United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE, Magistrate Judge.
the court is the appellant June White's second motion for
an emergency stay. Doc. no. 29. White contends that her
second request is based on "new information... from
orders recently issued by the bankruptcy court on recent
motions from the trustee." Id. at 1. White
cites a bankruptcy court order from February 25, 2016, (Bk.
No. 13-11736-BAH, doc. no. 162) to allege that if the subject
property from the underlying bankruptcy action is sold, she
"will have no recourse after the sale in getting the
property or money... [and] will lose all the money she is
entitled to in her secured claim." Doc. no. 29 at 3. The
appellee objects. Doc. no. 30.
March 30, the court ordered White to "to show cause...
why her second request for an emergency stay... should not be
denied for failure to move first in the bankruptcy court
pursuant to Federal Rule of Bankruptcy Procedure
8007(a)." In her response, White contends that, based on
her "past encounters with motions in the Bankruptcy
Court[, ]" her likeliness to succeed on a motion to stay
in Bankruptcy Court "is zero" and the sale of the
subject property from the underlying bankruptcy action is
scheduled to soon take place. Doc. no. 32 at 1-2.
a party must move first in the bankruptcy court for... a stay
of a judgment... of the bankruptcy court pending
appeal." Fed.R.Bankr.P. 8007(a)(1). If a motion to stay
is, alternatively, "made in the court where the appeal
is pending, " the moving party
must... show that moving first in the bankruptcy court would
be impracticable; or... if a motion was made in the
bankruptcy court, either state that the court has not yet
ruled on the motion, or state that the court has ruled and
set out any reasons given for the ruling.
Bankr. P. 8007(b)(2).
seems to argue that a motion to stay in the bankruptcy court
would be futile and thus impracticable pursuant to Rule
8007(b)(2). White's futility argument appears to be based
on the Bankruptcy Court so far denying "all [of] her
objections" to the appellee's motions. Doc. no 32 at
assuming arguendo that White's second motion for an
emergency to stay in the Bankruptcy court would be
impracticable, her motion should be denied for largely the
same reasons as stated in the court's first report and
recommendation. See Doc. no. 15. The factors to be considered
in determining whether to grant a motion to stay are:
"(1) that the petitioner is likely to prevail on the
merits of the appeal; (2) that without a stay, the petitioner
will suffer irreparable injury; (3) that other interested
parties will suffer no substantial harm; and (4) that the
public interest will not be harmed by the granting of the
stay." In re Cantera Dorado, Inc., 512 B.R.
126, 130 (D.P.R. 2014). "If a party fails to satisfy any
one of the four requirements... the Court has discretionary
authority to deny the stay." Id.
conducting this analysis, the U.S. Supreme Court has stated
that the first two factors are the most critical.'"
In re Fraterfood Serv., Inc., No. 14-00002 BKT, 2015 WL
5317601, at *1 (Bankr. D.P.R. Sept. 11, 2015) (quoting
Nken v. Holder, 556 U.S. 418, 434 (2009)). "Of
those two factors, [t]he sine qua non [of the stay pending
appeal standard] is whether the [movants] are likely to
succeed on the merits.'" Id . (quoting
Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 16 (1st
White's second motion for an emergency stay fails to make
any argument as to whether she is likely to prevail on the
merits of her appeal. This omission alone "dooms the
motion." In re MEDSCI Diagnostics, Inc., No.
10-04961-ESL, 2011 WL 280866, at *3 (Bankr. D.P.R. Jan.
25, 2011). White's motion instead relies solely on the
second factor - irreparable injury. White claims that the
"[i]f the property is sold to a good faith purchaser and
the money immediately distributed as the [bankruptcy court]
order now states[, ] [she] will have no recourse after the
sale in getting the property or money returned to her. [She]
will lose all the money she is entitled to in her secured
claim." Doc. no. 29 at 3
point, the appellee argues that the minimum sale price of the
subject property "set by the Bankruptcy Court ensures
that there will be sufficient proceeds from the sale of the
Property to pay White's secured claim." Doc. no. 30
at 4. The appellee additionally represents that "the
proceeds from the sale will be held by the Trustee in her
trustee account pending this Court's determination on
White's appeal and further Bankruptcy Court determination
resolving any disputed liens." Id.
to the court's first report and recommendation (doc. no.
15), because White's irreparable harm remains
speculative, and she has added no substantive discussion of
her likelihood to succeed on the merits, the substantial harm
to other interested parties, or harm to the public interest,
her motion should be denied.
foregoing reasons, White's second motion to stay pending