Mendez v. Skymax Dominica, SA

Filing 25

MEMORANDUM OPINION AND order re: 21 FIRST MOTION to Stay Pending Appeal filed by Carlos Ziegenhirt Mendez: The Plaintiff's December 9 motion to stay the arbitration pending appeal is denied. (Signed by Judge Denise L. Cote on 12/13/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---x
CARLOS ZIEGENHIRT MENDEZ,

Plaintiff,

11 Civ. 7548

(DLC)

-v-

MEMORANDUM
OPINION AND ORDER

SKYMAX DOMINICA, S.A.,
Defendant.

- -x
DENISE COTE, District Judge:
In an Order dated December 2, 2011, the plaintiff's
November 14 motion for a stay of arbitration was denied.

On

December 9, plaintiff filed a motion for a stay pending appeal.
"A stay is not a matter of right, even if irreparable
ury might otherwise result.

It is instead an exercise of

judicial discretion, and the propriety of its issue is dependent
upon the circumstances of the particular case./I

Nken v. Holder,

129 S.Ct. 1749

"The party

1

1760 (2009)

(citation omitted).

requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion.
1761.

1I

Id. at

The four factors to be considered by a court in deciding

whether to issue a stay pending appeal are:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in

the proceeding; and (4) where the public interest
lies.
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987));
see also In re World Trade Ctr. Disaster Site Li
167, 170 (2d Cir. 2007).
most critical."

"The first two factors

Nken, 129 S.Ct. at 1761.

"

503 F.3d
. are the

"The probability of

success that must be demonstrated is inversely proportional to
the amount of irreparable injury plaintiff will suffer absent
the stay./I

Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002)

(citation omitted).

A stay is proper, for example, where the

plaintiff can "demonstrate [] some possibility of success and
the balance of hardships tips decidedly in his favor."
Gonzales, 460 F.3d 323, 335 (2d

r. 2004).

In the context of a

request to stay an arbitration pending an appeal,
monetary cost of arbitration.
recognized irreparable harm."
Union 295, 786 F.2d 93

Thapa v.

"[t]he

. does not impose such legally
Emery Air Freight Corp. v. Local

(2d Cir. 1986).

As stated on the record at the December 2 conference, the
plaintiff has not made a strong showing that he is likely to
succeed in avoiding arbitration.
harm absent a stay.

Nor has he shown irreparable

The plaintiff only states that "he will be

forced to arbitrate a dispute that is not arbitrable."
remaining two factors also weigh against a st

The

It is in the

defendant's interest to proceed to arbitration without further

2

delay, and there is a strong public interest favoring
arbitration.

Accordingly, it is hereby

ORDERED that the

aintiff's December 9 motion to st

arbitration pending appeal is deni
SO ORDERED:
Dated:

New York, New York
December 13, 2011
ENISE COTE
United States District Judge

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the