Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kidis v. Moran

United States District Court, E.D. Michigan, Southern Division

October 1, 2019

Nikos Kidis, Plaintiff,
v.
John Moran, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO STAY (ECF NO. 147) AND PLAINTIFF'S MOTION FOR A WRIT OF EXECUTION (ECF NO. 148)

          Sean F. Cox United States District Court Judge

         Following 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).

         Because 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.

         I. Motion to Stay

         Defendant 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 turn.

         A. Rule 62(d)

         Fed. R. 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).[1] 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.

         Thus, “[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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.