Swain v. Precision Strip, Inc.

Filing 38

MEMORANDUM OPINION AND ORDER re 35 MOTION for Bond Under Rule 7 of the FRCP filed by Precision Strip, Inc. The Motion is denied for reasons as set out within. Signed by Judge Virginia Emerson Hopkins on 5/14/12. (SAC )

FILED
2012 May-14 PM 02:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
KRISTOPHER SWAIN,
Plaintiff,
v.
PRECISION STRIP, INC.,
Defendant.

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) Case No.: 1:10-CV-2941-VEH
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MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant’s Motion To Require Plaintiff/Appellant
To Post Bond Under Rule 7 of the Federal Rules of Appellate Procedure (Doc. 35)
(the “Motion”) filed on April 18, 2012. The Motion requests this court “to require
Plaintiff/Appellant to post bond to ensure payment of costs, including attorneys’ fees,
on appeal.” (Id. at 1).
On April 18, 2012, the court entered a margin order on the Motion stating:
ORDER deferring ruling on motion 35 Motion for Bond. Under the case
law cited by the Defendant/movant, the court may include attorney’s
fees in the Rule 7 bond only if the court first determines that the appeal
is “frivolous, unreasonable, or without foundation.” However,
Defendant/movant's affidavit in support of its Motion does not break
down costs other than attorneys’ fees (which may be awarded without
such a determination) from costs including attorneys’ fees. The court
finds it would be more judicially efficient to decide the Defendant’s
Motion only once. Therefore, the court defers [r]uling on the Motion for

Bond until such time as Defendant supplements its affidavit to separate
claimed costs exclusive of attorneys’ fees from claimed costs inclusive
of attorneys’ fees. If the supplemental affidavit required by this Order
is not filed by April 26, 2012, the Motion for Bond will be denied for
failure to comply with this Order.
Any opposition by the
Plaintiff/non-movant to the Motion for Bond (as supplemented) is due
14 calendar days after the Defendant/Movant files the supplemental
affidavit required by this Order. The Motion for Bond will then be
under submission. Signed by Judge Virginia Emerson Hopkins on
4/18/2012.
(See CM/ECF margin entry dated Apr. 18, 2012).
In compliance with this order, on April 25, 2012, Defendant filed a
supplemental affidavit in support of its Motion explaining that out of the overall
figure of $6,000, approximately $5,800 would be for attorneys’ fees and the
remaining amount of $200 would be for costs. (Doc. 37 ¶ 3). Plaintiff’s deadline to
file an opposition to the Motion ran on May 10, 2012, and nothing was filed.
Therefore, the Motion is unopposed.
Rule 7 of the Appellate Rules of Civil Procedure provides:
In a civil case, the district court may require an appellant to file
a bond or provide other security in any form and amount necessary to
ensure payment of costs on appeal. Rule 8(b) applies to a surety on a
bond given under this rule.
Fed. R. App. P. 7 (emphasis added). Thus, requiring an appellant to post a bond on
appeal is a discretionary matter for the court.
Additionally, the Eleventh Circuit has clarified the district court’s discretionary
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role under Rule 7 as follows:
In summary, reading Rule 7 against the Christiansburg decision,
we hold that a district court may not require an unsuccessful plaintiff in
a civil rights case to post an appellate bond that includes not only
ordinary costs but also the defendant’s anticipated attorney’s fees on
appeal, unless the court determines that the appeal is likely to be
frivolous, unreasonable, or without foundation. If the court does make
that determination, it has discretion to grant the defendant's motion and
require the plaintiff to post a bond in the amount of the defendant's
anticipated costs including appellate attorney’s fees.
But it need not do so. Because Rule 7 states the authority it gives
in terms of “may,” the district court may decide not to require an appeal
bond or to require one that does not include the amount of the
defendant’s anticipated attorney’s fees on appeal. See Fed. Prescription
Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 757 n. 2 (D.C. Cir.1980)
(“[T]he new Rule 7, effective August 1979, leaves the requirement of an
appeal bond to the district court’s discretion . . . . We cannot dismiss
American’s appeal for failure to post a bond the district court chose not
to require.”); Pan Am. Grain Mfg. Co. v. P.R. Ports Auth., 193 F.R.D.
26, 43 (D.P.R.2000) (“Rule 7 leaves to the discretion of the district
court in a civil case whether to require the filing of a bond for costs on
appeal.”); Lundy v. Union Carbide Corp., 598 F. Supp. 451, 452 (D. Or.
1984) (“The requirement of an appeal bond under Appellate Rule 7 is
left to the discretion of the district court.”).
Of course, the fact that a plaintiff in a civil rights case is required
to post a Rule 7 bond that includes anticipated appellate attorney’s fees
does not mean the plaintiff will be required to pay attorney’s fees if the
judgment is affirmed on appeal. This Court will award a defendant who
succeeds in preserving a judgment against a plaintiff in a civil rights
case attorney’s fees only if we find that the plaintiff’s appeal turned out
to be frivolous, unreasonable, or without foundation within the meaning
of the Christiansburg decision.
Young v. New Process Steel, LP, 419 F.3d 1201, 1207-08 (11th Cir. 2005) (emphasis
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added).
Defendant has not cited to any authority which shows that Plaintiff’s appeal
likely constitutes “burdensome litigation having no legal or factual basis.” Young,
419 F.3d at 1206 (quoting Christiansburg Garment Co. v. Equal Employment
Opportunity Comm’n, 434 U.S. 412, 420, 98 S. Ct. 694, 700, 54 L. Ed. 2d 648
(1978)) (internal quotation marks omitted). Accordingly, this court is under no
obligation to address such an underdeveloped and perfunctorily presented position.
Cf. Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir.
2001) (holding that a party waives an argument if the party “fail[s] to elaborate or
provide any citation of authority in support” of the argument); Ordower v. Feldman,
826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made without citation
to authority is insufficient to raise an issue before the court).
Further, having studied the record on summary judgment, while the court
believes that its decision in Defendant’s favor is a sound one from a substantive
standpoint, it does not view Plaintiff’s appeal as groundless or “likely to be frivolous,
unreasonable, or without foundation.” Young, 419 F.3d at 1207. Therefore, the court
finds, in its discretion, that posting a $5,800 bond for attorneys’ fees is inappropriate
in this instance.
Defendant also has not persuaded the court why posting a bond for costs
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exclusive of estimated attorneys’ fees in the much more limited amount of $200 is
warranted. Accordingly, the Motion is DENIED.
DONE and ORDERED this the 14th day of May, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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