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Marina District Development Co., LLC v. Ivey

United States District Court, D. New Jersey

August 27, 2018

MARINA DISTRICT DEVELOPMENT CO., LLC doing business as BORGATA HOTEL CASINO & SPA, Plaintiff,
v.
PHILLIP D. IVEY, JR., GEMACO INC., and CHENG YIN SUN, Defendants.

          JEREMY 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.

          EDWIN JOSEPH JACOBS, JR. MICHAEL F. MYERS LOUIS M. BARBONE JACOBS & BARBONE On behalf of Defendants Phillip D. Ivey and Cheng Yin Sun

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         On 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.

         The 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, [1]on 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, 136.)

         On June 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)[2] 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)[3] and Fed. R. App. P. 8(a)(1)(A)[4] to stay Plaintiff's judgment pending their appeal. Plaintiff has opposed Defendants' motion.

         The 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.”).

         In 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 Plaintiff.

         “To 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 (citation omitted).

         The 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).

         Defendants 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.

         As a 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.[5]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”). ...


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