Warhurst v. One Twenty Foot Bertran

Filing 84

ORDER denying 74 Motion for Bond; denying 79 Motion to Stay execution; plaintiff is to show cause by 5/1/15 why the defendant's motion for writ of execution should not be granted. Signed by Magistrate Judge Katherine P. Nelson on 4/24/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EARNEST E. WARHURST, JR.,

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Plaintiff,
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v.
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ONE TWENTY FOOT BERTRAN, 1969 )
Model Year, bearing Alabama
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Registration No. AL8238LM, her
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engines, tackle, equipment,
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appurtenances, and attached travel
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trailer, etc., in rem, and DAVID L.
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JONES, in personam,
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Defendants.
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Civil Action No. 14-00245-N
IN ADMIRALTY

ORDER
This action is before the Court1 on several post-judgment motions and
responses: Plaintiff Earnest Warhurst’s Motion for Bond (Doc. 74); Defendant David
Jones’s Motion for Writ of Execution (Doc. 78); Plaintiff’s Motion to Stay Execution
for 30 Days as Provided by State Law (Doc. 79); Plaintiff’s Response in Opposition
to the Motion for Writ of Execution (Doc. 80); Defendant’s Response in Opposition to
Motion to Stay Execution for 30 Days as Provided by State Law (Doc. 81); and
Defendant’s Reply to Response in Opposition to Motion for Writ of Execution (Doc.
82). Plaintiff’s Motion for Bond (Doc. 74) is construed as a motion to obtain a stay by
supersedeas bond pursuant to FED. R. CIV. P. 62(d). For the reasons given below,
Plaintiff’s Motion for Bond (Doc. 74) is DENIED. Plaintiff’s Motion to Stay
This action is before the undersigned United States Magistrate Judge for all matters, with express
consent of the parties, pursuant to 28 U.S.C. § 636(c). See Docs. 15, 16.
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Execution for 30 Days as Provided by State Law (Doc. 79) is likewise DENIED.
Lacking a stay on the Court’s Judgment (Doc. 71), Plaintiff is ORDERED to
SHOW CAUSE on or before Friday, May 1, 2015, why the Motion for Writ of
Execution (Doc. 78) should not be granted.
I. Background
After a bench trial, judgment was entered in favor of Defendant and against
Plaintiff in the amount of $5,505.00. Doc. 71. Plaintiff was given until March 30,
2015, to satisfy the judgment, but allowed this deadline to lapse without action. See
id. On April 1, 2014, Defendant made his first attempt to enforce the judgment by
way of a Motion to Compel (Doc. 72), which was later stricken (Doc. 77). On April
10, 2015, Plaintiff gave notice that he was appealing the final judgment of this
Court (Doc. 73) and made a Motion for Bond, asking the Court to stay the
enforcement of the judgment by setting a supersedeas bond pursuant to FED. R. CIV.
P. 62(d). Also on April 10, 2015, the Defendant made his second attempt to enforce
the judgment with a Motion for Writ of Execution (Doc. 78). On April 12, 2015,
Plaintiff made a Motion to Stay Execution for 30 Days Pursuant to State Law (Doc.
79). Parties entered responsive pleadings to all three motions (Docs. 80, 81, and 82).
II. Motion for Bond
The stay of a money judgment is governed by Fed. R. Civ. P. 62(d), which
states that “ . . . the appellant may obtain a stay by supersedeas bond,” which “takes
effect when the court approves the bond.” “The purpose of the supersedeas bond is

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to preserve the status quo while protecting the non-appealing party's rights pending
appeal.” Prudential Ins. Co. of Am. v. Boyd, 781 F.2d 1494, 1498 (11th Cir.1986).
Where an appellant files a motion for stay pending appeal, that Court must
consider: “(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.” Nken v.
Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v.
Braunskill, 581 U.S. 770, 776 (1987)). As the party seeking a stay, the Plaintiff
bears heavy burden to show that this extraordinary remedy is warranted. See
McCammon v. United States, 584 F. Supp. 2d 193, 197 (D.D.C. 2008) (“granting a
stay pending appeal is always an extraordinary remedy, and . . . the moving party
carries a heavy burden to demonstrate that the stay is warranted.” (citation and
internal quotation marks omitted); Gay Lesbian Bisexual Alliance v. Sessions, 917
F. Supp. 1558, 1561 (M.D. Ala. 1996) (stay pending appeal “is considered
extraordinary relief for which the moving party bears a heavy burden” (citation
omitted); see generally Nken, 556 U.S. at 427 (noting that stay of a final order
pending review amounts to “intrusion into the ordinary processes of administration
and judicial review”) (citation omitted).
It is well established that the likelihood of success on the merits is ordinarily
the “most important” factor in the analysis and requires, at a minimum, a showing
of a “substantial case on the merits,” even upon a strong showing of the other three

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factors. Garcia-Mir v. Meese, 781 F. 2d 1450, 1453 (11th Cir. 1986); see also Nken,
556 U.S. at 434 (“It is not enough that the chance of success on the merits be better
than negligible” and “more than a mere possibility of relief is required.”) (citations
omitted); Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 56 (D.D.C. 2009) (as to the first
factor, movant must at least raise “serious legal questions going to the merits, so
serious, substantial difficult as to make them a fair ground of litigation.” (citations
omitted); Fullmer v. Michigan Dep’t of State Police, 207 F. Supp. 2d 663, 664 (E.D.
Mich. 2002) (movant seeking a stay of judgment pending appeal “must ordinarily
demonstrate to a reviewing court that there is a likelihood of reversal” and “is
always required to demonstrate more than the mere possibility of success on the
merits”) (citations omitted).
Plaintiff has failed to address any of the factors for granting a supersedeas
bond. See Doc. 74. Rather, Plaintiff’s motion states, in its entirety, “Plaintiff, Ernest
E. Warhurst Jr., respectfully requests the Court to set an amount for supersedeas
bond in order to stay the judgment herein pending appeal.” Id. Plaintiff makes no
showing that there is likelihood that his appeal will succeed on the merits, and the
Court must conclude that it will not.
The Court also concludes that the other factors do not heavily tilt in
Plaintiff’s favor. Plaintiff has failed to demonstrate that they will be irreparably
injured in the event a stay is not granted. Plaintiff also fails to show why no harm
will come to Defendant by granting a stay after the deadline for satisfying the

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judgment has already passed. Finally, Plaintiff does not address whether a stay
would affect the public interest.
Because the other three factors do not weigh in their favor, Plaintiff is
required to show a more substantial likelihood of success. They have not done so.
Accordingly, Plaintiff has failed to satisfy his heavy burden of demonstrating
entitlement to the extraordinary remedy of a stay pending appeal, inasmuch as he
has failed to make any showing whatsoever of a likelihood of success on the merits
that is better than “negligible” or a “mere possibility.”
III. Motion for Stay Execution for 30 Days as Provided by State Law
Plaintiff moves the Court to stay the execution of the judgment for 30 days
pursuant to FED. R. CIV. P. 62(f), which states that “[i]f a judgment is a lien on the
judgment debtor’s property under the law of the state where the court is located, the
judgment debtor is entitled to the same stay of execution the state court would
give.” Under ALA. R. CIV. P. 62(a), “ . . . no execution shall issue upon a judgment
nor shall proceedings be taken for its enforcement until the expiration of thirty (30)
days after its entry.” The judgment in this case is not a “lien . . . under the law of
the state where the court is located,” but is rather a cash judgment. Doc. 71. Thus,
FED. R. CIV. P. 62(F) does not apply. Rather, the judgment in this case falls under
the 14-day automatic stay provided for in FED. R. CIV. P. 62(a). In either case, the
Judgment of this Court issued on March 13, 2015 (see Doc. 71), meaning that both
the 14-day and 30-day time periods discussed have expired.
IV. Motion for Writ of Execution

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The Defendant requests that the Court, pursuant to Fed. R. Civ. P. 69(a)(1),
issue a Writ of Execution to enforce the money judgment made against the Plaintiff.
(Doc. 78). Rule 69(a)(1) states that “[t]he procedure on execution . . . must accord
with the procedure of the state where the court is located, but a federal statute
governs to the extent it applies.” The applicable procedures are to be found in Title
6, Chapter 9 of the Code of Alabama, concerning judgments and execution thereon.
Plaintiff’s current Response in Opposition to the Motion for Writ of Execution
(Doc. 80) states only that the Motion for Writ is premature in light of the Plaintiff’s
motions to stay. The motions to stay being lacking, the Plaintiff is granted an
opportunity to show good cause why the Motion for Writ should not be granted.
V. Conclusion

Accordingly and upon consideration, it is ORDERED that:
(1) Plaintiff’s Motion for Bond (Doc. 78) is due to be and is hereby DENIED.
(2) Plaintiff’s Motion to Stay Execution for 30 Days as Provided by State Law is
due to be and is hereby DENIED.
(3) Plaintiff is to SHOW CAUSE on or before Friday, May 1, 2015, why the
Defendant’s Motion for Writ of Execution should not be granted.
DONE and ORDERED this the 24th day of April 2015.
/s/Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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