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Nero v. Mosby

United States District Court, D. Maryland

March 20, 2017

EDWARD MICHAEL NERO, et al. Plaintiffs
v.
MARILYN MOSBY, et al. Defendants

          MEMORANDUM AND ORDER RE: STAY PENDING APPEAL

          Marvin J. Garbis United States District Judge

         The Court has before it the Motion for Immediate Stay Pending Appeal [ECF No. 60] filed by Defendant Marilyn Mosby (“Mosby”) and the materials submitted relating thereto. The Court finds that a hearing is unnecessary.

         I. BACKGROUND

         In the Corrected[1] Memorandum and Order Re: Dismissal Motions [ECF No. 54], the Court dismissed certain of Plaintiffs' claims[2]against Mosby and Defendant Samuel Cogen (“Cogen”) but did not dismiss, leaving pending, Plaintiffs' claims against them for

• Malicious prosecution,
• Defamation,
• Invasion of privacy (false light), and
• Section 1983 Fourth Amendment violations.[3]

         On February 3, 2017, Mosby filed a Notice of [Interlocutory] Appeal [ECF No. 57]. Cogen did not appeal.

         II. DISCUSSION

         By the instant motion, Mosby seeks to have the Court stay all discovery pending resolution of her interlocutory appeal. While Mosby apparently erroneously seeks to rely on Rule 62(c) of the Federal Rules of Civil Procedure, [4] there is no doubt that, under appropriate circumstances, a district court may stay the effect of an order. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)(“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”).

         Hence, the Court has discretion to stay discovery pending appeal by staying the effect of its Order permitting the case to proceed on those claims not dismissed. However, “a party seeking a stay [of a district court order] must show:

(1) that [she] will likely prevail on the merits of the appeal,
(2) that [she] will suffer irreparable injury if the stay is ...

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