Flagship West LLC, et al v. Excel Realty Partner, et al

Filing 567

ORDER on Defendants' 553 Motion for Supersedas Bond and Motion to Stay; ORDERED Defendants, no later than November 3 2011, to file and serve either a Proposed supersedas bond or Statement showing good cause why Defendants are unable to add such statements; ORDERED Plaintiffs not to execute on the judgment, unless this Court orders otherwise, signed by District Judge Lawrence J. O'Neill on 10/27/2011. (Martin-Gill, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FLAGSHIP WEST, LLC, et al.,

CASE NO. CV F 02-5200 LJO DLB

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Plaintiffs,

ORDER ON DEFENDANTS’
MOTION FOR SUPERSEDEAS BOND
(Doc. 553.)

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vs.
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EXCEL REALTY PARTNERS,
L.P., et al.,
Defendants.
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INTRODUCTION

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Defendants Excel Realty Partners, L.P. and New Plan Excel Realty Trust, Inc. (collectively

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“defendants”) seek this Court’s approval of their proposed $4.4 million supersedeas bond (“bond”) and

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a stay of enforcement of judgment in favor of plaintiffs Flagship West, LLC, Mavin Reiche, and

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Kathleen Reiche (collectively “plaintiffs”). Plaintiffs raise limited objections to the bond’s form. This

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Court considered defendants’ motion to approve the bond and to stay enforcement of judgment on the

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record without a hearing. For the reasons discussed below, this Court ORDERS defendants to resubmit

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a proposed bond in compliance with this order.

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BACKGROUND

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On September 28, 2011, this Court entered a $2,358,146.68 judgment in favor of plaintiffs and

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against defendants. Plaintiffs have filed a bill of costs seeking $74,646.42 and a motion seeking attorney
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fees of more than $1 million. Defendants have appealed the judgment and seek approval of the bond

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and a stay of enforcement of the judgment.

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DISCUSSION

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F.R.Civ.P. 62(d) provides: “If an appeal is taken, the appellant may obtain a stay by supersedeas

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bond . . . . The bond takes effect when the court approves the bond.” A “party taking an appeal from

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the District Court is entitled to a stay of a money judgment as a matter of right if he posts a bond in

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accordance with Fed.R.Civ.P. 62(d).”

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Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1, 3 (1966). “Under Fed.R.Civ.P. 62(d), an appellant

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may obtain a stay as a matter of right by posting a supersedeas bond acceptable to the court.” Matter

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American Mfrs. Mut. Ins. Co. v. American

of Combined Metals Reduction Co., 557 F.2d 179, 193 (9th Cir. 1977).

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“District courts have inherent discretionary authority in setting supersedeas bonds; review is for

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an abuse of discretion.” Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1505, n. 1 (9th Cir. 1987); see

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Miami Int'l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir.1986). “The purpose of a supersedeas

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bond is to secure the appellees from a loss resulting from the stay of execution and a full supersedeas

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bond should therefore be required.” Rachel, 831 F.2d at 1505, n. 1.

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The “amount of the bond should be sufficient to pay the judgment plus interest, costs and any

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other monetary relief (e.g., attorney fees) the appellate court may award.” 1 Goelz & Watts, Rutter

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Group Practice Guide: Federal Ninth Circuit Civil Appellate Practice (2011) Preliminary

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Considerations, ¶ 1:168, p. 1-38 (italics in original). Local Rule 151(d) provides that “a supersedeas

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bond shall be 125 percent of the amount of the judgment unless the Court otherwise orders.”

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Defendants note that their $4.4 million proposed bond is 186 percent of the judgment to well

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exceed the judgment “plus the amounts claimed by Plaintiffs for costs and attorneys’ fees.” Plaintiffs

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do not quibble with the bond’s amount. As such, a $4.4 million bond is acceptable.

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Plaintiffs raise limited objections to the bond’s form. Plaintiffs complain that the bond’s page

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two fails to include plaintiffs’ specific names as appellees. However, the bond’s first paragraph

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identifies “Appellees, Flagship West LLC, Marvin G. Reiche, and Kathleen Reiche” to identify

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“Appellees” and avoid confusion.

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Plaintiffs object that the bond lacks a justification pursuant to a form it cites. However, plaintiffs
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fail to note the attached power of attorney which, in this case, satisfies justification purposes.

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Plaintiffs object that the bond lacks language to comply with Local Rule 151(f) that “the

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corporate surety is in compliance with the provisions of 31 U.S.C. §§ 9304-06.” Plaintiffs’ objection

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is well taken, and the bond needs to comply with Local Rule 151(f).

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Plaintiffs object that the bond indicates that it is subject to federal law only and does not include

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“state law.” Plaintiffs’ objection is well taken, and the bond needs to include that it “is subject to all

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applicable state and federal law.”

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CONCLUSION AND ORDER

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For the reasons discussed above, this Court ORDERS defendants, no later than November 3,
2011, to file and serve either:

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A proposed supersedeas bond which adds that: (a) the corporate surety is in compliance

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with 31 U.S.C. §§ 9304-06; and (b) the bond is subject to all applicable state and federal

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law; or

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2.

A statement showing good cause why defendants are unable to add such statements.

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This Court FURTHER ORDERS plaintiffs not to execute on the judgment, unless this Court orders

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otherwise.

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IT IS SO ORDERED.
Dated:
66h44d

October 27, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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