United States District Court, S.D. West Virginia, Huntington Division
OHIO VALLEY ENVIRONMENTAL COALITION, INC., WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., and SIERRA CLUB, Plaintiffs, APPALACHIAN HEADWATERS, INC., Nonparty in whose favor an has been entered,
ERP ENVIRONMENTAL FUND, INC. Defendant, VCLF LAND TRUST, INC., Nonparty against whom an order may be enforced.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the Court is Defendant ERP Environmental Fund,
Inc.'s (“ERP”) Motion to Stay Judgment. ECF
No. 152. For the reasons set forth herein, the Court
DENIES the motion.
case is under the continuing jurisdiction of this Court
pursuant to the Second Modified Consent Decree, which
requires a donation from ERP and its parent company, VCLF
Land Trust, Inc. Second Modified Consent Decree,
¶¶ 18 & 23, ECF No. 105. After a lapse in
payment of the monthly installments of that donation,
Plaintiffs filed the Motion to Enforce. ECF No. 110. On June
24, 2019, the Court granted the motion, entered judgment
against ERP and VCLF Land Trust, Inc. for the outstanding
amount in favor of Appalachian Headwaters, and granted an
award for attorney's fees in favor of Plaintiffs.
June 24, 2019 Mem. Op. & Order, at 11;
Judgment Order, ECF No. 139. Defendant now moves to
stay that judgment. Mot. Stay J., ECF No. 152.
has always been held that as part of its traditional
equipment for the administration of justice, a federal court
can stay the enforcement of a judgment pending the outcome of
an appeal.” Nken v. Holder, 556 U.S. 418, 421
(2009) (internal citations omitted). Rule 62(c) of the
Federal Rules of Civil Procedure affirmatively invests
federal district courts with the power to stay a final
judgment granting an injunction pending its appeal.
Fed.R.Civ.P. 62(c). The Supreme Court has long applied a
four-factor test to determine whether a stay is warranted,
which the Fourth Circuit adopts for stays of a judgment
pending an appeal. See Hilton v. Braunskill, 481
U.S. 770, 776 (1987); see also Long v. Robinson, 432
F.2d 977 (4th Cir.1970). Those factors are:
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.
Nken, 556 U.S. at 434 (quoting Hilton, 481
U.S. at 776). A stay of this kind “is considered
extraordinary relief for which the moving party bears a heavy
burden.” Personhuballah v. Alcorn, 155
F.Supp.3d 552, 558 (E.D. Va. 2016) (internal quotations
than file a memorandum of support for its motion to stay as
required by Local Rule of Civil Procedure 7.1(a)(2), ERP
directly fills its motion with the same insubstantial claims
the Court has come to expect from Defendant's counsel.
The characterization of the Court's holdings by counsel
for ERP is intellectually dishonest and exhibits behavior
which can only be characterized as unprofessional.
Regardless, the Court addresses each of the four
Likelihood of Success on the Merits
have often struggled as to how to gauge this factor, with
some in the Fourth Circuit choosing a requirement that
movants make a “strong showing” of success, while
others apply a less rigid test which balances this factor
with the “irreparable injury” factor. See
Ohio Valley Envtl. Coal., Inc. v. Pruitt, No. CV
3:15-0271, 2017 WL 1712527, at *2 (S.D. W.Va. May 2, 2017)
(Chambers, C.J.) (explaining differing approaches within the
Fourth Circuit). This Court opts for a muted version of the
balancing test, where the presence of a “serious
question” of law will not act as an acceptable
stand-in for a showing of a likelihood of success. Ohio
Valley Envtl. Coal. v. Army Corps of Eng'rs, 890
F.Supp.2d 688, 693 (S.D. W.Va. 2012) (Chambers, J.).
the Court shies away from prognostication, ERP would plainly
fail any version of this balancing test, as it has not
presented a serious question for appeal. Instead, ERP begins
its screed with the mistaken notion that the Second Modified
Consent Decree “does not
expressly require ERP to make the
donation at issue[, ]” and that “[t]his Court
does not cite any express language that makes its findings
‘clear[.]'” Mot. Stay J., at 1-2.
The false nature of these statements is readily
ascertainable. As the Court's Order on the Motion to
Enforce plainly states, “[i]t was in express
consideration for the extended deadlines that both ERP and
its parent company, VCLF Land Trust, ‘agreed to fund
forest and stream restoration projects in West Virginia
pursuant to a Selenium Settlement Agreement.” June
24, 2019 Mem. Op. & Order, at 10 (quoting Second
Modified Consent Decree, at ¶ 18).
a court's ruling is not “novel” simply
because an attorney misunderstands some basic tenets of
contract law and peppers his or her memoranda with hyperbolic
rhetoric. To help illuminate these principles for those
equipped only with dim lanterns, the Court turns to Section
289 of the Restatement (Second) of Contracts. “Where
two or more parties to a contract promise the same
performance to the same promisee, each is bound for the whole
performance thereof, whether his duty is joint, several, or
joint and several.” Restatement (Second) of Contracts
§ 289 (1) (Am. Law Inst. 1981). Here, looking to the
express language of the ...