Mark Vitalis, v. Sun Constructors, Inc.

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
5
IDONA WALLACE 5 1:02-cv-107
5
v. 5
5
KMART CORPORATION 5
__________________________________________5
5
ERROL STANLEY, NIGEL CHARLES, 5 1:03-cv-55
MELVIN NEAL, JOSEPH SONNY, 5
WRANDA DAVIS 5
5
v. 5
5
ST. CROIX BASIC SERVICES, INC., BASIC 5
INDUSTRIES, INC., HOVENSA, L.L.C., and 5
AMERADA HESS CORPORATION 5
__________________________________________5
5
FORREST THOMAS 5 1:03-cv-163
5
v. 5
5
CENTENNIAL COMMUNICATIONS 5
CORP., CENTENNIAL CARIBBEAN 5
HOLDING CORP., and CENTENNIAL 5
USVI OPERATIONS CORP. 5
__________________________________________5
5
MARK VITALIS, 5 1:05-cv-101
5
v. 5
5
SUN CONSTRUCTORS, INC., RICHARD 5
“DOC” LANGNER, and EXCEL GROUP, 5
INC. 5
__________________________________________5
Case: 1:05-cv-00101-WAL-EAH Document #: 697 Filed: 09/13/10 Page 1 of 6

Wallace v. Kmart Corp.
1:02-cv-107
Order Denying Plaintiffs’ Motions to Stay
Page 2
5
PATRICE CANTON 5 1:05-cv-143
5
v. 5
5
KMART CORPORATION 5
__________________________________________5
5
GLENFORD RAGGUETTE 5 1:06-cv-173
5
v. 5
5
PREMIER WINES AND SPIRITS, LTD. 5
__________________________________________5
5
TERRANCE ALEXIS 5 1:07-cv-91
5
v. 5
5
HOVENSA, L.L.C., and HESS f/k/a 5
Amerada Hess Corporation 5
__________________________________________5
5
HELEN JAMES-STEELE 5 1:04-CV-123
5
v. 5
5
FORD MOTOR COMPANY 5
__________________________________________5
TO: See attached distribution list
ORDER DENYING PLAINTIFFS’ MOTIONS TO STAY
Case: 1:05-cv-00101-WAL-EAH Document #: 697 Filed: 09/13/10 Page 2 of 6

Wallace v. Kmart Corp.
1:02-cv-107
Order Denying Plaintiffs’ Motions to Stay
Page 3
THIS MATTER came before the Court upon Plaintiffs’ Motion to Stay Pending
Appeal of Magistrate Order Dated August 26, 2010 (1:02-cv-107, Docket No. 336) and
Motion to Stay During Pendency of Appeal of Contempt Order Issued by the Magistrate
(1:02-cv–107, Docket No. 337). Defendants Sun Constructors, Inc., Richard “Doc” Langner,
and Excel Group, Inc., filed a separate opposition to each said motion. Defendant Kmart1
Corporation filed an opposition to motion to stay during pendency of appeal (1:02-cv-107,
Docket No. 356; 1:05-cv-101, Docket No. 694). Defendant HOVENSA, L.L.C., moved to2
join Sun’s Opposition to Attorney Rohn’s Motion to Stay Discovery Orders Pending
Appeal of the Denial of Her Motions to Vacate (1:02-cv-107, Docket No. 357). Mindful of
the timetable and scheduling of briefing and other matters relating to Plaintiffs’ Recusal
Motions, this order is issued without the necessity of reply.
The applicable standard for whether to grant a stay of an order pending an appeal
requires the party seeking the stay to show: “(1) that it will likely prevail on the merits of
the appeal, (2) that it will suffer irreparable injury if the stay is denied, (3) that other parties
1. Said Defendant’s Opposition to Attorney Rohn’s M otion to Stay the Contempt Order is filed at 1:02-cv-107,
Docket No. 343; 1:05-cv-101, Docket No. 681, and said Defendant’s Opposition to Attorney Rohn’s M otion
to Stay Discovery Orders Pending Appeal of Denial of Her Motions to Vacate is filed at 1:02-cv-107, Docket
No. 355; 1:05-cv-101, Docket No. 693.
2. Although Defendant Kmart does not specifically identify which motion it is opposing, from the contents
of the opposition, it appears to the undersigned that the opposition is filed in response to Plaintiffs’ Motion
to Stay During Pendency of Appeal of Contempt Order Issued by the M agistrate (1:02-cv-107, Docket No.
337).
Case: 1:05-cv-00101-WAL-EAH Document #: 697 Filed: 09/13/10 Page 3 of 6

Wallace v. Kmart Corp.
1:02-cv-107
Order Denying Plaintiffs’ Motions to Stay
Page 4
will not be substantially harmed by the stay, and (4) that the public interest will be served
by granting the stay.” Halderman v. Pennhurst State School and Hospital, 451 F. Supp. 233, 235
(E.D. Pa. 1978) (citations omitted). As other courts have noted, these criteria are similar to
those applied to preliminary injunctions. See, e.g., Evans v. Bushanan, 424 F. Supp. 875, 879
n.21 (D. Del. 1976). The Third Circuit has explained that when applying the test, the court
must bear in mind that “no one aspect will necessarily determine its outcome. Rather,
proper judgment entails a ‘delicate balancing’ of all elements.” Constructors Ass’n of
Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978) (footnote omitted) (quoted
in Halderman, 451 F. Supp. 233, 235).
In the matter at bar, the Court finds that Plaintiffs are unlikely to prevail on the
merits of the appeal. As Defendants Sun Constructors, Inc., Richard “Doc” Langner, and
Excel Group, Inc. , have noted in both of their oppositions, the issues Plaintiffs are
appealing are similar to the issues brought in their petition writ of mandamus before the
Third Circuit, which that court denied.3
The Court also finds that any injury Plaintiffs may suffer will not be irreparable.
Further review of any unfavorable outcome is still available to Plaintiffs. At the same time,
3. Despite Plaintiffs’ “interpretation,” or, rather, interpolation, of that order, the words, “the Petition for W rit
of M andamus is denied without prejudice” are clear and do not afford any other meaning that what the
actual words represent.
Case: 1:05-cv-00101-WAL-EAH Document #: 697 Filed: 09/13/10 Page 4 of 6

Wallace v. Kmart Corp.
1:02-cv-107
Order Denying Plaintiffs’ Motions to Stay
Page 5
the Court finds that the other parties will suffer prejudice by the further delay of any final
resolution.
The Court further finds that granting the stay will not serve the public interest. The
public interest is served by the matter moving forward and proceeding with expediency
to resolution.
Based upon the foregoing, the Court determines that Plaintiffs are not entitled to a
stay.
Accordingly, it is hereby ORDERED:
1. Plaintiffs’ Motion to Stay Pending Appeal of Magistrate Order Dated August
26, 2010 (1:02-cv-107, Docket No. 336) is DENIED.
2. Motion to Stay During Pendency of Appeal of Contempt Order Issued by the
Magistrate (1:02-cv–107, Docket No. 337) is DENIED.
3. Defendant HOVENSA, L.L.C.’s motion to join Sun’s Opposition to Attorney
Rohn’s Motion to Stay Discovery Orders Pending Appeal of the Denial of
Her Motions to Vacate (1:02-cv-107, Docket No. 357) is GRANTED.
ENTER:
Dated: September 13, 2010 /s/ George W. Cannon, Jr.
GEORGE W. CANNON, JR.
U.S. MAGISTRATE JUDGE
Case: 1:05-cv-00101-WAL-EAH Document #: 697 Filed: 09/13/10 Page 5 of 6

Wallace v. Kmart Corp.
1:02-cv-107
Order Denying Plaintiffs’ Motions to Stay
Page 6
ECF: Lee J. Rohn, Esq.
Eugenio W.A. Geigel-Simounet, Esq.
George H. Logan, Esq.
Linda J. Blair, Esq.
Simone R.D. Francis, Esq.
David J. Cattie, Esq.
Anna H. Paiewonsky, Esq.
Stephanie L. Adler, Esq.
Daryl C. Barnes, Esq.
Case: 1:05-cv-00101-WAL-EAH Document #: 697 Filed: 09/13/10 Page 6 of 6