United States District Court, D. Arizona
K. Duncan United States Magistrate Judge
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”).
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.
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.
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Stay and, instead, cite to non-precedential Fifth Circuit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
have not established that their Motion to Disqualify will
likely succeed on the merits.
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.
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)
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. Thus, for 3½ months, ...