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declining to issue a temporary stay of an order that was on appeal, but acknowledging party's ability to seek such relief from the Court of Appeals under the Federal Rules of Appellate Procedure
Summary of this case from Thorner v. Sony Computer Entm't. Am. LLCOpinion
09 Civ. 3874 (SHS).
December 30, 2009
OPINION ORDER
By notice of motion dated December 17, 2009, plaintiff has moved pursuant to Federal Rule of Civil Procedure 62(d) for a stay of execution of this Court's December 3, 2009 order vacating the Order of Maritime Attachment and Garnishment against defendant Botley Limited. In deciding such a motion, the Court applies a four-part test: "(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 interested in the proceeding; and (4) where the public interest lies." In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2007) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Leinster Inter S.A. has not demonstrated a likelihood of success on the merits in light of the U.S. Court of Appeals for the Second Circuit's holding in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd. that "[b]ecause EFTs in the temporary possession of an intermediary bank are not property of either the originator or the beneficiary under New York law, they cannot be subject to attachment under [Supplemental Maritime] Rule B." 585 F.3d 58, 71 (2d Cir. 2009). Especially since the Second Circuit promptly reiterated this finding and made it retroactive in Hawknet, Ltd. v. Overseas Shipping Agencies, Leinster's argument that both cases are wrongly decided is likely to be unavailing on appeal. 587 F.3d 127 (2d Cir. 2009).
Furthermore, Leinster also has not shown that it will suffer irreparable injury absent a stay, since the only loss it alleges will be monetary. As a general matter, "[t]o establish irreparable harm, the injury alleged must be one requiring a remedy of more than mere money damages," Ford v. Reynolds, 316 F.3d 351, 355 (2d Cir. 2003) (quotation and citation omitted), but "courts have excepted from the general rule regarding monetary injury situations involving obligations owed by insolvents," Brenntag Int'l Chem., Inc. v. Bank of India, 175 F.3d 245, 250 (2d Cir. 1999) (collecting cases). Here, Leinster has not demonstrated that any judgment against Botley Limited would be uncollectible absent a stay. Accordingly, Leinster's alleged injury is not irreparable. See Centauri Shipping Ltd. v. Western Bulk Carriers KS, 528 F. Supp. 2d 186, 194-95, aff'd, 323 Fed. Appx. 36 (2d Cir. 2009).
In contrast, continued restraint of defendant's funds does cause it harm, thus tipping the balance of factors further in defendant's favor. Finally, Leinster has not demonstrated that the public interest favors either party. Accordingly, applying the four factors set forth above, the Court hereby denies plaintiff's request for a stay pending appeal.
Plaintiff has requested, in the alternative, a temporary stay of the December 3, 2009 Order pending determination by the Second Circuit of plaintiff's currently pending motion for a stay pursuant to Federal Rule of Appellate Procedure 8(a)(2). That motion is also denied, although plaintiff is free to seek such relief from the Court of Appeals. See Fed.R.App.P. 8(a)(2)(A)(ii).
SO ORDERED.