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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11906
____________________
MARIA DOLORES CANTO MARTI,
as personal representative of the Estates of Dolores Martí Mercadé
and Fernando Canto Bory,
Plaintiff-Appellant,
versus
IBEROSTAR HOTELES Y APARTAMENTOS S.L.,
a Spanish limited liability company,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-11906
D.C. Docket No. 1:20-cv-20078-RNS
____________________
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and GRANT,
Circuit Judges.
GRANT, Circuit Judge:
Maria Dolores Canto Marti has waited almost three years
for Iberostar Hoteles y Apartamentos S.L. to respond to her
lawsuit. In January 2020 she sued Iberostar under the Helms-
Burton Act, which grants the right to sue companies trafficking in
property confiscated by the Cuban government.
22 U.S.C. § 6082.
Marti claims that Cuba seized her family’s hotel in 1961 and that
Iberostar and the Cuban government now operate the hotel
together.
Shortly after the suit was filed, the district court stayed the
case at Iberostar’s request. In support of the stay, Iberostar pointed
to a European Union blocking regulation that prohibits
participation in Helms-Burton suits—on pain of a fine that could
reach 600,000 euros here. Iberostar had applied for an exception to
the regulation, and the district court stayed the case pending the
European Commission’s decision. The suit has remained frozen
ever since.
As months passed with no progress from the European
Commission, Marti sought to end the stay. She twice moved to lift
it, first in July 2020 and again in March 2021. The district court
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refused, relying on international comity, fairness, and judicial
economy. Marti now appeals the denial of her second motion.
European Commission deliberations have stopped this case
in its tracks, with no end in sight. Marti has effectively been pushed
out of federal court. That means we have jurisdiction over the stay
order, which is “immoderate” and thus unlawful. It is indefinite in
duration and has stalled the case for almost three years.
Considering this delay, we find that any earlier justifications for the
stay have eroded. We reverse the district court’s denial of Marti’s
renewed motion and vacate the stay. The case must go on.
I.
The story of this suit began over sixty years ago. In 1959,
Fidel Castro seized power in Cuba and started to confiscate
property from thousands of United States nationals and millions of
his own citizens, many of whom later claimed asylum in the United
States. See
22 U.S.C. § 6081. According to Marti, the Cuban
government seized a hotel called “El Imperial” that belonged in
part to her father, Fernando Canto Bory, whose family had owned
the land and hotel since 1909. At some point, Bory and his wife,
Dolores Martí Mercadé, became United States citizens. Although
the two are now deceased, they allegedly never abandoned their
combined one-half interest in the property.
Iberostar entered the picture in 2016. That was the year
Marti says that Iberostar contracted with the Cuban government
to manage and operate El Imperial, now known as the Cubanacan
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Imperial. Marti alleges that Iberostar profits from this arrangement
without authorization from the true owners of the hotel, including
the heirs of Bory and Mercadé. She now sues for damages as the
personal representative of both estates under the Cuban Liberty
and Democratic Solidarity (LIBERTAD) Act of 1996,
22 U.S.C.
§§ 6021–6091.
Under that law, also known as the Helms-Burton Act, a
United States national who owns a claim to confiscated property
may sue any entity or person who “traffics in property which was
confiscated by the Cuban Government on or after January 1, 1959.”
22 U.S.C. § 6082(a)(1)(A). Although it was enacted more than
twenty-five years ago, Helms-Burton only recently gained teeth—
it had been suspended by every United States president since its
inception. But in 2019, the suspension lapsed. It has not been
renewed since.
What has been renewed is the importance of oppositional
measures taken by the European Union. Just a few months after
Helms-Burton was passed, the European Union enacted a
regulation barring EU companies from complying with “any
requirement or prohibition, including requests of foreign courts”
that is based on certain laws, including the Helms-Burton Act. See
Council Regulation 2271/96, arts. 5, 11, annex, 1996 O.J. (L 309) 1,
2–5 (EC). The regulation asserts that Helms-Burton could damage
European Union interests by spurring United States legal
proceedings against European companies.
Id. at 5. Member states
set their own penalties for violations, and Spain (where Iberostar is
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incorporated) imposes a fine of up to 600,000 euros for breaches.1
See
id. art. 9; B.O.E. 1998, 16716 art. 5 (Spain). No one contests
that the EU regulation seeks to obstruct suits like Marti’s—even
Iberostar has called it a “blocking regulation.”
The regulation does, however, create an exception.
Companies may petition the European Commission for
authorization to litigate under one of the disfavored laws, “to the
extent that non-compliance would seriously damage their
interests” or those of the European Union. See 1996 O.J. (L 309),
arts. 5, 7. As the Commission deliberates on these applications, it
is instructed to set its own internal deadlines while taking “fully
into account the time limits” that bind the person or entity applying
for the exception.
Id. art. 7(b).
Iberostar applied for an exception on April 15, 2020, a few
weeks before its answer was due. Right after applying, Iberostar
moved in the district court to stay the proceedings while it waited
for a decision from the Commission. The initial request was
limited to a stay of seventy-five days.
The district court granted the stay on April 24, 2020 in “the
interest of international comity.” The court’s order also
emphasized the fine that Iberostar could face if it chose to litigate
without authorization. Perhaps in recognition of that concern, the
1 Though the law expresses the fine in pesetas, Spain’s currency at the time of
passage, the parties agree that the maximum fine for a breach under Spanish
law is 600,000 euros.
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court stayed the case not for seventy-five days, as Iberostar had
requested, but “until the European Union grants Iberostar’s
request for authorization.” The court also required status reports
from Iberostar every thirty days.
Three months came and went with no decision from the
Commission. Marti moved to lift the stay, noting that more than
seventy-five days had passed. She also protested that she had no
way to evaluate the Commission’s progress; although she had
asked for copies of Iberostar’s application and other
correspondence, Iberostar refused to disclose any of its
communications with the Commission or Spanish authorities.
That left Marti (and the court) with only Iberostar’s status reports.
Apart from this information deficit, Marti argued, comity did not
demand that United States courts defer to proceedings under
foreign blocking statutes, and the indefinite stay was otherwise
improper. In response, Iberostar asserted that the stay was neither
improper nor indefinite because it was justified by international
comity and because the Commission proceeding was moving
forward.
The district court sided with Iberostar roughly two months
later, in a September 2020 order. Marti v. Iberostar Hoteles y
Apartamentos S.L., No. 20-20078-Civ,
2020 WL 5573265 (S.D. Fla.
Sept. 17, 2020). In deciding to maintain the stay, the court built its
analysis on three principles. The court reasoned that
(1) international comity favored a stay because the European
Commission has a “strong interest in evaluating its own rules and
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regulations”; (2) fairness to the litigants favored a stay because
Iberostar faced potential fines of up to 600,000 euros; and
(3) judicial efficiency favored a stay because “there is no reason to
presume that the European Commission is unlikely to render a
prompt decision.”
Id. at *2–4. The court also concluded that its
stay was “not indefinite because it will end as soon as the European
Commission rules on Iberostar’s application.”
Id. at *3.
Five more months passed, along with six more status
reports. In these reports, Iberostar relayed a few updates from the
Commission. According to Iberostar, in September 2020 the
Commission highlighted the “complexity” of the request. Two
months later the Commission blamed the “challenges presented”
by the Covid-19 pandemic for lengthening the process. The next
month it claimed to be “actively liaising” and it assured Iberostar
that any “assessments and investigations will shortly be completed
and the authorization process will pursue its course.” In February
2021, however, the Commission reported that its process had
“raised questions and possible gaps of information that require
further investigation.”
About two weeks later, in March 2021, Marti renewed her
motion to lift the stay and asked, in the alternative, for the district
court to certify an appeal under
28 U.S.C. § 1292(b). She reiterated
her previous arguments and emphasized the continuing passage of
time: “Over 300 days have passed since Defendant submitted its
application,” she said, and “there is no end in sight.” She also
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argued that Iberostar’s reports of its conversations with the
Commission revealed a pattern of endless delay.
The district court denied both requests two months later in
May 2021. But rather than considering the motion anew, the court
construed Marti’s filing as a motion to reconsider the earlier
September 2020 order denying the first motion to lift the stay.
“Reconsideration is appropriate only in very limited
circumstances,” the court said, and besides “the passage of
additional time, the circumstances presented by this matter have
not changed.” The court also clarified that the stay would last only
until the Commission issued a decision on Iberostar’s application,
even if that decision was a denial of the company’s request. Finally,
the court declined to certify the question for appeal under
§ 1292(b).
Marti now appeals the district court’s May 2021 denial of her
renewed motion to lift the stay, citing
28 U.S.C. § 1291 and the
collateral order doctrine for jurisdiction. She appeals only the May
2021 order, and not the earlier September 2020 denial or the
original April 2020 order staying the case.
II.
Whether Marti’s March 2021 motion is construed as a
motion for reconsideration or a renewed motion, we review for
abuse of discretion. See CTI-Container Leasing Corp. v. Uiterwyk
Corp.,
685 F.2d 1284, 1288 (11th Cir. 1982) (stay orders); Corwin v.
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Walt Disney Co.,
475 F.3d 1239, 1254 (11th Cir. 2007) (motions for
reconsideration).
III.
Marti styled her March 2021 filing as a renewed motion to
lift the stay, and we agree with that characterization. The motion
explained that circumstances had changed substantially since the
district court’s original denial in September 2020. Over five more
months had passed without a decision from the Commission—so
the length of the stay had more than doubled. And Marti had
learned from Iberostar’s status reports that the Commission had
reported delays in its process resulting from the complexity of the
issues, the Covid-19 pandemic, and various consultations that it
said required further investigation. The new circumstances here
are “important enough that the latest motion is a viable being in its
own right instead of merely a re-packaging in new garb of the
corpse of an old motion in an attempt to resurrect it.” Birmingham
Fire Fighters Ass’n 117 v. Jefferson Cnty.,
290 F.3d 1250, 1254 (11th
Cir. 2002). Significant updates—surrounding a stay with no
specified end date—rendered Marti’s request a renewed motion,
and not a motion for reconsideration.2
2 For these reasons, Marti’s appeal was also timely.
Marti appealed within the
standard thirty-day window for appeal of a “judgment or order.” See Fed. R.
App. P. 4(a)(1)(A). We allow appeals of motions to vacate preliminary
injunctions in similar circumstances. See Birmingham Fire Fighters Ass’n 117,
290 F.3d at 1254.
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The unique context of a stay admittedly leaves the line
between a renewed motion and a motion for reconsideration
blurry in some circumstances. But here, the district court needed
to review a wide range of facts and circumstances that had emerged
since its previous denial, all of which were crucial to deciding the
question. That is enough to satisfy us that this was necessarily a
renewed motion.
IV.
We now turn to whether we have jurisdiction to hear the
appeal. Congress has granted this Court jurisdiction to hear “final
decisions,” a term that ordinarily refers to decisions ending
litigation on the merits.
28 U.S.C. § 1291; Plaintiff A v. Schair,
744
F.3d 1247, 1252 (11th Cir. 2014). And the “usual rule,” is that a stay
falls outside that category. Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp.,
460 U.S. 1, 10 n.11 (1983). After all, stay
orders generally leave much to be decided. But some stays come
closer to ending litigation than to delaying it. When a stay order
puts a defendant “effectively out of court” we have used a
“practical construction of finality” to treat that order as final for
purposes of § 1291. Miccosukee Tribe of Indians of Florida v. South
Florida Water Mgmt. Dist.,
559 F.3d 1191, 1195 (11th Cir. 2009)
(quotations omitted). Because the court’s May 2021 denial left
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Marti effectively out of court, we conclude that we have
jurisdiction.3
A.
“Effectively out of court” jurisdiction was first recognized by
the Supreme Court in Idlewild Bon Voyage Liquor Corp. v.
Epstein,
370 U.S. 713 (1962). There, a district court had decided to
wait for state courts to decide a particular legal question before it
heard the plaintiff’s claims.
Id. at 714. There was just one
problem—no relevant state case had even been filed.
Id.
Consequently, the stay effectively barred the litigants from federal
court, which made the district court’s order final for jurisdictional
purposes.
Id. at 715 n.2. The Supreme Court later elaborated that
“most stays do not put the plaintiff ‘effectively out of court’”—but
“a stay order is final when the sole purpose and effect of the stay
are precisely to surrender jurisdiction of a federal suit to a state
court.” Moses H. Cone,
460 U.S. at 10 n.11.
To concede in that sort of jurisdictional surrender would
violate the federal courts’ “virtually unflagging obligation” to
exercise jurisdiction. See
id. at 15 (quoting Colorado River Water
Conservation Dist. v. United States,
424 U.S. 800, 817 (1976)). And
this same logic led our Circuit to extend “effectively out of court”
jurisdiction to stays entered out of deference to non-state
3 Marti also argued that jurisdiction is proper under the collateral order
doctrine. Because we have jurisdiction under § 1291, we need not consider
this argument.
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proceedings—including those in foreign countries. Miccosukee,
559 F.3d at 1195.
One way parties may be exiled from the federal court system
and thus “effectively out of court” is when their proceeding is
placed into what we have called a state of “suspended animation.”
Id. at 1197. In Miccosukee, we observed that this Court has found
suspended animation four times. See
id. Each time, a federal court
had entered a stay to wait for a different legal proceeding to
conclude—a case in Italian court, a case in a state court, a
jurisdictional inquiry in the Iran Claims Tribunal, and a proceeding
with the Equal Employment Opportunity Commission. See King
v. Cessna Aircraft Co.,
505 F.3d 1160, 1169 (11th Cir. 2007);
American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc.,
743
F.2d 1519, 1522–23 (11th Cir. 1984); CTI-Container,
685 F.2d at
1287–88; Hines v. D’Artois,
531 F.2d 726, 728–32 (5th Cir. 1976). 4
Those four cases also had something else in common: each
of their stays had resulted in “indefinite delays pending the
outcome of proceedings that were unlikely to control or to narrow
substantially the claims or unresolved issues in the stayed lawsuit.”
Miccosukee,
559 F.3d at 1197. The claims in those cases thus
“languished for no good reason.”
Id.
4 In our en banc decision in Bonner v. City of Prichard,
661 F.2d 1206, 1209
(11th Cir. 1981), we adopted as binding precedent all decisions of the former
Fifth Circuit handed down before October 1, 1981.
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Of course, not every stay puts a case in suspended
animation. In Miccosukee itself, the district court had stayed the
case to await the outcome of a parallel appeal—one that was filed
in the same federal district court, between the same parties, and
relating to largely the same issues. Id. at 1193, 1196–98. The
appealed case was “likely to have a substantial or controlling effect”
on the stayed case, which we said was a “good,” if not “excellent”
reason for the stay. Id. at 1198. Put another way, Miccosukee
lacked what unified our prior precedents: a stay resulting in
indefinite delays in favor of a proceeding that was unlikely to
substantially affect the merits of the stayed case.
B.
Guided by Miccosukee’s insights, we consider whether
Marti is effectively out of court by suspended animation.
To begin, it is plain enough that the stay here has resulted in
indefinite delays. When the district court issued the May 2021
order on appeal, the stay had already been in place for over a year—
a lengthy delay. And as the district court emphasized in its order,
the case will only proceed “once the European Commission
reaches a decision.” This condition puts the stay entirely at the
discretion of the Commission, a body that has not proved diligent
in its timing. A stay dependent on the complete discretion of a third
party is almost definitionally indefinite—it has no exact or even
reasonably foreseeable limits.
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Here, European discretion appears absolute. The blocking
regulation includes no deadlines or timetables for the application
process, and the Commission has not shown steady progress
toward a final decision. See 1996 O.J. (L 309), art. 7. And because
Marti and Iberostar agree that the regulation has “rarely been
tested, and never in the context of a Helms-Burton Act lawsuit such
as this one,” no party has pointed to a historical pattern that could
supply a practical estimate for the length of this process. Compare
CTI-Container,
685 F.2d at 1288 (finding stay indefinite where it
was “difficult to accurately predict” how long the Iran Claims
Tribunal would take to decide its jurisdiction), with Miccosukee,
559 F.3d at 1198 (declining jurisdiction over a stay while appeal was
pending in this Circuit). The “nature, extent, and duration” of the
EU proceeding is unknown; the stay is indefinite. Cessna Aircraft,
505 F.3d at 1169.
The Commission proceeding is also “unlikely to control or
to narrow substantially the claims or unresolved issues in the
stayed lawsuit.” Miccosukee,
559 F.3d at 1197. The proceeding is
entirely unrelated to the merits of this case. Instead, the
Commission will make a purely administrative decision: whether
to authorize Iberostar to defend itself in United States courts or
impede it from doing so. That is all—the administrative decision
will affect neither Marti’s claims nor Iberostar’s defenses. It will
not supply new facts or rule on issues relevant to these claims and
defenses. It has no relation to the claims or issues before the court.
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Iberostar protests that the Commission’s decision will
“control or significantly inform” this case because it will “govern
whether Iberostar will defend on the merits or will be required to
decide between defaulting or facing hefty fines.” We can see why
Iberostar would like to have that information—the Commission’s
decision will affect the company’s cost-benefit analysis, litigation
strategy, and incentives to settle. All the same, that decision will
not control or inform the legal or factual issues of the case.
We have retained jurisdiction to consider stays even when
the outside proceeding had a much stronger potential effect on the
stayed case than the one here. In CTI-Container, for example, the
Iran Claims Tribunal would have considered the merits of the
defendant’s impleader claim if it had concluded that it had
jurisdiction. See
685 F.2d at 1287–88. In Cessna Aircraft, both
proceedings involved facts about “the same accident” and the
district court believed the Italian case would resolve some of the
Italian law issues in the stayed case.
505 F.3d at 1164–65. And in
Hines, the EEOC action was based on the same alleged
discrimination, so any EEOC investigation or conciliation could
have informed the claims in the stayed case. See
531 F.2d at 728.
Even so, this Court still exercised jurisdiction in all three cases.
Jurisdiction is all the more appropriate here, where the
Commission’s administrative decision will have no conceivable
relation to the claims and issues of this case.
In sum, as of the district court’s May 2021 order (if not
before), Marti’s case was in suspended animation and she was
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effectively out of court. This case has the “one characteristic”
shared by all four previous cases in this Circuit of suspended
animation: a stay “resulting in indefinite delays pending the
outcome of proceedings that were unlikely to control or to narrow
substantially the claims or unresolved issues in the stayed lawsuit.”
Miccosukee,
559 F.3d at 1197. Jurisdiction is proper under
28
U.S.C. § 1291.
V.
Because we have jurisdiction, we move to the substantive
question—whether to vacate the stay. A district court has “general
discretionary power to stay proceedings before it in the control of
its docket and in the interests of justice.” Hines,
531 F.2d at 733.
Consequently, appellate courts will rarely interfere with stay
orders. But if a stay is “immoderate,” we must vacate it. Id.;
Ortega Trujillo v. Conover & Co. Commc’ns, Inc.,
221 F.3d 1262,
1264 (11th Cir. 2000). This one is.
Generally speaking, a stay is not “immoderate” or
“unlawful” if it is designed so that “its force will be spent within
reasonable limits.” Landis v. N. Am. Co.,
299 U.S. 248, 257 (1936);
see also CTI-Container,
685 F.2d at 1288. But if it goes beyond
those reasonable limits the equation changes. In evaluating
whether a stay is immoderate, this Court examines “both the scope
of the stay (including its potential duration) and the reasons cited
by the district court for the stay.” Trujillo, 221 F.3d at 1264.
Whether a stay is immoderate hinges on these “two variables.”
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Hines,
531 F.2d at 733. Here, these points overlap somewhat with
our jurisdictional analysis.
The first factor is easy enough: this stay is indefinite in
duration and scope. Again—the entire case is stayed until the date
of the Commission decision. That date cannot be predicted and
may never occur. Cf. Trujillo, 221 F.3d at 1264.
The second factor requires more analysis, though in the end
it also points against the stay—the district court’s reasoning is not
tenable. The court cited three reasons for its decision:
(1) international comity; (2) fairness to litigants; and (3) judicial
economy.5 These reasons cannot support the stay.
First, international comity. International comity works to
“promote justice between individuals, and to produce a friendly
intercourse between the sovereignties to which they belong.”
Hilton v. Guyot,
159 U.S. 113, 165 (1895) (quotation omitted). It is
not, however, a “matter of absolute obligation, on the one hand,
nor of mere courtesy and good will, upon the other.”
Id. at 163–
64.
5 These are the same three “principles” set out in Turner, which considered
whether a lawsuit should have been stayed or dismissed out of deference to
parallel German proceedings. See Turner Ent. Co. v. Degeto Film GmbH,
25
F.3d 1512, 1518 (11th Cir. 1994). Marti asserts that Turner is not an
appropriate comparator case, but we need not decide whether that framework
is workable here to analyze the court’s reasoning.
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Before considering international comity, a “threshold
question” is whether the proceedings are parallel. Seguros Del
Estado, S.A., v. Scientific Games, Inc.,
262 F.3d 1164, 1169–70 (11th
Cir. 2001). The two proceedings here are not because they involve
“materially different issues, documents, and parties.”
Id. at 1170;
see also Finova Cap. Corp. v. Ryan Helicopters U.S.A., Inc.,
180
F.3d 896, 898 (7th Cir. 1999) (“Suits are parallel if substantially the
same parties are litigating substantially the same issues
simultaneously in two fora.” (quotation omitted)). Marti is not a
party to the Commission deliberation. That deliberation will lead
to a foreign administrative decision, not a judicial act.6 And that
administrative decision will have no effect on the claims here—it
will only influence how one party chooses to litigate.
Three other circumstances of this case further blunt any
force international comity might have as a justification. The
Commission is deliberating under a regulation designed to block
United States law; Iberostar admits as much. And foreign blocking
statutes are not always given the same deference as other rules of
law. Cf. Société Nationale Industrielle Aérospatiale v. U.S. Dist.
Ct. for the S. Dist. of Iowa,
482 U.S. 522, 544 n.29 (1987). Just so
6 Our cases considering international comity have generally occurred in the
context of whether to abstain out of deference to a foreign court, not an
administrative body. See, e.g., Turner,
25 F.3d at 1523 (staying case out of
deference to judgment in a German court case); Posner v. Essex Ins. Co.,
178
F.3d 1209, 1224 (11th Cir. 1999) (staying case out of deference to Bermuda
court action); Belize Telecom, Ltd. v. Gov’t of Belize,
528 F.3d 1298, 1308
(11th Cir. 2008) (deferring to a judgment by a court in Belize).
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here, where the competing regulation does not just overlap with
United States law generally, but targets the basis for Marti’s suit
specifically. 1996 O.J. (L 309) at 5. We see no reason that comity
should require indefinite suspension of United States law so that a
foreign blocking statute can have its full effect.
Timing plays a role here too. Over two and a half years have
passed since Iberostar first filed its application. We need not decide
when comity expires to recognize that less deference is owed to the
Commission after a few years than after a few days. 7 In fact, the
regulation itself anticipates that applicants for an exception may be
under other deadlines; as we have said, it instructs the Commission
to take “fully into account the time limits which have to be
complied with” as it decides when to issue an opinion. 1996 O.J. (L
309), art. 7(b). It thus recognizes that comity may not always result
in indefinite—much less infinite—accommodation.
Finally, the Commission has not followed through on its
own deadlines. As long ago as December 2020, Iberostar reported
that the Commission’s “assessments and investigations” would
“shortly be completed.” One and a half “short” years later, the
Commission finally provided an estimated decision date. From
Iberostar’s August 2022 status report: “The Commission stated that
it was about to conclude its assessment and the Commission will
7 When asked, Iberostar’s counsel agreed that “at a certain point it does
become too long” to wait for the Commission.
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deliver its response ‘by mid-September 2022’ after the summer
recess.”
Mid-September has passed. As have mid-October and mid-
November. The Commission’s unwillingness to commit to its
own deadlines underscores the limits of international comity: less
deference and respect is owed to a foreign body that has not
followed through with its own representations about the length of
its proceeding. Comity cannot justify continuing this stay any
longer.
The second rationale the district court offered was fairness
to the parties. The court determined that the balance of harms
supported the stay because Marti’s harm was “speculative,” while
Iberostar’s was “immediate and concrete.”
We see the harms differently. When evaluating stays, courts
must also consider “the danger of denying justice by delay.”
Gillespie v. U.S. Steel Corp.,
379 U.S. 148, 153 (1964) (quotation
omitted). Even ignoring Marti’s concerns about ultimate relief, she
suffers an ever-mounting harm from each passing month without
an opportunity to present her arguments in court. Meanwhile,
Iberostar’s potential fine is anything but immediate and concrete.
Even if the Spanish government chooses to levy a fine—under a
regulation it has never used before—the amount is unclear. The
fine is up to 600,000 euros, which leaves a wide range. B.O.E. 1998,
16716 art. 5. And even if the stay were lifted and the Commission
did not grant an exception, Iberostar may never pay a fine in any
event; it could choose to settle, lobby the Spanish government for
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21-11906 Opinion of the Court 21
relief from the fine, or not participate in the suit. Iberostar’s harms
are thus more speculative than Marti’s. On balance, fairness to the
litigants does not favor continuing the stay.
Lastly, the court relied on the “efficient use of judicial
resources” in continuing the stay. In explaining this justification,
the court said only that judicial economy weighed in favor of the
stay because there was “no reason to presume that the European
Commission is unlikely to render a prompt decision.”
That rationale has evaporated. With the additional passage
of time, ample reason now exists to doubt the Commission’s
promptness. What’s more, because nothing the Commission says
will affect the merits of this case, waiting on its decision serves
more to conserve Iberostar’s resources than those of the United
States courts.
In short, all signs point to an immoderate stay. This stay’s
duration is indefinite, and the Commission has supplied no reliable
projection for the timing of its decision. Each reason cited to justify
the stay has either been eroded by the passage of time or negated
by the nature and progress (or lack thereof) of the Commission
proceeding. As a result, we conclude that the stay is immoderate
and must be vacated.
* * *
Almost three years have passed since Marti first filed her
lawsuit. She cannot recoup those three years. But now she can
pursue her claims, Iberostar can assert its defenses, and this suit can
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22 Opinion of the Court 21-11906
continue. We REVERSE the court’s May 2021 order denying the
renewed motion to lift the stay, VACATE the stay, and REMAND
for the case to proceed.
