Monumental Task Committee, Inc. et al v. Foxx et al

Filing 58

ORDER & REASONS: It is ORDERED that Plaintiffs' Motion for Injunction and/or Stay Pending Appeal (Rec. Doc. 57 ) is DENIED. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MONUMENTAL TASK
COMMITTEE, INC ET AL.

CIVIL ACTION

VERSUS

NO: 15-6905

ANTHONY R. FOXX ET AL.

SECTION: “J”(3)
ORDER & REASONS

Before the Court is a Motion for Injunction and/or Stay
Pending Appeal (Rec. Doc. 57) filed by Plaintiffs, Monumental Task
Committee,

Inc.,

Louisiana

Landmarks

Society,

Foundation

for

Historical Louisiana, Inc., and Beauregard Camp No. 130, Inc.
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
DENIED.
On January 26, 2016, this Court entered an Order and Reasons
denying Plaintiffs’ Motion for a Preliminary Injunction to enjoin
the City of New Orleans from relocating three monuments honoring
Confederate leaders and a fourth commemorating an 1874 battle
between the White League and the City’s first integrated police
force. (Rec. Doc. 49.) Plaintiffs advised the Court that they would
appeal that interlocutory order to the United States Court of

Appeals for the Fifth Circuit. On February 3, 2016, Plaintiffs
filed the instant Motion for Injunction and/or Stay Pending Appeal
(Rec. Doc. 57), moving this Court to grant an injunction while the
appeal is pending.
Motions to stay proceedings pending an interlocutory appeal
under 28 U.S.C. § 1292(a)(1) are made pursuant to Rule 62(c) of
the Federal Rules of Civil Procedure. Rule 62(c) provides that
“[w]hile 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). Although the decision to grant relief under Rule
62(c) is within the district court’s discretion, “the stay of an
equitable order is an extraordinary device which should be granted
sparingly.” United States v. Louisiana, 815 F. Supp. 947, 948 (E.D.
La. 1993).
The factors to be considered in deciding whether to stay an
order pending appeal are “virtually the same” as the factors used
by a court in deciding whether to issue a preliminary injunction.
Voting for Am., Inc. v. Andrade, 488 F. App'x 890, 893 (5th Cir.
2012). The factors for granting a stay pending appeal are “(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
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stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Id. (quoting
Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The movant bears
the burden of showing that the balance of equities weighs heavily
in favor of granting the stay. United States v. Baylor Univ. Med.
Ctr., 711 F.2d 38, 39 (5th Cir. 1983).
The four-part inquiry for determining whether the granting of
a stay is appropriate was previously applied by this Court when
determining whether to grant Plaintiffs’ original Motion for a
Preliminary Injunction. 1 This Court determined that Plaintiffs
failed

to

establish

a

likelihood

of

irreparable

harm

if

the

preliminary injunction is not granted. (Rec. Doc. 49, at 6-12.) In
the instant motion, Plaintiffs make much of the fact that a
particular crane and rigging company mentioned in the City’s
previous submissions has stated that it has not been retained and
is not involved in the project to remove the monuments. However,
the

burden

is

on

Plaintiffs

to

establish

a

likelihood

of

irreparable harm—the City is not required to show that irreparable
harm is unlikely.

1

In denying a preliminary injunction, the Court considered whether Plaintiffs
established “(1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable injury if the injunction is not granted; (3)
that their substantial injury outweighs the threatened harm to the party whom
they seek to enjoin; and (4) that granting the preliminary injunction will not
disserve the public interest.” (Rec. Doc. 49, at 5.)

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Additionally, this Court stated that at this preliminary
stage, Plaintiffs failed to show a likelihood of success on the
merits of any of their claims. Id. at 12-60. Finally, this Court
observed that Plaintiffs did not show that their threatened injury
outweighs the potential injury that the preliminary injunction may
cause the opposing parties, or that a preliminary injunction would
serve the public interest. Id. at 60-61.
Applying
satisfied

the

the

four

criteria

Hilton

factors,

warranting

an

Plaintiffs

not

pending

injunction

have

the

interlocutory appeal of the denial of the preliminary injunction.
See Hilton, 481 U.S. at 776. As this Court has previously ruled,
Plaintiffs have not made a strong showing that they are likely to
succeed on the merits, that they will be irreparably harmed absent
an injunction, that granting the injunction will not substantially
harm the other parties interested in the proceeding, or that
granting the injunction will serve the public interest. (Rec. Doc.
49, at 6-61.) Accordingly, Plaintiffs have not shown that the
“balance of equities” weighs heavily in favor of granting an
injunction.

Baylor,

711

F.2d

at

39.

Indeed,

it

would

be

inconsistent for this Court to deny Plaintiffs’ motion for a
preliminary injunction, yet grant an injunction pending appeal.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Injunction
and/or Stay Pending Appeal (Rec. Doc. 57) is DENIED.
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New Orleans, Louisiana, this 4th day of February, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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