Hollaar et al v. MarketPro South, No. 2:2022cv00559 - Document 45 (D. Utah 2023)

Court Description: MEMORANDUM DECISION AND ORDER- Plaintiff's 38 Motion for Stay of Enforcement of Judgment Pending Appeal and for Deposit of Judgment into Court is GRANTED. Plaintiff must deposit $38,551.26 with the Clerk of Court as secu rity under Fed. R. Civ. P. 62(b) and Fed. R. Civ. P. 67 by August 9, 2023. MarketPro's 36 Motion for Writ of Execution and 37 Ex Parte Motion for Hearing to Identify Judgment Debtors' Property are DENIED AS MOOT. Signed by Magistrate Judge Jared C. Bennett on 7/12/2023. (mh)

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Hollaar et al v. MarketPro South Doc. 45 Case 2:22-cv-00559-TS-JCB Document 45 Filed 07/12/23 PageID.329 Page 1 of 4 THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH LEE A. HOLLAAR, an individual; AUDREY M. HOLLAAR, an individual, MEMORANDUM DECISION AND ORDER Plaintiffs, Case No. 2:22-cv-00559-TS-JCB v. MARKETPRO SOUTH, a Maryland corporation, District Judge Ted Stewart Magistrate Judge Jared C. Bennett Defendant. District Judge Ted Stewart referred this case to Magistrate Judge Jared C. Bennett under 28 U.S.C. § 636(b)(1)(A). 1 Before the court are: (1) Defendant MarketPro South’s (“MarketPro”) Motion for Writ of Execution; 2 (2) MarketPro’s Ex Parte Motion for Hearing to Identify Judgment Debtors’ Property; 3 and (3) Plaintiffs Audrey M. Hollaar and Lee A. Hollaar’s (“Plaintiffs”) Motion for Stay of Enforcement of Judgment Pending Appeal and for Deposit of Judgment into Court. 4 The parties have agreed that enforcement of the judgment may be stayed so long as Plaintiffs deposit $38,551.26 with the Clerk of Court as security to all parties pending resolution of the appeal. 5 Therefore, the court grants Plaintiffs’ Motion for Stay of Enforcement 1 ECF No. 41. 2 ECF No. 36. 3 ECF No. 37. 4 ECF No. 38. 5 ECF No. 43 at 2; ECF No. 44 at 2. Dockets.Justia.com Case 2:22-cv-00559-TS-JCB Document 45 Filed 07/12/23 PageID.330 Page 2 of 4 of Judgment Pending Appeal and for Deposit of Judgment into Court. Consequently, the court denies as moot MarketPro’s Motion for Writ of Execution and Motion for Hearing. BACKGROUND In January 2023, the court entered a Memorandum Decision and Order dismissing Plaintiffs’ claims against MarketPro, 6 and subsequently awarded MarketPro $32,366.10 in attorney fees and costs. 7 Plaintiffs appealed the adverse ruling against them to the Tenth Circuit Court of Appeals. 8 While the appeal was pending, MarketPro moved the court for a Writ of Execution 9 and a hearing to identify property to satisfy the judgment. 10 Plaintiffs then moved for stay of enforcement of the judgment pending appeal under Fed. R. Civ. P. 62(b). 11 As security for the stay, Plaintiffs offered to deposit the judgment amount of $32,366.10 with the Clerk of the Court. 12 MarketPro agreed that a stay of execution of the judgment would be acceptable if Plaintiffs deposited $38,551.26 with the Clerk of the Court as security during the appeal. Plaintiffs agreed to do so. 6 ECF No. 26. 7 ECF No. 35. 8 ECF No. 30. 9 ECF No. 36. 10 ECF No. 37. 11 ECF No. 38. 12 ECF No. 38 at 2. 2 Case 2:22-cv-00559-TS-JCB Document 45 Filed 07/12/23 PageID.331 Page 3 of 4 ANALYSIS Under Fed. R. Civ. P. 62(b), a party may obtain a stay of execution by providing a bond or other security. Fed. R. Civ. P. 67 allows a party to deposit this security with the court. 13 According to Fed. R. Civ. P. 69(a)(1), “[t]he procedure on execution—and in proceedings supplementary to and in aid or judgment or execution—must accord with the procedure of the state where the court is located.” In Utah, “the presumptive amount of a bond or other security for compensatory damages is the amount of the compensatory damages plus costs and attorney fees; as applicable, plus 3 years of interest at the applicable interest rate.” 14 The current post-judgment interest rate is 6.73%. 15 Three years of post-judgment interest on the $32,366.10 judgment calculated at the current rate totals $6,185.16. Accordingly, MarketPro correctly asserts and Plaintiffs agree that they should deposit $38,551.26 with the Clerk of Court in order to secure MarketPro’s right to interest accrued on the judgment during pendency of the appeal. 16 The court concludes that the amount of Plaintiffs’ deposit does not alter the amount of the judgment. In other words, if MarketPro prevails on appeal and the deposit is released to MarketPro upon MarketPro’s motion, MarketPro will only be awarded the actual amount of interest accrued through that date, and the remainder will be refunded to Plaintiffs. If Plaintiffs prevail on appeal, the funds can be released to Plaintiffs upon motion. The court concludes that 13 Fed. R. Civ. P. 67(a). 14 Utah R. Civ. P. 62(h)(2)(A). 15 Utah Code § 15-1-4; Post Judgment Interest Rates, Utah Courts, https://legacy.utcourts.gov/resources/intrates/interestrates.htm (last visited July 12, 2023). 16 ECF No. 42 at 3; ECF No. 44 at 2. 3 Case 2:22-cv-00559-TS-JCB Document 45 Filed 07/12/23 PageID.332 Page 4 of 4 Plaintiffs’ deposit of $38,551.26 with the Clerk of Court (amount of judgment, plus postjudgment interest) will provide adequate security to all parties pending resolution of the appeal. Therefore, the court grants Plaintiff’s Motion for Stay of Enforcement of Judgment Pending Appeal and for Deposit of Judgment into Court. CONCLUSION AND ORDER Based upon the foregoing analysis, IT IS HEREBY ORDERED: 1. Plaintiff’s Motion for Stay of Enforcement of Judgment Pending Appeal and for Deposit of Judgment into Court 17 is GRANTED. 2. Plaintiff must deposit $38,551.26 with the Clerk of Court as security under Fed. R. Civ. P. 62(b) and Fed. R. Civ. P. 67 by August 9, 2023. 3. MarketPro’s Motion for Writ of Execution 18 and Ex Parte Motion for Hearing to Identify Judgment Debtors’ Property 19 are DENIED AS MOOT. IT IS SO ORDERED. DATED this 12th day of July 2023. BY THE COURT: JARED C. BENNETT United States Magistrate Judge 17 ECF No. 38. 18 ECF No. 36. 19 ECF No. 37. 4

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