Foley et al v. THI of Nevada At Las Vegas I, LLC

Filing 25

ORDER denying 24 Motion to Stay. Signed by Judge Jennifer A. Dorsey on 9/1/17. (Copies have been distributed pursuant to the NEF - CH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Estate of Glenn Clough, by and through its
Special Co-Administrators, Penny Foley and
Sharon Nagel; Penny Foley, an individual,
and Sharon Nagel, an individual,

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Plaintiffs

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Order Denying Emergency Motion to Stay
Case Pending Appeal
[ECF No. 24]

v.

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2:17-cv-00273-JAD-VCF

THI of Nevada at the Las Vegas I, a Delaware
Corporation dba Harmon Medical and
Rehabilitation Center,

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Defendant

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Plaintiffs prevailed in binding arbitration on their claims for elder abuse and professional

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negligence against Harmon Medical and Rehabilitation Center.1 This case then moved to state

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court where judgment was entered 2 and the plaintiffs moved for an order directing that Harmon’s

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rights to receive Medicare payments be assigned to them to satisfy the judgment.3 After plaintiffs

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filed their motion, Harmon removed this case to federal court under 28 U.S.C. § 1442(a)(2).4

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Finding that this case did not “affect the validity of a federal law,” as it must to qualify

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for removal under § 1442(a)(2),5 I granted the plaintiffs’ motion to remand and sent it back to

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state court.6 Harmon filed notice eight days later that it was appealing my remand decision.7

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ECF Nos. 12-5, 12-7.

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ECF Nos. 12-8, 1 at 34.

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ECF No. 1 at 34.

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ECF No. 1.

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Vermont v. MPHJ Tech. Invest., LLC, 803 F.3d 635 (Fed. Cir. 2015).

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ECF No. 20 at 2–4.

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ECF No. 21.

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Harmon contends that, in the time between my order and its notice of appeal, the U.S. District

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Clerk of Court mailed the remand order to the state court, plaintiffs renewed their assignment

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motion in state court, and plaintiffs obtained an order shortening the time to hear their motion:

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the hearing is scheduled for September 5, 2017.8 Harmon now moves for an order staying this

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case pending appeal.9

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“A stay is not a matter of right. . . . It is instead an exercise of judicial discretion . . .

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[that] is dependent upon the circumstances of the particular case.”10 Courts, in deciding whether

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to stay a case, are “guided by” the “legal principles” of: (1) “whether the stay applicant has made

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a strong showing that he is likely to succeed on the merits”; (2) “whether the applicant will be

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irreparably injured absent a stay”; (3) “whether issuance of the stay will substantially injure the

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other parties’ interest in the proceeding”; and (4) “where the public interest lies.”11

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Even assuming that I do still have jurisdiction over this case, I would deny the motion

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because the first two factors, which are the “most critical[,]”12 are not met here. Harmon has not

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made a strong showing that it is likely to succeed on the merits because, as I previously found,

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“plaintiffs’ arguments in the assignment briefing challenged only the applicability of federal

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law[,]” but “merely invoking federal law or arguing about its application is not enough to trigger

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§ 1442(a)(2).”13 Harmon does not argue that plaintiffs’ arguments to the state court have

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changed, and I am not persuaded by Harmon’s argument that its appeal raises “serious legal

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questions” because the Ninth Circuit has not addressed what § 1442(a)(2)’s “affects the validity

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ECF No. 24 at 3.

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ECF No. 24.

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Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (alterations in the original) (quotation
marks and quoted reference omitted).
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Id. (quotation marks and quoted reference omitted).

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Id. at 1204 (quotation marks and quoted reference omitted).

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ECF No. 20 at 3–4.

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of any law of the United States” means. Harmon also has not demonstrated that it will be

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irreparably harmed without a stay. Harmon concludes that garnishment proceedings in the state

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court could render its appeal moot, but does not explain why that would be so. And, finally, I am

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not persuaded that a stay would serve the public interest. This arbitration/state-court case was in

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the judgment-enforcement phase when it was improperly removed, and I cannot conclude that

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keeping it in limbo would be in the public’s interest; it would just reward a baseless removal.

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Accordingly,

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IT IS HEREBY ORDERED that Harmon’s emergency motion to stay pending appeal

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[ECF No. 24] is DENIED.
DATED: September 1, 2017.

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_______________________________
U.S. District Judge Jennifer A. Dorsey

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