United States District Court, N.D. Ohio
U.S. BANK NATIONAL ASSOCIATION, Plaintiff,
ANTHONY L. VIOLA, et al., Defendants.
OPINION & ORDER [RESOLVING DOC. 46]
S. GWIN, UNITED STATES DISTRICT JUDGE
foreclosure case, Defendant Anthony L. Viola moves the Court
to stay proceedings while it seeks appellate review of the
Court's December 1, 2016 order (“the Order”).
In the Order, the Court dismissed Defendant Viola's
cross-claim against Defendant United States and denied
Viola's motions to refer prosecutorial misconduct to the
Office of Professional Responsibility and for leave to amend
his cross-claim. Because the Order was not a final order
susceptible to immediate appeal, and because there is no
proper reason to dissemble this case for piecemeal review,
the Court DENIES Defendant Viola's
a notice of appeal ordinarily divests a district court of
jurisdiction until the Court of Appeals remands the case,
district courts retain jurisdiction when the appeal is from a
non-appealable, non-final order. Under 28 U.S.C. § 1291,
a court of appeals only reviews a district court's
“final decision.” “A ‘final
decision' generally is one which ends the litigation on
the merits and leaves nothing for the court to do but execute
Viola's appeal of the Order is premature and therefore
does not divest the Court of jurisdiction. The Order neither
terminated all parties nor disposed of all issues in the
case. Instead, the Order merely dismissed Viola's
cross-claim against Defendant United States, denied
Viola's motion to refer prosecutorial misconduct, and
denied Viola leave to amend his cross-claim. Numerous parties
and claims still remain in the case. The Order is not a final
decision within the meaning of § 1291.
Viola fails to demonstrate exceptional circumstances
warranting a stay during his interlocutory appeal. Under Fed.
R. App. P. 8(a), the Court could permissively stay
proceedings pending the Order's appellate review. To
resolve a motion for a stay pending interlocutory appeal,
courts balance “1) the likelihood that the party
seeking the stay will prevail on the merits of the appeal; 2)
the likelihood that the moving party will be irreparably
harmed absent a stay; 3) the prospect that others will be
harmed if the court grants the stay; and 4) the public
interest in granting the stay.” “The movant is always
required to demonstrate more than the mere
‘possibility' of success on the
of the proceedings is unwarranted here. First, it is unlikely
that Defendant Viola will prevail on the merits of his
appeal. Second, Viola has not shown a likelihood of
overwhelming, irreparable harm absent a stay. Finally, the
public interest counsels against a stay. To stay this
foreclosure action would prolong uncertainty over the
underlying property's ownership. Property law favors
finality, and granting a stay would unnecessarily delay
resolution of Plaintiff U.S. Bank's claims to Viola's
mortgaged property. The Court declines to stay the matter
pending Defendant Viola's premature appeal.
above reasons, the Court DENIES Defendant Viola's motion
to hold all proceedings in abeyance pending Court of Appeals
 Doc. 18.
 See United States v.
Garcia-Robles, 562 F.3d 763, 767 (6th Cir. 2009);
Dunham v. United States, 486 F.3d 931, 935 (6th Cir.
 Rucker v. United States Dept. of
Labor, 798 F.2d 891, 892 (6th Cir. 1986); see
also Cochran v. Birkel, 651 F.2d 1219, 1222
(6th Cir. 1981) (“[A] notice of appeal from a plainly
nonappealable order may properly be ignored by the district
Budinich v. Becton Dickenson &
Co., 486 U.S. 196, 199 (1988) (citing Catlin v.
United States, 324 U.S. 229, 233 (1945)); see also
United States ex.Rel. Pogue v. Diabetes Treatment
Ctrs. of Am., Inc., 444 F.3d 462, 471 (6th Cir. 2006)
(“[T]he final judgment rule prevents ‘piecemeal
appeals, ' the allowance of which can undermine the
independence of the district judge, obstruct the resolution
of just claims ...