Van et al v. Wal-Mart Stores, inc. et al

Filing 653

ORDER GRANTING MOTION FOR STAY by Judge Paul S. Grewal granting 640 (psglc2, COURT STAFF) (Filed on 5/14/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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NATHALIE THUY VAN,

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Plaintiff,

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v.

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WAL-MART STORES, INC.,

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Defendant.

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Case No. 5:08-cv-05296-PSG
ORDER GRANTING MOTION FOR
STAY
(Re: Docket No. 640)

On January 13, 2015, following a jury verdict awarding Plaintiff Nathalie Thuy Van
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$30,000, the court entered judgment against Defendant Wal-Mart Stores, Inc. and in favor of Van. 1
Two days later, Van filed a notice of appeal and, later, an amended notice of appeal. 2 The court
subsequently issued Van a writ of execution. 3

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Wal-Mart now moves for a stay of judgment and recall of the write of execution. Van
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opposes. At the hearing, the court recalled the writ but took the motion for stay under submission. 4

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Having considered the parties respective arguments, the court now GRANTS Wal-Mart’s stay
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motion.
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See Docket No. 605.

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See Docket Nos. 606, 611.

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See Docket No. 639.

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See Docket No. 652.

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Case No. 5:08-cv-05296-PSG
ORDER GRANTING MOTION FOR STAY

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I.

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This court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. The parties

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further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c)

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and Fed. R. Civ. P. 72(a).

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Wal-Mart seeks a stay of judgment pending appeal. Pursuant to Fed. R. Civ. P. 62(d), an
appellant may obtain a stay of judgment by posting a supersedeas bond at or after the time of filing

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the notice of appeal. 5 Posting the bond allows a stay as a matter of right. 6 Although the text of

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Rule 62(d) only refers to bonds, courts have interpreted the rule with some flexibility, allowing

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other forms of security as may be appropriate for a given case. 7 “The posting of a bond protects

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United States District Court
For the Northern District of California

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the prevailing plaintiff from the risk of a later uncollectible judgment and compensates him for

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delay in the entry of the final judgment.” 8

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Wal-Mart has not posted a bond or any other security which would protect Van from future

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non-payment. In its discretion, however, the court may grant a stay in the absence of a bond, after

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considering a number of factors, including:

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(1) the complexity of the collection process; (2) the amount of time required to
obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that
the district court has in the availability of funds to pay the judgment; (4) whether
the defendant’s ability to pay the judgment is so plain that the cost of a bond would
be a waste of money; and (5) whether the defendant is in such a precarious financial
situation that the requirement to post a bond would place other creditors of the
defendant in an insecure position. 9

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Wal-Mart’s primary argument for a stay without a bond is that by taking an appeal for a judgment

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in which she prevailed, Van has triggered an automatic supersedeas. Wal-Mart acknowledges that

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the Ninth Circuit has not yet considered the issue but notes that various courts have relied on

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Fed. R. Civ. P. 62(d).

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See id.

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See, e.g., Townsend v. Holman Consulting Corp., 939 F.2d 1358, 1367 (9th Cir. 1991) (en banc);
Int’l Telemeter Corp. v. Hamlin Int’l Corp., 754 F.2d 1492, 1495 (9th Cir. 1985).
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N.L.R.B. v. Westphal, 859 F.2d 818, 819 (9th Cir. 1988).

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Dillon v. City of Chicago, 866 F.2d 902, 904-05 (7th Cir. 1988) (internal citations omitted).

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Case No. 5:08-cv-05296-PSG
ORDER GRANTING MOTION FOR STAY

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language in Bronson v. La Crosse & M.R. Co., 68 U.S. 408 (1863) in holding that “a litigant may

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not accept all or a substantial part of the benefit of a judgment and subsequently challenge the

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unfavorable aspects of that judgment on appeal.” 10 At the same time, other courts have rejected

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this view, holding that a bond may be waived only if enforcement of the judgment would be

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inconsistent with the appeal. 11

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The plain language of Rule 62(d) requires that a bond be posted to stay a judgment pending
an appeal, and though the Rule provides some exceptions, an appeal by the prevailing party is not

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among them. For this reason, the court declines to adopt Wal-Mart’s position and those courts in

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accord and instead holds that, as held by the Fifth, First and Seventh Circuits, a prevailing party’s

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United States District Court
For the Northern District of California

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appeal stays the execution of a lower court judgment without bond only when the prevailing party

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seeks appellate relief that is inconsistent with enforcement of the lower court’s judgment.

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Wal-Mart nevertheless is entitled to the relief it seeks because Van’s appeal and execution

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of the judgment are, in fact, inconsistent. Under Van’s theory, presumably she is owed the $30,000

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and then some. But Wal-Mart correctly points out that Van’s amended notice states she is

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appealing part of the judgment as well as exclusion of evidence of certain damages and jury

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instructions. In her “docketing statement” filed in the Ninth Circuit, Van similarly asserts that the

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jury was improperly instructed and her medical bills should have been admitted to show the

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“nature and extent of her injuries.” 12 Should Van prevail on appeal, a new trial may be ordered and

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the judgment would be vacated. 13

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Price v. Franklin Inv. Co., 574 F.2d 594, 597 (D.C. Cir. 1978) (internal citations omitted); see
also Tennessee Valley Auth. v. Atlas Mach. & Iron Works, Inc., 803 F.2d 794, 797-99 (4th Cir.
1986); Sealover v. Carey Canada, 806 F. Supp. 59, 61-62 (M.D. Pa. 1992); Advent Sys. Ltd. v.
Unisys Corp., Case No. 88-cv-03100, 1990 WL 20192 (E.D. Pa. Mar. 1, 1990).

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See, e.g., Enserch Corp. v. Shand Morahan & Co., Inc., 918 F.2d 462, 464 (5th Cir. 1990);
Trustmark Ins. Co. v. Gallucci, 193 F.3d 558 (1st Cir. 1999); BASF Corp. v. Old World Trading
Co., 979 F.2d 615, 617 (7th Cir. 1992).

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See Docket No. 640-5.

Cf. Czarniak v. 20/20 Inst., L.L.C., Case No. 10-cv-03115, 2013 WL 5366407, at *1 (D. Colo.
Sept. 25, 2013).
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Case No. 5:08-cv-05296-PSG
ORDER GRANTING MOTION FOR STAY