14‐3987‐cv
Range v. 480‐486 Broadway, LLC, et al.
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2015
No. 14‐3987‐cv
KING RANGE,
Plaintiff‐Appellant,
v.
480‐486 BROADWAY, LLC, MADEWELL, INC., AND J. CREW GROUP, INC.,
Defendants‐Appellees.
________
Appeal from the United States District Court
for the Southern District of New York
________
SUBMITTED: OCTOBER 23, 2015
DECIDED: NOVEMBER 24, 2015
________
Before: KEARSE, WALKER, and CABRANES, Circuit Judges.
________
On appeal from an oral order of the United States District
Court for the Southern District of New York (Lewis A. Kaplan,
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Judge), reflected in a docket entry, granting a motion by Defendants‐
Appellees to stay Plaintiff‐Appellant’s civil action for two years in
order to avoid unnecessary litigation costs. We DISMISS the
appeal for lack of appellate jurisdiction.
________
Glen H. Parker, Parker Hanski LLC, New York,
NY, for Plaintiff‐Appellant.
Joel L. Finger and Eric D. Witkin, Littler
Mendelson PC, New York, NY, for Defendants‐
Appellees.
________
PER CURIAM :
Plaintiff‐appellant King Range appeals from the September 24,
2014 order of the United States District Court for the Southern
District of New York (Lewis A. Kaplan, Judge) staying his action for,
inter alia, injunctive relief under Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12182 et seq. We conclude that
we are without jurisdiction to hear the appeal. Accordingly, we
DISMISS for want of appellate jurisdiction.
BACKGROUND
Range filed this lawsuit against defendants 480‐486 Broadway,
LLC (“Broadway”), Madewell, Inc. (“Madewell”), and J. Crew
Group, Inc. (“J. Crew”) on April 8, 2014. In his complaint, Range,
who is confined to a wheelchair, alleged that a retail property in
New York City owned by Broadway and leased by Madewell and J.
Crew does not comply with the ADA’s accessibility requirements.
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According to Range, the property fails to meet the ADA’s standards
in thirty‐three different respects. Among other problems, there is no
permanent ramp from the street to the entrance, some interior
spaces are too narrow to permit navigation by a person in a
wheelchair, and the International Symbol of Accessibility is not
displayed as the law requires.
On June 19, 2014, the parties appeared for a status conference
before the District Court. Counsel for defendants represented that
defendants wished to bring the property into compliance, explaining
that the property was located in a historic district and the New York
City Landmarks Preservation Commission (“LPC”) had rejected an
earlier application to build a permanent ramp in front of the
property. Counsel also argued that discovery should not commence
because discovery was not necessary: it was plain from Range’s
complaint that his attorney had visited the property and catalogued
its alleged shortcomings. Instead, counsel submitted, discovery
should be stayed and a settlement conference scheduled. The
District Court agreed to stay discovery, and it referred the case for a
settlement conference.
The parties failed to settle and appeared for another status
conference on September 24, 2014. On that same day defendants
filed a new application with the LPC seeking leave to construct a
permanent ramp; they were scheduled to be heard on October 21.
Before the District Court, counsel for defendants argued that the
discovery stay should remain in place for two reasons: first, Range’s
complaint identified all of the property’s alleged problems; second,
4 No. 14‐3987‐cv
defendants had begun the process of bringing the property into
compliance. Accordingly, proceeding with discovery would serve
only to saddle the parties with unnecessary costs.
The District Court agreed. In an order entered on September
24, 2014, the District Court noted that defendants had “assured the
Court” that they were “in the process of correcting [any lack of
compliance] to the extent it is within their power to do so,” had filed
a new application with the LPC, and would be heard before the LPC
on October 21. S.A. 52. In consequence, wrote the Court, it made
“very little sense to run up legal fees and expert fees . . . reasonably
likely to be utterly without ultimate purpose.” S.A. 53. The District
Court therefore stayed the action, but not without this caveat: “If the
plaintiff wishes in the interim to have me modify this order, they
are, of course, at liberty to make an application.” Id. The order was
reflected in a docket entry made two days later, on September 26,
2014, stating that the action was stayed for two years.
Range appeals this order, arguing that the District Court
abused its discretion by staying his action. As a threshold matter, he
asserts that we have jurisdiction to decide this question either
because the stay order is a final decision under 28 U.S.C. § 1291,
because it is an appealable collateral order, or because he is entitled
to a writ of mandamus. We reject each of these arguments and
therefore dismiss the appeal for want of jurisdiction.
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DISCUSSION
I. Final Decision
Range first argues that the District Court’s order is “final”
within the meaning of 28 U.S.C. § 1291, which vests the courts of
appeals with “jurisdiction of appeals from all final decisions of the
district courts of the United States.” A stay order ordinarily does
not qualify as a final decision, but the Supreme Court has
recognized an exception to this general rule. Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 & n.11 (1983). When a
stay puts a plaintiff “effectively out of court,” the stay order is final
and appealable. Id. (internal quotation marks omitted). Range
argues that the District Court’s order does just that by preventing
him from pursuing his case for two years.
We disagree. “[A] decision is ordinarily considered final and
appealable under § 1291 only if it ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (internal
quotation marks omitted). “[M]ost stays do not put the plaintiff
‘effectively out of court’” and so are not reviewable final orders.
Moses H. Cone, 460 U.S. at 11 n.11; Steele v. L.F. Rothschild & Co., 864
F.2d 1, 2 (2d Cir. 1988) (stay orders “ordinarily are not appealable . . .
‘final orders’”).
While a stay order may be a final order if it effectively cedes
federal jurisdiction “by refus[ing] to proceed to a disposition on the
merits” or imposing “lengthy or indefinite delays,” Blue Cross & Blue
6 No. 14‐3987‐cv
Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 723‐
24 (9th Cir. 2007); see id. at 724 (reviewing stays that were “both
indefinite and expected to be lengthy,” as “[t]hey could easily last . .
. five[ ] or six[ ] year[s] . . . or even longer,” depending on the
possible initiation and completion of criminal proceedings), the stay
order here is “an ordinary delay in the interest of docket control”
over which we lack jurisdiction, Moses H. Cone, 460 U.S. at 11 n.11.
II. Collateral Order
Nor is the District Court’s order appealable under the
collateral‐order exception to the rule of finality. Under this
exception, an order that does not finally resolve a litigation may
nevertheless be appealed if the order 1) “conclusively determine[s]
the disputed question;” 2) “resolve[s] an important issue completely
separate from the merits of the action;” and 3) is “effectively
unreviewable on appeal from a final judgment.” Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988) (internal
quotation marks omitted). A stay order can qualify as an appealable
collateral order, see, e.g., Discon, Inc. v. NYNEX Corp., 4 F.3d 130, 133‐
34 (2d Cir. 1993) (reviewing an order that stayed a blameless
plaintiff’s lawsuit until its counsel, over whom plaintiff lacked
control, complied with an order to pay sanctions), but this one does
not: it founders on the first requirement, that the order “conclusively
determine the disputed question.” Gulfstream, 485 U.S. at 276
(internal quotation marks omitted).
7 No. 14‐3987‐cv
A nonfinal order does not conclusively determine an issue
unless, “although technically amendable, [it is] ‘made with the
expectation that [it] will be the final word on the subject
addressed.’” Id. at 277 (quoting Moses H. Cone, 460 U.S. at 12 n.14).
If the order is of a kind that “a district court ordinarily would expect
to reassess and revise . . . in response to events occurring in the
ordinary course of litigation,” it is not conclusive. Id. (internal
quotation marks omitted). So too if the district court
“contemplate[s]” that the order “may be modified or revised as the
litigation proceeds.” In re Repetitive Stress Injury Litig., 11 F.3d 368,
372 (2d Cir. 1993).
Here, though the docket entry reflecting the District Court’s
order speaks in absolutes — “Action stayed for 2 years” — the
Court’s oral ruling quite plainly contemplates future revision. The
stay was entered because “[t]he defendant has assured the Court
that to whatever extent there is any lack of compliance on the subject
premises, they are in the process of correcting it to the extent it is
within their power to do so.” S.A. 52. The District Court stated that
Range could, “in the interim . . . make an application” to “modify
[the] order.” S.A. 53. We read the order to indicate that if
defendants do not proceed in good faith as promised during the
period of the stay and Range applies to the District Court for relief,
the Court will revisit the stay. Moreover, in the event that plaintiff
maintains that further remediation is necessary after defendants’
promised work is complete, the District Court will address those
claims. Because it is clear that the stay order is subject to
8 No. 14‐3987‐cv
modification in light of changing circumstances, it does not
“conclusively determine the disputed question” and is therefore not
an appealable collateral order. Gulfstream, 485 U.S. at 276 (internal
quotation marks omitted).
III. Mandamus
Finally, we conclude that mandamus relief is not warranted in
this case. A writ of mandamus is an “extraordinary remedy,”
available only in “exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion.” In re City of New
York, 607 F.3d 923, 932 (2d Cir. 2010) (internal quotation marks
omitted). The party seeking the writ must show that “its right to
issuance of the writ is clear and undisputable.” Gulfstream, 485 U.S.
at 289 (internal quotation marks omitted). Though a district court
possesses inherent authority to “control the disposition of the causes
on its docket” and has power to stay an action as an incident of that
authority, Landis v. N. Am. Co., 299 U.S. 248, 254 (1936), a stay order
may warrant mandamus relief “in exceptional cases,” Gulfstream,
485 U.S. at 288 n.13.
This is not such a case. The decision whether to stay an action
calls on a district court’s “studied judgment,” requiring the court to
examine “the particular facts before it” and determine “the extent to
which . . . a stay would work a hardship, inequity, or injustice to a
party, the public or the court.” Louis Vuitton Malletier S.A. v. LY
USA, Inc., 676 F.3d 83, 99 (2d Cir. 2012). The record shows that the
District Court acted within its authority in deciding, based on the
9 No. 14‐3987‐cv
circumstances of the case and the interests of the litigants and the
Court, that this action should be stayed. The Court took note of
defendants’ plans to address Range’s concerns about the property
and the lack of any apparent need for discovery, concluding that
permitting the active litigation of the case at present would only
waste the parties’ resources and the Court’s time.
In arguing that he is entitled to a writ of mandamus, Range
ignores the fact that the District Court explicitly kept the door open
to revisiting the stay in the event that defendants fail to proceed in
good faith. To be sure, stay orders are not automatically sustainable
or precluded from review merely “because conceivably the court
that made it may be persuaded at a later time to undo what it has
done.” Landis, 299 U.S. at 257; see also Trujillo v. Conover & Co.
Commc’ns, 221 F.3d 1262, 1264 n.3 (11th Cir. 2000). This is not such a
case, however, as the District Court conditioned the stay on prompt
remediation by defendants.
Range emphasizes that defendants’ promise to remedy the
property is not judicially enforceable and that these ADA violations
should not be permitted to persist, immune from judicial challenge,
for two years. Both points may be granted. But in view of the
District Court’s avowed willingness to modify its order should
circumstances change, it is clear that the Court has not abdicated its
role — and equally clear that Range is not entitled to the
extraordinary relief he seeks.
10 No. 14‐3987‐cv
CONCLUSION
In sum, we hold that the District Court’s stay order is neither
“final” within the meaning of 28 U.S.C. § 1291, nor an appealable
collateral order, nor a clear abuse of discretion warranting
mandamus relief. Accordingly, for the reasons set out above, we
DISMISS the appeal for want of appellate jurisdiction.