United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO STAY (ECF NO.
147) AND PLAINTIFF'S MOTION FOR A WRIT OF EXECUTION (ECF
F. Cox United States District Court Judge
a jury trial and several post-trial motions, this Court
entered an amended judgment in Plaintiff's favor against
Defendant in the aggregate amount of $347, 823.19. (ECF No.
142). Defendant appealed. (ECF No. 145). Now, Defendant has
filed a motion to stay the judgment pending appeal, without a
supersedeas bond, (ECF No. 147), and Plaintiff has filed a
motion for a writ of execution. (ECF No. 148).
Defendant has not shown that extraordinary circumstances
exist in this case or adequately articulated why a stay is
appropriate, the Court will deny the motion to stay. And
because Plaintiff has not followed the Court's typical
procedure for seeking a “writ of execution, ” the
Court will deny that motion too.
Motion to Stay
argues that a stay is appropriate under Fed.R.Civ.P. 62(d)
and Fed. R. App. P. 8(a). The Court will address each rule in
Civ. P. 62(d) provides:
(d) Stay with Bond on Appeal. 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.
“[p]ursuant to Rule 62(d), if an appeal is pending, a
party may obtain a stay on the judgment by posting a
supersedeas bond.” Hamlin v. Charter Twp. of
Flint, 181 F.R.D. 348, 350 (E.D. Mich. 1998). As the
district court in Hamlin explained:
This entitles an appellant to a stay pending appeal as a
matter of right. American Manufacturers Mutual Insurance
Co. v. American Broadcasting-Paramount Theatres, Inc.,
87 S.Ct. 1, 3, 17 L.Ed.2d 37 (1966). However, this right is
expressly contingent upon the posting of a court approved
supersedeas bond. Thus, “Rule 62 establishes the
general rule that losing parties in the district court can
obtain a stay pending appeal only by giving a supersedeas
bond.” Enserch Corp. v. Shand Morahan and Co.,
918 F.2d 462 (5th Cir. 1990).
Id. at 351. The Hamlin court further
explained the dual protective role of Rule 62(d):
The framework of Rule 62(d) represents a balancing of both
parties' interests, in that it preserves the status quo
while also protecting the appellee's rights. Poplar
Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart,
Inc., 600 F.2d 1189, 1190 (5th Cir. 1979). Rule 62(d)
permits an appellant to obtain a stay “to avoid the
risk of satisfying the judgment only to find that restitution
is impossible after reversal on appeal.” Poplar
Grove, 600 F.2d at 1191. However, to preserve this
right, the appellant must forego the use of the bond money
during the appeal period.
For the appellee, Rule 62(d) effectively deprives him of his
right to enforce a valid judgment immediately. Consequently,
the appellant is required to post the bond to provide both
insurance and compensation to the appellee. The supersedeas
bond protects the non-appealing party “from the risk of
a later uncollectible judgment” and also
“provides compensation for those injuries which can be
said to be the natural and proximate result of the
stay.” NLRB v. Westphal, 859 F.2d 818, 819
(9th Cir. 1988), Moore v. Townsend, 577 F.2d 424,
427 (7th Cir. 1978) (citing Weiner v. 222 East
Chestnut St. Corp., 303 F.2d 630, 634 (7th Cir. 1962)).
Therefore, Rule 62(d) establishes not only the
appellant's right to a stay, but also the appellee's
right to have a bond posted.
Id. “Because of Rule 62(d)'s dual
protective role, a full supersedeas bond should almost
alwaysbe required.” Id.
(emphasis added); see also Journey Acquisition-II, L.P.
v. EQT ...