Risinger v. SOC LLC et al

Filing 161

ORDER. It is hereby ordered that Defendants' Motion to Stay Pending Appeal 157 is granted. This case is temporarily stayed. Signed by Judge Miranda M. Du on 11/24/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KARL E. RISINGER, an individual on
behalf of himself and all others similarly
situated
Plaintiff,

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v.

Case No. 2:12-cv-00063-MMD-PAL
ORDER
(

Motion to Stay Pending
Appeal dkt. no. 157)

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SOC LLC, et al.,
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Defendants.
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I.

SUMMARY

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In response,

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below,

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II.

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seek a stay pending appeal. For the reasons set forth
Motion to S

is granted.

BACKGROUND
The relevant factual background is fully set out in t

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September 30, 2015

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on

judgement to Defendants and certified a class of plaintiffs. (Id.)

. (Dkt. no. 155.) The Order granted partial summary

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On October 13, 2015, SOC filed a petition with the Ninth Circuit Court of Appeals

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pursuant to Fed. R.

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Civ. P. 23(f). (Dkt. no. 157-1). On October 16, 2015, SOC filed their Motion, which

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Plaintiff opposes. (Dkt. nos. 157, 159.)

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III.

DISCUSSION

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A.

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Federal Rule of Civil Procedure 23(f) permits a district court, in its discretion, to

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enter a stay of proceedings pending a petition for permission to appeal. Fed. R. Civ. P.

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23(f). Judicial discretion in exercising a stay is to be guided by a four-

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whether the stay applicant has made a strong showing that he is likely to succeed on the

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

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issuance of the stay will substantially injure the other parties interested in the

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Lair v. Bullock, 697 F.3d 1200, 1203

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(9th Cir. 2012) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). The party requesting

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a stay bears the burden of showing that the stay is warranted. Id.

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B.

Legal Standard

Analysis
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Likelihood of success on the merits

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To satisfy the first prong, an appellant seeking a stay pending appeal must show

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Leiva-Perez v. Holder, 640 F.3d

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962, 968 (9th Cir. 2011). A movant need not

demonstrate that it is more

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likely than not that [he or she]

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show that serious legal questions are involved. Id. at 967-68. The Supreme Court has

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explained that

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434 (internal quotation marks and citations omitted).

Id. at 966. Instead, it is enough to

Nken, 556 U.S. at

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appeal focuses in large part on the question of how to handle issues of

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individual reliance in a class-wide fraud claim. (Dkt. no. 157 at 3.) Risinger argues that

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SOC has mischaracterized case law to create the appearance of an authority split. (Dkt.

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no. 159 at 9.) However, this Court in its Order acknowledged that SOC had correctly

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identified competing approaches to evaluating reliance in class actions based on fraud.

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(Dkt. no. 155 at 25.) The parties devoted a substantial portion of their briefing and oral

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law contains a great deal of nuance and even contradictions. Consequently, the Court
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agrees that SOC has identified a serious legal question and has satisfied the likelihood

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of success on the merits prong.

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2.

Irreparable harm to SOC

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SOC argues that if this Court denies a stay, it will be harmed by the substantial

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costs of ongoing litigation that may be unnecessary. (Dkt. no 157 at 4.) Risinger

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responds that litigation expense

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self-described status as a two-billion dollar conglomerate means that incidental

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discovery costs could not possibly constitute irreparable harm. (Dkt. no. 159 at 7-8.)

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Whether litigation expenses constitute irreparable harm is considered on a case

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by case basis. See Richards v. Ernst & Young LLP, No. C-08-04988 RMW, 2012 WL

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92738, at *3 (N.D. Cal. Jan. 11, 2012). This case involves a class of upwards of 4,000

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members. As other courts in this circuit have noted, classes of this size make the

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likelihood that a party will incur substantial

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greater. See Pena v. Taylor Farms Pac., Inc., No. 2:13-CV-01282-KJM-AC, 2015 WL

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5103157, at *5 (E.D. Cal. Aug. 31, 2015); Brown v. Wal-Mart Stores, Inc., No. 5:09-CV-

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03339-EJD, 2012 WL 5818300, at *4 (N.D. Cal. Nov. 15, 2012).

and potentially unnecessary

costs

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Similarly here, the costs of continued litigation will likely be high enough to

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constitute a serious irreparable harm to SOC. The Court therefore agrees that SOC has

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shown that it will suffer irreparable harm absent a stay.

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3.

Injury to Other Parties

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SOC argues that failing to grant a stay may result in confusion among class

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members. (Dkt. no. 157 at 4.) Risinger counters that the counter-veiling due process

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interests in promptly sending class notice trumps any confusion that may arise if the

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notices later need to be corrected. (Dkt. no 159 at 8.)

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The Court agrees that granting a stay will prevent the possibility of confusion

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among class members. If class notice is disseminated, and the Ninth Circuit overturns or

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need to be re-

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contacted. This has the potential to cause delay, confusion, and difficulty for all parties,
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including Risinger. Notably, thi

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obtain full relief for members of the class that he will represent. Any due process

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concerns resulting from an unexpected delay in the current appeal can be addressed by

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Order if warranted. The Court finds that the balance of harm tips in

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4.

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Public Interest

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A stay pending appeal will avoid unnecessary litigation and conserve judicial

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resources. It is therefore in the public interest. See, e.g., Pena, 2015 WL 5103157, at *6.

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Risinger is right to point out that this case involves important issues of national

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significance and that plaintiffs as well as citizens at large are served by a trial. (Dkt. no.

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159 at 10.) A temporary stay will help, not hinder, this process by making sure that any

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such trial is administered effectively.

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IV.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion or reconsideration as they do not affect

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the outcome of the Motion.

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It is hereby ordered that

Motion to Stay Pending Appeal (dkt. no.

157) is granted. This case is temporarily stayed.
ENTERED THIS 24th day of November 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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