Hamer v. City of Trinidad

          ORDER

          NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the court on Defendant City of Trinidad's (“Defendant” or “City”) Motion to Stay Proceedings (or “Motion”), filed July 24, 2019. [#84]. Defendant requests the court stay this matter pending its forthcoming petition to the Supreme Court of the United States for writ of certiorari. See [id.]. Having reviewed the Motion and associated briefing [#87; #90], the applicable case law, and the comments offered at the August 2, 2019 Status Conference [#88], I DENY the Motion to Stay Proceedings.

         BACKGROUND

         The court has discussed the background of this matter in its prior Orders, e.g., [#67], and therefore will limit its discussion to only those facts most salient to the instant Motion. On December 1, 2017, the court issued its Memorandum Opinion and Order, wherein it granted Defendant's Motion for Summary Judgement and denied Plaintiff Stephen Hamer's (“Plaintiff” or “Mr. Hamer”) Motion for Summary Judgment, holding the statute of limitations barred Mr. Hamer's American with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”) claims. See generally [id.]. Because the court's ruling was dispositive of all claims, Final Judgment issued in favor of Defendant and against Mr. Hamer on December 1, 2017. See [#68]. Thereafter, Mr. Hamer filed a timely appeal of the court's Final Judgment to the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) on December 20, 2017. See [#69].

         The Tenth Circuit issued its Opinion and Judgment on May 15, 2019. See [#75; #76]. The Tenth Circuit reversed and remanded this matter back to the undersigned, concluding the statute of limitations did not bar Mr. Hamer's ADA and RA claims in their entirety, and directed the undersigned to conduct further proceedings not inconsistent with its Opinion. See [#75; #76]. The Tenth Circuit's Mandate issued on June 20, 2019, see [#77], following its denial of the City's petition for rehearing en banc.

         Following the Tenth Circuit's Mandate, the court set this matter for a Status Conference. At this Status Conference, the City informed the court of its intent to file the instant Motion to Stay Proceedings pending its forthcoming petition to the Supreme Court for writ of certiorari. See [#80]. The court also set this matter for a Supplemental Scheduling Conference for August 2, 2019, later converted to a Status Conference. See [id.; #88]. The City filed the instant Motion on July 24, 2019, seeking a stay of this matter. See [#84]. Plaintiff has since responded to the Motion [#87] and Defendants replied [#90] and the court entertained brief argument on the matter at the August 2 Status Conference [#88]. The Motion is now ripe for disposition.

         ANALYSIS

         I. The Motion to Stay Proceedings

         Arguing under the String Cheese factors, ^[1] Defendant moves for a stay of this matter pending the outcome of its forthcoming petition for writ of certiorari to the Supreme Court. See [#84 at 2-3]. It argues a stay is warranted, because it would not prejudice Plaintiff, whose damages consist of repairs and compensatory damages which will not be affected by a stay; the burden on the City would be large should it have to engage in further litigation that may be irrelevant if successful at the Supreme Court-this same reason imposing a high burden on the court; and the public and non-parties will not be prejudiced by a stay as the City intends to repair many of the sidewalks and curb cuts at issue pending its appeal to the Supreme Court. See [id. at 3-4].

         In his Response, Mr. Hamer argues against a stay because the Motion is procedurally improper pursuant to 28 U.S.C. § 2101(f), which requires the City to file said Motion with the Tenth Circuit or a Justice of the Supreme Court, not the district court. See [#87 at 1-2]. Further, Plaintiff argues the Motion is substantively deficient because Mr. Hamer would be prejudiced by a stay and the City fails to satisfy its high burden that the Supreme Court would not only accept its petition for writ of certiorari but would then rule in the City's favor. See [id. at 2-4]. For the following reasons, I respectfully conclude a stay is not appropriate presently.

         First , the court agrees with Mr. Hamer that the Motion is procedurally defective pursuant to 28 U.S.C. § 2101(f). Section 2101(f) provides,

In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court . . . .

28 U.S.C. § 2101(f). Interestingly, the City argues that § 2101(f) does not apply because “there has been no final judgment or decree in the case- hence the need for remand and further proceedings.” [#90 at 1-2]. But the court indeed issued a Final Judgment in favor of the City and against Mr. Hamer, disposing of all claims and dismissing this matter with prejudice on December 1, 2017. See [#68]; cf. Utah v. Norton, 396 F.3d 1281, 1286 (10th Cir. 2005) (“A final judgment is one that terminates all matters as to all parties and causes of action” (internal quotations and citations omitted)). And the Tenth Circuit's reversal and remand for further proceedings is similarly a final judgment subject to review by the Supreme Court, see 28 U.S.C. § 1254; hence the City's forthcoming petition for writ of certiorari, see New York Times Co. v. Jascalevich, 439 U.S. 1317, 1318 (1978) (“Under 28 U.S.C. § 2101(f), a stay is authorized only if the judgment sought to be stayed is final and is subject to review by the Supreme Court on writ of certiorari.” (emphasis in original)).

         While not identical on all fours to the instant matter, I find persuasive the court's reasoning in Brinkman v. Department of Corrections of State of Kansas, 857 F.Supp. 775 (D. Kan. 1994). There, in response to the plaintiffs' motion to direct payment to their attorney following the defendant's unsuccessful appeal of the trial verdict to the Tenth Circuit, the defendant requested that the court not direct payment because of its forthcoming petition for writ of ...