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Ohio Valley Environmental Coalition, Inc. v. ERP Environmental Fund, Inc.

United States District Court, S.D. West Virginia, Huntington Division

August 15, 2019

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,
v.
ERP ENVIRONMENTAL FUND, INC. Defendant, VCLF LAND TRUST, INC., Nonparty against whom an order may be enforced.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. BACKGROUND

         This 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.

         II. LEGAL STANDARD

         “[I]t 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 omitted).

         III. DISCUSSION

         Rather 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 Hilton factors.

         A. Likelihood of Success on the Merits

         Courts 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”[1] 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.).

         While 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).

         Moreover, 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 ...


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