UNITE HERE International Union v. Shingle Springs Band of Miwok Indians

Filing 34

ORDER signed by District Judge Troy L. Nunley on 12/7/17 ORDERING that the Defendant's 27 motion to stay is DENIED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITE HERE INTERNATIONAL
UNION,
Petitioner,

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No. 2:16-cv-00384-TLN-EFB

ORDER
v.
SHINGLE SPRINGS BAND OF MIWOK
INDIANS,

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Respondent.

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This matter is before the Court on Respondent Shingle Springs Band of Miwok Indians’s

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(“the Tribe”) Motion to Stay. (ECF No. 27.) Petitioner UNITE HERE International Union (“the

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Union”) opposes this motion. (ECF No. 31.) The Court has carefully considered the arguments

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raised by the parties. For the reasons set forth below, the Tribe’s Motion to Stay is DENIED.

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I.

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The Court need not set out the factual and procedural background in detail to resolve the

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instant motion. This Court’s July 12, 2017 Order (“the July 2017 Order”) (ECF No. 25) resulted

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in the judgment that the Tribe wishes to stay pending the outcome of its appeal. Before

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proceeding, the Court will briefly set out the applicable standard of review.

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ANALYSIS

A stay is “an exercise of judicial discretion, and the propriety of its issue is dependent
upon the circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009)
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(internal quotation marks and alterations omitted). “The party requesting a stay bears the burden

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of showing that the circumstances justify an exercise of that discretion.” Id. at 433–34. “The fact

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that the issuance of a stay is left to the court’s discretion does not mean that no legal standard

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governs that discretion.” Id. at 434 (internal quotation marks omitted). “A party seeking a stay

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must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm

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in the absence of relief, that the balance of equities tip in his favor, and that a stay is in the public

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interest.” Humane Soc. of U.S. v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009) (citing Winter v.

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Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

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In other words, the “factors [that] inform . . . the decision to stay pending appeal . . . are

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essentially the same as [those] applicable to a motion for a preliminary injunction[.]” Morgan

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Tire of Sacramento, Inc. v. Goodyear Tire & Rubber Co., No. 2:15-CV-00133-KJM-AC, 2015

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WL 3623369, at *1 (E.D. Cal. June 9, 2015). Consequently, the Court assumes the Ninth

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Circuit’s so-called “‘‘serious question’’ approach” also applies to a motion for a stay pending an

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appeal in the same manner it now applies to preliminary injunctions. See All. for the Wild

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Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (explaining “the ‘serious questions’

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approach survive[d] Winter when applied as part of the four-element Winter test”). That is, there

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is an alternative formulation that will also support the issuance of an order granting a motion for a

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stay pending an appeal, even where the movant has not shown it is likely to succeed on the merits

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of that appeal. It operates as follows: “serious questions going to the merits and a balance of

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hardships that tips sharply towards the [appellant] can support issuance of a [stay pending

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appeal], so long as the [appellant] also shows that there is a likelihood of irreparable injury and

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that the injunction is in the public interest.” Id. (internal quotation marks omitted).

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The Court’s analysis will be necessarily brief. The Tribe is required to make a showing

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under each of the four elements. Alliance for the Wild Rockies, 632 F.3d at 1135. As the Union

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correctly observes, the portion of the Tribe’s brief in support of the instant motion that

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purportedly addresses the likelihood of its success on appeal does nothing of the sort. (ECF No.

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31 at 4.) Rather, the Tribe “ignores” the substance of the July 2017 Order and the “series of

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Ninth Circuit cases [set out in the July 2017 Order] about when an arbitrator may decide disputes
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about arbitrability.” (ECF No. 31 at 4.) The July 2017 Order turned on whether an identified

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portion of the arbitration clause at issue in this case “f[e]ll squarely within t[he Ninth Circuit’s]

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rule” regarding when parties have “reserved for the arbitrator the question of arbitrability.” (ECF

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No. 25 at 4.) The Tribe’s submissions in connection with the instant motion do not attempt to

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articulate a colorable basis for disagreeing with the Court’s conclusion. Simply put, the Tribe has

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not raised serious questions on the merits, let alone shown a likelihood of success. The Court

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declines to analyze the remaining factors.

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For the foregoing reasons, Defendant’s motion to stay is DENIED.

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IT IS SO ORDERED.

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Dated: December 7, 2017

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Troy L. Nunley
United States District Judge

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