The opinion of the court was delivered by: Sharon L. Gleason United States District Judge
ORDER DENYING GREENPEACE USA'S MOTION TO STAY
This court issued a Preliminary Injunction on March 28, 2012.*fn1 Greenpeace, Inc. (also known as "Greenpeace USA") filed an interlocutory appeal of that injunction with the Ninth Circuit on April 26, 2012.*fn2 On May 29, 2012, this court issued an Amended Preliminary Injunction.*fn3 Greenpeace USA appealed the Amended Preliminary Injunction on June 28, 2012.*fn4
On June 18, 2012, Greenpeace USA filed a motion to stay in its first appeal with the Ninth Circuit, seeking to stay enforcement of the Preliminary Injunction pending the Circuit Court's determination of that appeal.*fn5 On June 25, 2012, Greenpeace USA filed an "Urgent Motion" seeking the same relief.*fn6 The Ninth Circuit denied the motion on June 27, 2012 "without prejudice to renewal following presentation to the district court."*fn7
On July 3, 2012, Greenpeace USA filed a Motion to Stay to this court and requested consideration on shortened time.*fn8 The motion seeks to stay both the March 28, 2012 Preliminary Injunction and the Amended Injunction dated May 29, 2012, pending the outcome of the interlocutory appeal currently before the Ninth Circuit. This court granted an expedited briefing schedule.*fn9 In accordance with that schedule, Shell filed its opposition on July 11, 2012*fn10 and Greenpeace USA replied on July 16, 2012.*fn11
The Ninth Circuit has held that, when determining whether to issue a stay pending appeal, a court is to consider:
(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. . . [T]he issues of likelihood of success and irreparable injury represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.*fn12
This analysis is similar to the test for preliminary injunctive relief.*fn13 This court addresses each of the factors in turn below, adopting its prior analyses where appropriate.
(1) Greenpeace USA has not made a showing that it is likely to succeed on the merits of its appeal.
In its Motion to Stay, Greenpeace USA argues that it is likely to succeed on its interlocutory appeal because the Preliminary Injunction was issued on the basis of "both an erroneous legal standard and clearly erroneous factual findings."*fn14
Greenpeace USA argues that this court improperly relied on the absence in the record of any statement from Greenpeace USA that it would not attempt tortious or unlawful acts against Shell in the coming months. Greenpeace USA argues that in doing so, this court impermissibly shifted the burden of proof from Shell to Greenpeace USA. In the March 28, 2012 Preliminary Injunction, this court "accorded a minor degree of weight" to Greenpeace USA's silence regarding its summer intentions.*fn15 This court interpreted that silence as a party admission, citing to the Restatement of Torts, the Federal Rules of Evidence, and Ninth Circuit precedent.*fn16 This court's consideration of Greenpeace USA's admission-by-silence as evidence that supported Shell's motion did not shift the burden of proof to Greenpeace USA.
Greenpeace USA also argues that this court erred by finding a case and controversy and enjoining conduct based on the possibility of future harm.*fn17
Greenpeace USA asserts that this court should have looked to "existing
Ninth Circuit precedent," Roller v. City of San Mateo.*fn18
In Roller, a 1975 case from the Northern District of
California, the plaintiff sued her former employers for sex
Temporary Restraining Order ("TRO") was entered before the evidentiary hearing in the case "in order to ensure that defendants did not interfere with plaintiff's efforts in collecting affidavits and ...