* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

1 No. C.A. H-89-3174 (S.D. Tex.).

2 No. C.A. H-87-4106 (S.D. Tex.)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20244

IN RE: M.J. BEEBE, ET AL.,

Petitioners.

Petition for Writ of Mandamus to the United States

District Court for the Southern District of Texas

(No. CA-H-89-3174)

(May 15, 1995)

Before DUHÉ, WIENER, and STEWART, Circuit Judges.

PER CURIAM: *

Petitioners M.J. Beebe, et al. petition for writ of mandamus

requesting vacatur of an order staying proceedings in a case styled

Beebe v. Atlantic Financial Federal ( Beebe ), 1 pending the trial of

an older and larger companion case styled Cogan v. Triad American

Energy ( Cogan ). 2 We required the defendants in B eebe (Respondents)

to respond to Petitioners' petition, and invited the district court

to do so. Only Respondents responded. Finding the petition to

have merit, we grant the petition for mandamus as more particularly2

specified below, and remand to the district court for proceedings

consistent with this order.

I

FACTS AND PROCEEDINGS

The Petitioners are plain tiffs in B eebe

. They, like the

plaintiffs in Cogan

, are among numerous investors in a series of

limited partnerships organized by Tr iad American Energy for the

purpose of developing wind turbine parks in Southern California.

Plaintiffs in both cases allege that the limited partnerships were

actually a classic Ponzi scheme constituting securities fraud, and

have named as defendants many of the same parties.

Cogan was filed in 1987 and removed to federal court in 1988.

Several other groups of investors, including Petitioners,

subsequently filed suit in several states. All of those related

cases were later consolidated pursuant to the Rules Governing

Multi-District Litigation (MDL). During the consolidated pre-trial

proceedings, Petitioners coordinated and participated in discovery

with other plaintiffs. In 1992, the consolidated pre-trial

proceedings in the MDL ended and all cases were remanded to their

original courts, as a result of which Cogan and Beebe were

transferred to the same judge of the United States District Court

for the Southern District of Texas.

Following that remand, the d istrict court held a status

conference in Cogan

, during which, Respondents contend, the parties

discussed the identity of issues and claims in Cogan and Beebe

.

S hortly thereafter, on December 16, 1992, the district court sua3

sponte stayed B eebe "until after the trial of Cogan ." The court

did not articulate reasons for entering the stay.

On January 7, 1993, Petitioners filed a motion to vacate the

stay, which the district court denied. The court did not

articulate reasons for the denial. About a month later,

Petitioners filed a motion asking the court to rehear a motion to

vacate the stay. The district court denied the motion. The court

did not articulate reasons for its denial, but it did clarify that

the stay did not prohibit the parties from negotiating a

settlement, filing motions related to a settlement, or mediating

the dispute.

On September 30, 1993, Petitioners filed a second motion to

lift the stay, pointing out that nine months had passed since the

imposition of the order and that "the end i s nowhere in sight":

"No trial date is expected in the Cogan case for the foreseeable

future." Not surprisingly, Respondents opposed the motion, stating

conclusionally that the court was conserving judicial resources and

decreasing the cost of litiga tion for all parties by maintaining

t he stay until after the trial of C ogan

. The district court has

never responded to the Petitioners' motion.

On December 5, 1994, Pe titioners filed a Motion for Status

Confere nce, asking the district court to schedule a status

conference pursua nt to Federal Rules of Civil Procedure Rule 16.

They requested that the stay be lifted so that they could complete

discovery and, if at all possible, that the district court schedule

a trial date. Respondents opposed this motion too, contending that3 In re Ramu Corp. , 903 F.2d 312, 317 (5th Cir. 1990).

4 Petitioners had failed to show "good cause" why the district court

should abandon its earlier ruling. On December 27, 1994, the

district court denied the Petitioners' Motion for Status

Conference. The court did not articulate reasons for the denial.

Petitioners filed a Petition for Writ of Mandamus on April 11,

1995, by which time Beebe had been stayed in the district court for

well over two years, during which period no explanation had been

articulated by the district court. Although dispositive motions

were filed by both parties in Cogan more than a year ago, the

district court has not ruled on those motions; neither has the

district court scheduled a trial date for Cogan . Respondents

oppose mandamus, stating (without record citation) th at "the

district court has informed the parties" that decisions on the

dispositive motions in Cogan are forthcoming, and that the stay is

con tinuing to save the court and all litigants substantial

resources.

II

DISCUSSION

A. M ANDAMUS

"[M]andamus is an extraor dinary remedy, not to be granted

lightly." 3 As we recently observed, however, when mandamus is

sought to lift a stay of a trial court proceeding, as here, the

circumstances "are less foreboding than the usual case," as the

district court "can lay claim to no greater familiarity with the

matter th an can be gleaned from the pleadings" and "there is no4 Id. at 318.

5 Id.

6 299 U.S. 248 (1936).

7 Id. at 254.

8 Id. at 254-55.

5 interruption with ongoing proceedings below." 4

B. S TANDARD OF R EVIEW

We review the district court's decision to impose a stay only

to determine whether there has been a n abuse of discretion. 5 We

note at the outset, however, that our review of the district

court's judgment in this case is severely hampered by that court's

complete silence regarding why it imposed the stay in the first

instance and, more important to the instant petition, why it

continues to maintain that stay )) two and one-half years later and

no end in sight.

C. D ISTRICT C OURT ' S P OWER T O C ONTROL ITS D OCKET

We commence our review by canvassing the familiar landscape of

the limits of a district court's authority to control its own

docket. In Landis v. North American Co.

, 6 the Supreme Court

recognized that incidental to a district court's inherent power "to

control the disposition of the causes on its docket with economy of

time and effort for itself, for counsel, and for litigants" is "the

power to stay proceedings." 7 The Court noted that "how this can

best be done calls for the exercise of judgment, which must weigh

competing interests and maintain an even balance." 8 Thus, a

district court has a "discretionary power to stay proceedings9 McKnight v. Blanchard , 667 F.2d 477, 479 (5th Cir. 1982);

see In re Ramu Corp. , 903 F.2d at 318 ("The stay of a pending

matter is ordinarily within the trial court's wide discretion to

control the course of litigation, which includes authority to

control the scope and pace of discovery.").

10 Wedgeworth v. Fibreboard Corp. , 706 F.2d 541, 545 (5th

Cir. 1983).

11 Landis , 299 U.S. at 257.

12 See, e.g.

, id. at 258.

13 Wedgeworth , 706 F.2d at 545 (quoting McKnight , 667 F.2d at

479).

6 before it in the control of its docket and in the interests of

justice," 9 bu t this control is not "unbounded." 1 0 With this

guidance in mind, we consider the efficacy of the initial order

imposing the stay; and whether, if initially justified, subsequent

events have robbed that original judgment of it rationale.

1. Original Imposition of the Stay

The Supreme Court has advised that a stay must be "so framed

in its inception that its force will be spent within reasonable

lim its, so far as they are susceptible of prevision and

description." 1 1 There is nothing per se impermissible, however,

about staying a lawsuit until after another related action has been

tried. 12

But "befo re granting a stay pending resolution of another

case, the court must carefully consider the t ime reasonably

expected for resolution of the `other case,' in light of the

principle that `stay orders will be reversed when they are found to

be immoderate or of an indefinite duration.'" 1 3 There is nothing

in the record to indicate that before staying Beebe the district14 Landis , 299 U.S. at 258.

7

court actually considered how long it would take to try Cogan

,

although it appears from both parties' b riefs that all believed

t hat, at a minimum, dispositive rulings on pretrial motions were

just around the corner and that a trial schedule would not be long

behind. As time has tolled, however, neither belief has proven to

be well founded.

I n any event, we cannot conclude that the district court

abused its discretion when it originally ordered the stay of Beebe

until after the t rial of C ogan

. Although the stay may have

interrupted Petitioners' discovery schedule, as they claim, Cogan

is an older and larger case; it i nvolves many similar issues and

claims; and, at that time the stay was ordered, it appeared to be

ready for trial. Ordering a stay under those circumstances was

certainly not an abuse of discretion.

2. Maintaining the Stay

But t he Supreme Court has also stated that courts should

reconsider the fairness of a stay order in light of "present day

realities." 14 The realities today ) ) almost two and one-half years

after the Beebe stay was initially imposed )) are that in Cogan the

district court still has not ruled on several dispositive motions

(filed mor e than a year ago), much less set a trial date. To

ascertain whether the district court has now abus ed its broad

discretion in this area, we must weigh the competing interests, as

they now exist, and determine whether the equities continue to15 See Wedgeworth , 706 F.2d at 545.

16 Id. (quoting Landis , 299 U.S. at 255).

8 justify a stay. 15 This typically difficult task is made more

difficult in the instant situ ation because, like Petitioners, we

have not been favored with the district court's reasoning for

continuing to maintain the stay in full force and effect.

Petitioners argue that the current equities require that the

stay be lifted. They note that many things have happened since the

stay was first imposed, e.g.

, one defendant bank has filed for

bankruptcy and certain partnership assets have been sold to third

parties, thus reducing Petitioners' ability to recover damages in

the event that they a re ultimately successful in their lawsuit.

Furthermore, Petitioners express the fear that relevant partnership

business records may well be lost and that the memories of key

witn esses may well be fading. We find these concerns to be

reasonable and the equities weighty.

Although the district court sua sponte stayed B eebe until

after Cogan is tried, Respondents now fully embrace that decision

and have become its foremost (not to mention only) overt advocate

on appeal. As such, they have essentially become the suppliant for

maintaining the stay, and "[a] party wh o seeks a stay bears the

burden of justifying a delay tagged to another legal proceeding:

[T]he suppliant

. . . 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 some one else. Only in rare

circumstances will a litigant in one cause be compelled

to stand aside while a litigant in another settles the

rule of law that will define the rights of both." 169

Essentially, the only hardship that Respondents claim is that if

the stay is lifted before Cogan is decided they could incur

unnecessary li tigation expenses. In particular, they argue, it

would be a waste of Respondents' resources to respond to

Petitione rs' discovery requests regarding issues or matters that

the district court may later deem to have no merit in Cogan . (Of

course, every defendant in a lawsuit faces this "inequity.") In

addition, the Respondents note that the district cou rt too is

preserving resour ces by handling the cases seriatim, as the

resoluti on of issues in C ogan will pare down the scope of the

issues, and thus the litigation, in Beebe

.

Although we are mindful of the increased cost of litigation to

parties, the congested dockets of our federal district courts, and

the scarcity of judicial resources, we nonetheless cannot conclude

that a careful weighing of the equi ties still warrants

maintaining )) in its entirety )) the comprehensive stay ordered by the

district court almost two and one-half years ago.

We find particularly compelling Petitioners' concerns

regarding the need to complete discovery. Respondents attempt to

minimize this concern by essenti a lly arguing that Petitioners

overstate the need to conduct discovery: "[V]irtually all fact

discovery was completed in the Beebe case (with the exception of

the completion of the depositions of [Petitioners])" at the time

the stay was entered. But we find this position disingenuous in

light of Respondents' Opposition to Plaintiffs' Motion for Status

Conference, in which those same Respondents claimed that "discovery17 Landis , 299 U.S. at 256.

10

was far from complete" at the time the stay was entered. But if

little additional discovery is necessary, as Respondents now claim

on appeal, what's their bee f? The cost of complying with such

minimal discovery requests should be relatively small, imposing a

minimal hardship on the Respondents. On the other hand, a

continued delay in permitting Petitioners to acquire documents and

depose witnesses necessary to the eventual pursuit of their cause

of action could well lead permanently to the loss of those

documen ts or those recollections, thereby forever impeding the

search for truth in this litigation.

We also believe that Respondents overstate the extent of

judicial resources to be saved by maintaining this stay.

Foreclosing all discovery does not conser ve significant judicial

resources; ty pically, it is the parties, not the district court,

who are the active participants in that pre-trial stage of the

litigation process. Expenditure of judicial resources accelerate

most briskly as trial nears; and as C ogan instructs, even if the

in stant litigation continued unabated from this day forward, it

will probably be a long time before these parties have their day in

court.

Neither is this case one involving is sues of "extraordinary

public moment." In such cases, the Supreme Court has noted, "the

individuals may be required to submit to delay not immoderate in

extent and not oppressive in its consequences if the public welfare

or convenience will thereby be promoted." 1718 See Itel Corp. v. M/S Victoria U (Ex Pishtaz Iran) , 710

F.2d 199, 203 (5th Cir. 1983).

19 Hines v. D'Artois , 531 F.2d 726, 737 (5th Cir. 1976).

11 Returning to appl i cable legal parlance, we conclude that

Petitioners have established that the current stay is of indefinite

duration and is immoderate. The stay is of indefinite duration as

evidenced by the passage of almost two and one-half years; and we

agree with Petitioners th at "the end is nowhere in sight." The

stay is immoderate as the equities no longer warrant such a

pervasive halt to the Beebe proceedings. In fact, at this point

the contin ued proscription on all discovery is almost certainly

having an adverse, rather than salutary, effect on the litigation.

Most troubling is the very real potential that valuable information

regarding important issues in the case may be lost forever should

this stay be maintained as to discovery. Consequently, the

continued imposition of the stay imposes the "greater and the less

remediable burden" on Petitioners. 1 8 As our late lamented

colleague, Judge Goldberg, once wrote:

We must always have great respect for a trial

court's judicial discretion in the control of

its docket, but we cannot abdicate our roles

in monitoring that discretion to prevent the

ossif ication of rights which attends

inordinate delay. 19

III

CONCLUSION

We conclude that the equities can no longer justify the

comprehensive order staying Beebe

, and that, at a minimum, the

district court must permit discovery to proceed expeditiously and20 We do not know, for example, either the current posture of

Cogan , or the current posture of the district court's docket, and

recognize that the district court is in a better position than we

to judge such matters.

12 unimpeded. But due to the Sphinxian silence of the district court,

the record is devoid of facts and reasons from which to ascertain

whether the equities might warrant a stay of more modest scope. 20

We therefore grant Petitioners' request for writ of mandamus

and instruct the district court forthwith to vacate its o rder

staying Beebe until after the trial of Cogan

. We also remand this

matter to the district court for the limited purpose of conducting

an expedited hearing to determine anew whether the equities might

warrant the imposition of a new stay of more limited extent in

light of "present day realities." In no event, however, may any

new stay prevent or impede any party's conduct of appropriate

discovery in Beebe

. In considering whether a stay of limited

proportion may be warranted, we instruct the district court to

weigh carefully, on the record, the competing equities as described

by the Supreme Court in Landis

. Failure of the court to conduct

and complete the consideration of a new, more limited stay in this

matter within ninety (90) days following the entry of this Order

shall, ipso facto, preclude the reimposition of any stay in the

subject proceedings.

Petitioners' petition for writ of mandamus is GRANTED, and the

matter is REMANDED for proceedings consistent with this Order.