The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Before the Court is a Motion for Stay [Doc. 92] in which Respondent asks this Court to stay the Order directing the return of her Children to Petitioner pending her appeal. Petitioner has filed a Memorandum in Opposition. [Doc. 95.] For the following reasons, the Motion to Stay is DENIED.
This Court has recently ordered that Respondent be directed to hand over custody of her Children to their father, Petitioner, on June 2, 2008 so that the Children could be returned to Venezuela and a Venezuelan Court could resolve the relevant custody issues.*fn1 Respondent has now come before this Court at this late date and requests that this Court stay that Order while she takes this Court's decision up on appeal.
There are four clearly established factors for determining whether a district court should stay an Order pending appeal: (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. Hilton v. Braunskill, 481 U.S. 770, 776 (U.S. 1987). These factors are the linchpin for any decision regarding whether to stay a case pending appeal, yet they go unmentioned in Respondent's brief. Accordingly, Respondent has all but waived any legal basis for providing a stay pending the appeal. See Voekler v. Porsche Cars North America, Inc., 353 F.3d 516, 527 (7th Cir. 2003) (failing to cite relevant authority constitutes a waiver); see also U.S. v. Useni, 516 F.3d 634, 658 (7th Cir. 2008).
Instead, Respondent puts forward the following arguments: (1) The current President of the Venezuela is "an anti-American activist" and has no intention of honoring any requests made by the United States; and (2) Respondent will have no judicial remedy at her disposal should this Court deny her request to stay pending an appeal.*fn2
Respondent's first argument is certainly unique. However, Respondent has failed to show how the bizarre anti-American ruminations of the President of Venezuela are relevant to the case at bar. There is ample evidence in the record that Petitioner, Respondent, her witnesses, and other family members were all able to easily travel back and forth between Venezuela and the United States. There is nothing in the record which would suggest that the Venezuelan President would take any interest in this case or in anyway prevent individuals, be they adults or the children who are the subject of this litigation, from traveling to or from Venezuela.
Furthermore, Respondent's argument -- that the Venezuela President has no intention of honoring any request by the United States -- misses the driving point behind this Court's previous Order. This Court's previous Order made clear that the United States is not in a position to make any request to Venezuela regarding the status of the Children. This Court clearly ruled that a Venezuelan Court and not an American Court or any other American authority should determine the custody status of the Children.
This leads to Respondent's second argument -- that she will have no judicial remedy at her disposal should this Court deny her request for a stay. This is entirely inaccurate. She can and should still turn to a Venezuelan court to obtain the necessary judicial remedy. It was a Venezuelan court that originally gave her custody of the children, and she was willing to rely upon a Venezuelan court when it was to her advantage during settlement negotiations. To say that she will not have any judicial remedy, when she has clearly relied upon a Venezuelan Court in the past, flies in the face of her previous actions.
With Respondent's arguments addressed, the Court now turns to the relevant four part balancing test.
1. Likelihood of Success on the Merits
This first factor often places a district court in a "conceptually difficult" position. Thomas v. City of Evanson, 636 F. Supp. 587, 590 (N.D. Ill. 1986). As one district court has noted, "[o]bviously, we think an appeal will probably fail; we have reviewed our opinion and stand by it. Had we thought an appeal would be successful, we would not have ruled as we did in the first place." Id. As a result, a party seeking a stay need not show that it is more than 50 percent likely to succeed on appeal; otherwise, no district court would ever grant a stay. It is enough that the party seeking the appeal has a substantial case on the merits. Washington Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843-44 (D.C. Cir. 1977); Dayton Christian Schools v. Ohio Civil Rights Commission, 604 F. Supp. 101, 103 (S.D. Ohio 1984), rev'd on other grounds, 766 F.2d 932 (6th Cir. 1985).
In the case at bar, this Court previously addressed several issues which are novel to this Circuit. [Doc. 77.] At the time, this Court noted that other circuits have differed over how best to resolve these issues. However, Respondent has shown no interest in pursuing these arguments. They have gone unraised and have been waived in the brief at bar. Accordingly, since Respondent has shown no sign of pursuing these issues, this Court can safely conclude that she will not have much of a chance on appeal. See Wasniewski v. Grzelak-Johannsen, No. 06-2548, 2007 U.S. Dist. LEXIS 62929 (N.D. Ohio Aug. 27, 2007) (denying the stay of a Hague Convention Order pending appeal because the appellant "failed to demonstrate a likelihood of success of appeal."); see also Koch v. Koch, No. 05C1158, 2006 U.S. Dist. LEXIS 11711 (E.D. Wis. Feb. 27, 2006) (denying a stay pending appeal and noting that the Hague Convention ...