Federal Trade Commission v. Johnson et al

Filing 546

ORDER Denying #532 Emergency Motion to Stay Pending Appeal. Signed by Judge Roger L. Hunt on 4/30/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FEDERAL TRADE COMMISSION,
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Plaintiff,
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vs.
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JEREMY D. JOHNSON, et al.,
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Defendants.
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_______________________________________)

Case No.: 2:10-cv-02203-RLH-GWF
ORDER
(Emergency Motion to Stay–#532)

Before the Court is Defendant Jeremy D. Johnson’s Emergency Motion for Stay

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Pending Appeal (#532, filed Apr. 11, 2012). The Court has also considered Receiver Robb Evans

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of Robb Evans & Associates, LLC’s Opposition (#534, filed Apr. 12). Johnson did not file a

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Reply.

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On April 3, 2012, the Court issued an order (#516) authorizing the Receiver to sell

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various forms of property, including two vehicles, coins and precious metals, and a number of

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parcels of undeveloped land. Johnson appealed this order to the Ninth Circuit Court of Appeals.

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(#528). He appears to argue that the Court’s order was inappropriate because the coins and

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precious metals were seized from his home by the Receiver in violation of Section XV.S of the

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Preliminary Injunction (#130). He now seeks a stay of the enforcement of the Court’s order

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pending the resolution of his appeal.

AO 72
(Rev. 8/82)

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The Court denies Johnson’s motion as moot because the Receiver has already sold

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the coins and precious metals at issue. However, even if the motion were not moot the Court

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would deny it on its merits. The factors the courts consider on a motion to stay pending appeal are

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(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

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(2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the

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stay will substantially injure the other parties interested in the proceeding; and (4) where the public

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interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
First, Johnson’s motion fails because he has not made a strong showing of success

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on appeal. Johnson’s motion is based on a misinterpretation of Section XV.S of the Preliminary

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Injunction, which prohibits the Receiver from accessing Johnson’s home for the purpose of

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inspecting documents, records, books, etc. It does not prohibit the Receiver from ever accessing

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Johnson’s home. In fact, Section XV.B of the Preliminary Injunction requires the Receiver to take

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possession of all assets of the Corporate Defendants, such as the coins and precious metals,

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“wherever situated.” In any event, Johnson consented to the Receiver accessing his home for the

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purpose of seizing the coins and precious metals. (See #469, Receiver’s First Omnibus Motion,

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Exs. 2,3,4). Therefore, Johnson has not made a strong showing that he is likely to succeed on the

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merits of his appeal. Second, Johnson will not suffer irreparable injury if enforcement of the

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Court’s order is not stayed because if Johnson succeeds on appeal monetary damages will

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adequately compensate his loss of the coins and precious metals.

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Because Johnson fails to meet the first two factors above the Court sees no need to

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address the other factors, even though they will also weigh against a stay. Finally, the Court denies

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the stay because it would defeat the entire purpose of authorizing the coins and precious metals to

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be sold immediately—to ensure they are not subject to volatile market forces.

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AO 72
(Rev. 8/82)

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Johnson’s Emergency Motion for Stay Pending

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Appeal (#532) is DENIED.
Dated: April 30, 2012.

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____________________________________
ROGER L. HUNT
United States District Judge

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AO 72
(Rev. 8/82)

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