Up State Tower Co., LLC v. The Town of Kiantone, New York et al
ORDER granting 27 Motion to Stay. The Clerk of Court is directed to administratively close this case. Plaintiff is directed to notify the Court in writing within twenty (20) days of the date of a final decision from the Second Circuit regarding the disposition of Plaintiffs appeal.. Signed by Hon. Michael A. Telesca on 5/10/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UP STATE TOWER CO., LLC,
-vsTHE TOWN OF KIANTONE, NEW YORK; THE
TOWN BOARD OF THE TOWN OF KIANTONE,
NEW YORK; and THE BUILDING
DEPARTMENT OF THE TOWN OF KIANTONE,
Presently before the Court is the “Consent Motion to Stay
Pending Appeal Under FED. R. CIV. P. 62,” filed by Up State Tower
Co., LLC. (“Plaintiff”). Plaintiff states that it is currently
appealing this Court’s Decision and Order dated December 9, 2016,
to the extent it denied Plaintiff injunctive relief on Plaintiff’s
first cause of action, and the Decision and Order of this Court
dated March 13, 2017, to the extent it denied Plaintiff’s Motion,
pursuant to FED. R. CIV. P. 59 and 60, to amend the judgment, thereby
denying Plaintiff’s desired injunctive relief. For the reasons
discussed herein, the stay request is granted.
As the basis for its motion, Plaintiff indicates in its
memorandum of law that on April 26, 2017, counsel for Defendants,
Paul V. Webb, Jr., Esq., indicated that “Defendants have consented
to Plaintiffs [sic] request for a stay.” (Plaintiff’s Memorandum of
Law (Dkt #27-4) at
However, Plaintiff has not placed this alleged
fact of Defendants’ attorney’s consent before the Court in an
appropriate vehicle, such as an attorney’s affidavit or a letter
from Defendants’ counsel. Therefore, the Court does not consider
Plaintiff’s motion purports to be brought under Rule 62(c) of
the Federal Rules of Civil Procedure, which provides that “[w]hile
an appeal is pending from an interlocutory order or final judgment
that grants, dissolves, or denies an injunction, the court may
suspend, modify, restore, or grant an injunction on terms for bond
or other terms that secure the opposing party’s rights.” FED. R.
CIV. P. 62(c). Plaintiff states that instead the Court should apply
Landis v. North American Co., 299 U.S. 248, 254 (1936), which
proceedings in its own court[.]” Lockyer v. Mirant Corp., 396 F.3d
1098, 1109 (9th Cir. 2005) (citing Landis, 299 U.S. at 254). For
this proposition, Plaintiff cites ASIS Internet Services v. Member
Source Media, LLC, C-08-1321 EMC, 2008 WL 4164822, at *1 (N.D. Cal.
Sept. 8, 2008), where the district court was called upon to
“determine what the proper legal standard is when there is a
request to stay proceedings pending an appeal in a different case.”
Id. (emphasis supplied).
addressed the question of which standard to apply. The Court
assumes arguendo, for purposes of resolving this motion, that the
Landis factors apply.
In Landis, 299 U.S. 248, the Supreme Court held that “the
power to stay proceedings is incidental to the power inherent in
every court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for
litigants.” Id. at 254-55. Courts considering stay applications
conclusion. Id. “Courts in this Circuit typically consider five
factors when deciding whether a stay is appropriate: (1) the
private interests of the plaintiffs in proceeding expeditiously
with the civil litigation as balanced against the prejudice to the
plaintiffs if delayed; (2) the private interests of and burden on
the defendants; (3) the interests of the courts; (4) the interests
of persons not parties to the civil litigation; and (5) the public
interest.” Wing Shing Products (BVI) Ltd. v. Simatelex Manufactory
Co., Ltd., 01CIV.1044(RJH)(HBP), 2005 WL 912184, at *1 (S.D.N.Y.
Apr. 19, 2005) (citing Kappel v. Comfort, 914 F. Supp. 1056, 1058
(S.D.N.Y. 1996) (citing Volmar Distributors v. New York Post Co.,
152 F.R.D. 36, 39 (S.D.N.Y. 1993)).
factual circumstances present here, the Court will exercise its
discretion to grant a stay of these proceedings. Most salient to
the Court are the first, third, and fifth Landis factors. As to the
first factor, there will be no prejudice to Plaintiff if the case
is stayed, since Plaintiff is the party requesting the stay. See
LaSala v. Needham & Co., 399 F. Supp.2d 421, 428 (S.D.N.Y. 2005)
(“[W]hen a plaintiff seeks a stay, a court is not concerned with
plaintiffs need to vindicate its rights.”). As to the third and
fifth factor, the interests of the Court and the public will be
furthered by a stay pending the conclusion of Plaintiff’s appeal,
since removing this matter from the Court’s active docket will
conserve scarce judicial resources. And, if Plaintiff is successful
on appeal, this will obviate the need for further litigation in
For the foregoing reasons, the Court finds that the relevant
factors favor granting the stay. Therefore, Plaintiff’s “Consent
Motion to Stay Pending Appeal Under FED. R. CIV. P. 62” is granted.
The Clerk of Court is directed to administratively close this case.
Plaintiff is directed to notify the Court in writing within twenty
(20) days of the date of a final decision from the Second Circuit
regarding the disposition of Plaintiff’s appeal.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
May 10, 2017
Rochester, New York.
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