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Parsons v. Ryan

United States District Court, D. Arizona

February 26, 2018

Victor Antonio Parsons, et al., Plaintiffs,
Charles L. Ryan, et al., Defendants.


          David K. Duncan United States Magistrate Judge

         Pending before the Court is “Defendants' Motion for Magistrate Judge Duncan to Disqualify Himself and Motion for Reassignment of Case for Evidentiary and Contempt Hearings, or, in the alternative, to Stay Proceedings” (“Motion to Stay”). (Doc. 2642) Defendants argue that the upcoming evidentiary and contempt hearings should be reassigned to another judge or stayed pending the resolution of their separate, contemporaneously filed “Motion to Disqualify Magistrate Judge Duncan from All Further Proceedings” (“Motion to Disqualify”). (Doc. 2641)

         Defendants' first request in the Motion to Stay-that another Judge preside over the February 27-28, 2018 hearings-is duplicative of their contemporaneously filed Motion to Disqualify and will be denied on that basis. That Motion to Disqualify will be addressed after an opportunity for full briefing.

         In essence, Defendants request a stay of this matter pending resolution of their Motion to Disqualify. But Defendants have provided neither an adequate justification for the stay request nor did any of the issues alleged in the Motion to Stay arise on an emergent basis. Accordingly, the Motion to Stay is denied.

         Standard of Review.

         Pursuant to Supreme Court precedent, a request for a stay is evaluated using four factors:

(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.

Golden Gate Rest. Ass'n v. City & Cty. of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008). Not only do Defendants fail to show that they meet any of these four factors, but they do not acknowledge this well-established Ninth Circuit standard in their Motion to Stay and, instead, cite to non-precedential Fifth Circuit case law and an irrelevant Supreme Court case. (Doc. 2642 at 3) For this reason alone, denial of the Motion to Stay is appropriate. The Court will, notwithstanding Defendants' failure to cite the relevant standard, address the merits of their request.

         Likelihood of Success.

         Defendants have not established that their Motion to Disqualify will likely succeed on the merits.


         At the December 20, 2017 status hearing, the Court stated that a news article from that morning presented alarming allegations. The Court explicitly recognized that there was no foundation for these allegations because they had not been tested in an evidentiary hearing and offered the parties an opportunity to weigh in on the procedure for setting such a hearing. After hearing from both parties, the Court set February 9, 2018, for an evidentiary hearing where both sides would have a full opportunity to inform the Court of their respective positions and to provide evidentiary support for those positions pursuant to the Rules of Evidence. (Doc. 2561 at 11-24) The Court permitted the parties to engage in discovery, including electronically stored information, prior to the evidentiary hearing and, after acknowledging that the discovery effort was “onerous, ” vacated the February 9, 2018 Evidentiary Hearing and reset it for February 27. (Doc. 2564, Tr. Hr'g January 18, 2018 at 12:1, 16:24) Thus, Defendants have known about this hearing for two full months and the Court has held four in-person or telephonic hearings about this evidentiary hearing since the December 20, 2017 hearing.

         Defendants have been on notice since June 2017 that the Court was considering an OSC why financial sanctions should not be imposed. (Doc. 2124) In October 2017, the Court issued the OSC Order. (Doc. 2373) In October 2017, Defendants filed a motion for reconsideration of the OSC Order that only asked the Court to move the reporting deadline. (Doc. 2396) At the monthly status hearing on November 7, 2017, the Court granted the extension for the December 2017 OSC data and ordered Defendants to provide the January 2018 data at the same time. (Doc. 2456 at 1) Shortly thereafter, Defendants appealed the OSC Order to the Ninth Circuit Court of Appeals, arguing that the Stipulation precludes a contempt sanction and, if it does not, challenged the scope of the contemplated sanction. (Doc. 2444) But despite being on notice of the OSC schedule, Defendants did not request a stay from the Ninth Circuit. (Ninth Circuit Court of Appeals Docket 17-17324) Then, without any prior notice or explanation, Defendants filed an incomplete report for the December 2017 data and, five business days before the deadline, moved for an extension of time to report on the January 2018 data. (Docs. 2583, 2605)

         The rationale for the OSC and the possible fine amount has not changed since the Court first raised it eight months ago and the Court has granted Defendants every extension that they have requested for the production of this information.[1] Thus, for 3½ months, ...

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