1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

VESTA CORPORATION, 

No. 3:14-cv-1142-HZ

Plaintiff,

OPINION & ORDER

v.

AMDOCS MANAGEMENT 

LIMITED and AMDOCS, INC., 

Defendants.

Andrew Ong

ORRICK, HERRINGTON & SUTCLIFFE LLP

1000 Marsh Road

Menlo Park, CA 94025

Daniel T. Keese

Erick J. Haynie

Joanna T. Perini-Abbott

Julia E. Markley

Stephen English

Alletta S. Brenner

Meredith M. Price

Case 3:14-cv-01142-HZ Document 323 Filed 11/07/16 Page 1 of 8
2 – OPINION & ORDER

PERKINS COIE, LLP 

1120 NW Couch Street, 10th Floor 

Portland, OR 97209

Karen B. Bloom

PERKINS COIE, LLP (Seattle)

1201 Third Avenue, Suite 4800

Seattle, WA 98101

Charles H. Samel

PERKINS COIE, LLP (Los Angeles)

1888 Century Park East, Suite 1700

Los Angeles, CA 90067

Scott D. Eads

Jason A. Wrubleski

SCHWABE, WILLIAMSON & WYATT

1211 SW 5th Avenue, Suite 1600

Portland, OR 97204

Attorneys for Plaintiff

Andrew G. Klevorn

Bruce G. Vanyo

Yonaton M. Rosenzweig

Christina Lucen Costley

KATTEN MUCHIN ROSENMAN, LLP

2029 Century Park East, Suite 2600 

Los Angeles, CA 90067

Meegan I. Maczek

Richard H. Zelichov 

Kristin J. Achterhof

KATTEN MUCHIN ROSENMAN, LLP

525 West Monroe Street

Chicago, IL 60661

Joshua L. Ross 

Robert A. Shlachter

Jennifer S. Wagner

Timothy S. DeJong

STOLL STOLL BERNE LOKTING & SHLACHTER, PC

209 SW Oak Street, Fifth Floor 

Portland, OR 97204 

Attorneys for Defendants

Case 3:14-cv-01142-HZ Document 323 Filed 11/07/16 Page 2 of 8
3 – OPINION & ORDER

HERNÁNDEZ, District Judge:

Defendants Amdocs Management Limited and Amdocs, Inc. move to stay this action 

pending the outcome of their appeal of this Court’s Opinion & Order denying Defendants’ 

motion to dismiss Plaintiff Vesta Corporation’s Third Amended Complaint (TAC) and this 

Court’s Opinion & Order denying Defendants’ motion for reconsideration. See Vesta Corp. v. 

Amdocs Mgmt. Ltd., No. 3:14-CV-1142-HZ, 2016 WL 3436415, at *1 (D. Or. June 16, 2016)

(“Motion to Dismiss Order”), reconsideration denied sub nom. Vesta Corporation, Plaintiff, v. 

Amdocs Management Limited & Amdocs, Inc., Defendants., No. 3:14-CV-1142-HZ, 2016 WL 

4541035 (D. Or. Aug. 31, 2016) (“Reconsideration Order”). Because Defendants fail to show a 

likelihood of success on the merits of their appeal or a likelihood of irreparable injury absent a 

stay, the Court denies the motion for a stay.1

BACKGROUND

On June 16, 2016, this Court denied Defendants’ motion to dismiss Plaintiff’s TAC. Id.

Defendants had moved to dismiss the TAC to the extent it included new allegations regarding 

Sprint, T-Mobile, and Vodafone, arguing that such allegations were subject to arbitration. The 

Court held, in relevant part, that the dispute between the parties regarding Sprint and T-Mobile 

was not subject to the arbitration provision found in the Memorandum of Understanding the 

parties signed on September 30, 2010. Id. at *8.

On August 31, 2016, this Court denied Defendants’ motion to reconsider the Court’s June 

16, 2016 Opinion & Order. The Court held that Defendants’ motion was premised upon 

arguments that could and should have been raised when litigating the underlying motion.

 

1 Defendants move alternatively for a protective order staying discovery. This issue is resolved by the 

Court’s conclusions in this Opinion & Order and the informal discovery dispute hearings the Court has 

held with the parties pursuant to Rule 26. Defendants’ alternative motion is denied.

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4 – OPINION & ORDER

Reconsideration Order at *1. Because additional background facts and the Court’s reasoning are 

detailed in the June 16, 2016 and August 31, 2016 rulings, the Court does not repeat them here.

STANDARDS 

A stay pending appeal is not “a matter of right.” Nken v. Holder, 556 U.S. 418, 433 

(2009). It is subject to the court's discretion, and is exercised only if warranted by the 

“circumstances of the particular case.” Id. “The party requesting a stay bears the burden of 

showing that the circumstances justify an exercise of that discretion.” Id. at 433–34.

Courts consider the following four factors before issuing a stay: “(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.” Golden Gate Rest. Ass'n v. City and Cnty. of S.F., 512 F.3d 1112, 1115 (9th Cir. 

2008) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

DISCUSSION

I. Likelihood of success on the merits

To justify a stay, Defendants must show that they have a “substantial case for relief on 

the merits.” Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011). This may be met by 

showing “a probability of success on the merits” or that “‘serious legal questions are raised,’

depending on the strength of the petitioner's showing on the other stay factors.” Id. at 967. 

Defendants contend that their appeal satisfies both standards. The Court disagrees.

a. Probability of success on the merits

Defendants contend that they make a strong showing that success on the merits is likely. 

However, their arguments merely repeat those made in their previous motions and do nothing to 

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5 – OPINION & ORDER

alter this Court’s prior conclusions. This Court has spent a considerable amount of time 

considering Defendants’ arguments and nothing that Defendants raise in the present motion leads 

the Court to believe that its June 16, 2016 or August 31, 2016 Orders were incorrect. Thus, under 

this standard, Defendants fail to show a likelihood of success on the merits of their appeal.

b. Serious legal question

While the Ninth Circuit has not defined what makes a legal question “serious,” courts 

have found that a question is serious when it raises an issue of first impression within the Ninth

Circuit or involves a split of legal authority. See, e.g., Britton v. Co-op Banking Grp., 916 F.2d 

1405, 1412 (9th Cir. 1990); Mohamed v. Uber Techs., et al, 115 F. Supp. 3d 1024, 1029 (N.D. 

Cal. 2015) (citing cases); Guifu Li v. A Perfect Franchise, Inc., No. 5:10-CV-01189-LHK, 2011 

WL 2293221, at *3 (N.D. Cal. June 8, 2011). “For a legal question to be ‘serious,’ it must be a 

‘question going to the merits so serious, substantial, difficult and doubtful, as to make the issues 

ripe for litigation and deserving of more deliberate investigation.’” Guifu Li, 2011 WL 2293221, 

at *3 (quoting Walmer v. United States DOD, 52 F.3d 851, 854 (10th Cir. 1995)). 

Here, Defendants argue that their appeal raises the “serious legal question” of whether a 

valid arbitration agreement divests the Court of subject matter jurisdiction to decide matters 

within the scope of the agreement. Defs.’ Mot. 5, ECF 277. According to Defendants, this Court 

recognized “two seemingly contradictory legal principles”: (1) a party may waive its right to 

arbitrate a dispute and (2) several courts have granted motions to dismiss based on an arbitration 

clause pursuant to Rule 12(b)(1). Id. (citing the Reconsideration Order).

Defendants, however, mischaracterize this Court’s Reconsideration Order. This Court 

recognized that there appears to be disagreement among courts regarding which Rule of Civil 

Procedure to invoke when dismissing an action pursuant to a valid arbitration agreement. 

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6 – OPINION & ORDER

Reconsideration Order at *3, n. 3. However, this Court was clear that “it is undisputed that a 

party may waive its right to arbitrate a dispute” and there is no question that “Defendants waived 

their right to send this case to an arbitrator for that determination.” Id. at *3. The fact that several 

courts, including this one, have granted motions to dismiss based on an arbitration clause 

pursuant to Rule 12(b)(1) does not convert this Court’s ruling into one that presents a “serious 

legal question.” 

This Court’s Motion to Dismiss Order found there was no valid arbitration agreement 

governing the dispute between the parties regarding Sprint and T-Mobile. The notion that

“arbitration is a matter of contract and a party cannot be required to submit to arbitration any 

dispute which he has not agreed so to submit,” see United Steelworkers of America v. Warrior & 

Gulf Navigation Company, 363 U.S. 574, 582 (1960), is neither novel nor up for debate within 

the Ninth Circuit. 

This Court’s Reconsideration Order denied Defendants’ motion because they raised an 

argument for the first time that could have been raised earlier in the litigation. Denying a motion 

for reconsideration on that basis relies on established precedent and is similarly not novel nor up 

for debate. See, e.g., Kona Enters., Inc. v. Estate of Bishop, 229 F. 3d 877, 890 (9th Cir. 2000)

(explaining that a motion for reconsideration “may not be used to raise arguments or present 

evidence for the first time when they could reasonably have been raised earlier in the litigation”). 

Defendants’ disagreement with this Court’s conclusions does not qualify as a serious legal 

question or an issue of first impression. Accordingly, Defendants fail to show a likelihood of 

success on the merits.

///

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7 – OPINION & ORDER

II. Irreparable harm

Defendants also fail to show that they will suffer irreparable harm absent a stay. 

Defendants cite Sample v. Brookdale Senior Living Communities, Inc., No. C11-5844 RJB, 

2012 WL 195175, at *2 (W.D. Wash. Jan. 23, 2012), for the proposition that appeal of an 

arbitration denial presents a unique situation in which monetary expenses incurred in litigation 

constitute irreparable harm. However, Defendants misstate the law.

In Sample, the court explained that “[i]f a party must undergo the expense of trial before 

being able to appeal a refusal to compel arbitration, the advantages of arbitration-speed and 

economy-are lost forever.” Id. (citing Alascom, Inc. v. ITT North Electric Company, 727 F.2d 

1419 (9th Cir. 1984)). In other words, courts are concerned with the irreparable harm that can 

result if a case proceeds to trial before the appeal is decided. Sample does not, however, stand for 

the proposition that any monetary expenses incurred leading up to a trial necessarily constitute 

irreparable harm. If that were true, then the irreparable harm factor would be met automatically 

in cases seeking the stay of a case pending an appeal of an arbitration denial. The Ninth Circuit 

has made it clear, instead, that district courts have discretionary authority to evaluate each 

motion based on individual circumstances. See Britton, 916 F.2d at 1412. Thus, any argument 

that proceeding through litigation necessarily causes irreparable harm is unpersuasive. Id.

III. Injury to Plaintiff and Public Interest

Defendants fail to satisfy the first two, crucial, factors courts consider when deciding 

whether to issue a stay. See id. (“The first two factors . . . are the most critical.”). It is therefore 

unnecessary to address the remaining two factors. See Mount Graham Coalition v. Thomas, 89 

F.3d 554, 558 (9th Cir. 1996) (finding no serious legal argument and thus declining to address 

any of the other factors relevant to the analysis of a stay pending appeal); see also, e.g., Loop AI 

Case 3:14-cv-01142-HZ Document 323 Filed 11/07/16 Page 7 of 8
8 – OPINION & ORDER

Labs Inc. v. Gatti, No. 15-CV-00798-HSG, 2016 WL 3001158, at *3 (N.D. Cal. May 25, 2016)

(“because Plaintiff has failed to establish likelihood of success, the Court need not compare the 

hardships involved in the granting or denial of the stay or address the balance of equities”). 

CONCLUSION

The Court denies Defendants’ Motion to Stay the Proceedings [277]. 

IT IS SO ORDERED.

Dated this ____________day of ________________________, 2016.

________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

Case 3:14-cv-01142-HZ Document 323 Filed 11/07/16 Page 8 of 8