Mendez v. Skymax Dominica, SA, No. 1:2011cv07548 - Document 25 (S.D.N.Y. 2011)

Court Description: MEMORANDUM OPINION AND order re: 21 FIRST MOTION to Stay Pending Appeal filed by Carlos Ziegenhirt Mendez: The Plaintiff's December 9 motion to stay the arbitration pending appeal is denied. (Signed by Judge Denise L. Cote on 12/13/2011) (ab)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---x CARLOS ZIEGENHIRT MENDEZ, Plaintiff, 11 Civ. 7548 (DLC) -v- MEMORANDUM OPINION AND ORDER SKYMAX DOMINICA, S.A., Defendant. - -x DENISE COTE, District Judge: In an Order dated December 2, 2011, the plaintiff's November 14 motion for a stay of arbitration was denied. On December 9, plaintiff filed a motion for a stay pending appeal. "A stay is not a matter of right, even if irreparable ury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case./I Nken v. Holder, 129 S.Ct. 1749 "The party 1 1760 (2009) (citation omitted). requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion. 1761. 1I Id. at The four factors to be considered by a court in deciding whether to issue a stay pending appeal 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. (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also In re World Trade Ctr. Disaster Site Li 167, 170 (2d Cir. 2007). most critical." "The first two factors Nken, 129 S.Ct. at 1761. " 503 F.3d . are the "The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiff will suffer absent the stay./I Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002) (citation omitted). A stay is proper, for example, where the plaintiff can "demonstrate [] some possibility of success and the balance of hardships tips decidedly in his favor." Gonzales, 460 F.3d 323, 335 (2d r. 2004). In the context of a request to stay an arbitration pending an appeal, monetary cost of arbitration. recognized irreparable harm." Union 295, 786 F.2d 93 Thapa v. "[t]he . does not impose such legally Emery Air Freight Corp. v. Local (2d Cir. 1986). As stated on the record at the December 2 conference, the plaintiff has not made a strong showing that he is likely to succeed in avoiding arbitration. harm absent a stay. Nor has he shown irreparable The plaintiff only states that "he will be forced to arbitrate a dispute that is not arbitrable." remaining two factors also weigh against a st The It is in the defendant's interest to proceed to arbitration without further 2 delay, and there is a strong public interest favoring arbitration. Accordingly, it is hereby ORDERED that the aintiff's December 9 motion to st arbitration pending appeal is deni SO ORDERED: Dated: New York, New York December 13, 2011 ENISE COTE United States District Judge 3 the

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