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LeJon-Twin El v. Marino

United States District Court, D. New Jersey

August 7, 2017

ERWIN LEJON-TWIN EL, Plaintiff,
v.
JOE MARINO, Director, Human Resources, and IMPAX LABORATORIES, f/k/a CarePharma, Defendants.

          OPINION

          KEVIN McNULTY, United States District Judge

         The plaintiff has filed a complaint for damages against his employer. I dismissed the original complaint without prejudice to a motion to amend. (ECF nos. 50, 51) On April 28, 2017, I denied plaintiffs motion to file an amended complaint and dismissed the action with prejudice. (ECF nos. 55, 56). The file was closed.

         Two weeks later, on May 11, 2017, the plaintiff moved to disqualify me and reassign the case to another judge. (ECF no. 57) On May 23, 2017, he made a second submission in further support of that application. (ECF no. 58) The file was reopened for consideration of the motion. On June 7, 2017, I denied plaintiffs motion to reassign the case to another judge. (ECF no. 59) Again, the file was closed.

         On July 5, 2017, plaintiff filed several motions supported by a single affidavit (ECF no. 61-1): (a) a Motion Seeking Substantive Relief (ECF no. 60); (b) a Motion for Stay of an Order Pending Appeal (ECF no. 61); (c) a Motion Seeking Relief of an Order (ECF no. 62); and (d) a Motion for New Trial (ECF no. 63).[1] The defendants have filed a response (ECF no. 69), and the plaintiff has filed a reply (ECF no. 70).

         On July 10, 2017, the plaintiff filed a notice of appeal to the United States Court of Appeals for the Third Circuit. (ECF no. 65; assigned USCA Case No. 17-2942) The Court of Appeals entered an order staying the appeal pending this Court's decision on the motions filed on July 5, 2017. (ECF no. 68) See Fed. R. App. P. 4(a)(4) (listing certain district court motions that delay the running of the time to appeal).

         For the following reasons, the motions (ECF nos. 60, 61, 62, 63) are DENIED.

         A. Motion Seeking Substantive Relief

         Plaintiff has filed a Motion Seeking Substantive Relief pursuant to Fed. R. App. P. 27(a)(2)(B)(iii). (ECF no. 60) That Rule governs motions made to the Court of Appeals, seeking relief from the Court of Appeals. The motion is not properly before this federal district court. Accordingly, plaintiffs motion (ECF no. 60) is DENIED without prejudice to renewal in the proper Court.[2]

         B. Motion for Stay of an Order Pending Appeal

         On July 10, 2017, plaintiff filed a notice of appeal. In anticipation of that filing, plaintiff filed a motion, pursuant to Fed. R. App. P. 8(a)(1), for stay of an order pending appeal. (ECF no. 61) Under that Rule, prior to moving the Court of Appeals for a stay:

A party must ordinarily move first in the district court for the following relief:
(A) a stay of the judgment or order of a district court pending appeal;
(B) approval of a supersedeas bond; or
(C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.

Id.

         "[T]he standard for obtaining a stay pending appeal is essentially the same as that for obtaining a preliminary injunction." Conestoga Wood Specialities Corp. v. Secretary of U.S. Dept. of Health and Human Services, 2013 WL 1277419 at *1 (3d Cir. Feb. 8, 2013). Like most preliminary injunctions, a stay pending appeal is governed by four equitable factors:

"(1) whether the stay applicant has made a strong showing that he is likely to succeed ...

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