United States District Court, D. Nevada
Estate of Glenn Clough, by and through its Special Co-Administrators, Penny Foley and Sharon Nagel; Penny Foley, an individual, and Sharon Nagel, an individual, Plaintiffs
THI of Nevada at the Las Vegas I, a Delaware Corporation dba Harmon Medical and Rehabilitation Center, Defendant
ORDER DENYING EMERGENCY MOTION TO STAY CASE PENDING
APPEAL [ECF NO. 24]
prevailed in binding arbitration on their claims for elder
abuse and professional negligence against Harmon Medical and
Rehabilitation Center. This case then moved to state court where
judgment was entered and the plaintiffs moved for an order
directing that Harmon's rights to receive Medicare
payments be assigned to them to satisfy the
judgment. After plaintiffs filed their motion,
Harmon removed this case to federal court under 28 U.S.C.
that this case did not “affect the validity of a
federal law, ” as it must to qualify for removal under
§ 1442(a)(2),  I granted the plaintiffs' motion to
remand and sent it back to state court. Harmon filed
notice eight days later that it was appealing my remand
contends that, in the time between my order and its notice of
appeal, the U.S. District Clerk of Court mailed the remand
order to the state court, plaintiffs renewed their assignment
motion in state court, and plaintiffs obtained an order
shortening the time to hear their motion: the hearing is
scheduled for September 5, 2017. Harmon now moves for an
order staying this case pending appeal.
stay is not a matter of right. . . . It is instead an
exercise of judicial discretion . . . [that] is dependent
upon the circumstances of the particular
case.” Courts, in deciding whether to stay a
case, are “guided by” the “legal
principles” of: (1) “whether the stay applicant
has made a strong showing that he is likely to succeed on the
merits”; (2) “whether the applicant will be
irreparably injured absent a stay”; (3) “whether
issuance of the stay will substantially injure the other
parties' interest in the proceeding”; and (4)
“where the public interest lies.”
assuming that I do still have jurisdiction over this case, I
would deny the motion because the first two factors, which
are the “most critical[, ]” are not met
here. Harmon has not made a strong showing that it is likely
to succeed on the merits because, as I previously found,
“plaintiffs' arguments in the assignment briefing
challenged only the applicability of federal law[,
]” but “merely invoking federal law or arguing
about its application is not enough to trigger §
1442(a)(2).” Harmon does not argue that
plaintiffs' arguments to the state court have changed,
and I am not persuaded by Harmon's argument that its
appeal raises “serious legal questions” because
the Ninth Circuit has not addressed what §
1442(a)(2)'s “affects the validity of any law of
the United States” means. Harmon also has not
demonstrated that it will be irreparably harmed without a
stay Harmon concludes that garnishment proceedings in the
state court could render its appeal moot, but does not
explain why that would be so. And, finally, I am not
persuaded that a stay would serve the public interest. This
arbitration/state-court case was in the judgment-enforcement
phase when it was improperly removed, and I cannot conclude
that keeping it in limbo would be in the public's
interest; it would just reward a baseless removal.
IT IS HEREBY ORDERED that Harmon's emergency motion to
stay pending appeal [ECF No. 24] is DENIED.
 ECF Nos. 12-5, 12-7.
 ECF Nos. 12-8, 1 at 34.
 ECF No. 1 at 34.
 ECF No. 1.
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