United States v. Weldon

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

CASE NO. 1:18-cv-01318-AWI-SKO

ORDER DENYING MOTION TO STAY Plaintiff,

vs.

(Doc. No. 80) CALIFORNIA FRANCHISE TAX BOARD,

CITY OF FRESNO

Defendants.

Plaintiff United States of America filed the Complaint in this action on September 25, 2018 seeking to reduce certain federal income tax assessments to judgment and foreclose tax liens against property owned by Defendant Paul Weldon at 6519 West Olive Avenue, Fresno, California 93723. Doc. No. 1. On January 22, 2021, the Court issued an order granting the United States’ motion for summary judgment (aside from the request for attorneys’ fees and costs) and directing the United States to “submit a proposed order of sale setting forth terms and conditions of sale consistent with th[e] order or file a status report explaining why additional time is requested within 90 days of the date of electronic service of th[e] order.” Doc. No. 73 at 13:8-11.1 1 All page number citations to documents filed electronically with the Court are to the page numbers in the CM/ECF On February 19, 2021, Weldon filed a notice of appeal to the Ninth Circuit, stating that the Court’s January 22, 2021 order would deprive him of his primary residence and render him destitute. Doc. No. 74. On April 12, 2021, Weldon filed a motion with this Court to stay foreclosure and sale that comprises a single sentence. Doc. No. 80. A party seeking to stay enforcement of a district court order pending appeal must show “probability of success on the merits and the possibility of irreparable injury” or that “serious legal questions are raised and that the balance of hardships tips sharply in [his] favor.” See Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983). Weldon’s one-sentence motion does not contain any legal argument or meaningful exposition of applicable facts. Moreover, the United States has not yet filed a proposed order of sale with the Court and has at least until April 25, 2021 to do so.” Thus, there is no imminent threat that Weldon will lose his home due to a tax sale pursuant to the Court’s January 22, 2021 order. Further, two months after the notice of appeal was filed, it is not from the Court’s docket that Weldon has paid the fees or completed the in forma pauperis filing required to prosecute his appeal. Doc. Nos. 77-79. The Court will therefore deny the motion without prejudice to refiling, with proper factual and legal support, when the status of the appeal is clarified and the United States has set forth a proposed order of sale. IT IS SO ORDERED. Dp 99 Dated: _ April 21, 2021 — 7 LS, Cb Lec —SENIOR DISTRICT JUDGE | Although the order was dated January 22, 2021, electronic service was not effected until January 25, 2021. Doc. No.