Durand et al v. Stephenson et al

Filing 75

ORDER denying 73 Plaintiffs' Motion to Stay, signed by Magistrate Judge Carolyn K. Delaney on 10/29/12. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWIN DURAND, et al.,

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Plaintiffs,

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No. 2:09-cv-2038 JAM CKD PS

vs.
CANDICE STEPHENSON, et al.,

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Defendants.

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ORDER
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By order filed October 1, 2012, the court ordered plaintiffs to pay sanctions in the

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amount of $5,000. The court allowed plaintiffs to pay the sanctions in installments, with the first

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payment to be no later than October 31, 2012. Plaintiffs have not sought reconsideration by the

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District Judge of the October 1, 2012 order but have instead filed a petition for writ of mandamus

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with the United States Court of Appeals for the Ninth Circuit in which plaintiffs request that the

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October 1, 2012 order be vacated.1 Plaintiffs now seek a stay by this court of the October 1, 2012

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order pending resolution of the writ of mandate. See dkt. no. 73.

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/////

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Although plaintiffs have submitted a copy of their petition along with their request for
stay of the October 1, 2012 order, they have not provided the Ninth Circuit docket number for
their petition.
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It appears that plaintiffs are proceeding under the erroneous assumption that the

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undersigned ruled on plaintiffs’ Rule 60(b) motion which was filed on November 30, 2010 after

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entry of judgment. See dkt. no. 52. That motion sought reconsideration of the magistrate judge’s

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November 16, 2010 order, which was filed post-judgment. See dkt. no. 51. By order filed June

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29, 2012, the November 16, 2010 order was vacated, thus mooting plaintiffs’ request for

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reconsideration. See dkt. no. 62. In considering the amount of sanctions to be imposed under

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Rule 11, however, the court considered the entire record in this action, including plaintiffs’

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contentions and exhibits submitted in connection with the motion for reconsideration.

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Although not briefed by plaintiffs, “[t]he factors the Court considers in

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determining whether a stay pending petition for writ of mandamus is warranted are the same as a

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stay pending appeal: (1) the likelihood that the party seeking the stay will prevail on the merits of

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the petition; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3)

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the prospect that others will be harmed if the Court grants the stay; and (4) the public interest in

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granting the stay.” Citizens for Responsibility and Ethics in Washington v. Cheney, 580 F. Supp.

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2d 168, 177 (D.D.C. 2008) (citing Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972,

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974 (D.C. Cir. 1985)). The court has considered these relevant factors and has determined that a

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stay is not warranted.

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Accordingly, IT IS HEREBY ORDERED that plaintiffs’ motion for stay
(dkt. no. 73) is denied.

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Dated: October 29, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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durand.2038.stay

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