Ruff v. Zumwalt, et al, No. 1:2005cv00631 - Document 237 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION and ORDER Granting Defendants' Ex Parte Application for Stay of Enforcement of Judgment Pending Post Trial Motions and Appeal, signed by Judge Oliver W. Wanger on 12/18/2009. (Verduzco, M)
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DANIEL E. RUFF, 10 Plaintiff, 11 vs. 12 13 COUNTY OF KINGS, et al., 14 Defendants. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-631 OWW/GSA MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' EX PARTE APPLICATION FOR STAY OF ENFORCEMENT OF JUDGMENT PENDING POST TRIAL MOTIONS AND APPEAL (Doc. 212) 17 Judgment for Plaintiff for monetary damages was entered 18 under Rule 54(b), Federal Rules of Civil Procedure, on September 19 24, 2009. 20 judgment pending resolution of post trial motions and appeal was 21 filed on October 26, 2009 and was opposed by Plaintiff on October 22 27, 2009. 23 because Plaintiff's post trial motions for prejudgment interest 24 and declaratory relief and Defendants' renewed motion for 25 judgment or for new trial were 26 Plaintiff's motion for attorney's fees was filed on October 22, Defendants' application for stay of enforcement of To some extent, Defendants application is moot heard on November 23, 2009. 1 1 2009 and is now noticed for hearing on February 22, 2010. 2 Rule 4(a)(4)(A), Federal Rules of Appellate Procedure, provides: If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: 3 4 5 6 (i) for judgment under Rule 50(b); 7 (ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment; 8 9 (iii) for attorney s fees under Rule 54 if the district court extends the time to appeal under Rule 58; 10 11 12 13 (iv) to alter or amend the judgment under Rule 59; 14 (v) for a new trial under Rule 59; or 15 (vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered. 16 17 18 Rule 58(e), Federal Rules of Civil Procedure, provides: 19 Ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a timely motion for attorney s fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become effective to order that the motion have the same effect under Federal Rules of Appellate Procedure 4(a)(4) as a timely motion under Rule 59. 20 21 22 23 24 All of these motions extend the time to file the notice of 25 appeal. Consequently, the only issue to be resolved is whether a 26 2 1 stay of enforcement of the Judgment should be granted pending 2 appeal. 3 Rule 62(d), Federal Rules of Civil Procedure, provides: 7 If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond. 8 Defendants represent their intent to appeal the Judgment and any 9 post trial rulings. 4 5 6 Although they request that the stay of 10 judgment be issued without the requirement of a supersedeas bond, 11 Defendants also state they will post a supersedeas bond if 12 required by the Court and request that the supersedeas bond be 13 limited to the amount of the Judgment, i.e., $200,000. 14 explained in Wright, Miller & Kane, 11 Federal Practice and 15 Procedure, § 9405: As 19 Although the amount of the bond usually will be set in an amount that will permit satisfaction of the judgment in full, together with costs, interest, and damages for delay, the courts have inherent power ... to provide for a bond in a lesser amount or to permit security other than the bond. 20 Plaintiff, referring to arguments made in support of his 16 17 18 21 motion for declaratory and ancillary relief, contends that 22 granting a stay of enforcement of the Judgment pursuant to Rule 23 62 during the pendency of the appeal will cause Plaintiff 24 irreparable harm, including the likely loss of the subject 25 property, the continued inability to move forward with his 26 recycling center until proceedings are fully and finally 3 1 resolved, and additional damages as a result of the further delay 2 of the vindication of the procedural due process rights found by 3 the jury. 4 and ancillary relief is granted, which motion includes a request 5 an injunction compelling immediate payment of the monetary 6 damages awarded by the jury, Rule 62(a) precludes a stay of 7 enforcement of a final judgment in an action for an injunction 8 even if an appeal is taken. 9 Plaintiff asserts that, if his motion for declaratory As Wright, Miller & Kane, supra, explains, [i]f a judgment 10 includes both a money award and the grant or denial of an 11 injunction, a supersedeas bond stays the monetary award but not 12 that part of the judgment that deals with injunctive relief. 13 seeking an injunction compelling the immediate payment of the 14 monetary portion of the Judgment, Plaintiff is attempting to 15 preclude Defendants right to stay enforcement of the Judgment by 16 filing a supersedeas bond. 17 appeal and post a supersedeas bond, the Court does not have the 18 authority to compel payment of the Judgment while it is on 19 appeal. 20 1077, 1085 (9th Cir.2009)(Kleinfeld, J., concurring): 21 22 23 24 25 26 If Defendants file a notice of By As explained in Exxon Valdez v. Exxon Mobil, 568 F.2d The rationale for a supersedeas bond is that there can be no certainty about who is in the right until the appeals are done; the party that lost should not have to pay the winner until the district court s decision is finally affirmed, but in the meantime, the party that won in district court should not be at risk of the money disappearing. To protect the winner from the risk that the loser will not have the money if and when the judgment is affirmed, the bond is ordinarily 4 secured by property or by surety. 1 2 At the hearing, Plaintiff requested that the Court compel 3 payment by Defendants of $70,000.00 of the Judgment and asserted 4 that Plaintiff could post the Property as security for repayment 5 of that amount if the Judgment is reversed on appeal. 6 Plaintiff provides no authority that the Court can compel 7 partial payment of a Judgment if a supersedeas bond is posted. 8 There are practical difficulties to Plaintiff s approach. 9 Plaintiff will not have fee title to the property until he makes 10 the timely $70,000 balloon payment to Mr. Brieno. 11 oral assurances that he will then have fee simple title to the 12 property free and clear of any liens and that the value of the 13 property will suffice to secure the payment of $70,000 of the 14 Judgment, Defendants are entitled to the protection of a title 15 report and an appraisal, for which Defendants cannot be expected 16 to pay. 17 applicable procedures for enforcement of a judgment against a 18 local public entity. 19 to pay a final money judgment in a fiscal year in which there are 20 not funds to do so. 21 County has sufficient funds in this fiscal year to pay any 22 portion of the Judgment. 23 Plaintiff s Finally, Government Code §§ 970.4 - 970.6 set forth the The local public entity cannot be compelled Plaintiff presents no evidence that the The supersedeas bond should reflect the amount of monetary 24 damages, prejudgment interest, recoverable costs, and some amount 25 for delay. 26 assumed that the County of Kings will actually have the funds to Based on the present economic climate, it cannot be 5 1 pay these amounts should the jury s verdict be affirmed on 2 appeal. Defendants shall post a supersedeas bond in the amount of 3 4 $250,000.00. 5 For the reasons stated, Defendants application for stay of 6 enforcement of the judgment for money damages pending resolution 7 of post trial motions and appeal is GRANTED subject to Defendants 8 posting a supersedeas bond in the amount of $250,000.00 and in a 9 form and by a surety, in accordance with the requirements of law 10 as to the surety s financial ability to pay the bond. IT IS SO ORDERED. 11 12 Dated: 668554 December 18, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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