Bain et al v. McIntosh et al

Filing 103

ORDER denying 99 motion to stay. Signed by Judge Roy B. Dalton, Jr. on 1/22/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DOROTHY B. WALTHER; and
HOWARD WALTHER,
Plaintiffs,
v.

Case No. 6:13-cv-472-Orl-37GJK

ROBERT MCINTOSH; STENSTROM
MCINTOSH, ET AL., P.A.; STEVEN
KANE, ESQ.; and KANE & KOLTUN,
Attorneys at Law,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Plaintiffs Dorothy B. Walther and Howard Walther and Attorney Phillip P.
O’Shaugnessy Rule 62 Motion for Stay of Order and of Case and
Incorporated Memorandum of Law (Doc. 99), filed January 6, 2014; and

2.

Defendants Robert McIntosh, Esq. and Stenstrom McIntosh, et al., P.A.’s
Response to Plaintiff’s Rule 62 Motion for Stay of Order and of Case and
Incorporated Memorandum of Law (Doc. 100), filed January 8, 2014.

Upon consideration, Plaintiffs’ Motion to Stay is due to be denied.
Background
This Court has entered Orders in this action which granted Defendants’ Motion
for Summary Judgment (Doc. 55) and imposed sanctions against Plaintiffs and their
attorney (Doc. 82 (“Sanctions Order”)). Plaintiffs and their counsel appealed the
Sanctions Order to the U.S. Court of Appeals for the Eleventh Circuit. (Docs. 90–92.)

They now move to stay this action. (Doc. 99.) Defendants oppose. (Doc. 100.) The
motion is now ripe for adjudication.
Legal Standard
A party seeking stay of an action must “make out a clear case of hardship or
inequity in being required to go forward.” Landis v. N. Am. Co., 299 U.S. 248, 254–55
(1936); e.g., Clinton v. Jones, 520 U.S. 681, 709 (1997) (“The proponent of a stay bars
the burden of establishing its need.”). Upon a sufficient showing, the Court may exercise
its inherent authority to stay an action. Landis, 299 U.S. at 254–55.
Analysis
Plaintiffs and their counsel seek a stay because they “anticipate that the
Eleventh Circuit may address the underlying merits of the claims that Plaintiffs had
against” certain Defendants. (Doc. 99, pp. 2–3.) Further, if the Eleventh Circuit rules in
Plaintiffs’ favor, then they intend to seek reconsideration of the Court’s Summary
Judgment Order. (Id.) Given these anticipated events, Plaintiffs contend that a stay is
warranted. Defendants counter that it is unlikely that the Eleventh Circuit will reverse the
Sanctions Order, and even if it does, it is even more unlikely that reconsideration of the
Summary Judgment Order would be warranted. (Doc. 100.) The Court agrees with
Defendant and finds that Plaintiff has not met its burden to “make out a clear case of
hardship or inequity” if the stay is denied. Landis, 299 U.S. at 254.
Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiffs Dorothy B.
Walther and Howard Walther and Attorney Phillip P. O’Shaugnessy Rule 62 Motion for
Stay of Order and of Case and Incorporated Memorandum of Law (Doc. 99) is DENIED.

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DONE AND ORDERED in Chambers in Orlando, Florida, on January 22, 2014.

Copies:
Counsel of Record

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