United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon pro se
Plaintiff's “Motion to Stay, ” filed on
January 16, 2018. (Doc. 13). Defendant responded on January
30, 2018, and Plaintiff replied on February 5, 2018. (Docs.
15 and 16).
November 3, 2016, Plaintiff filed suit against Defendant in
the First Judicial District Court, Santa Fe County, State of
New Mexico. (Doc. 1-2). Plaintiff alleged an array of torts,
including personal injury, products liability, and
“defective product.” Id. at 3-4. The
suit stems from an injury he alleges occurred when he bit
into a chocolate product containing a metal item.
Id. at 1-2.
September 27, 2017, Defendant filed its notice of removal,
alleging diversity jurisdiction. (Doc. 1). It appears
Defendant followed the removal procedures correctly.
November 6, 2017, United States Magistrate Judge Laura
Fashing granted Plaintiff's unopposed motion to stay
until January 16, 2018. (Doc. 11). Plaintiff asserted the
stay was necessary so he could aid his ailing father.
January 16, 2018, Plaintiff filed his second Motion to Stay,
this time for a stay until July 2019. (Doc. 13). This motion
is opposed. As grounds for a stay, Plaintiff asserts an array
of reasons, including medical, financial, and
“juridical.” Id. at 1-4. In the event
the Court grants the stay, Plaintiff also seeks a writ of
mandamus. Id. at 3-4.
decision to grant a stay is discretionary. See,
e.g., Lewis v. United States, 2016 WL 4821310,
at *3 (S.D. W.Va.); In re Kozeny, 236 F.3d 615 (10th
Cir. 2000) (recognizing federal courts' inherent
discretion to order stay). “The party seeking a stay
must justify [a stay] by clear and convincing circumstances
outweighing potential harm to the party against whom it is
operative.” Lewis, 2016 WL 4821310, at *3
(quoting Williford v. Armstrong World Indus., Inc.,
715 F.2d 124, 127 (4th Cir. 1983)).
am sensitive to Plaintiff's request and medical
condition, I will deny the motion to stay; ultimately, he has
failed to establish by clear and convincing circumstances
that a stay until July 2019 outweighs any potential harm to
Defendant. First, Plaintiff asserts health reasons for a
stay. I do not find this persuasive. Plaintiff provides no
sound reason why he would be prepared to continue litigation
of his claims on July 2019, but not before then. The ailments
he describes in his Motion to Stay, and which appear to be
unrelated to his claims, predate his complaint, which was
filed in November 2016. For example, he describes
“cramping daily” as long ago as October 2010 when
he received a “mesh implant.” (Doc. 13) at 1.
Also, he notes an “open hernia surgery” on March
26, 2013. Id. at 1-2. On October 31, 2016, he
“was operated on for a right sided hernia.”
Id. at 2. Nothing Plaintiff describes suggests any
unanticipated condition or event that arose after he filed
his complaint on November 3, 2016.
Plaintiff provides no basis to ascertain that these ailments
will not prevent continued litigation on or after July 2019.
In this way, even though he requests a stay until July 2019,
the duration of a stay likely would become indefinite.
See Topsnik v. United States, 114 Fed.Cl. 1, 3
(2013) (“A stay that is immoderate or indefinite may be
an abuse of discretion.” (internal quotation marks
omitted) (citing Cherokee Nation of Okla. v. United
States, 124 F.3d 1413, 1416 (Fed. Cir. 1997))).
observe that Plaintiff very actively pursued his claim prior
to filing his complaint, all while suffering from these same
ailments. For instance, he effectively corresponded with
Defendant, as evidenced in the letter from Defendant dated
April 2, 2015, that references his letter dated March 19,
2015; he researched “galvanic shock, ” as
evidenced in the article he provided in his motion to stay
dated January 27, 2013; he personally photographed or
arranged to photograph the alleged metal item, as evidenced
by the series of photos attached to the motion to stay; and
he diagrammed or arranged to have a diagram prepared of the
metal item which he also attached to the motion to stay.
(Doc. 13-1) at 1-11; (Doc. 13-2) at 1-22; (Doc. 16) at 4-5.
Thus, Plaintiff's medical reasons for a stay until July
2019 are unpersuasive.
Plaintiff asserts “financial” reasons for a stay.
He only purports, “I am unable to effectively litigate
against the Hershey Corporation due to financial obligations.
If allowed to stay my complaint until July 2019, I hope to go
forward with my tort.” (Doc. 13) at 3. Plaintiff fails
to sufficiently establish how or even whether any purported
financial difficulties will be eliminated by July 2019, such
that he could proceed. Also, financial difficulties alone are
an insufficient basis to stay proceedings. Cf. NXT, Inc.
v. Republic of KOREA, 2013 WL 12090245, at *3 (holding
simple economic loss insufficient to show irreparable harm
necessary to stay proceeding under Fed.R.Civ.P. 62(c)).
Plaintiff asserts “juridical” reasons for a stay.
It is not clear exactly what Plaintiff means by
“juridical, ” except that he suggests,
“there can be no adverse effects nor prejudice against
the defense if I am allowed a stay of this matter before the
court until July 2019.” (Doc.13) at 3. Defendant
contends it will be prejudiced by such a lengthy stay, and I
agree. For all these reasons, Plaintiffs request for a stay
Plaintiff requests I issue a writ of mandamus in the event
the stay is granted. “Mandamus… is a writ issued
by a court to compel performance of a particular act by a
lower court or governmental officer or body.”
Armstrong v. New Mexico Disability Determination
Services, 2017 WL 4402403, at *8 (citing Black's
Law Dictionary 1105 (10th ed. 2014)). Plaintiffs
request, here, is misplaced. Essentially, Plaintiff is asking
for an order requiring Defendant to preserve evidence while
the case is stayed. See (Doc. 13) at 3-4. Plaintiff
fails, however, to show why this Court can compel Defendant
through the writ or why the writ is the appropriate vehicle.
See State Farm Mut. Auto. Ins. Co. v. Scholes, 601
F.2d 1151, 1154 (10th Cir. 1979) (“[m]andamus is proper
only when a party has no other adequate means to obtain
relief… [and the] right to relief must be clear and
indisputable.”); see also Estate of Smith v.
Heckler,747 F.2d 583, 591 (10th Cir. 1984) (“the
general rule [is] that mandamus is appropriate where the
person seeking the relief can show a ...