Candelario-Del Moral v. UBS Financial Services Incorporated of Puerto Rico

Filing 229

OPINION AND ORDER. DENIED 221 Motion to Stay. Signed by Judge Salvador E. Casellas on 6/27/2013. (AVB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

1
2
3
4
5
6
7
8
9

MADELEINE CANDELARIO-DEL
MORAL,
Plaintiff,
Civil No. 08-1833 (SEC)
v.
UBS FINANCIAL SERVICES
INCORPORATED OF PUERTO RICO,
Defendant.

10

OPINION AND ORDER
Before the Court are putative intervenor David Efron’s “Urgent Motion for Stay Pending

11

Appeal” (Docket # 221), and the parties’ responses thereto. Dockets # 222 & 224. After

12

reviewing the filings and the applicable law, Efron’s motion is DENIED.

13

Factual and Procedural Background

14

On April 29, 2013, the Court denied Efron’s motion to intervene under Federal Rule of

15

Civil Procedure 24(a)(2). Candelario-Del Moral v. UBS Fin. Servs. Inc., --- F.R.D. ----, 2013

16

WL 1791024 (D.P.R. Apr. 29, 2013), reconsideration denied, 2013 WL 2631448 (D.P.R. June

17

11, 2013). The Court held that Efron’s motion to intervene had (1) failed to comply with the

18

procedural requirements mandated by Fed. R. Civ. P 24(c); and (2) been untimely, see id. at *3

19

n. 3 & *6; see also 2013 WL 1791024, at *1. Unhappy with this determination, on May 28

20

Efron filed a notice of appeal from the denial of his motion to intervene. Docket # 217.

21

Shortly thereafter, he filed the instant motion to stay the proceedings pending his appeal,

22

arguing that he “satisfies and meets the necessary factors for the issuance of a stay.” Docket #

23

221, p. 1. Notably, for the first time in this litigation, Efron conducts a “brief analysis” of the

24

“elements of intervention as of right . . . .” Id., p. 4.

25

Arguing that Efron’s motion to stay “utterly fails to show” how the traditional four-part

26

standard governing stays pending appeal “favors his request for a stay,” the plaintiff opposed.

1

CIVIL NO. 08-1833 (SEC)

Page 2

Docket # 222, p. 1. Consistent with its “characteristic neutrality,” Candelario-Del Moral, 2013
2

WL 2631448, at * 1, the defendant “takes no position” on Efron’s motion to stay. Docket # 224,
3

p. 1.
4

Standard of Review
5

“A party requesting injunctive relief pending appeal bears the burden of showing that the
6

circumstances of the case justify the exercise of the court’s discretion.” Respect Maine PAC v.
7

McKee, 622 F.3d 13, 15 (1st Cir. 2010); Whalen v. Roe, 423 U.S. 1313, 1316 (1975) (Marshall,
8

J., in chambers). The determination whether to grant a stay pending appeal is controlled by the
9

traditional quadruple test applicable to preliminary injunctions: (1) whether the applicant has
10

made a strong showing of success on the merits; (2) whether the applicant will be irreparably
11

harmed absent injunctive relief; (3) whether issuance of the stay will injure other parties; and
12

(4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v.
13

Braunskill, 481 U.S. 770, 776-77 (1987)); Joubert-Vázquez v. Alvarez-Rubio, 841 F. Supp. 2d
14

570, 573 (D.P.R. 2012).
15

The first two factors, the Supreme Court recently made clear, “are the most critical.”
16

Nken, 556 U.S. at 434. Because both of these factors “require a showing of more than mere
17

possibility,” the movants “must show a strong likelihood of success, and they must demonstrate
18

that irreparable injury will be likely absent . . . [a stay].” Respect Maine PAC, 622 F.3d at 15.
19

“The sine qua non [of the stay pending appeal standard] is whether the [movants] are likely to
20

succeed on the merits.” Acevedo-García v. Vera-Monroig, 296 F.3d 13, 16 (1st Cir. 2002) (per
21

curiam) (quoting Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.1993)); Rivera-Torres v. Ortíz
22

Vélez, 341 F.3d 86, 95 (1st Cir. 2003). Accordingly, “[w]hat matters . . . is not the raw amount
23

of irreparable harm [a] party might conceivably suffer, but rather the risk of such harm in light
24

of the party’s chance of success on the merits . . . .” In re Elias, 182 F. App’x 3, 4 (1st Cir. 2006)
25
26

1

CIVIL NO. 08-1833 (SEC)

Page 3

(citation and internal quotation marks omitted); United Steelworkers of America v. Textron,
2

Inc., 836 F.2d 6, 7 (1st Cir.1987).
3

Applicable Law and Analysis
4

As noted above, as the proponent of the stay Efron “bears the burden of showing that the
5

circumstances justify an exercise” of this court’s judicial discretion. Nken, 556 U.S. at 418. He
6

comes nowhere close to satisfying this burden.
7

The analysis starts and ends with the first and second factors. Efron has not made a
8

“strong showing” of success on the merits. As a threshold matter, his appeal will, in all
9

likelihood, fail to reach first base. Court of Appeals do not take lightly a party’s failure to
10

provide nisi prius courts with developed arguments. See, e.g., Curet-Velázquez v. ACEMLA
11

de Puerto Rico, Inc., 656 F.3d 47, 54 (1st Cir. 2011), cert. denied, 132 S. Ct. 1863 (2012).1 And
12

this is for good reason: “Overburdened trial judges cannot be expected to be mind readers,”
13

McCoy v. Massachusetts Inst. of Techn., 950 F.2d 13, 22 (1st Cir. 1991), so “litigants should
14

not seriously expect to obtain a remedy without doing the necessary leg work first.” Silverstrand
15

Investments v. AMAG Pharmaceuticals, Inc., 707 F.3d 95, 107 (1st Cir. 2013). This principle
16

could be dispositive here, where Efron’s motion to intervene neither presented nor analyzed any
17

applicable legal authority — in fact, Efron’s motion “cite[d] no caselaw at all.” Machado v.
18

Shinseki, 700 F.3d 48, 49 (1st Cir. 2012) (per curiam). To make matters worse, Efron’s request
19

completely ignored “the timeliness factors,” Candelario-Del Moral, 2013 WL 1791024, at * 4,
20
21
1

22
23
24
25
26

See also, e.g., Rocafort v. IBM Corp., 334 F.3d 115, 122 (1st Cir.2003) (“Passing reference to
legal phrases and case citation without developed argument is not sufficient to defeat waiver.” (citing
DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001))); CMM Cable Rep, Inc. v. Ocean Coast
Properties, Inc., 97 F.3d 1504, 1526 (1st Cir. 1996) (three sentences with three undiscussed citations
did not defeat waiver); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (reiterating that “issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived”); D.P.R. Civ. R. 7(a) (“All matters submitted to the Court for consideration shall be
presented by written motion filed with the clerk incorporating a memorandum of law, including
citations and supporting authorities. . . .”) (emphasis added).

1

CIVIL NO. 08-1833 (SEC)

Page 4

as adopted by the First Circuit in the normative Culbreath v. Dukakis, 630 F.2d 15, 20 (1st
2

Cir.1980).2
3

But even if the First Circuit were to excuse these fatal flaws, it cannot be said, as Efron
4

maintains in a perfunctorily manner, that his request for intervention has a “strong position” on
5

the merits. Docket # 221, p. 4. Quite the opposite is true: Efron’s motion to intervene is
6

meritless. Efron, an experienced and resourceful member of this bar, neglected to even comply
7

with Rule 24(c)’s mandatory requirements, see, e.g., Public Service Company of New
8

Hampshire v. Patch, 136 F.3d 197, 205 n. 6 (1st Cir. 1998), “which provided yet another ground
9

to deny his undeveloped and unpersuasive request for intervention.” Candelario-Del Moral,
10

2013 WL 2631448, at *2. More important, the fact remains that Efron cannot explain “why he
11

procrastinated for 2 years to intervene.” Candelario-Del Moral, 2013 WL 1791024, at *4. “A
12

delay of 2 years after Efron irrefragably knew that UBS intended to seek indemnification from
13

him,” the Court hereby reiterates, “is an inordinate amount of time . . . .” Id. In short, Efron’s
14

motion to intervene cannot meet the timeliness requirement, which “stands as a sentinel at the
15

gates whenever intervention is requested and opposed.” R & G Mortgage Corp. v. Fed. Home
16

Loan Mortgage Corp., 584 F.3d 1, 7 (1st Cir. 2009) (internal quotation marks and citations
17

omitted).
18

There is, however, an added wrinkle. As stated previously, Efron addresses — for the
19

first time — the factors applicable to motions to intervene, including timeliness. As relevant
20

here, he posits that “the triggering event making his motion to intervene timely was the March
21

4, 2013 letter he received from . . . . [UBS] indicating that Intervenor David Efron would be
22
23
24
25
26

2

Efron’s “pro se” status does not insulate him from complying “with procedural and substantive
law.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). “[W]hile pro se litigants are held to a
less stringent standard . . . they are not immune” from waiver resulting from undeveloped arguments.
Watson v. Trans Union LLC, 223 F. App’x 5, 6 (1st Cir. 2007) (per curiam). These principles are even
more demanding here, where Efron, an experienced litigator, is not the usual pro se litigant.

1

CIVIL NO. 08-1833 (SEC)

Page 5

liable for any settlement between the Plaintiff . . . and Defendant in this case.” Docket # 221,
2

p. 3. But Efron’s last ditch attempt is too little, too late. And in any event, his ipse dixit is
3

supported neither by caselaw, see, e.g., Narragansett Indian Tribe v. Ribo, Inc., 868 F.2d 5, 7
4

(1st Cir.1989) (“Parties having knowledge of the pendency of litigation which may affect their
5

interest sit idle at their peril.”) (emphasis added) nor by the record, see Candelario-Del Moral,
6

2013 WL 2631448, at *1 (“Setting the record straight, UBS correctly states that it has repeatedly
7

reminded Efron of its intention to hold him accountable . . . including after the . . . summary
8

judgment ruling in January 2010, [and] again in its July 2011 proof of claim in Efron’s
9

bankruptcy proceeding . . . .”) (citations and internal quotation marks omitted).
10

Neither can Efron shoulder his burden of showing that he will suffer irreparable harm
11

absent a stay. Efron’s perfunctory and wholly undeveloped averment that he will “suffer
12

irreparable injury should the instant case proceed,” Docket # 221, p. 4, “makes waiver a real
13

possibility.” Candelario Del Moral v. UBS Fin. Servs. Inc. of Puerto Rico, 699 F.3d 93, 101 (1st
14

Cir. 2012). It also fails on the merits; for it simply cannot be said that the First Circuit’s decision
15

will “come too late for the party seeking review.” Nken, 556 U.S. at 421 (quoting Scripps16

Howard Radio, Inc. v. FCC, 316 U.S. 4, 9-10 (1942)). That is so because the mediation has
17

since concluded without settlement, see Dockets # 210 & 211, so the chances of settlement
18

appear to be considerably lower than when Efron moved to intervene. Given the approval of the
19

parties’ “joint proposed schedule,” Docket # 220, moreover, trial will not start until at least
20

March 2014. What is more, the defendant has made clear that it “intends to call Efron as a
21

witness regardless of whether or not he is permitted to intervene,” Docket # 225, so Efron’s
22

protestations will most likely be heard at trial.
23

In any event, if Efron thinks that the appellate outcome will come too late, he could
24

always petition the First Circuit to “expedite[ ] the appeal” . . . [by arguing that there is a] need
25

for an urgent resolution.” Daggett v. Comm’n on Governmental Ethics & Election Practices,
26

1

CIVIL NO. 08-1833 (SEC)

Page 6

172 F.3d 104, 108 (1st Cir. 1999); see, e.g., Jimenez-Fuentes v. Torres Gaztambide, 807 F.2d
2

230, 231 (1st Cir. 1985) (denying stay but granting “an expedited appeal”), on reh’g sub nom.,
3

807 F.2d 236 (1st Cir. 1986). In sum, because there is no threat (imminent or otherwise) of
4

irreparable injury here, Efron cannot meet the second factor.
5

Given Efron’s failure to meet his burden under the first two factors, “an analysis of the
6

other factors . . . would be supererogatory.” Weaver v. Henderson, 984 F.2d 11, 14 n. 5 (1st Cir.
7

1993); accord Nken, 556 U.S. at 436 (“Once an applicant satisfies the first two factors, the
8

traditional stay inquiry calls for assessing the harm to the opposing party and weighing the
9

public interest.”) (emphasis added). See also Ruckelshaus v. Monsanto Co., 463 U.S. 1315,
10

1317 (1983) (Blackmun, J., in chambers). The Court nonetheless notes that staying the
11

proceedings pending appeal would “further delay this soon-to-be 5-year-old case; such a hangup
12

would in turn prejudice the plaintiff ‘in the form of undue delay.’” Candelario-Del Moral, 2013
13

WL 1791024, at *5 (quoting Blount-Hill v. Zelman, 636 F.3d 278, 286-87 (6th Cir. 2011)).
14

Finally, the public interest lies in avoiding delays, resolving the parties’ dispute expeditiously,
15

and in the productive use of limited judicial resources. See Jarboe v. Yukon Nat’l Bank ( In re
16

Porter), 54 B.R. 81, 82 (Bankr. N.D.Okla. 1985) (“The public interest, though difficult to
17

measure in a case involving primarily private rights, is generally served by moving forward.”);
18

see also Fed. R. Civ. P. 1. And a stay would further none of these interests. Accordingly, the
19

third and fourth factors likewise militate against a stay.
20

Conclusion
21

For the reasons stated, Efron’s “Urgent Motion for Stay Pending Appeal” is DENIED.
22

IT IS SO ORDERED.
23

In San Juan, Puerto Rico, this 27th day of June, 2013.
24
25
26

S/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge