States, Topsnik v. United States, No. 12-55533 (9th Cir. Feb. 4, 2013), submitted by notice in the
instant case, ECF No. 41.
STANDARD FOR DECISION
“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936). “When and how
to stay proceedings is within the sound discretion of the trial court.” Cherokee Nation of Okla. v.
United States, 124 F.3d 1413, 1416 (Fed. Cir. 1997). This discretion, however, is not
unbounded. Id. (citing Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 1991)). A stay
that is “‘immoderate or indefinite’ may be an abuse of discretion.” Id. (quoting Landis, 299 U.S.
at 257 (“The stay is immoderate and hence unlawful unless so framed in its inception that its
force will be spent within reasonable limits, so far at least as they are susceptible of prevision
and description.”)); see also Landis, 299 U.S. at 255 (“[A] stay of indefinite duration in the
absence of a pressing need” may constitute an abuse of discretion.). Ultimately, a court must
exercise its own judgment to “weigh competing interests and maintain an even balance” among
those fulfilled by a stay and those frustrated by such action. Cherokee Nation, 124 F.3d at 1416
(quoting Landis, 299 U.S. at 255). As the Federal Circuit has said, “[o]verarching this balancing
is the court’s paramount obligation to exercise jurisdiction timely in cases properly before it.”
“The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520
U.S. 681, 708 (1997). To justify suspending the regular course of litigation, the proponent “must
make out a clear case of hardship or inequity in being required to go forward, if there is even a
fair possibility that the stay for which he prays will work damage to someone else.” Landis, 299
U.S. at 255.
The government seeks a continuation of the stay until resolution by the Ninth Circuit of
the appeal by Mr. Topsnik currently pending before that court. See Def.’s Mot. at 2. The
government argues that this result would be consistent with the “first-filed rule,” which should
be applied “in a manner serving sound judicial administration.” Id. (quoting Orthmann v. Apple
River Campground, Inc., 765 F.2d 119, 121 (8th Cir. 1985)). The government suggests that the
issues pending before the Ninth Circuit and this court are similar and that resolution of the appeal
by the Ninth Circuit would serve judicial economy. Id. at 1-3.
Earlier, in opposing defendant’s motion to continue the stay because of the Brandt
proceedings, Mr. Topsnik emphasized that the district court had failed to invoke the transfer
provisions of 28 U.S.C. § 1404(a) relating to transfer to cure an improper venue. He argued that
“[p]laintiff’s offer . . . of transfer to a forum of [d]defendant’s choosing [, i.e., the Court of
Additionally, in the Tax Court, Mr. Topsnik has pending a suit, Topsnik v.
Commissioner, No. 22577-11 (Tax Court filed Oct. 3, 2011), which relates to tax years 2004
through 2009. See Hr’g Tr. 12:8-12 (Oct. 3, 2013).