United States District Court, D. Nevada
C. W. HOFFMAN, Jr., Magistrate Judge.
This matter is before the Court on Plaintiff's Motion to Stay (#208); the Government's Response (#208); and Plaintiff's Reply (#212), all filed on September 3, 2014. Plaintiff requests that the undersigned stay the decision requiring Plaintiff to submit to a Rule 35 independent medical examination. The stay was previously denied when requested during oral argument at the motion hearing held on August 22, 2014. See Minutes of Proceedings (#196). By way of this motion, Plaintiff renews her request to stay the Rule 35 examination pending resolution of her objections to certain conditions she would like imposed as part of the examinations. See (#171) (#202) (#203). The Court has reviewed the briefing and finds that a stay of the Rule 35 examination is not appropriate.
Although recently set forth in the Court's order (#198), the standard for granting a stay of a non-dispositive order referred to a magistrate judge under 28 U.S.C. § 636 bears repeating. "A stay is an intrusion into the ordinary process of administration and judicial relief." Nken v. Holder, 556 U.S. 418, 427 (2009). "A stay is not a matter of right.... It is instead an exercise of judicial discretion'... [that] is dependant upon the circumstances of the particular case.'" Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (citation omitted). In exercising its discretion, a court is guided by the following legal principles: (1) has the movant made a strong showing it is likely to succeed on the merits of the appeal, (2) will the movant suffer irreparable injury in the absence of a stay, (3) will other parties be substantially injured by a stay, and (4) where the public interest lies. Id. (citing Nken, 556 U.S. 418, 434 (2009); see also Trustees of Northern Nevada Operating Engineers Health & Welfare v. Mach 4 Construction, LLC, 2009 WL 1940087 *2 (D. Nev.) (citation omitted) (applying the same factors in addressing a stay pending appeal of a magistrate judge's order under the clearly erroneous standard of Fed.R.Civ.P. 72(a)). "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [the Court's] discretion." Bullock, 697 F.3d at 1203 (citation omitted).
Plaintiff seeks a stay of her Rule 35 examination pending resolution of her objections. The Court's finding that a Rule 35 examination was appropriate stems from the non-dispositive discovery motion submitted by the Government on February 26, 2014. (#148). The motion was automatically referred to the undersigned pursuant to Local Rule IB 1-3, which provides that "[a] magistrate judge may hear and finally determine any pretrial matter not specifically enumerated as an exception in 28 U.S.C. § 636(b)(1)(A)." The motion did not fall under any of the enumerated exceptions listed within section 636(b)(1)(A). Written objections to non-dispositive pretrial orders are not subject to de novo review, but are considered under the "clearly erroneous" or "contrary to law" standard. Plaintiff asserts that the circumstances justify the Court exercising its discretion to stay implementation of the subject order.
For the past several months the parties have operated under the erroneous belief that Plaintiff's multiple objections to several non-dispositve pretrial orders result in an automatic stay. Presumably, this belief stems from the desire to maintain the status quo' while the various appeals are resolved. However, preservation of the status quo is not "among the factors regulating the issuance of a stay." Golden Gate Resaturant Ass'n v. City and County of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008). Id. Analysis of the traditional stay factors contemplates "individualized judgments in each case.... the formula cannot be reduced to a set of rigid rules." Id. As stated in Golden Gate, "[m]aintaining the status quo is not a talisman." Id. Certainly an aggrieved party has the opportunity to file and serve timely objections to an order issued by a magistrate judge on a non-dispositive pretrial motion, but such objections do not serve to automatically stay implementation of the order. In In re Air Crash at Taipei, Taiwain, 2002 WL 32155477 (C.D. Cal.) the Court stated: "[s]uch an interpretation is more consistent with the Magistrate's Act's goals of facilitating the quick and final resolution of referred pretrial matters. If an objection operates as a stay of the order, not only is the losing litigant given an artificial incentive to object, but the [magistrate judge's] decision-making ability is eroded. It should be remembered that the magistrate [judge] is empowered to determine' pretrial matters. A [magistrate judge's] order will not determine anything if it can be automatically stayed by filing an objection. Indeed, such an interpretation would essentially reduce the [magistrate judge's] order to the status of a recommendation where an objection is raised." See also De Leon v. CIT Group, Inc., 2013 WL 950527 (D. Nev) ("The filing of objections to a magistrate judge's order on a nondispositive matter does not stay the order's operation."); Oracle American, Inc. v. Google, Inc., 2011 WL 3794892 (N.D. Cal.) (same); Litton Industries, Inc. v. Lehman Brothers Kuhn Loeb, Inc., 124 F.R.D. 75, 79 (S.D.N.Y. 1989) ("[A]llowing the automatic stay of [magistrate judge's] orders would not only encourage the filing of frivolous appeals, but would grind the magistrate system to a halt.").
As discussed below, the undersigned finds that Plaintiff has not satisfied her burden to demonstrate that the Rule 35 examination should be stayed pending resolution of her written objections.
1. Strong Showing that Success is Likely on the Merits
As noted in Lair, "[t]he first two  factors are the most critical." 697 F.3d at 1204 (citing Nken, 556 U.S. at 434). There is not a precise specification of the exact degree of likely success that a party requesting a stay must show. Lair, 697 F.3d at 1204. It is, however, "not enough that the likelihood of success on the merits is better than negligible' or that there is a mere possibility of relief.'" Id. (citing Nken, 556 U.S. at 434). A "possibility standard would be too lenient." Nken, 556 U.S. at 435 (citation omitted). There are several, largely interchangeable, iterations of this standard which "indicate that, at minimum" a petitioner must show that there is a substantial case for relief on the merits." Lair, 697 F.3d at 1204 (citation omitted).
Plaintiff does not have a substantial case for relief on the merits of her appeal. Her appeal is directed toward two minor aspects regarding the protocol for the Rule 35 examination. Indeed, it does not appear she is appealing the order requiring her to submit to a Rule 35 examination. To the extent she is attempting to appeal the finding that she submit to a Rule 35 examination, she does not have a viable argument for relief. During the course of the underlying hearing, the following exchange took place:
COURT: Well, so you've agreed that a medical exam will occur, is that true?
MS. GARITY: I agreed to that; yes.
COURT: Okay. And you agree to the identity of the medical exam doctors, the ...