PECK ORMSBY CONSTRUCTION COMPANY v. City of Rigby et al

Filing 114

MEMORANDUM AND ORDER : Parkson's motion to stay pending appeal 99 is DENIED without prejudice. Rigby's motion to amend its pleadings to join a party 111 is GRANTED. Rigby shall file its amended pleadings within ten days of the date of this Order. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jm)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE DISTRICT OF IDAHO
9
----oo0oo---10
11
12

PECK ORMSBY CONSTRUCTION
COMPANY, a Utah corporation,

13
14
15
16
17

NO. CIV. 1:10-545 WBS

Plaintiff,

MEMORANDUM AND ORDER RE:
MOTION TO STAY PENDING APPEAL
AND MOTION TO AMEND PLEADINGS
TO JOIN A PARTY

v.
CITY OF RIGBY, an Idaho
municipal corporation; PARKSON
CORPORATION, a Delaware
corporation; and WESTERN
SURETY COMPANY, a South Dakota
corporation,

18
Defendants.
19
20

/
AND RELATED COUNTERCLAIMS AND
CROSS-CLAIMS.
/

21

----oo0oo----

22
23

Plaintiff Peck Ormsby Construction Company (“Peck

24

Ormsby”) brought this action against defendants City of Rigby

25

(“Rigby”), Parkson Corporation (“Parkson”), and Western Surety

26

Company (“Western”) arising from a construction project in Rigby

27

for which Peck Ormsby is the general contractor and Parkson is a

28

subcontractor.

Presently before the court is Parkson’s motion
1

1

for a stay of the proceedings pending appeal of the court’s

2

November 7, 2011, Order denying Parkson’s motion to compel

3

arbitration.

4

motion to amend the pleadings to assert an additional crossclaim

5

against Travelers Casualty and Surety Company of America

6

(“Travelers”) for breach of a public works Performance Bond.

7

(Docket No. 111.)

8

I.

9

(Docket No. 99.)

Also before the court is Rigby’s

Factual and Procedural Background
In January of 2008, Rigby and Peck Ormsby entered into

10

an agreement (the “Prime Contract”) whereby Peck Ormsby agreed to

11

construct a wastewater treatment plant in Rigby.

12

One of the components of the plant, a cloth filtration system,

13

would be made by a subcontractor, who was required under the

14

Prime Contract to provide a written guarantee to Rigby that the

15

filtration system would meet particular specifications.

16

Am. Answer, Crosscl. & Countercl. ¶ 15 (Docket No. 55).)

17

(SAC ¶¶ 7, 11.)

(Rigby’s

On April 29, 2008, Peck Ormsby and Parkson entered into

18

an agreement (the “Purchase Order”) whereby Parkson would supply

19

the filtration system.

20

language in the Purchase Order was modified by an agreement (the

21

“Letter Agreement”) signed by Parkson and Peck Ormsby earlier on

22

April 29, 2008, declaring that “Parkson is not in privity of

23

contract with the Owner [Rigby].”

24

(Docket No. 13).)

25

“Parkson agrees to be bound to the Contract in accordance with

26

the technical and general portions of the documents that form a

27

part of the Prime Contract only to the extent they are applicable

28

to the supply and delivery of the material, equipment and

(SAC ¶¶ 9, 13.)

Parkson alleges that the

(Rothenberg Decl. Ex. A at 2

The Letter Agreement further provides that

2

1

workmanship under the Contract . . . .”

(Id.)

2

Parkson provided Rigby a “Performance Guarantee” for

3

its equipment “as required by the technical specifications [of

4

the Prime Contract]” in July of 2008.

5

(Docket No. 85).)

6

would provide a filtration system that would meet express

7

performance and design specification standards for effluent.

8

(Ritchie Aff. ¶ 7, Ex. F (Docket No. 72).)

9

Guarantee also contained an arbitration clause and Florida choice

10

of law provision.

(Mot. for Recons. at 7

The Performance Guarantee stated that Parkson

The Performance

(Id.)

Following a dispute over the performance of the

11
12

filtration system, Rigby sued Parkson under the Performance

13

Guarantee for breach of contract, and Parkson moved to compel

14

arbitration of the claim.

15

Parkson’s motion to compel arbitration of Rigby’s breach of

16

contract claim.

17

interlocutory appeal to the United States Court of Appeals for

18

the Ninth Circuit on December 6, 2011.

19

II.

20
21

On November 7, 2011, this court denied

(Docket No. 96.)

Parkson filed its notice of

(Docket No. 98.)

Motion to Stay Pending Appeal
A.

Legal Standard
When a party files a notice of appeal, “jurisdiction

22

over the matters being appealed normally transfers from the

23

district court to the appeals court.”

24

258 F.3d 930, 935 (9th Cir. 2001).

25

appeal of an interlocutory order does not ordinarily deprive the

26

district court of jurisdiction except with regard to the matters

27

that are the subject of the appeal.”

28

Grp., 916 F.2d 1405, 1412 (9th Cir. 1990).
3

Mayweathers v. Newland,

“Absent a stay, . . . an

Britton v. Co-op Banking
The Federal

1

Arbitration Act (“FAA”) provides for immediate appellate review

2

of an interlocutory order denying a motion to compel arbitration

3

and refusal to stay judicial proceedings pending arbitration.

4

U.S.C. § 16(a)(1)(A)-(B).

5

9

Some jurisdictions hold that the trial court must stay

6

proceedings while a denial of a motion to compel arbitration is

7

being appealed.

8

Physician Computer Network, 128 F.3d 504, 505-06 (7th Cir. 1997);

9

Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 215 n.6 (3d

See, e.g., Bradford-Scott Data Corp. v.

10

Cir. 2007).

11

53-54 (2d Cir. 2004) (no automatic stay).

12

Court of Appeals has held, however, that a district court has

13

discretion to decide whether to grant a stay, reasoning that a

14

mandatory stay,

15
16
17
18
19
20
21
22
23
24

But see Motorola Credit Corp. v. Uzan, 388 F.3d 39,
The Ninth Circuit

would allow a defendant to stall a trial simply by
bringing a frivolous motion to compel arbitration. The
system created by the Federal Arbitration Act allows the
district court to evaluate the merits of the movant’s
claim and if, for instance, the court finds that the
motion presents a substantial question, to stay the
proceedings pending an appeal from its refusal to compel
arbitration. See, e.g., Pearce v. E.F. Hutton Group,
Inc., 828 F.2d 826, 829 (D.C. Cir. 1987) (district court,
after denying appellant’s motion to compel arbitration,
granted its motion for a stay pending appeal because it
found appellant’s claim raised issues of first impression
and that appellant would suffer substantial harm if the
action were not stayed); C.B.S. Employees Federal Credit
Union v. Donaldson, 716 F. Supp. 307 (W.D. Tenn. 1989)
(developing test to determine whether district court
should stay trial proceedings pending appeal from denial
of motion to stay proceedings pending arbitration). This
is a proper subject for the exercise of discretion by the
trial court.

25
26

Britton, 916 F.2d at 1412.

The two cases cited by the Ninth

27

Circuit in Britton provide guidance as to how a trial court

28

should exercise discretion regarding whether to grant a stay
4

1
2

pending an appeal.
The court in C.B.S. Employees Federal Credit Union v.

3

Donaldson, 716 F. Supp. 307 (W.D. Tenn. 1989), determined that a

4

stay pending appeal of the denial of a motion to compel

5

arbitration falls under Federal Rule of Civil Procedure 62(c).

6

Id. at 309.

7
8
9
10
11
12
13

Rule 62(c) provides that:

While an appeal is pending from an interlocutory order
or final judgment that grants, dissolves, or denies an
injunction, the court may suspend, modify, restore, or
grant an injunction on terms for bond or other terms
that secure the opposing party’s rights.
Fed. R. Civ. P. 62(c).

Under Rule 62(c), a court must consider:

(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether
the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding;
and (4) where the public interest lies.

14
15

Golden Gate Rest. Ass’n v. City & Cnty. of S.F., 512 F.3d 1112,

16

1115 (9th Cir. 2008) (quoting Hilton v. Braunskill, 481 U.S. 770,

17

776 (1987)) (internal quotation marks omitted).

18

as the Hilton test, is similar to the one governing preliminary

19

injunctions “because similar concerns arise whenever a court

20

order may allow or disallow anticipated action before the

21

legality of that action has been conclusively determined.”

22

v. Holder, 556 U.S. 418, ----, 129 S. Ct. 1749, 1761 (2009).

23

This test, known

Nken

The court must weigh these factors using a continuum or

24

“sliding scale” approach in which a stronger showing of one

25

element may offset a weaker showing of another.

26

Holder, 640 F.3d 962, 965-66 (9th Cir. 2011).

27

factors will be balanced by the court, a minimum threshold

28

showing must be made under each factor.
5

Leiva-Perez v.
Even though the

Id. at 966.

“The party

1

requesting a stay bears the burden of showing that the

2

circumstances justify an exercise of that discretion.”

3

S. Ct. at 1761.

4

B.

Nken, 129

Success on the Merits

5

With respect to the merits, some courts have noted that

6

the consideration of this factor “cannot be rigidly applied,” Or.

7

Natural Res. Council v. Marsh, Civ. No. 85-6433, 1986 WL 13440,

8

at *1 (D. Or. Apr. 3, 1986), because “the district court would

9

have to conclude that it was probably incorrect in its

10

determination on the merits.”

11

502, 510 (C.D. Cal. 1978).

12

“stay their own orders when they have ruled on an admittedly

13

difficult legal question and when the equities of the case

14

suggest that the status quo should be maintained.”

15

Washington Metro. Area v. Holiday Tours, 559 F.2d 841, 844 (D.C.

16

Cir. 1977)).

17

court is charting a new and unexplored ground and the court

18

determines that a novel interpretation of the law may succumb to

19

appellate review.”

20

(D. Haw. 1972).

21

thus will not rigidly apply this factor.

22

mean that the court is excused from evaluating the factor

23

entirely.

24

Himebaugh v. Smith, 476 F. Supp.

Rather, district courts properly

Id. (citing

An injunction is “frequently issued where the trial

Stop H-3 Ass’n v. Volpe, 353 F. Supp. 14, 16

The court is persuaded by this reasoning, and
This does not, however,

In order to demonstrate that it is likely to succeed on

25

the merits of its appeal, Parkson must show that it either has a

26

“reasonable probability” of prevailing or that the appeal raises

27

“serious legal questions.”

28

Parkson argues that it will likely prevail on appeal because the

Leiva-Perez, 640 F.3d at 966-67.

6

1

terms of the contract at issue clearly evidence the intent of the

2

parties to arbitrate.

3

denying Parkson’s motion to compel arbitration, Parkson was

4

required to provide the Performance Guarantee containing the

5

arbitration provision to Rigby under its pre-existing duty to

6

Peck Ormsby.

7

affirmatively agreed to the arbitration provision and there are

8

no applicable exceptions to the pre-existing duty rule in this

9

case that would permit the inclusion of an additional contract

As the court discussed in its order

(Nov. 7, 2011, Order at 9:23-10:19.)

(Id. at 10:20-14:21.)

Rigby never

On appeal, Parkson must overcome

10

term.

11

clear legal authority requiring parties to affirmatively agree to

12

arbitration.

13

Navigation Co., 363 U.S. 574, 582 (1960) (holding that “a party

14

cannot be required to submit to arbitration in any dispute which

15

he has not agreed so to submit”).

16

refuted this point.

17

See United Steelworkers of Am. v. Warrior & Gulf

Parkson has never adequately

In this case, Parkson’s chances of succeeding on the

18

merits of its appeal are entirely speculative.

19

of Appeals may eventually find Parkson’s, and not the court’s,

20

analysis more persuasive, the court can only hazard a guess as to

21

the probability that Parkson will succeed.

22

evaluating Parkson’s fulfillment of the first Hilton factor, the

23

court is cognizant that it need not rigidly apply the factor,

24

however, the court believes that Parkson has not presented more

25

than a minimal likelihood of success on the merits of its appeal

26

nor has it shown that it presents a serious legal question or

27

matter of first impression on appeal.

28

C.

Irreparable Harm to Parkson
7

While the Court

For the purposes of

1

The court must consider the degree of irreparable harm

2

Parkson may suffer if a stay pending appeal is not granted and

3

Parkson prevails on appeal.

4

F. Supp. 2d 1216, 1218 (D. Or. 1999).

5

irreparably injured for the purposes of a motion to stay pending

6

appeal, that injury must be “categorically irreparable.”

7

129 S. Ct. at 1761.

8

irreparable injury” is insufficient.

9

successful, any judgment rendered before this court would be

W. Land Exch. Project v. Dombeck, 47
For the moving party to be

Nken,

A showing of some “possibility of
Id.

If Parkson’s appeal is

10

vacated and Parkson and Rigby would be required to arbitrate the

11

claim.

12

See Britton, 916 F.2d at 1410.
Parties agree to arbitrate in order to avoid more

13

formal, and frequently far more expensive, proceedings in state

14

or federal court.

15

proceedings before arbitration, the potential savings from

16

arbitration are permanently lost.

17

arbitration deprives them of an inexpensive and expeditious means

18

of resolving the dispute.”

19

Workers v. Aloha Airlines, 776 F.2d 812, 815 (9th Cir. 1985).

20

There are two primary sources of expenses that Parkson would be

21

required to endure if a stay is denied and it later prevails on

22

appeal -- costs stemming from discovery and trial.

23

If parties are required to endure court

“[D]enying the parties

Int’l Ass’n of Machinists & Aerospace

While some courts have held that “[t]he cost of some

24

pretrial litigation does not constitute an irreparable harm,”

25

Bradberry v. T-Mobile USA, Inc., No. C 06-6567, 2007 WL 2221076,

26

at *4 (N.D. Cal. Aug. 2, 2007), courts have generally held that

27

the irreparable harm factor under the Hilton test is satisfied

28

when a party is appealing the denial of a motion to compel
8

1

arbitration because it will be required to endure potentially

2

unnecessary litigation expenses, see, e.g., Murphy v. DirecTV,

3

Inc., No. 2:07-cv-06465, 2008 WL 8608808, at *2 (C.D. Cal. July

4

1, 2008); Steiner v. Apple Computer, Inc., No. C 07-04486, 2008

5

WL 1925197, at *5 (N.D. Cal. Apr. 29, 2008).

6

the court’s inquiry, rather,

7
8
9
10
11

This does not end

[j]ust because this factor will generally be satisfied in
the special context of the denied motion to compel
arbitration, does not mean the entire Hilton test will
generally be satisfied.
All this means is that
appellants who make a strong showing they are likely to
succeed on the merits, will generally prevail on this
second Hilton factor. In contrast, appellants who merely
have substantial questions on appeal, will have to show
this factor strongly favors them, which will turn on the
facts and circumstances of each case.

12
13

Steiner, 2008 WL 1925197, at *5.

14

that Parkson made a strong showing that it is likely to succeed

15

on appeal, the court will weigh how strongly the irreparable harm

16

factor favors Parkson’s petition to stay the action.

17

Because the court did not find

The arbitration requested in this case would be

18

conducted by the American Arbitration Association (“AAA”), which

19

strictly controls what discovery may occur during arbitration.

20

Parkson thus argues that it would “almost certainly suffer

21

irreparable harm if it is forced to participate in multiple

22

depositions pending appeal because such depositions are not

23

automatically allowed in arbitration under the AAA rules.”

24

in Supp. of Parkson Corp.’s Mot. for Stay Pending Appeal at 8

25

(Docket No. 99-1).)

26

Parkson will be burdened by the costs of pursuing the litigation,

27

this concern is mitigated for two reasons.

28

(Mem.

Although it is true that, absent a stay,

First, if the court grants a stay pending appeal and
9

1

Parkson prevails on appeal, the appeal will only affect the

2

counterclaim between Rigby and Parkson; the litigation between

3

Peck Ormsby and Rigby will continue.1

4

Ormsby is based on the portion of the Prime Contract that Peck

5

Ormsby subcontracted out to Parkson.

6

thus still be required to participate in discovery related to the

7

claim between Rigby and Peck Ormsby because its performance under

8

the contract is fundamental to the dispute and it employs several

9

key witnesses to the alleged breach.

Rigby’s claim against Peck

Parkson’s employees would

Specifically, Parkson’s

10

employees will still be subject to subpoena for depositions

11

related to the claims between Peck Ormsby and Rigby and Parkson

12

will still be required to attend and prepare for those

13

depositions.

14

(S.D.N.Y. 2006) (holding that plaintiffs were entitled to

15

subpoena discovery from a witness in a legal action against a

16

third party notwithstanding plaintiffs’ limited ability to obtain

17

discovery against the witness as a party to a related

18

arbitration).

19

have to participate in regardless of the outcome of the appeal is

20

not irreparable harm.2

See In re Garlock, 463 F. Supp. 2d 478, 480

Any cost relating to discovery that Parkson would

21
22
23
24
25
26
27
28

1

Rigby has two remaining claims in this action. First,
Rigby has a claim against Peck Ormsby for breach of the Prime
Contract based on Peck Ormsby’s alleged failure to furnish cloth
filter equipment that complied with the specifications of the
Prime Contract. Second, Rigby has a claim against Parkson for
breach of the requirements of the Prime Contract, and in
particular the requirement to meet the performance specifications
of the guarantee Parkson provided to Rigby. Parkson’s motion to
stay pending appeal only encompasses Rigby’s second claim.
2

Although Parkson would be entitled to fees and mileage
for depositions related to the Peck Ormsby/Rigby claim under Rule
45 if it were treated as a material witness instead of a party,
10

1

Second, due to the timing of Parkson’s request for a

2

stay, Parkson lacks a strong argument for prejudice.

The parties

3

have already spent a significant amount of time and expense

4

litigating this case and have completed written discovery,

5

including approximately 12,000 pages of documents that Parkson

6

produced shortly before the hearing on this motion.

7

represent that the remaining discovery would be in the form of

8

depositions.

9

Pending Appeal at 8.)

The parties

(Mem. in Supp. of Parkson Corp.’s Mot. for Stay
The only remaining discovery costs that

10

could constitute irreparable harm for Parkson are therefore the

11

costs associated with the depositions of Peck Ormsby’s and

12

Rigby’s witnesses.

13

there would likely be no more than two to three depositions taken

14

of each party.

15

depositions is not particularly large, especially given Parkson’s

16

indication that it would likely choose to observe the depositions

17

of Peck Ormsby’s and Rigby’s employees even if the court grants

18

Parkson’s requested stay.3

At oral arguments, the parties estimated that

The expense of participating in four to six

19

The continuation of the litigation between Peck Ormsby

20

and Rigby, which necessitates Parkson’s involvement in discovery

21

regardless of the outcome of Parkson’s appeal, suggests that the

22

irreparable harm stemming from the denial of a stay in this case

23
24
25
26
27
28

the statutory witness fee rate of $40 per day plus is minimal and
pales in comparison to the costs that Parkson would likely expend
preparing for and attending the depositions. See 28 U.S.C.
§ 1821(b).
3

Had Parkson been serious about avoiding the costs of
discovery while it was pursing its motion to compel arbitration
against Rigby it could have moved to stay discovery, as it
previously did shortly before the court heard its initial motion
to compel arbitration against Rigby, (Docket No. 78).
11

1

is minimal.

2

the discovery for this action regardless of whether it ends up

3

arbitrating the claim against it.

4

involvement in the suit distinguishes this case from the many

5

relied upon by Parkson to show that the burden of litigation

6

expenses constitutes an irreparable burden because in this case

7

Parkson will face the financial burden of discovery regardless of

8

the outcome of the appeal.

9

Parkson will continue to play a significant role in

Parkson’s continued

Denial of Parkson’s motion to stay at this time does

10

not mean that a stay may not become appropriate as trial

11

approaches.

12

LHK, 2011 WL 2293221, at *5 (N.D. Cal. June 8, 2011) (“If the

13

case proceeds to the point of final pretrial preparations without

14

a ruling from the Ninth Circuit on Defendants’ appeal of the

15

arbitration issue, Defendants may renew their motion to stay the

16

case at that time.”); Bradberry, 2007 WL 2221076, at *4 (denying

17

motion to stay action without prejudice and clarifying that a

18

stay may be appropriate prior to trial).

19

motion to stay without prejudice will allow Parkson to re-file

20

its motion before trial to prevent any potentially unnecessary

21

trial expenses.

22

irreparable harm to Parkson from participation in discovery.

23
24

D.

See Li v. A Perfect Franchise, No. 5:10-CV-01189-

Denial of Parkson’s

The court accordingly considers only the minimal

Injury to Other Parties
Parkson states that Peck Ormsby and Rigby will not be

25

harmed by the grant of a stay to Parkson because they “can

26

continue with written discovery and depositions on the claims

27

they have against one another without Parkson’s participation.”

28

(Mem. in Supp. of Parkson Corp.’s Mot. for Stay Pending Appeal at
12

1

9.)

As discussed above, the idea that Peck Ormsby and Rigby can

2

continue discovery without Parkson’s involvement oversimplifies

3

the case at hand and the harm to Peck Ormsby and Rigby when

4

Parkson re-enters the litigation after losing its appeal is

5

significant.

6

Parkson would be rejoining the litigation without the

7

benefit of the discovery already conducted by Peck Ormsby and

8

Rigby because it would only be participating as a material

9

witness.

Parkson would likely want to engage in discovery for

10

matters on which Peck Ormsby and Rigby have already expended

11

significant costs and labor.

12

duplicate prior discovery efforts in order to accommodate

13

Parkson’s delayed arrival and would likely need to depose the

14

same witnesses for a second deposition.

15

efforts are extremely likely because much of the discovery that

16

Peck Ormsby and Rigby will want to conduct “will also necessarily

17

encompass the factual basis of Rigby’s claims against Parkson and

18

any defenses that Parkson may have against those claims.”

19

of Rigby’s Mem. in Opp’n to Parkson’s Mot. for Stay Pending

20

Appeal at 17 (Docket No. 105).)

21

therefore be irreparably harmed if a partial stay is granted and

22

Parkson ultimately does not prevail on its appeal.

The parties will then have to

Duplicative discovery

(City

Peck Ormsby and Rigby would

23

The fact that the claim against Parkson is at the core

24

of this case suggests that it would be practically impossible to

25

stay the claim involving Parkson but not the claim between Rigby

26

and Peck Ormsby.

27

entire case, the court considers whether such a stay would be

28

appropriate.

Although Parkson did not request a stay of the

13

1

Plaintiff Peck Ormsby stated during oral arguments that

2

it opposed a stay of the entire action.

The court agrees that

3

Peck Ormsby should not be required to stay its claims while it

4

waits for the outcome of an appeal to which it is not a party.

5

Peck Ormsby should not be required to wait longer than necessary

6

to attempt to recover the almost $400,000 it alleges is being

7

wrongfully withheld from it.

8

opposed a stay of the entire matter because it desires a prompt

9

resolution of this case so that it may complete the construction

Rigby also represented that it

10

of its wastewater treatment plant.

11

should not be required to wait longer than necessary to resolve

12

this case.

13

both Peck Ormsby and Rigby would be significant.

14
15

E.

The court agrees that Rigby

The harm resulting from a stay of the entire case to

Public Interest
The only public interest identified by Parkson in its

16

motion to stay pending appeal is the “liberal federal policy

17

favoring arbitration” in the FAA.

18

Corp.’s Mot. for Stay Pending Appeal at 9.)

19

the court is not whether to compel arbitration, but whether to

20

stay the proceedings pending appeal of an order denying

21

arbitration.

22

(Mem. in Supp. of Parkson
The question before

“The public interest inquiry primarily addresses impact

23

on non-parties rather than parties.”

24

Judicial Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002).

25

seriously doubts that the public has any interest in whether

26

Rigby and Parkson are required to arbitrate this matter.

27

Tribal Vill. of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir.

28

1988) (suggesting that the public interest consideration is only
14

Sammartano v. First
The court

See

1

applicable “in certain cases”).

This is not a case in which

2

shared natural resources are threatened.

3

case involve an alleged infringement of important constitutional

4

rights that will continue to afflict the masses unless the court

5

intervenes.

6

upholding First Amendment principles).

7

only a generic interest in seeing that federal law is properly

8

applied -- which is true of any case and thus cannot justify the

9

extraordinary remedy sought by Parkson.

See id.

Nor does this

See Sammartano, 303 F.3d at 974 (public interest in
At most, the public has

See Mazurek v.

10

Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction

11

is an extraordinary and drastic remedy . . . .” (quotation mark

12

omitted)); Reading & Bates Petroleum Co. v. Musslewhite, 14 F.3d

13

271, 275 (5th Cir. 1994) (“Stays pending appeal constitute

14

extraordinary relief . . . .”).

15

interest does not favor a stay of the court’s order regarding

16

arbitration.

17

F.

18

Consequently, the public

Conclusion
The balance of the Hilton factors weigh in favor of

19

denying Parkson’s motion to stay the action pending appeal.

20

Parkson has failed to show that it will likely prevail upon

21

appeal, that it will suffer more than minimal irreparable harm,

22

that injury to other parties will be minimal, or that public

23

policy considerations weigh in favor of a stay.

24

court will deny Parkson’s motion to stay pending appeal without

25

prejudice.

26

III. Motion to Amend to Join Party

27
28

Accordingly, the

Rigby moves to add a crossclaim against Travelers for
breach of a separate Performance Bond issued by Travelers that
15

1

guarantees Peck Ormsby’s performance of its contract with Rigby.

2

Neither Peck Ormsby nor Parkson oppose the motion.

3

the court will grant Rigby’s motion to amend its pleadings to add

4

a crossclaim against Travelers.

5

Accordingly,

IT IS THEREFORE ORDERED that Parkson’s motion to stay

6

pending appeal be, and the same hereby is, DENIED without

7

prejudice.

8
9

IT IS FURTHER ORDERED that Rigby’s motion to amend its
pleadings to join a party be, and the same hereby is, GRANTED.

10

Rigby shall file its amended pleadings within ten days

11

of the date of this Order.

12

DATED:

March 15, 2012

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
16