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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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 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, 5 6 Plaintiffs 7 8 Order Denying Emergency Motion to Stay Case Pending Appeal [ECF No. 24] v. 9 2:17-cv-00273-JAD-VCF THI of Nevada at the Las Vegas I, a Delaware Corporation dba Harmon Medical and Rehabilitation Center, 10 Defendant 11 12 Plaintiffs prevailed in binding arbitration on their claims for elder abuse and professional 13 14 negligence against Harmon Medical and Rehabilitation Center.1 This case then moved to state 15 court where judgment was entered 2 and the plaintiffs moved for an order directing that Harmon’s 16 rights to receive Medicare payments be assigned to them to satisfy the judgment.3 After plaintiffs 17 filed their motion, Harmon removed this case to federal court under 28 U.S.C. § 1442(a)(2).4 18 Finding that this case did not “affect the validity of a federal law,” as it must to qualify 19 for removal under § 1442(a)(2),5 I granted the plaintiffs’ motion to remand and sent it back to 20 state court.6 Harmon filed notice eight days later that it was appealing my remand decision.7 21 22 1 ECF Nos. 12-5, 12-7. 2 ECF Nos. 12-8, 1 at 34. 3 ECF No. 1 at 34. 4 ECF No. 1. 27 5 Vermont v. MPHJ Tech. Invest., LLC, 803 F.3d 635 (Fed. Cir. 2015). 28 6 ECF No. 20 at 2–4. 7 ECF No. 21. 23 24 25 26 1 Harmon contends that, in the time between my order and its notice of appeal, the U.S. District 2 Clerk of Court mailed the remand order to the state court, plaintiffs renewed their assignment 3 motion in state court, and plaintiffs obtained an order shortening the time to hear their motion: 4 the hearing is scheduled for September 5, 2017.8 Harmon now moves for an order staying this 5 case pending appeal.9 6 “A stay is not a matter of right. . . . It is instead an exercise of judicial discretion . . . 7 [that] is dependent upon the circumstances of the particular case.”10 Courts, in deciding whether 8 to stay a case, are “guided by” the “legal principles” of: (1) “whether the stay applicant has made 9 a strong showing that he is likely to succeed on the merits”; (2) “whether the applicant will be 10 irreparably injured absent a stay”; (3) “whether issuance of the stay will substantially injure the 11 other parties’ interest in the proceeding”; and (4) “where the public interest lies.”11 12 Even assuming that I do still have jurisdiction over this case, I would deny the motion 13 because the first two factors, which are the “most critical[,]”12 are not met here. Harmon has not 14 made a strong showing that it is likely to succeed on the merits because, as I previously found, 15 “plaintiffs’ arguments in the assignment briefing challenged only the applicability of federal 16 law[,]” but “merely invoking federal law or arguing about its application is not enough to trigger 17 § 1442(a)(2).”13 Harmon does not argue that plaintiffs’ arguments to the state court have 18 changed, and I am not persuaded by Harmon’s argument that its appeal raises “serious legal 19 questions” because the Ninth Circuit has not addressed what § 1442(a)(2)’s “affects the validity 20 21 8 ECF No. 24 at 3. 9 ECF No. 24. 22 23 24 25 10 Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (alterations in the original) (quotation marks and quoted reference omitted). 11 Id. (quotation marks and quoted reference omitted). 27 12 Id. at 1204 (quotation marks and quoted reference omitted). 28 13 ECF No. 20 at 3–4. 26 2 1 of any law of the United States” means. Harmon also has not demonstrated that it will be 2 irreparably harmed without a stay. Harmon concludes that garnishment proceedings in the state 3 court could render its appeal moot, but does not explain why that would be so. And, finally, I am 4 not persuaded that a stay would serve the public interest. This arbitration/state-court case was in 5 the judgment-enforcement phase when it was improperly removed, and I cannot conclude that 6 keeping it in limbo would be in the public’s interest; it would just reward a baseless removal. 7 Accordingly, 8 IT IS HEREBY ORDERED that Harmon’s emergency motion to stay pending appeal 9 10 [ECF No. 24] is DENIED. DATED: September 1, 2017. 11 _______________________________ U.S. District Judge Jennifer A. Dorsey 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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