Abbo-Bradley et al v. City of Niagara Falls et al

Filing 143

DECISION AND ORDER denying Plaintiffs' 127 MOTION to Stay the effect of the Court's 125 Decision and Order pending the determination of Plaintiffs' appeal to the Second Circuit. Signed by Hon. John T. Curtin on 7/31/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOANN ABBO-BRADLEY, et al.,
Plaintiffs,
v.

13-CV-487-JTC

CITY OF NIAGARA FALLS, et al.,
Defendants.

On July 18, 2013, upon the application of defendant Glenn Springs Holdings, Inc.
(“GSH”), made on behalf and upon the consent of all defendants, this court issued an order
preliminarily and temporarily enjoining plaintiffs (and their attorneys) from conducting
environmental sampling in the neighborhood surrounding the Love Canal Landfill site
without providing all other parties (and relevant governmental agencies) prior written notice
of sampling activity, contemporaneous access to the sampling location, and an opportunity
to take split samples (see Item 125). Plaintiffs immediately filed in the United States Court
of Appeals for the Second Circuit a Notice of Appeal from this order (Item 126), along with
a motion in this court to stay the effect of the injunction pending determination of the
appeal (Item 127). GSH has filed a response to the motion for stay on behalf of all
defendants (Item 135), and defendant Niagara Falls Water Board (“NFWB”) has filed a
separate response (Item 136).
Upon review of the matters set forth in these submissions, plaintiffs’ motion for stay
of the effect of the court’s July 18, 2013 order is denied.
Whether to stay enforcement of an injunction pending appeal is left to the discretion
of the district court, Keeling v. New Rock Theater Productions, LLC, 2013 WL 918553, at

*1 (S.D.N.Y. Mar. 11, 2013), and the party seeking the stay has the burden to demonstrate
that the circumstances justify the court's exercise of discretion in its favor. Id. (citing Nken
v. Holder, 556 U.S. 418, 434 (2009)). In determining whether the movant has met this
burden, the court should consider the following factors:
(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.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987), quoted in S.E.C. v. Citigroup Global Markets
Inc., 673 F.3d 158, 162 (2d Cir. 2012).
In support of the stay application, plaintiffs reiterate their position that the prior
notice, contemporaneous access, and split sampling protocol established by the court’s
injunction order “impermissibly intrudes” on the attorney-client, work product, and other
“privileges.” Item 127-1 (Mack Affirmation), ¶ 6. However, as explained by the court in the
July 18 order, this protocol was adopted in order to maintain the status quo of discovery
by ensuring that all parties have fair and equal access to any materials obtained from
sampling activity in the area of concern–materials that might later provide evidence
relevant to the issues raised by the parties in their pleadings. Plaintiffs made no showing
to convince the court that the proposed protocol was likely to provide defendants with an
unfair glimpse of plaintiffs’ litigation strategy, or restrain counsel’s ability to investigate the
merits of other anticipated lawsuits. Instead, the court adopted the view that the injunction
order was necessary to preserve facts relating to the chemical composition of the materials
obtained as the result of plaintiffs’ environmental sampling activity. In the absence of any
new evidence, additional arguments, or citation to case law or other authority that might
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have been overlooked or misapplied by the court, plaintiffs have not made a sufficiently
“strong showing” of likelihood of success on the merits of their appeal to alter the court’s
view, or to warrant a stay of the effects of the July 18 order pending appeal.
Likewise, plaintiffs have made no showing that the notice, access, and split
sampling requirement of the court’s injunction will cause them irreparable injury. To the
contrary, in issuing the injunction, the court found that defendants would be irreparably
harmed by allowing plaintiffs to continue their unilateral drilling and sampling activities
without an established protocol for equal or equivalent access. In order to grant the
present application, the court would have to make the contradictory finding that plaintiffs
would be irreparably harmed in the absence of a stay. Without a convincing showing, the
court is unwilling to do so.
Finally, the court’s injunction order expressly recognized that the public interest in
fair resolution of the serious health concerns raised in this action would best be served by
establishing a protocol for the parties’ equal access to the results of environmental
sampling in the area of concern. Although the injunction is currently in effect only until
further order or notice upon resolution of the motion for remand, the court encourages the
parties to adopt this protocol as a common sense approach to preserving potentially
relevant evidence throughout the course of the litigation, whether it ultimately proceeds in
this court or in the state courts.
Based on the foregoing, and for the reasons set forth at further length in the court’s
July 18, 2013 order, the court denies plaintiffs’ application for a stay of the effect of the
preliminary injunction pending appeal. Any further application for a stay must be made to

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the Court of Appeals, in accordance with Rule 8(a)(2) of the Federal Rules of Appellate
Procedure.

So ordered.
_______\s\ John T. Curtin___________
JOHN T. CURTIN
United States District Judge
Dated:

July 31, 2013

p:\pending\2013\13-487.jul30.2013

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