Case 2:17-cv-02666-JCM-GWF Document 39 Filed 11/19/17 Page 1 of 5

1 ADAM PAUL LAXALT

Attorney General
2 LAWRENCE VANDYKE (Bar No. 13643)
Solicitor General
3 JOSEPH TARTAKOVSKY (Bar. No. 13796)
Deputy Solicitor General
4 STEVE SHEVORSKI (Bar No. 8256)
Head of Complex Litigation
5 State of Nevada, Office of the Attorney General
555 E. Washington Ave., Ste. 3900
6 Las Vegas, Nevada 89101
(702) 486-3783
7 LVanDyke@ag.nv.gov
JTartakovsky@ag.nv.gov
8 SShevorski@ag.nv.gov
9 Attorneys for Defendant Nevada Secretary of State
10 UNITED STATES DISTRICT COURT
11 DISTRICT OF NEVADA
12
NORA LUNA; BILAL SHABAZZ; DIANE
13 CRUMP-RICHMOND; SUSAN FLORIAN; and
DEMI FALCON, Case No. 2:17-cv-02666-JCM-GWF
14
Plaintiffs,
15 DEFENDANT NEVADA SECRETARY OF
vs. STATES OPPOSITION TO PLAINTIFFS
16 MOTION TO STAY NOVEMBER 29, 2017
BARBARA CEGAVSKE, in her official HEARING
17 capacity as the Nevada Secretary of State; and
JOSEPH GLORIA, in his official capacity as the
18 Clark County Registrar of Voters,

19 Defendants.

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21 In this case, like any other, Plaintiffs were master of their complaint. They were also master of

22 their motion for a preliminary injunction, which specifically asked this Court for an expedited briefing

23 schedule, hearing, and relief by November 30, 2017. This was done with full awareness of the state-

24 court lawsuit filed shortly thereafter by Senator Woodhouse, as plaintiffs counsel in both lawsuits are

25 identical. This Court and the Defendants accommodated Plaintiffs request, and Defendants counsel

26 rearranged schedules over the holidays to provide expedited briefing and prepare for the scheduled

27 November 29 hearing.

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Defendant Secretary of States Opposition to Plaintiffs Motion to Stay November 29, 2017 Hearing
Case No. 2:17-cv-02666-JCM-GWF
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1 Now Plaintiffs abruptly ask this Court to stop all proceedings. (Plaintiffs asked Defendants
2 whether they opposed Plaintiffs motion for a stay only four hours before filing it.) Worse, without
3 citing any authority, they ask the Court to halt everything and effectively grant them the injunctive
4 relief they sought in their motion for a preliminary injunctionbut now apparently without having
5 complete briefing or a hearing. This is a very odd request, and it should be denied.
6 Plaintiffs requested stay would affect both their pending motion for a preliminary injunction
7 and Defendants pending motions to dismiss. With regard to the former, as noted, Plaintiffs ultimately
8 control their request for preliminary injunction. They can withdraw their motion if they want. But
9 what they cannot do is ask for the motion to be stayed while also asking the Court, without regard to
10 the merits of their motion, to effectively convert it into a sword of Damocles hanging over the state-
11 court proceedings, ready to auto-execute if, but only if, Plaintiffs lose in state court. This is an
12 audacious heads we win, tails you lose request. To be clear, Plaintiffs can (1) withdraw their request
13 for temporary injunctive relief or (2) have their request adjudicated by this Court and, if successful,
14 receive from the Court a temporary injunction that will serve as a backstop to the temporary stay they
15 received by the filing of the state-court suit. But they cant have it both ways. If they want a temporary
16 injunction from this Court (even one that applies only if the state court affirms the legal sufficiency of
17 the [recall] petition, Stay Mot. at 1), then they need to follow the process that this Court has laid out,
18 not seek to stay proceedings and receive the injunction.
19 Even if the Court were to grant Plaintiffs request for a stay but not their request for a springing-
20 executory injunction, Plaintiffs request threatens to replace an expedited schedule that they asked for,
21 and which opposing counsel and the Court have already accommodated, with an as-yet-to-be-
22 determined future emergency proceeding that could easily occur right around the December holiday
23 season. Undersigned counsel have obligations during that time on multiple other cases, and have
24 scheduled holiday vacation plans with their families. If there is a reasonable chance that Plaintiffs may
25 desire a preliminary injunction from this Court in this case before next yearwhich Plaintiffs dont
26 denythen it is better to have the pending motion decided under the current schedule, which the parties
27 are preparing for, rather than multiply the disruption with future emergency proceedings.
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Defendant Secretary of States Opposition to Plaintiffs Motion to Stay November 29, 2017 Hearing
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1 Finally, while Plaintiffs may be master of their request for a preliminary injunction, the same is
2 not true of Defendants currently pending motions to dismiss, which are also targets of Plaintiffs
3 sudden request for a stay. Briefing on those motions is more than half-finished, and, as noted, counsel
4 have already modified their schedules to attend and present on those motions at the November 29
5 hearing. Regardless of what Plaintiffs decide about their motion for a preliminary injunction, there is
6 no reason to depart from the current motion-to-dismiss scheduling. If, as Defendants argue, Plaintiffs
7 claims merit dismissal, an early ruling by this Court to that effect will save the parties in this case (and
8 the Court) the inefficiency and uncertainty of prolonged and disruptive on-again, off-again proceedings,
9 all operating against the backdrop of yet undetermined state-court proceedings.
10 The legal standard for the type of stay requested by Plaintiffs is well established: if there is
11 even a fair possibility that the stay will work damage to someone else, the stay may be
12 inappropriate absent a showing by the moving party of hardship or inequity. Dependable Highway
13 Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) (citing Landis v. North American
14 Co., 299 U.S. 248, 255 (1936)). It is telling that Plaintiffs stay motion nowhere references this
15 standard, much less attempts to demonstrate that it is met. As explained above, staying proceedings at
16 this point in this case could inconvenience opposing counsel and this Court by forcing another
17 emergency only a month or so from now. Staying this case will also harm the recall proponents and
18 candidates in the possible recall elections by creating layers of uncertainty and time-consuming
19 sequential legal hurdles. And the State itself will be harmed in the delay of its vindication of its neutral
20 recall procedures against Plaintiffs extraordinary arguments and allegations.
21 On the other hand, Plaintiffs cannot make out a clear case of hardship or inequity in being
22 required to go forward, Landis, 299 U.S. at 55, for the simple reason that barely two weeks ago
23 Plaintiffs insisted that this case be quickly resolved. And when Plaintiffs asked for this schedule, their
24 counsel were well aware of the impending state suit.
25 The only reasons to delay a decision on the motions pending before the Court would be to
26 benefit one side or the other in the underlying political battle being waged in these recall attempts. The
27 Defendants in this lawsuit have no interest in those political concerns, nor should they drive this suit.
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Defendant Secretary of States Opposition to Plaintiffs Motion to Stay November 29, 2017 Hearing
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1 Instead, the need to promptly address the legal uncertainty raised by Plaintiffs broad challenge to
2 Nevadas recall provisions should.
3 CONCLUSION
4
We respectfully ask the Court to deny Plaintiffs motion to stay the November 29, 2017 hearing.
5
DATED this 19th day of November, 2017.
6
ADAM PAUL LAXALT
7 Attorney General

8 By: /s/ Lawrence VanDyke

Lawrence VanDyke (Bar No. 13643)
9 Solicitor General
Joseph Tartakovsky (Bar No. 13796)
10 Deputy Solicitor General
Steve Shevorski (Bar No. 8256)
11 Head of Complex Litigation
12 Attorneys for Defendant Barbara Cegavske
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Defendant Secretary of States Opposition to Plaintiffs Motion to Stay November 29, 2017 Hearing
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CERTIFICATE OF SERVICE
1
2 I certify that I electronically filed the foregoing DEFENDANT NEVADA SECRETARY OF

3 STATES OPPOSITION TO PLAINTIFFS MOTION TO STAY NOVEMBER 29, 2017

4 HEARING with the Clerk of the Court by using the electronic filing system on November 19, 2017. I

5 certify that some of the participants in this case are registered electronic filing systems users and will be

6 served electronically. I further certify that some of the participants in the case may not be registered

7 electronic filing system users. For those parties not registered service was made by depositing a copy

8 of the above-referenced document for mailing in the United States Mail, first-class postage prepaid, at

9 Las Vegas, Nevada.

10 Marc E. Elias
Jacki L. Anderson
11 Perkins Coie LLP
700 Thirteenth St., N.W., Ste. 600
12 Washington, D.C. 20005
13 Sambo Dul
Perkins Coie LLP
14 2901 N. Central Ave., Ste. 2000
Phoenix, AZ 85012
15
Bradley Schrager
16 Daniel Bravo
Wolf Rifkin Shapiro Schulman
17 & Rabkin, LLP
3566 E. Russell Rd., 2nd Fl.
18 Las Vegas, NV 89120
19 Attorneys for Plaintiffs
20 David C. OMara
21 The OMara Law Firm, P.C.
311 E. Liberty St.
22 Reno, NV 89501

23 J. Christian Adams
Joseph A. Vanderhulst
24 32 E. Washington St., Ste. 1675
Indianapolis, IN 46204
25
Attorneys for Proposed Defendant-Intervenor
26 Public Interest Legal Foundation

27 /s/ Steve Shevorski

Steve Shevorski
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Defendant Secretary of States Opposition to Plaintiffs Motion to Stay November 29, 2017 Hearing
Case No. 2:17-cv-02666-JCM-GWF