24 ) is denied. See order for complete details. Signed by Judge Neil V. Wake on 3/19/15. (NKS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Bryan Gibson, et al.,

No. MC-14-00083-PHX-NVW
Plaintiffs,

10
11

v.

12

ORDER

Gary Poirier,

13

Defendant.

14
15

Before the Court are Real Party in Interest John Doe’s Motion to Stay Order

16

Denying Motion to Quash Subpoena (Doc. 24), the Response (Doc. 28), and the Reply

17

(Doc. 30).

18

Subpoena (Doc. 10) because at least some of the statements in question indisputably

19

qualified as commercial disparagement and Doe’s identity was therefore relevant to the

20

underlying defamation action. Doe intends to appeal that ruling and asks the Court to

21

preserve the status quo while his appeal is pending.

On March 10, 2015, the Court orally denied Doe’s Motion to Quash

22

Courts weigh four factors when considering motions like Doe’s: “(1) whether the

23

stay applicant has made a strong showing that he is likely to succeed on the merits; (2)

24

whether the applicant will be irreparably injured absent a stay; (3) whether issuance of

25

the stay will substantially injure the other parties interested in the proceeding; and (4)

26

where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (citations

27

omitted). Here, whether the “minimum quantum of likely success” required by the first

28

factor is defined as “a reasonable probability” of prevailing or merely as the existence of

1

“serious legal questions,” Doe has not met his burden. Leiva-Perez v. Holder, 640 F.3d

2

962, 967-68 (9th Cir. 2011) (citations and internal quotation marks omitted). Even

3

reading Doe’s statements in context, and even employing the summary judgment

4

standard Doe urges the Court to borrow from Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170

5

P.3d 712 (Ct. App. 2007), Plaintiff has shown a likelihood of success in its defamation

6

action sufficient to compel the disclosure of Doe’s identity. Contrary to the claim Doe

7

makes in his Reply, the Court at oral argument did not “reject[] Doe’s assertion that

8

Gibson is a limited purpose public figure.” (Doc. 30 at 2; see generally Doc. 29.)

9

Rather, the Court did not decide that question because Doe’s statements were defamatory

10

regardless of whether Gibson qualified as a public figure. The cases Doe cites in his

11

Reply do not require revisiting the issue.

12

The First Amendment right to engage in anonymous speech “promotes the robust

13

exchange of ideas and allows individuals to express themselves freely without ‘fear of

14

economic or official retaliation . . . [or] concern about social ostracism.’” Anonymous

15

Online Speakers v. United States Dist. Court, 661 F.3d 1168, 1173 (9th Cir. 2011)

16

(alterations in original) (citation omitted). Doe’s conclusory allegation that, should the

17

Court deny his Motion, he may “be dragged into litigation or subjected to other

18

retribution” (Doc. 24 at 5) is unavailing. If such vague, unsupported assertions were

19

sufficient to establish irreparable injury to First Amendment rights, anonymous speakers

20

would be entitled to stays as a matter of course. The Hilton standard is not so indulgent.

21

Doe’s invocation of the “public interest” is no more convincing. Doe’s original

22

Motion to Quash Subpoena was predicated on a federal substantive right, i.e., the First

23

Amendment right to speak anonymously. As a result, there is no basis to argue that

24

resolution of that Motion should have been governed by the Erie doctrine, which holds

25

that “federal courts sitting in diversity apply state substantive law and federal procedural

26

law.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 417

27

(2010) (Stevens, J., concurring in part and concurring in the judgment) (citation and

28

internal quotation marks omitted).

-2-

1

Most important, at least on the facts of this case, is the third Hilton factor. The

2

underlying defamation action was filed almost a full year ago. Plaintiff has requested

3

that all existing deadlines in the scheduling order be extended by ninety days, but

4

contrary to Doe’s representation, Plaintiff has not “obtained a stipulation” to that request

5

from Poirier. (Doc. 30 at 4 n.2; see Doc. 28-1 at 5.) To date, the North Carolina court

6

has not ruled on Plaintiff’s motion. Whether that motion is ultimately granted or denied,

7

entering a stay at this late date could significantly disrupt the proceedings in the Eastern

8

District of North Carolina, potentially bringing the action to a halt for months. Especially

9

where Doe’s odds of success on appeal are so slim, such delay cannot be justified.

10
11
12
13

IT IS THEREFORE ORDERED that Real Party in Interest John Doe’s Motion to
Stay Order Denying Motion to Quash Subpoena (Doc. 24) is denied.
Dated: March 19, 2015.

14
15

Neil V. Wake
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28

-3-