Boim v. Quranic Literacy Institute , 297 F.3d 542 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-1969 & 01-1970
JOYCE BOIM and STANLEY BOIM,
Individually and as Administrator of the
ESTATE OF DAVID BOIM,
Plaintiffs-Appellees,
v.
QURANIC LITERACY INSTITUTE
and HOLY LAND FOUNDATION FOR
RELIEF AND DEVELOPMENT,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2905—George W. Lindberg, Judge.
____________
JULY 15, 2002*
____________
ON MOTION TO STAY THE MANDATE
____________
ROVNER, Circuit Judge (in chambers). This matter is
here on the July 10, 2002 motion of the Holy Land Founda-
tion For Relief and Development (“HLF”) to stay the man-
date. HLF fashions its motion under Federal Rule of Ap-
* This opinion was initially released in typescript.
2 Nos. 01-1969 & 01-1970
pellate Procedure 41(d)(2)(A), which provides that a party
may move to stay the mandate pending the filing of a
petition for a writ of certiorari in the Supreme Court. Un-
der the rule, the motion “must show that the certiorari
petition would present a substantial question and that
there is good cause for a stay.” Fed. R. App. P. 41(d)(2)(A).
In making its case for good cause, HLF states that:
HLF has not had a sufficient opportunity to consult
with counsel prior to issuance of the mandate on July
11, 2002 regarding whether HLF will seek a writ of
certiorari from the U.S. Supreme Court. However, HLF
is actively considering filing a petition with the U.S.
Supreme Court. HLF expects to make a decision with-
in the next few weeks. If HLF decides not to seek a writ
of certiorari, HLF will immediately file written notice
with this Court.
Defendant-Appellant The Holy Land Foundation for Relief
and Development’s Motion for Stay of Mandate, ¶ 9. HLF
seeks to avoid defending this action in the district court
while its petition for certiorari is pending in the Supreme
Court, if indeed it decides to file such a petition.
“The grant of a motion to stay the mandate ‘is far from a
foregone conclusion’ ” Books v. City of Elkhart, 239 F.3d 826,
827 (7th Cir. 2001). The factors we normally consider in
deciding whether to grant such a motion include whether
the applicant has a reasonable probability of succeeding
on the merits and whether the applicant will suffer irrepa-
rable injury. United States ex rel. Chandler v. Cook County,
282 F.3d 448, 450 (7th Cir. 2002). These factors are difficult
to consider here because HLF seeks a stay not to file a
petition for a writ of certiorari but to have time to decide
whether it wishes to file such a petition in the first place.
HLF cites no authority for this novel use of rule 41(d)(2)(A).
Moreover, we issued our opinion in this matter on June 5,
2002, and denied HLF’s petition for rehearing with sug-
Nos. 01-1969 & 01-1970 3
gestion for rehearing en banc on July 3, 2002. HLF does
not explain why it has not had sufficient time to consult
with its attorneys in the five weeks since the opinion was
issued. Thus, HLF has not made a showing of good cause.
Because its motion does not meet the basic criteria for ap-
plication of the rule, and because it fails to make a showing
of good cause for issuance of a stay, the motion is denied.
The mandate will issue on July 22, 2002.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-23-02