McNamara v. Patten et al

Filing 101

ORDER granting 64 Motion to Stay Case and ORDER granting 95 Motion to Amend and Supplement. Joint status report due 11/2/2020. See Order for details. Signed by Judge Gloria M. Navarro on 9/14/2020. (Copies have been distributed pursuant to the NEF - HAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THOMAS W. MCNAMARA,
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Plaintiff,
vs.

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GARY PATTEN, et al.,
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Defendants.

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Case No.: 2:17-cv-02968-GMN-NJK
ORDER

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Pending before the Court is the Motion to Stay, (ECF No. 64), filed by Defendants Gary

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Patten and Pano Advisors, Inc (collectively “Defendants”). Plaintiff Thomas W. McNamara

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(“McNamara”) filed a Response, (ECF No. 69), in opposition, and Defendants filed a Reply,

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(ECF No. 73).

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Also pending before the Court is Defendants’ to Amend and Supplement the Motion to

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Stay, (ECF No. 95), explaining that the United States Supreme Court granted certiorari on the

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Court’s decision in AMG Capital Management, LLC v. Federal Trade Commission—the base

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decision from this Court of 2:12-cv-00536-GMN-VCF, which authorized McNamara’s

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appointment as monitor to assist the Federal Trade Commission (“FTC”) and gave the monitor

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authority to bring this case. McNamara filed a Response, (ECF No. 98), and Defendants filed a

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Reply, (ECF No. 99).

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When determining whether a stay is appropriate pending the resolution of another case,

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the district court must weigh: (1) the possible damage that may result from a stay, (2) any

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“hardship or inequity” that a party may suffer if required to go forward, (3) “and the orderly

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course of justice measured in terms of the simplifying or complicating of issues, proof, and

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questions of law” that a stay will engender. Ocwen Loan Servicing, LLC v. SFR Investments

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Pool I, LLC, No. 2:17-cv-00279-JAD-GWF, 2017 WL 5068520, at *2 (D. Nev. Apr. 11, 2017)

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(citing Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005)). The party seeking a

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stay bears the burden of showing entitlement to it. Latta v. Otter, 771 F.3d 496, 498 (9th Cir.

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2014).
After considering the applicable factors and the potential impact of the U.S. Supreme

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Court’s decision in AMG Capital Management, LLC v. Federal Trade Commission on this

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matter, the Court grants Defendants’ Motions. McNamara argues that a stay is inappropriate

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because it will cause “memories” to “fade” and provide Defendants with time to “hide” or “use

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up” the funds that he seeks to collect. (Resp. at 3, ECF No. 98). But this argument is

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unavailing. As Defendants provide in the Reply in support of their Motion to Amend, “[f]act

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discovery has closed; witnesses have been deposed and documents have been exchanged. A

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temporary, finite stay is not going to cause fact evidence in this case to disappear.” (Reply at 2–

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3, ECF No. 99). Defendants further argue, and the Court agrees, that although experts are early

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in discovery, they are not fact witnesses, and therefore, “fading” memories are not at issue. (Id.

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at 3). Additionally, McNamara has not presented support for a likelihood of prejudice to his

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ability to recover a judgment if this case were delayed pending the Supreme Court’s

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forthcoming decision. Last, the central issue in the grant of certiorari for AMG Capital

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Management, LLC v. Federal Trade Commission is the FTC’s power to recover monetary

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relief—resolution of which could directly affect McNamara’s scope of authority even if the

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Supreme Court affirms this Court’s decision in Case No. 2:12-cv-00536-GMN-VCF. Waiting

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for the Supreme Court before continuing with this case thus prevents rulings on the merits that

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might later be undermined. As such, the unique circumstances of certiorari now make a stay

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appropriate.

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Accordingly,

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IT IS HEREBY ORDERED that Defendants’ Motion to Stay, (ECF No. 64), and

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Motion to Amend and Supplement, (ECF No. 95), are GRANTED. The Court stays this case

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pending the United States Supreme Court’s decision in AMG Capital Management, LLC v.

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Federal Trade Commission, No. 19-508. McNamara and Defendants shall jointly file a status

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report every three months beginning on November 2, 2020, addressing the status of AMG

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Capital Management, LLC v. Federal Trade Commission, No. 19-508. Upon the U.S. Supreme

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Court’s decision, the parties shall jointly petition the Court to lift the stay. With regard to any

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motions currently pending before the Court in this matter, the Court will address them once the

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stay is lifted. Pending motions need not be refiled. McNamara can petition the Court for relief

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from the stay if there is evidentiary support showing conduct by Defendants that may harm the

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ability to recover a judgment in this matter.

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DATED this _____ day of September, 2020.

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___________________________________
Gloria M. Navarro, District Judge
United States District Court

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