Wit et al v. UnitedHealthcare Insurance Company et al

Filing 638

ORDER by Judge Joseph C. Spero denying 631 Motion to Stay; granting 636 Administrative Motion for leave to file surreply. The parties shall meet and confer and, no later than February 12, 2024, propose a stipulated schedule for going forward with this case. (jcslc1, COURT STAFF) (Filed on 2/6/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID WIT, et al.,

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Plaintiffs,
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v.
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UNITED BEHAVIORAL HEALTH,

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Defendant.

ORDER DENYING MOTION TO STAY
AND GRANTING ADMINISTRATIVE
MOTION FOR LEAVE TO FILE
SURREPLY
Re: Dkt. Nos. 631, 636

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United States District Court
Northern District of California

Case No. 14-cv-02346-JCS
Related Case No. 14-cv-5337 JCS

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UBH brings a Motion to Stay (“Motion”) asking the Court to stay all proceedings in these

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related cases pending a decision by the Court of Appeals on its petition for a writ of mandamus

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directing this Court to enter judgment for UBH on Plaintiffs’ denial of benefits claim and

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prohibiting further proceedings as to that claim. Having considered the parties’ briefs,1 the Court

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DENIES the Motion for the reasons stated below.2
In deciding a motion to stay an order pending appeal, courts consider: “(1) whether the stay

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

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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.” Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotations and citation omitted). “The

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first two factors of the traditional standard are the most critical.” Id. “Once an applicant satisfies

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the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party

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The Court grants Plaintiffs’ request to file a surreply. Dkt. no. 636. As UBH made
representations in its Reply brief about the parties’ negotiations related to a possible scheduling
stipulation that might have addressed UBH’s concerns without requiring entry of a stay, fairness
requires that the Court permit Plaintiffs to respond.
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The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28
U.S.C. § 636(c).
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and weighing the public interest.” Id. at 435. In applying the Nken test, the Ninth Circuit follows

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a “sliding scale” approach. Al Otro Lado v. Wolf, 952 F.3d 999, 1007 (9th Cir. 2020). Under that

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approach, “a stronger showing of one element may offset a weaker showing of another.” Id.

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(quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)).

United States District Court
Northern District of California

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The Court first considers whether UBH has demonstrated that it will be irreparably harmed

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if a stay is not entered. The Court finds that UBH’s assertions that it will suffer irreparable harm

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if the Court does not stay all proceedings to be overblown. “The minimum threshold showing for

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a stay pending appeal requires that irreparable injury is likely to occur during the period before the

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appeal is likely to be decided.” Id. (citation omitted) (emphasis added). As UBH emphasizes,

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typically the Ninth Circuit decides petitions for a writ of mandamus in a matter of months. Thus,

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UBH’s suggestion that denying its request for a stay will improperly require it to “go through [the]

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entire process again[,]” Motion at 7 (quoting Vizcaino v. U.S. Dist. Ct., 173 F.3d 713, 719 (9th Cir.

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1999)), is hyperbole. Furthermore, it is well-established in the Ninth Circuit that “[m]ere litigation

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expense, even substantial and unrecoupable cost, does not constitute irreparable injury.”

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Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 735 n.20 (9th Cir. 2017) (quoting

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Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24 (1974)). Therefore, UBH’s

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reliance on the expense of continuing to litigate in this Court while the Court of Appeals decides

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its petition is misplaced.

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Because UBH has not demonstrated it will suffer irreparable harm if the Court denies its

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request for a stay, the Court need not reach the remaining Nken factors. See Doe #1 v. Trump, 957

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F.3d 1050, 1061 (9th Cir. 2020)(“if a stay applicant cannot show irreparable harm, ‘a stay may not

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issue, regardless of the petitioner's proof regarding the other stay factors[.]’ ”) (quoting Leiva-

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Perez v. Holder, 640 F.3d 962, 965 (9th Cir. 2011)). However, even assuming the weak showing

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UBH has made is sufficient to trigger a requirement that the Court consider the likelihood of

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success on UBH’s appeal, the Court finds that UBH has not made a “a commensurately strong

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showing of a likelihood of success on the merits to prevail under the sliding scale approach.” Al

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Otro Lado v. Wolf, 952 F.3d 999, 1010 (9th Cir. 2020). UBH’s arguments with respect to the

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likelihood that its appeal will be successful mirror the arguments it made in its briefing addressing
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the scope of the mandate. The Court rejected those arguments only after considering the parties’

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extensive briefing and offering detailed reasoning for its conclusions. For the reasons set forth in

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the Court’s Order re Scope of Remand, the Court concludes that the likelihood that UBH will

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prevail on its appeal is not sufficiently strong to overcome the minimal harm of proceeding in this

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Court while the appeal is pending.

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Therefore, the Court ORDERS the parties to meet and confer and, no later than February

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12, 2024, propose a stipulated schedule for going forward with this case. If the parties are unable

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to agree on a schedule, they may present separate proposals, along with up to three pages each

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(double spaced) of briefing setting forth their positions.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: February 6, 2024
______________________________________
JOSEPH C. SPERO
United States Magistrate Judge

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