United States District Court, D. New Jersey
MARINA DISTRICT DEVELOPMENT CO., LLC doing business as BORGATA HOTEL CASINO & SPA, Plaintiff,
PHILLIP D. IVEY, JR., GEMACO INC., and CHENG YIN SUN, Defendants.
M. KLAUSNER JEREMY KLAUSNER LAW, P.C. On behalf of Plaintiff
JEFFREY W. MAZZOLA LAW OFFICES OF WILLIAM E. STAEHLE On
behalf of Defendant Gemaco, Inc.
JOSEPH JACOBS, JR. MICHAEL F. MYERS LOUIS M. BARBONE JACOBS
& BARBONE On behalf of Defendants Phillip D. Ivey and
Cheng Yin Sun
L. HILLMAN, U.S.D.J.
December 15, 2016, this Court granted summary judgment in
Plaintiff's favor on its breach of contract claims
against Defendants Phillip D. Ivey and Cheng Yin Sun (Docket
No. 117, 118), and ordered that Plaintiff was entitled to
judgment in the amount of $10, 130, 000.00 (Docket No. 119).
On June 6, 2017, the Court denied Ivey and Sun's motion
for entry of judgment pursuant to Fed.R.Civ.P. 54(b) so that
they could appeal the judgment entered against them even
though Plaintiff's claims against Defendant Gemaco Inc.
were still pending.
Court also denied their request that the judgment entered
against them be stayed without bond pending appeal, pursuant
to Fed.R.Civ.P. 62(h). (Docket No. 122.) In that same Order,
the Court directed Plaintiff to prosecute its claims against
Gemaco. By way of renewed motions for summary judgment,
March 26, 2018 the Court entered judgment in Defendant Gemaco
Inc.'s favor on all of Plaintiff's claims except for
Plaintiff's breach of warranty claim. (Docket No. 135,
25, 2018, Plaintiff reported that it and Gemaco had resolved
their claims between them. (Docket No. 143.) Plaintiff
attempted to obtain consent from all the parties for the
entry of an Order certifying Plaintiff's judgment against
Ivey and Sun as final pursuant to Rule 54(b) and dismissing
the claims between Plaintiff and Gemaco pursuant to Rule 41.
Instead of consenting to the proposed orders, Ivey and Sun
have moved pursuant to Rule 62(h) and Fed. R. App. P.
8(a)(1)(A) to stay Plaintiff's judgment pending
their appeal. Plaintiff has opposed Defendants' motion.
Court must consider four factors when determining whether to
stay the judgment pending an appeal: (1) a strong showing of
likelihood of success on the merits; (2) irreparable harm;
(3) whether issuance of a stay will substantially injure
other interested parties; and (4) public interest. Hilton
v. Braunskill, 481 U.S. 770 (1987) (noting that
“[d]ifferent Rules of Procedure [Fed. R. Civ. P. 62;
Fed. R. App. P. 8(a)] govern the power of district courts and
courts of appeals to stay an order pending appeal, ”
but under both Rules the factors regulating the issuance of a
stay are generally the same). The first two factors are the
most critical. Nken v. Holder, 556 U.S. 418, 434
(2009). “If the movant does not make the requisite
showings on either of these first two factors, the inquiry
into the balance of harms and the public interest is
unnecessary, and the stay should be denied without further
analysis.” In re Revel, Inc., 802 F.3d 558,
571 (3d Cir. 2015) (internal quotation marks and citation
omitted); Holland v. Rosen, 895 F.3d 272, 286 (3d
Cir. July 9, 2018) (citing In re Revel, Inc., 802
F.3d at 568) (“The first two factors are prerequisites
for a movant to prevail.”).
their motion, Defendants focus mainly on the
likelihood-of-success-on-the-merits factor, and argue how the
Court's finding that they breached their contract with
Plaintiff is erroneous. With regard to the second irreparable
harm factor, Defendants argue that requiring them to return
the $10 million they won six years ago would be devastating
to them, but staying the judgment would have little impact on
establish irreparable harm, a stay movant must demonstrate an
injury that is neither remote nor speculative, but actual and
imminent.” In re Revel Inc., 802 F.3d at 571.
“The possibility that adequate compensatory or other
corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim
of irreparable harm.” Id. (quoting Sampson
v. Murray, 415 U.S. 61, 90 (1974)). “The adequacy
of the proof provided plays an important role ‘[i]n
evaluating the harm that will occur depending upon whether or
not [a] stay is granted.'” Id. at 572
Third Circuit has “long held that an injury measured in
solely monetary terms cannot constitute irreparable
harm.” Liberty Lincoln-Mercury, Inc. v. Ford Motor
Co., 562 F.3d 553, 557 (3d Cir. 2009) (citations
omitted); see also Holland, 895 F.3d at 286 (noting
that the irreparable harm factor for a stay pending appeal is
analogous to that factor in the preliminary injunction
context). “[A] purely economic injury, compensable in
money, cannot satisfy the irreparable injury
requirement.” Minard Run Oil Co. v. U.S. Forest
Service, 670 F.3d 236, 255 (3d Cir. 2011) (citation and
quotations omitted). An exception exists, however,
“where the potential economic loss is so great as to
threaten the existence of the movant's business.”
Id. (citations and quotations omitted).
have provided no proof to show how the “purely economic
injury, compensable in money” would “threaten the
existence of” their business. Defendants simply say
that returning the $10, 130, 000 Plaintiff paid them to them
in the first instance would have a “devastating
impact” on them. Without any evidence to support their
claim that they will be irreparably harmed if the Court does
not stay the judgment pending appeal, Defendants have not met
their burden under Fed.R.Civ.P. 62(h) or Fed. R. App. P. 8(a)
to warrant a stay of the judgment pending their appeal.
Consequently, the Court will deny Defendants' motion.
related matter, the Court finds that there is “no just
reason for delay” to enter a final judgment as to
Plaintiff's judgment against Ivey and Sun.See Berckeley
Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 202 (3d Cir.
2006) (noting that Rule 54(b) requires the finding that there
is “no just reason for delay”). ...