United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. KOLAR MAGISTRATE JUDGE
matter is before the Court on a Verified Motion to Stay
Proceedings to the Chief Judge Theresa L. Springmann [DE 97]
filed on December 28, 2018, by Attorney John H. Davis, who is
counsel for Plaintiff Bennie Kennedy. Defendant Schneider
Electric Company has not filed a response, and the deadline
by which to do so has passed.
the merits of this case have been resolved, the enforcement
of a sanctions award against Davis remains pending. The award
was upheld by the Seventh Circuit Court of Appeals, and Davis
has filed a petition for writ of certiorari on the matter.
motion, Davis requests that a stay of this case be issued by
Chief Judge Theresa L. Springmann until Davis's petition
for writ of certiorari is resolved. Though Davis requests a
ruling by Chief Judge Springmann on the motion, the
undersigned has the authority to rule on the motion pursuant
to 28 U.S.C. § 636, Northern District of Indiana Local
Rule 72-1(b), and Northern District of Indiana General Order
argues that the previously assigned Magistrate Judge, the
Honorable Paul R. Cherry, improperly struck an earlier version of
this motion, as Davis had asked in that motion that Judge
Cherry be removed from this case. Judge Cherry's striking
of the previous motion was proper. He struck the previous
motion for a procedural reason, the failure to comply with a
local rule. Additionally, the statutory provision that
governs disqualification of judges anticipates that the judge
at issue will determine whether disqualification is proper.
28 U.S.C. § 455 (“(a) Any justice, judge, or
magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality
might reasonably be questioned. (b) He shall also
disqualify himself in the following circumstances .
. . .” (emphasis added)). Further, the case cited by
Davis, Offut v. United States, 348 U.S. 11
(1954), provides a procedure whereby the judge assigned to a
case invites the reassignment of a case in which that judge
has “become personally embroiled” with a party.
348 U.S. at 17. Offut does not provide a litigant
with a means by which to automatically change the judge
assigned to hear a motion. Davis has not shown that the
previous motion should have been ruled on by Chief Judge
Springmann solely by virtue of Davis's request. With
regard to the instant motion, it is before the undersigned
and not Judge Cherry. Thus, Davis's arguments that Judge
Cherry should not rule on this motion need not be addressed.
requests that this matter be stayed pending resolution of his
petition for writ of certiorari. 28 U.S.C. § 2101
In any case in which the final judgment or decree of any
court is subject to review by the Supreme Court on writ of
certiorari, the execution and enforcement of such judgment or
decree may be stayed for a reasonable time to enable the
party aggrieved to obtain a writ of certiorari from the
Supreme Court. The stay may be granted by a judge of the
court rendering the judgment or decree or by a justice of the
Supreme Court, and may be conditioned on the giving of
security, approved by such judge or justice, that if the
aggrieved party fails to make application for such writ
within the period allotted therefor, or fails to obtain an
order granting his application, or fails to make his plea
good in the Supreme Court, he shall answer for all damages
and costs which the other party may sustain by reason of the
28 U.S.C. § 2101(f). Three conditions must be met for a
stay to be proper:
First, there must be a reasonable probability that certiorari
will be granted (or probable jurisdiction noted). Second,
there must be a significant possibility that the judgment
below will be reversed. And third, assuming the
applicant's position on the merits is correct, there must
be a likelihood of irreparable harm if the judgment is not
Philip Morris USA, Inc. v. Scott, 561 U.S. 1301,
1301 (2010) (Scalia, J. in chambers) (citing Barnes v.
E-Systems, Inc. Group Hosp. Med. & Surgical Ins.
Plan, 501 U.S. 1301, 1302 (1991) (Scalia, J., in
chambers)); see also Grede v. FCStone, LLC, 584 B.R.
238, 248 (N.D. Ill. 2018) (applying the Philip
Morris standard at the district court level). Davis has
not shown that any of these three conditions are met.
on the foregoing, the Court hereby DENIES without
prejudice the Verified Motion to Stay Proceedings to
the Chief Judge Theresa L. Springmann [DE 97]. The Court
EXTENDS the deadline to February
6, 2019, for Attorney John H. Davis to (1) pay
$10, 627.16 to Defendant Schneider Electric as ordered by the
Court on March 30, 2017, and (2) file a verified notice with
the Court that he has paid the award.