Winding v. Allstate

Filing 203

ORDER signed by Judge Kimberly J. Mueller on 2/6/2015 ORDERING that the 197 Motion for Reconsideration and 198 Motion to Stay are DENIED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JACOB WINDING,

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Plaintiff,

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No. 2:09-cv-3526-KJM-KJN

v.

ORDER

ALLSTATE INSURANCE COMPANY,
and DOES 1-25, inclusive,
Defendants.

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I.

BACKGROUND
On December 17, 2014, the court issued an order dismissing the complaint and

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instructing the clerk’s office to enter default as to the defendant’s counterclaim. Order Dec. 17,

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2014, ECF No. 192. The clerk’s office entered default on the same day, ECF No. 193, and

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Allstate filed a motion for default judgment on January 16, 2015, ECF No. 194. Also on

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January 16, the plaintiff, Jacob Winding, filed a notice of appeal, ECF No. 196; a motion for

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reconsideration of the court’s December 17 order, ECF No. 197; and a motion for a stay pending

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appeal, ECF No. 198.

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II.

DISCUSSION
A.

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Reconsideration
Federal Rule of Civil Procedure 60(b) allows a party to seek relief “from a final

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judgment, order, or proceeding” for, among other reasons not applicable here, “mistake,

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inadvertence, surprise, . . . excusable neglect, . . . newly discovered evidence . . . , or . . . any other

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reason that justifies relief.” This district’s local rules also require a party seeking reconsideration

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of a previous order to show, among other things, “what new or different facts or circumstances

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are claimed to exist which did not exist or were not shown upon such prior motion, or what other

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grounds exist for the motion” and “why the facts or circumstances were not shown at the time of

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the prior motion.” E.D. Cal. L.R. 230(j)(3), (4).

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Mr. Winding’s motion does not alert the court to any new facts, changes in the

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law, mistake, neglect, or other reasons why the court should reconsider its earlier order; rather, he

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presents evidence of his medical limitations, notes he is not represented and seeks an attorney.

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The court considered these facts in its previous order and concluded dismissal and entry of default

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were the appropriate resolution. See Order Dec. 17, 2014, at 3–4, ECF No. 192. The motion for

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reconsideration is denied.

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B.

Stay Pending Appeal
The party seeking a stay bears the burden to show it is entitled to a stay. Latta v.

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Otter, 771 F.3d 496, 498 (9th Cir. 2014). A motion for a stay pending appeal requires an analysis

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similar to that in the case of a motion for preliminary injunction. Earth Island Inst. v.

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Ruthenbeck, No. 03-6386, 2005 WL 3284289, at *1 (E.D. Cal. Nov. 30, 2005) (citing Lopez v.

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Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)). The court considers four factors: “(1) whether the

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

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

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substantially injure the other parties interested in the proceeding; and (4) where the public interest

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lies.” Latta, 771 F.3d at 498.

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Mr. Winding has not carried his burden to show he is entitled to a stay. He has not
cited or applied any law to show resolution of this case will likely be in his favor. Neither has
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Mr. Winding addressed the court’s concern that if the case were to continue, he would not

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prosecute it. See Order to Show Cause Nov. 14, 2014, ECF No. 189. He has not presented

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evidence he will suffer irreparable harm; should Mr. Winding’s appeal succeed, he will receive

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relief from any economic harm he suffered. Issuance of the stay will further delay the

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proceedings here and prevent Allstate from recovering on its counterclaim, a claim Mr. Winding

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has not adequately addressed and has previously not defended. Finally, Mr. Winding has

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described only vaguely a public interest in justice he says weighs in his favor. These arguments

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do not adequately address the concerns the court expressed in its previous orders. Id. at 3

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(describing the factors a court considers when deciding whether dismissal and default judgment

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are appropriate sanctions); Order Dec. 17, 2014, at 3–4, ECF No. 192 (applying these factors).

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III.

CONCLUSION

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The motion for reconsideration and for a stay pending appeal is DENIED.

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IT IS SO ORDERED.

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DATED: February 6, 2015.

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UNITED STATES DISTRICT JUDGE

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