Miller et al v. Basic Research et al

Filing 293

MEMORANDUM DECISION AND ORDER denying 284 Motion to Stay.The April 19, 2013 deadline for submission of a joint motion forpreliminary approval of the settlement is hereby suspended until the Tenth Circuit has ruled on Defendants appeal of the Courts March 22, 2013 order. Signed by Judge Ted Stewart on 4/16/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

PAMELA MILLER; RANDY HOWARD;
and DONNA PATTERSON; on behalf of
themselves and all others similarly situated,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTION TO STAY PROCEEDINGS
PENDING APPEAL

vs.

BASIC RESEARCH, LLC; DYNAKOR
PHARMACAL, LLC; WESTERN
HOLDINGS, LLC; DENNIS GAY; DANIEL
B. MOWRY, Ph.D.; MITCHELL K.
FRIEDLANDER; and DOES 1 through 50,

Case No. 2:07-CV-871 TS

Defendants.

This matter is before the Court on Defendants’ Motion to Stay Proceedings Pending
Appeal. For the reasons discussed more fully below, the Court will deny Defendants’ Motion.
I. BACKGROUND
This is a class action that arises out of the advertising for and sale of a weight-loss dietary
supplement called Akävar 20/50. Although this matter is currently set for trial on April 7, 2014,

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the parties met with a mediator in September 2012 and subsequently informed the Court that the
parties had reached a settlement.
At some point before the parties were able to submit the settlement to the Court for
preliminary approval, the relationship between the parties appears to have soured.
Communication dropped off, and on December 18, 2012, counsel for Defendants filed a status
report with the Court, stating that further negotiations were necessary and that “significant
disagreement exists, at present, between the Parties to other material issues of the settlement.”1
Plaintiffs responded by filing a motion to enforce the parties’ nationwide class action settlement.
The Court heard oral argument on the issue, and on March 22, 2013, issued an order granting
Plaintiff’s Motion. At that time, the Court ordered the parties to file a joint motion for
preliminary approval of the settlement on or before April 19, 2013.2
On April 1, 2013, Defendants initiated an appeal with the Tenth Circuit. On April 8,
2013, Defendants filed the Motion to Stay that is currently before the Court.
II. DISCUSSION
Fed. R. Civ. P. 62(c) provides:
While 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.

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Docket No. 261, at 2-3.

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Docket No. 280, at 15.
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The factors the Court should consider when determining whether to issue a stay 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.”3
Considering Defendants’ arguments and the facts of this case in light of the above
standards, the Court is not persuaded that a stay is appropriate. Nevertheless, the Court
recognizes that the settlement approval and class notification process requires cooperation
between the parties, and that such cooperation is unlikely to be forthcoming until after the matter
is decided on appeal. Therefore, the Court will exercise its discretionary powers over the
deadlines before the Court to suspend the April 19, 2013 due date for submission of a joint
motion for preliminary approval of the settlement until the Tenth Circuit has ruled on
Defendant’s appeal of the Court’s March 22, 2013 order.
III. CONCLUSION
It is therefore
ORDERED that Defendants’ Motion to Stay (Docket No. 284) is DENIED. It is further
ORDERED that the April 19, 2013 deadline for submission of a joint motion for
preliminary approval of the settlement is hereby suspended until the Tenth Circuit has ruled on
Defendant’s appeal of the Court’s March 22, 2013 order.

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Hilton v. Braunskill, 481 U.S. 770, 776 (1987); McClendon v. City of Albuquerque, 79
F.3d 1014, 1020 (10th Cir. 1996).
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DATED April 16, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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