The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING CERTIFICATION OF ISSUES FOR APPEAL; ORDER DENYING STAY PENDING APPEAL; AND ORDER GRANTING ADDITIONAL EQUITABLE RELIEF
On March 8, 2011, the Court issued an order granting in part the United States' motion for summary judgment, which it construed as a motion for partial summary judgment. That order directed the United States to submit a proposed order granting the requested injunctive relief, and Defendants were given an opportunity to object to the proposed order. Defendants filed no objections, and the order was issued on March 25, 2011. Among other things, the March 25 order granted injunctive relief, requiring Defendants to vacate the property that is the subject of this litigation within 30 days.*fn1
On April 5, counsel for the parties jointly contacted the Court, during which time Defendants' counsel announced she would, that same day, be filing a motion appealing the Court's grant of summary judgment and seeking a stay of the March 25 order. No such motion was filed, however, until now.
On April 29, the United States filed an ex parte application representing that the Defendants had not vacated the cabin, and seeking an order both authorizing the use of reasonable force to remove them and requiring them to show cause why they should not be held in contempt. On May 3, the Court issued an order to show cause, requiring Defendants' counsel to file a response to the April 29 application. The Court's order specified that the response was not to exceed seven pages, and was to address the application only, not to seek reconsideration of earlier orders.
Defendants' counsel then on May 4 filed a ten-page response (the "Response") asserting the Court had erred in its grant of summary judgment. The Response also incorporates the motion Defendants' counsel said she would be filing April 5. In spite of the Response's failure to comply with the Court's order, it will be accepted and addressed on the merits. Later that same day, Defendants' counsel filed a notice of appeal of the Court's order of March 25. They have not paid the filing fee, moved to proceed in forma pauperis, or sought a stay from the Ninth Circuit.
II. Relief Requested in the Response
The Response seeks entry of judgment under Fed. R. Civ. P. 54(b) as to the claims on which summary judgment was granted. It also seeks a stay of the injunction pending appeal.*fn2 The notice of appeal does not automatically stay the injunction; a stay may be granted either by this Court or the appellate court. Fed. R. Civ. P. 62(a),(c), (g). Neither the Response nor the notice of appeal addresses the issue of a bond, and in fact the Response's allegations suggest Defendants are unprepared to post a bond or other security. See Rule 62(c), (d) (providing for posting of bond to protect appellees' rights).
The Response expresses doubt whether the Ninth Circuit will find the Court's order of March 25, which grants an injunction, falls within the category of orders immediately appealable under 28 U.S.C. § 1292(a)(1), and requests Rule 54(b) certification as a backup. There is no need for such an additional certification. Because the Court granted injunctive relief, Defendants' request for Rule 54(b) certification is moot. See TCR Holdings, LLC v. Nye County, Nev., 2010 WL 2773432, slip op. (D.Nev., July 12, 2010) (following grant of injunctive relief, holding that motion for final judgment was inappropriate) (citing 28 U.S.C. § 1292(a)(1)).
Defendants bear the burden of showing that a stay is appropriate. See Nken v. Holder, 129 S.Ct. 1749, 1761 (2009) ("The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.") A stay pending appeal "is not a matter of right, even if irreparable injury might otherwise result." Id. at 1760. Rather, the Court considers four factors: likelihood of success on the merits, irreparable injury, substantial injury to other parties, and the public interest. Id. at 1761 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
A. Likelihood of Success on the Merits
The Response argues Defendants are likely to prevail on the merits. It recites its own distorted reading of the facts and of the Court's order granting partial summary judgment. And it offers some authority and evidence that could have been presented before, but that would not have changed the outcome in any event.
This is the third in a series of lawsuits concerning Defendants' use of this property, and Defendants have prevailed in none of them, either in this Court or on appeal. In the first, 07cv1425, Mednansky v. Gillett, the Mednanskys sued Forest Service officials under a Bivens theory for a wide variety of perceived wrongs. This Court granted summary judgment, and the Ninth Circuit summarily affirmed, dismissing the appeal as frivolous. In the second, 09cv1478, Mednansky v. Metz, the Mednanskys sued Forest Service officials seeking relief for Forest Service officials' allegedly improper refusal to renew the use permit that gave them the right to live in the cabin where they are now squatters. This Court dismissed some claims without leave to amend, and others without prejudice. Rather than attempting to amend, the Mednanskys took an appeal, which they have apparently now abandoned.*fn3
The Court did not, as the Response charges, weigh evidence, ignore admissible evidence, or repeatedly disregard the standard for summary judgment; and the Court's order is in harmony with the Response's newly-cited authority. The Response also focuses on the narrow issue of whether Defendants were or were not in violation of applicable regulations while their now-expired use permit was in force, if that were the determining issue of this case. Furthermore, the Response is peppered with claims and supported by assertions already found meritless in earlier actions. Defendants' remedy for adverse decisions on those issues was to seek ...