Nero et al v. Mosby et al

Filing 82

MEMORANDUM AND ORDER denying 60 Motion to Stay Pending Appeal. Signed by Judge Marvin J. Garbis on 3/20/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EDWARD MICHAEL NERO, et al.
Plaintiffs
vs.

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CIVIL ACTION NO. MJG-16-1288
(Consolidated with 16-1304 & 16-2663)

MARILYN MOSBY, et al.
Defendants
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MEMORANDUM AND ORDER RE: STAY PENDING APPEAL

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The Court has before it the Motion for Immediate Stay Pending
Appeal [ECF No. 60] filed by Defendant Marilyn Mosby (“Mosby”) and
the materials submitted relating thereto.

The Court finds that a

hearing is unnecessary.

I.

BACKGROUND
In the Corrected1 Memorandum and Order Re: Dismissal Motions

[ECF No. 54], the Court dismissed certain of Plaintiffs’ claims2
against Mosby and Defendant Samuel Cogen (“Cogen”) but did not
dismiss, leaving pending, Plaintiffs’ claims against them for


Malicious prosecution,

1
The Memorandum and Order as originally filed [ECF No. 43] did
not state that Officer Caesar Goodson (not a plaintiff) had been
acquitted of all charges in a bench trial.
2
I.e., for False arrest, False imprisonment, Abuse of process,
Conspiracy, Section 1983 Fourteenth Amendment Violations, Section
1983 Fourth Amendment claims based on presentation to the grand jury
(Mosby) and all claims against the State of Maryland.



Defamation,



Invasion of privacy (false light), and



Section 1983 Fourth Amendment violations.3

On February 3, 2017, Mosby filed a Notice of [Interlocutory]
Appeal [ECF No. 57].

II.

Cogen did not appeal.

DISCUSSION
By the instant motion, Mosby seeks to have the Court stay all

discovery pending resolution of her interlocutory appeal.

While

Mosby apparently erroneously seeks to rely on Rule 62(c) of the
Federal Rules of Civil Procedure,4 there is no doubt that, under
appropriate circumstances, a district court may stay the effect of
an order.

See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)(“[T]he

power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for
litigants.”).
Hence, the Court has discretion to stay discovery pending appeal
by staying the effect of its Order permitting the case to proceed

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And the duplicative Maryland Declaration of Rights Article 26
claims.
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Pertinent to injunctions.

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on those claims not dismissed.

However, “a party seeking a stay [of

a district court order] must show:
(1) that [she] will likely prevail on the merits
of the appeal,
(2) that [she] will suffer irreparable injury
if the stay is denied,
(3) that other parties will not be substantially
harmed by the stay, and
(4) that the public interest will be served by
granting the stay.”
Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970).
Mosby has made no such showing.

Indeed, the circumstances

presented in the instant case overwhelmingly support the conclusion
that there should be no stay of discovery pending resolution of
Mosby’s interlocutory appeal.

A. Likelihood of Prevailing on Appeal
The Court reconfirms, but need not herein repeat, its reasons
– as stated in its decision - for denying dismissal of the remaining
claims.

The Court’s decision rested on the procedural requirement

that it must accept the facts in the pleadings as true, and the Court
emphasized the need for greater factual development to resolve the
immunity questions.
The Court does not, by any means, consider Mosby’s appeal to
be meritorious.

However, of course, the United States Court of
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Appeals for the Fourth Circuit will, in due course, resolve the
pending appeal.
The Court will note, nevertheless, that even if Mosby were to
prevail on every one of her contentions, the instant case would
proceed on Plaintiffs’ claims against Cogen, and thus discovery
involving Mosby would proceed on that basis.

B. Irreparable Injury
Mosby has not shown that denial of a stay would result in
irreparable harm as to her.

Although public officials asserting an

immunity defense should not be “subjected to unnecessary and
burdensome discovery or trial proceedings,” Crawford-El v. Britton,
523 U.S. 574, 598 (1998), the Court notes that a right to immunity
is not a right to be free “from litigation in general.” Behrens v.
Pelletier, 516 U.S. 299, 312 (1996).
The discovery contemplated in the instant case is not
“unnecessary,” nor would it cause irreparable injury, because almost
all of the same claims have been asserted against Cogen, who has not
appealed.5

Because Mosby must, in any event, act as a witness in

regard to facts relating to claims against Cogen, she will not suffer
irreparable injury and a stay would only delay any discovery-related
5

Only the defamation (false light) claim is unique to Mosby, yet
discovery as to that claim will have substantial overlap with
discovery for the remaining claims.
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burden on her.

See, e.g., Mendia v. Garcia, No. 10-CV-03910-MEJ,

2016 WL 3249485, at *5 (N.D. Cal. June 14, 2016)(finding “no undue
burden” and denying stay of discovery pending appeal of qualified
immunity decision because the defendants would still participate in
discovery as witnesses for claims against co-defendant who did not
appeal); Seeds of Peace Collective v. City of Pittsburgh, No. CIV.A
09-1275, 2010 WL 2990734, at *1 (W.D. Pa. July 28, 2010) (concluding
that “the need to protect these defendants from the burdens of
litigation are not present” and denying motion to stay discovery
because the defendants would remain as fact witnesses for claims not
subject to appeal).

C. Substantial Harm to Others
The effect of the discovery stay sought by Mosby would be to
delay the instant case for the duration of the pending appellate
proceedings.

Whether that delay will turn out to be several months

or in excess of a year, Plaintiffs will suffer substantial harm.
There will be an unnecessary delay in their gathering evidence.

And,

there will be a delay in their obtaining an adjudication (on summary
judgment or by trial) of their claims, including assertions of
significant reputational damage.

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D.

Public Interest

Mosby presents no valid contention that the public interest
would be served by the discovery stay she seeks.
The fact that discovery on the remaining claims against Mosby
and Cogen shall proceed would not, in any way, impede her ability
to present her contentions to the appellate court.
Certainly there is no public interest in enabling a public
official to delay providing information regarding claims against her
where, as here, essentially the same information would be disclosed
even if she obtained dismissal of all claims against her.
The public interest in judicial efficiency would be hampered
by a stay in this case since discovery will proceed inevitably on
many of the same issues in Cogen’s case. Cf. Galarza v. Szalczyk,
No. CIV.A. 10-6815, 2012 WL 627917, at *3 (E.D. Pa. Feb. 28,
2012)(holding that a stay of discovery would only “delay, rather than
relieve” burden of discovery because the case against co-defendants
would continue).

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IV.

CONCLUSION
For the foregoing reasons, the Court finds that Mosby has not

presented reasons that justify granting a stay of discovery herein
pending resolution of her interlocutory appeal.
Accordingly, the Motion for Immediate Stay Pending Appeal [ECF
No. 60] filed by Defendant Marilyn Mosby is DENIED.

SO ORDERED, this Monday, March 20, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

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