Gatx/Airlog Company, et al v. Evergreen Intl, et al

Filing 2276

ORDER by Judge Claudia WilkenRE: 2273 SUPERSEDEAS BOND (ndr, COURT STAFF) (Filed on 4/1/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KALITTA AIR, LLC,

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United States District Court
For the Northern District of California

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Plaintiff,

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ORDER RE:
SUPERSEDEAS BOND

v.
CENTRAL TEXAS AIRBORNE SYSTEMS,
et al.,
Defendants.

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No. C 96-2494 CW

________________________________/
Plaintiff Kalitta Air has filed a Second Motion for Approval

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of Supersedeas Bond.

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opposes.

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all of the papers filed by the parties and the entire record in

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the case, the Court DENIES Plaintiff’s motion.

Defendant Central Texas Airborne Systems

The motion was decided on the papers.

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Having considered

BACKGROUND
On December 5, 2012, this Court granted in part Plaintiff’s

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motion for review of the Clerk’s notice of taxable costs and

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granted Plaintiff’s request to stay collection of costs pending

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the outcome of its appeal.

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supersedeas bond in the amount of $311,018.19, fifty percent of

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the taxable costs.

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The Court ordered Plaintiff to post a

On December 28, 2012, Plaintiff filed its First Motion for

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Approval of Supersedeas Bond.

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that Plaintiff’s proposed bond did not include an unequivocal

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promise to pay, list the conditions for payment, or provide a time

Defendant opposed, pointing out

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frame for payment.

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ordered Plaintiff to:

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The Court denied Plaintiff’s motion and

submit a proposed bond that unequivocally binds the
surety to pay any amount that may be awarded to
Defendant, up to $311,018.19, unless within seven days
of the Court of Appeals’ decision affirming or modifying
the judgment or dismissing the appeal, Plaintiff
satisfies the judgment in full, including any additional
costs or interest awarded.

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Docket No. 2271 at 2.

In addition, the Court noted that its grant

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of Plaintiff's request to stay the collection of costs pending
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appeal was premised on the posting of a supersedeas bond.
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United States District Court
For the Northern District of California

On February 13, 2013, Plaintiff filed its Second Motion for
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Approval of Supersedeas Bond.

In that motion, Plaintiff

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indicated, “The terms of the bond adhere to this Court’s January
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29, 2013 order regarding supersedeas bond, and on February 7,
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2013, [Defendant’s] counsel notified the undersigned by e-mail
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that the bond terms are acceptable.”

Plaintiff did not submit a

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declaration attaching the referenced email.

On February 25, 2013,

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Defendant filed an opposition to Plaintiff’s Second Motion for
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Approval of Supersedeas Bond.

In its opposition, Defendant

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objects both to the terms of the bond and Plaintiff’s proposed
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order.

Defendant does not address Plaintiff’s contention that its

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counsel notified Plaintiff that the terms of the bond acceptable.
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Plaintiff has filed a reply brief attaching emails between
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Plaintiff’s and Defendant’s counsel as exhibits.

Plaintiff has

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not filed a sworn declaration attaching the emails as exhibits.
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DISCUSSION
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The Court’s January 29 Order required Plaintiff to submit a
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bond that unequivocally binds the surety to pay, “unless within
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seven days of the Court of Appeals’ decision affirming or

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modifying the judgment or dismissing the appeal, Plaintiff

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satisfies the judgment in full, including any additional costs or

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interest awarded.”

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a proposed bond that binds the surety to pay if Plaintiff “fails

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to promptly pay all sums.”

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Plaintiff’s proposed bond does not comply with the Court’s January

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29 Order.

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Docket No, 2271 at 2.

Plaintiff has submitted

Emphasis added.

The Court finds that

Defendant also objects to Plaintiff’s proposed order.

The

United States District Court
For the Northern District of California

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Court will not enter Plaintiff’s proposed order at this time.

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Accordingly, Defendant’s objection is overruled.

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includes this language in a future proposed order, Defendant may

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renew its objection.

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If Plaintiff

In addition to these objections, Defendant suggests other

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modifications to the bond it believes should be made.

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declines to order compliance with these suggestions.

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The Court

CONCLUSION
The Court DENIES Plaintiff’s Second Motion for Approval of

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Supersedeas Bond.

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date of this order, Plaintiff shall submit a proposed bond.

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Consistent with this order and the Court’s January 29, 2013 order,

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Plaintiff shall modify the language of subparagraph c of the

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Promise to Pay to state:

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Docket No. 2273.

Within fourteen days of the

Kalitta Air, L.L.C. fails to pay within seven days all
sums awarded against it in or following the appeal in
this action, including the full $622,036.38 as ordered
by the court along with any additional costs or interest
that the Court of Appeals may award.

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Plaintiff shall not modify any other language in the bond unless

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the parties reach agreement and file a sworn declaration

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memorializing that agreement.

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IT IS SO ORDERED.

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Dated: 4/1/2013
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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