Opinion
No. 2010-1445.
November 18, 2010.
Appeal from the United States District Court for the Southern District of Florida in case no. 07-CV-22814, Judge Alan S. Gold.
Before GAJARSA, SCHALL, and MOORE, Circuit Judges.
ON MOTION
ORDER
Creative Compounds, LLC moves for a stay, pending disposition of this appeal, of the permanent injunction entered by the United States District Court for the Southern District of Florida. Starmark Laboratories opposes. Creative replies. Starmark moves for attorney fees and sanctions related to the motion for a stay and "Creative's two prior premature appeals to this Court and a petition for writ of mandamus." Creative opposes.
To obtain a stay, pending appeal, a movant must establish a strong likelihood of success on the merits or, failing that, nonetheless demonstrate a substantial case on the merits provided that the harm factors militate in its favor. Standard Havens Prods, v. Gencor Indus., 897 F.2d 511, 513 (Fed. Cir. 1990) (citing Hilton v. Braunskill, 481 U.S. 770, 778 (1987)). In deciding whether to grant a stay, pending appeal, this court "assesses the movant's chances of success on the merits and weighs the equities as they affect the parties and the public." E.I. du Pont de Nemours Co. v. Phillips Petroleum Co., 835 F.2d 277, 278 (Fed. Cir. 1987); see also Standard Havens Prods., 897 F.2d at 513.
Based on the arguments in the motions papers, and without prejudicing the ultimate disposition of this case by a merits panel, we determine that Creative Compounds has not met its burden to obtain a stay of the permanent injunction. We similarly determine that Starmark has not demonstrated that sanctions and attorney fees are warranted.
Upon consideration thereof,
IT IS ORDERED THAT:
The motions are denied.