Anthony Fredianelli v. Stephan Jenkins et al

Filing 311

ORDER by Judge Edward M. Chen Granting 308 Defendant's Motion to Stay Enforcement of Judgment. (emcsec, COURT STAFF) (Filed on 11/4/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY FREDIANELLI,

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For the Northern District of California

United States District Court

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No. C-11-3232 EMC

Plaintiff,
ORDER GRANTING DEFENDANT’S
MOTION TO STAY ENFORCEMENT
OF JUDGMENT

v.
STEPHAN JENKINS, et al.,

(Docket No. 308)
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Defendants.
___________________________________/

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Currently pending before the Court is Defendant 3EB Touring, Inc.’s (“Touring”) motion to

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stay enforcement of the judgment. More specifically, Touring asks that the Court stay enforcement

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pending determination of Touring’s motion for a new trial, which it has not yet filed but will file by

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November 18, 2013.

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Federal Rule of Civil Procedure 62(b) provides that, “[o]n appropriate terms for the opposing

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party’s security, the court may stay the execution of a judgment – or any proceedings to enforce it –

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pending disposition of [a motion] under Rule 59, for a new trial or to alter or amend a judgment.”

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Fed. R. Civ. P. 62(b)(3). “As the term ‘may’ denotes, the decision whether or not to grant a stay is

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within the Court's discretion.” United States v. Moyer, No. C 07-00510 SBA, 2008 U.S. Dist.

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LEXIS 63995, at *15 (N.D. Cal. Aug. 12, 2008). It appears that the Ninth Circuit has not “expressly

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considered what factors should be used to determine whether or not a stay would be appropriate

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under Rule 62(b),” but at least some courts have endorsed application of the standard articulated in

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Hilton v. Braunskill, 481 U.S. 770 (1987), for a stay pending appeal.1 See Moyer, 2008 U.S. Dist.

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LEXIS 63995, at *15.

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In his opposition, Plaintiff Anthony Fredianelli points out that Touring has “made no

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showing as to the potential basis or merit of its Motion for a New Trial.” Opp’n at 309. However,

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he adds that he does not object to a stay so long as Touring posts a bond, as contemplated by Rule

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62(b).

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Because “Rule 62(b) is intended to preserve the status quo while protecting the prevailing

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party's interest in the judgment,’” General Steel Domestic Sales, LLC v. Chumley, No. 10-cv-01398-

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PAB-KLM, 2013 U.S. Dist. LEXIS 82514, at *3 (D. Colo. June 12, 2013), “[a] ‘stay of judgment
usually requires a bond.’” MAKS, Inc. Gen. Trading & Contracting Co. v. Sterling Operations, Inc.,

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For the Northern District of California

United States District Court

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No. 3:10-CV-443, 2013 U.S. Dist. LEXIS 134740, at *8 (E.D. Tenn. Sept. 20, 2013). Typically, the

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amount of the bond “‘will be set in an amount that will permit satisfaction of the judgment in full,

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together with costs, interest, and damages for delay.’” Id.; see also General Steel, 2013 U.S. Dist.

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LEXIS 82514, at *3-5 (acknowledging that “‘post-trial motions will generally be resolved in far less

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time than an appeal, and therefore, the risk to plaintiffs’ security is diminished,’” but still requiring a

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bond to cover the entire disgorgement award, post-judgment interest for three months, and costs as

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taxed by the clerk of the court).

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Touring, of course, contends that no bond is necessary – i.e., (1) because any stay would be

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of only a short duration, see Mot. at 5 (arguing that its motion for a new trial, which it intends to file

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by November 18, “will be heard, and determined, in mid or late December”); (2) because Touring

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plans to dispute the amount of the judgment as excessive; and (3) because “Touring is an ongoing

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business concern.” Mot. at 5. But none of these arguments is persuasive.

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First, Touring assumes that the motion will not only be heard but also determined by mid- to

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late December, but, if Touring files its motion on November 18, the earliest that the motion could be

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See Hilton, 481 U.S. at 776 (in evaluating whether there should be a stay of an order
pending appeal, considering “(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”).

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heard (based on the Civil Local Rules and this Court’s availability) is January 2, 2014. Even

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assuming the Court could promptly rule on the motion thereafter, the delay to Mr. Fredianelli would

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be more than two months.

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Second, Touring may be challenging the amount of the judgment as excessive, but, in his

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opening motion, he provided no clue as to the basis of this argument. While Touring provided some

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explanation in his reply brief, that explanation is not deserving of any consideration as Touring

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could have raised it in its opening motion but failed to do so. And in any event, based on the content

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in the reply brief, it is far from clear that Touring’s intended motion for a new trial is so clearly

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meritorious that the Court would be all but obliged to find a bond unnecessary.2
Finally, while Touring may be an ongoing business concern, it has made no showing that

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For the Northern District of California

United States District Court

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posting a bond in the amount of the judgment or thereabouts would render it incapable of continuing

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operations or put its other creditors in undue jeopardy. Cf. Cotton v. City of Eureka, 860 F. Supp. 2d

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999, 1028 (N.D. Cal. 2012). Nor has Touring demonstrated that, because it is an ongoing business

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concern, its “ability to pay the judgment is so plain that the cost of the bond would be a waste of

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money.” Id. Indeed, Touring offered no evidence on this issue at all in conjunction with its motion

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to stay.

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The Court therefore shall require Touring to post a bond as a condition of obtaining a stay.

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Mr. Fredianelli has suggested a bond in the amount of $559,161, which represents the judgment of

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$447,328.77 and a 1.25 multiplier. See Opp’n at 3-4. The Court, however, declines to require a

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bond in that amount. Rather, it finds that a bond of $447,485.34 is appropriate. This sum represents

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(1) the judgment of $447,328.77 and (2) post-judgment interest at 0.14% for three months (i.e.,

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$156.57).3 See 28 U.S.C. § 1961 (providing for post-judgment interest “from the date of the entry of

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the judgmnet, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as

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published by the Board of Governors of the Federal Reserve System, for the calendar week

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The Court also notes that Touring has taken the position in its reply brief that “it is clear
that Plaintiff’s damages are less than $330,000.” Reply at 3. Touring has failed to explain why it
should not, at the very least, put up a bond in the amount which it concedes is not excessive.
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Yearly interest for the judgment amount of $447,485.34 is approximately $626.26. Thus,
monthly interest is approximately $52.19 (i.e., $626.26 ÷ 12).

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preceding the date of judgment”); http://www.federalreserve.gov/releases/h15/20131021/ (showing

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interest rates for week ending October 18, 2013). The Court shall not include costs as part of the

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bond because, as of date, no costs have been taxed by the Clerk of the Court.

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Accordingly, the Court conditionally GRANTS Touring’s motion to stay enforcement of the

post a bond in the amount of $447,485.34 no later than November 12, 2013. The stay shall take

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place as of the date of this order below. However, if Touring (1) fails to file a motion for a new trial

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by November 18 or (2) fails to post the full bond by November 12, 2013, then the stay shall

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automatically be lifted. If Touring posts the full bond by November 12, 2013 and files a motion for

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a new trial by November 18, then the stay shall continue until the Court disposes of the motion for a

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For the Northern District of California

judgment. More specifically, the motion is granted conditioned on the requirement that Touring

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United States District Court

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new trial on the merits.

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This order disposes of Docket No. 308.

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IT IS SO ORDERED.

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Dated: November 4, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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