Property Reserve, Inc. v. Wasson et al
ORDER DENYING STAY PENDING APPEAL re 132 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/15/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Dawn K. Wasson served by first class mail at the address of record on April 15, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PROPERTY RESERVE, INC.,
a Utah corporation,
DAWN K. WASSON,
CIVIL NO. 12-00649 SOM/KSC
ORDER DENYING STAY PENDING
ORDER DENYING STAY PENDING APPEAL
On February 4, 2014, the court affirmed a Magistrate
Judge’s order reinstating the entry of default and adopted the
Findings and Recommendation that default judgment be entered.
See ECF No. 128.
That same day, default judgment was entered
against Defendant Dawn K. Wasson and in favor of Plaintiff
Property Reserve, Inc.
See ECF No. 129.
On February 13, 2014, the Ninth Circuit Court of
Appeals received from Wasson an “Emergency Motion under Circuit
Rule 27-3 Motion to Stay Default/Sanction Judgment.”
document largely reiterated Wasson’s arguments opposing the entry
of default judgment.
A copy of this document was forwarded by
the Ninth Circuit to this court because Wasson had not filed an
appeal of the default judgment.
See ECF No. 131.
On March 10, 2014, Wasson filed a motion with this
court that requested a stay of the order of February 4, 2014,
pending her appeal to the Ninth Circuit.
same day, she filed a Notice of Appeal.
See ECF No. 132.
See ECF No. 133.
The Ninth Circuit has noted that the standard
applicable to motions seeking a stay pending appeal is similar to
that for a motion seeking a preliminary injunction.
Res. Defense Council, Inc. v. Winter, 502 F.3d 859, 862-63 (9th
Cir. 2007) (citing (Hilton v. Braunskill, 481 U.S. 770, 774-76
The Supreme Court has cautioned that a “preliminary
injunction is an extraordinary and drastic remedy never awarded
as of right.”
Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 24 (2008).
Courts balance the competing claims of injury
and consider the effect on each party of granting or denying the
Parties seeking a preliminary injunction (or in
this case a stay pending appeal) “must establish that (1) they
are likely to succeed on the merits; (2) they are likely to
suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities tips in their favor; and (4) a
preliminary injunction is in the public interest.”
Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009).
to satisfy this test.
Wasson’s motion shows no likelihood of success on the
merits of her appeal.
First, it appears that Wasson did not
timely appeal the order and default judgment of February 4, 2014,
as her notice of appeal was not filed until March 10, 2014, more
than 30 days after they were entered.
See Fed. R. App. P. 4(a)
(“the notice of appeal required by Rule 3 must be filed with the
district clerk within 30 days after entry of judgment or order
Even if Wasson’s Notice of Appeal was timely,
Wasson’s motion for a stay pending appeal, ECF No. 132, makes no
argument concerning the merits of her appeal.
Moreover, in its
order of February 4, 2014, this court rejected the arguments
raised in Wasson’s attempted filing with the Ninth Circuit, ECF
Wasson’s motion seeking a stay pending appeal also
fails to establish any likelihood of irreparable injury absent
the requested stay.
At most, she argues that Property Reserve is
“now free to disinter the Ancestral Burial grounds of Defendant,
including but not limited to the grave of Defendant Wassons’
[sic] late husband.”
But nothing in the record indicates that,
during the pendency of the appeal, Property Reserve intends to
take that action.
Wasson’s speculation as to what action
Property Reserve might take is insufficient to establish a
likelihood of irreparable injury.
See In re Excel Innovations,
Inc., 502 F.3d 1086, 1098 (9th Cir. 2007) (“Speculative injury
cannot be the basis for a finding of irreparable harm.”).
The court notes that Wasson’s motion also fails to
discuss how the requested stay is supported by the balance of
equities or the public interest.
Under the circumstances presented here, Wasson has
failed to meet her burden of demonstrating that a stay of the
court’s order of February 4, 2014, or of the default judgment of
February 4, 2014, is appropriate.
Her motion to stay the order
and default judgment of February 4, 2014, pending her appeal is
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 15, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Property Reserve, Inc. v. Wasson; Civil No. 12-00649 SOM/KSC; ORDER DENYING STAY
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