1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THE KOALA, Case No.: 16cv1296 JM(BLM)
12 Plaintiff, ORDER ON MOTION TO STAY 13 v. PROCEEDINGS 14 PRADEEP KHOSLA, in his official capacity as Chancellor of the University 15 of San Diego, et al., 16 Defendants. 17 18 This matter comes before the court on Defendants’ motion to stay proceedings. (Doc. 19 No. 54.) For the reasons set forth below, Defendants’ motion is denied. 20 On December 13, 2019, this court held a hearing spreading the mandate of the Ninth 21 Circuit. (Doc. Entry. 49.) On January 7, 2020, Defendants filed a Motion to Recall 22 Mandate and Withdraw Opinion (“Motion to Recall) with the Ninth Circuit, asserting that 23 subject-matter jurisdiction over this dispute is lacking. (See Doc. No. 54-1, Ex.1.) 24 Defendants move to stay this action pending resolution of the Motion to Recall on 25 the grounds that: (1) the Plaintiff’s claims became moot while the appeal of the court’s 26 order granting Defendants’ Motion to Dismiss the Second Amended Complaint was 27 pending; (2) Defendant’s Motion to Recall addresses the important issues of Plaintiff’s lack 28 of standing; (3) the Ninth Circuit’s ruling on that motion has the potential to completely 1 resolve this case; (4) it is in the interests of judicial economy to stay these proceedings; 2 (5) Defendants will suffer hardship if they are required to continue litigating in this court 3 while the case is on appeal in light of the fact that a ruling in their favor may result in 4 dismissal of the case; and (6) the Plaintiff will not suffer any prejudice from the stay. (Doc. 5 No. 54.) 6 Discussion 7 A stay pending an appeal is not a matter of right, “[i]t is instead ‘an exercise of 8 judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of 9 the particular case.’” Nken, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. U.S., 10 272 U.S. 658 at 672-73 (1926)). In deciding whether to grant a stay pending appellate 11 proceedings, the court considers four factors: “(1) whether the stay applicant has made a 12 strong showing that he is likely to succeed on [appeal]; (2) whether the applicant will be 13 irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure the 14 other parties interested in the proceedings; and (4) where the public interest lies.” Lair v. 15 Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434). “The first 16 two factors are the most critical and the last two steps are reached once an applicant satisfies 17 the first two facts.” Washington v. Trump, 847 F.3d 1151, at 1164 (9th Cir. 2017) (internal 18 quotation marks and citations omitted). The party requesting the stay bears the burden of 19 demonstrating that the circumstances justify an exercise of the court’s discretion. Nken, 20 556 U.S. at 434. 21 1. Likelihood of Success on the Merits 22 To satisfy the first factor, likelihood of success on the merits, the movant “must make 23 a strong showing that success on the merits is likely.” Lair, 697 F.3d at 1204. Meaning, 24 “‘at a minimum,’ a petitioner must show that there is a ‘substantial case for relief on the 25 merits.’” Id. (quoting Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011)). But, 26 “[t]he standard does not require the petitioners to show that ‘it is more likely than not that 27 they will win on the merits.’” Id. (quoting Leiva-Perez, 640 F.3d at 966). 28 1 Defendants’ Motion to Recall and Motion to Stay raises the issue of whether there 2 is subject matter jurisdiction to hear this suit because of Plaintiff’s unilateral decision to 3 abandon its registered student organization (“RSO”) status in the fall of 2017. (Doc. No. 4 54-1; See generally, Motion to Recall.) Defendants assert that by ending its existence as 5 an RSO, The Koala lost its direct stake in this controversy and mooted the case. In support, 6 the movants cite to Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (“an 7 actual controversy must be extant at all stages of review, not merely at the time the 8 complaint is filed,”) and Harris v. Itzhaki, 183 F.3d 1043 (9th Cir. 1999) (claims for 9 declaratory and prospective injunctive relief rendered moot by plaintiff’s departure from 10 the apartment building, but her claims for damages were unaffected.) It is Defendants’ 11 position that the recent application by The Koala for RSO cannot retroactively reinstate the 12 subject matter jurisdiction of the appellate court. And, as Defendants point out, The Koala 13 sought entirely prospective relief. 14 In opposition, Plaintiff responds that The Koala has published since 1982 and has 15 continued to do so, even while the case was pending on appeal. Further, The Koala asserts 16 that the requirements of registering as an RSO are simply ministerial, that it is currently in 17 the process of completing the remaining registration requirements, and that “the expected 18 re-registration would render it eligible for such funds but for the disqualification of student 19 newspapers from such eligibility.” (Doc. No. 55 at 4.) Plaintiff concludes “[o]n those 20 facts, settled law establishes the case is not and never was moot.” (Id.) In addition, Plaintiff 21 maintains that its lapse in registration is not enough to moot the case because re-registration 22 is not an insurmountable barrier. See Clark v. City of Lakewood, 259 F.3d 996, 1012 (2001) 23 (concluding that while the expiration of plaintiff’s original business license could make it 24 difficult for him to return to business, he still had a legally cognizable interest in the lawsuit 25 sufficient to allow him to seek injunctive relief because plaintiff had stated his intention to 26 return to the business, he could reapply for a new license and pay a fee, and “this added 27 step is not an insurmountable barrier” and thus not enough to moot the case). 28 1 “The exercise of judicial power under Art. III of the Constitution depends on the 2 existence of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395 (1975). The rule in 3 federal cases is that an actual controversy must be extant at all stages of review, not merely 4 at the time the complaint is filed. Id. Arguments regarding mootness and standing are 5 often nuanced and the significance of questions regarding subject matter jurisdiction are 6 not to be taken lightly. The question of whether or not The Koala’s unilateral decision to 7 abstain from applying for RSO status since the 2016-2017 academic year has mooted the 8 case is for the Ninth Circuit to decide, as is whether the mandate must be recalled. This 9 court takes no position on the question of which party may prevail at the Circuit level. For 10 purposes of the motion to stay, the court has simply determined that Defendants have 11 neither met their burden of showing that success on the merits is likely nor set forth a 12 substantial case for relief on the merits. Lair, 697 F.3d at 1204. Thus, Defendants have 13 failed to satisfy the first factor of the four-part test. 14 2.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THE KOALA, Case No.: 16cv1296 JM(BLM)
12 Plaintiff, ORDER ON MOTION TO STAY 13 v. PROCEEDINGS 14 PRADEEP KHOSLA, in his official capacity as Chancellor of the University 15 of San Diego, et al., 16 Defendants. 17 18 This matter comes before the court on Defendants’ motion to stay proceedings. (Doc. 19 No. 54.) For the reasons set forth below, Defendants’ motion is denied. 20 On December 13, 2019, this court held a hearing spreading the mandate of the Ninth 21 Circuit. (Doc. Entry. 49.) On January 7, 2020, Defendants filed a Motion to Recall 22 Mandate and Withdraw Opinion (“Motion to Recall) with the Ninth Circuit, asserting that 23 subject-matter jurisdiction over this dispute is lacking. (See Doc. No. 54-1, Ex.1.) 24 Defendants move to stay this action pending resolution of the Motion to Recall on 25 the grounds that: (1) the Plaintiff’s claims became moot while the appeal of the court’s 26 order granting Defendants’ Motion to Dismiss the Second Amended Complaint was 27 pending; (2) Defendant’s Motion to Recall addresses the important issues of Plaintiff’s lack 28 of standing; (3) the Ninth Circuit’s ruling on that motion has the potential to completely 1 resolve this case; (4) it is in the interests of judicial economy to stay these proceedings; 2 (5) Defendants will suffer hardship if they are required to continue litigating in this court 3 while the case is on appeal in light of the fact that a ruling in their favor may result in 4 dismissal of the case; and (6) the Plaintiff will not suffer any prejudice from the stay. (Doc. 5 No. 54.) 6 Discussion 7 A stay pending an appeal is not a matter of right, “[i]t is instead ‘an exercise of 8 judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of 9 the particular case.’” Nken, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. U.S., 10 272 U.S. 658 at 672-73 (1926)). In deciding whether to grant a stay pending appellate 11 proceedings, the court considers four factors: “(1) whether the stay applicant has made a 12 strong showing that he is likely to succeed on [appeal]; (2) whether the applicant will be 13 irreparably injured absent a stay; (3) whether issuance of a stay will substantially injure the 14 other parties interested in the proceedings; and (4) where the public interest lies.” Lair v. 15 Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434). “The first 16 two factors are the most critical and the last two steps are reached once an applicant satisfies 17 the first two facts.” Washington v. Trump, 847 F.3d 1151, at 1164 (9th Cir. 2017) (internal 18 quotation marks and citations omitted). The party requesting the stay bears the burden of 19 demonstrating that the circumstances justify an exercise of the court’s discretion. Nken, 20 556 U.S. at 434. 21 1. Likelihood of Success on the Merits 22 To satisfy the first factor, likelihood of success on the merits, the movant “must make 23 a strong showing that success on the merits is likely.” Lair, 697 F.3d at 1204. Meaning, 24 “‘at a minimum,’ a petitioner must show that there is a ‘substantial case for relief on the 25 merits.’” Id. (quoting Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011)). But, 26 “[t]he standard does not require the petitioners to show that ‘it is more likely than not that 27 they will win on the merits.’” Id. (quoting Leiva-Perez, 640 F.3d at 966). 28 1 Defendants’ Motion to Recall and Motion to Stay raises the issue of whether there 2 is subject matter jurisdiction to hear this suit because of Plaintiff’s unilateral decision to 3 abandon its registered student organization (“RSO”) status in the fall of 2017. (Doc. No. 4 54-1; See generally, Motion to Recall.) Defendants assert that by ending its existence as 5 an RSO, The Koala lost its direct stake in this controversy and mooted the case. In support, 6 the movants cite to Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (“an 7 actual controversy must be extant at all stages of review, not merely at the time the 8 complaint is filed,”) and Harris v. Itzhaki, 183 F.3d 1043 (9th Cir. 1999) (claims for 9 declaratory and prospective injunctive relief rendered moot by plaintiff’s departure from 10 the apartment building, but her claims for damages were unaffected.) It is Defendants’ 11 position that the recent application by The Koala for RSO cannot retroactively reinstate the 12 subject matter jurisdiction of the appellate court. And, as Defendants point out, The Koala 13 sought entirely prospective relief. 14 In opposition, Plaintiff responds that The Koala has published since 1982 and has 15 continued to do so, even while the case was pending on appeal. Further, The Koala asserts 16 that the requirements of registering as an RSO are simply ministerial, that it is currently in 17 the process of completing the remaining registration requirements, and that “the expected 18 re-registration would render it eligible for such funds but for the disqualification of student 19 newspapers from such eligibility.” (Doc. No. 55 at 4.) Plaintiff concludes “[o]n those 20 facts, settled law establishes the case is not and never was moot.” (Id.) In addition, Plaintiff 21 maintains that its lapse in registration is not enough to moot the case because re-registration 22 is not an insurmountable barrier. See Clark v. City of Lakewood, 259 F.3d 996, 1012 (2001) 23 (concluding that while the expiration of plaintiff’s original business license could make it 24 difficult for him to return to business, he still had a legally cognizable interest in the lawsuit 25 sufficient to allow him to seek injunctive relief because plaintiff had stated his intention to 26 return to the business, he could reapply for a new license and pay a fee, and “this added 27 step is not an insurmountable barrier” and thus not enough to moot the case). 28 1 “The exercise of judicial power under Art. III of the Constitution depends on the 2 existence of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395 (1975). The rule in 3 federal cases is that an actual controversy must be extant at all stages of review, not merely 4 at the time the complaint is filed. Id. Arguments regarding mootness and standing are 5 often nuanced and the significance of questions regarding subject matter jurisdiction are 6 not to be taken lightly. The question of whether or not The Koala’s unilateral decision to 7 abstain from applying for RSO status since the 2016-2017 academic year has mooted the 8 case is for the Ninth Circuit to decide, as is whether the mandate must be recalled. This 9 court takes no position on the question of which party may prevail at the Circuit level. For 10 purposes of the motion to stay, the court has simply determined that Defendants have 11 neither met their burden of showing that success on the merits is likely nor set forth a 12 substantial case for relief on the merits. Lair, 697 F.3d at 1204. Thus, Defendants have 13 failed to satisfy the first factor of the four-part test. 14 2. Irreparable Injury 15 “Simply showing some possibility of irreparable injury,’ fails to satisfy the second 16 factor.” Nken, 556 U.S. at 434-35. Under the second factor, the movant must show that 17 “there is a probability of irreparable injury if the stay is not granted.” Lair, 697 at 1214. 18 Defendants assert that they will suffer hardship if they are required to continue 19 expending resources litigating a case that may shortly be dismissed. (Doc. No. 54-1 at 5.) 20 But, the court is not convinced that this is a sufficient injury that warrants a stay because 21 “being required to defend a suit, without more, does not constitute a ‘clear case of hardship 22 or inequity.’” Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005) (quoting 23 Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)). Thus, Defendants have failed to satisfy 24 the second factor of the four-part test. 25 Because Defendants have not met the first two factors, the court need not reach the 26 last two facts. See Washington, 847 F.3d at 1164. 27 28 1 Conclusion 2 Exercising its discretion, and in accordance with the above, the court DENIES 3 ||Defendants’ motion to stay proceedings pending determination of the Motion to Recall. 4 ||(Doc. No. 54.) 5 However, the court on its own motion VACATES any and all pending dates. 6 ||Defendants shall have up to and including March 13th, 2020, to file their answer to the 7 ||Second Amended Complaint. 8 IT IS SO ORDERED. 9 || Dated: February 11, 2020 Phebe 10 heey, ll n. Jeffreyl. Miller nited States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28