United States District Court, D. Columbia.
For Enron Nigeria Power Holding, Ltd., Petitioner: Kenneth R. Barrett, LEAD ATTORNEY, KRB LAW, Houston, TX USA; Mark Gibson, Missouri City, TX USA.
For Federal Republic of Nigeria, Respondent: David Elesinmogun, LEAD ATTORNEY, ELESINMOGUN & EGWUATU LLP, Washington, DC USA.
OPINION AND ORDER
CHRISTOPHER R. COOPER, United States District Judge.
Before the Court is Respondent Federal Republic of Nigeria's Motion for Stay of Proceedings Pending Appeal. Upon consideration of the motion, and the oppositions and reply thereto, the Court will deny the motion.
In 1999, Enron Nigeria Power Holding, Ltd. (" ENPH" ) entered into an agreement that was guaranteed by the Republic of Nigeria to supply three barge-mounted electricity generating units and later build a gas-fired power plant in the country. After the venture fizzled, ENPH and Nigeria submitted their dispute over compensation to the International Chamber of Commerce International Court of Arbitration pursuant to their written agreement. Pet. ¶ 10, Ex. A § 23. The arbitrators eventually awarded ENPH $11.2 million in damages and $870,000 in legal costs and expenses. Pet. Ex. B ¶ 175. After Nigeria refused to pay the award, ENPH initiated this action requesting that the Court order Nigeria to do so. Pet. ¶ ¶ 17, 22.
Nigeria moved to quash service and dismiss the Petition, arguing that ENPH failed to properly effectuate service under Federal Rule of Civil Procedure 4(j) and the relevant provision of the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § 1608. The Court agreed that service was deficient, but found that ENPH had shown good cause for its failure as required under Federal Rule of Civil Procedure 4(m) and granted ENPH 120 additional days to effect service by alternative means. Without permission from the Court, Nigeria appealed this interlocutory order to the D.C. Circuit. Nigeria argues it did not require permission because the Court in effect rendered a final judgment by noting in its Memorandum and Order that Nigeria " appear[ed] to be using this action to re-litigate and delay the payment of claims already resolved by the agreed upon arbitration procedure." Nigeria's Mot. for Stay at 8-9. Nigeria now seeks a stay of these proceedings pending the outcome of its appeal.
II. Standard of Review
" A stay is . . . an exercise of judicial discretion." Virginian Ry. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463, (1926) (internal citation omitted). The movant bears the burden of proving that a stay is warranted. Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Decisions whether to grant a stay are governed by four factors: " '(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.'" Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct.
2113, 95 L.Ed.2d 724 (1987)). " The first two factors . . . are the most critical." Id.
The U.S. Code clearly explains when a party can appeal an ...