Embry v. ACER America Corporation

Filing 253

ORDER Granting 232 MOTION for Bond filed by Kevin Embry. Signed by Judge James Ware on June 5, 2012. (jwlc3, COURT STAFF) (Filed on 6/5/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Kevin Embry,

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NO. C 09-01808 JW
ORDER GRANTING IN PART
PLAINTIFF’S MOTION TO REQUIRE
APPELLATE BOND

Plaintiff,
v.

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ACER America Corp.,
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Defendant.
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For the Northern District of California

United States District Court

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/
Presently before the Court is Plaintiff’s Motion to Require an Appellate Bond.1 Plaintiff asks
that Objector Samuel Cannata (“Cannata” or “Objector”) be required to post an appellate bond of

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(Plaintiff’s Notice of Motion and Motion for Appeal Bond; Memorandum in Support
Thereof, hereafter, “Motion,” Docket Item No. 232.) On April 24, 2012, the Court issued an Order
in which it denied this Motion as moot in light of the Court’s ruling on a different motion. (See
Order Denying Objector’s Motion to Reopen Case; Denying as Moot Plaintiff’s Motion to Require
Appeal Bond, Docket Item No. 245.) Upon a subsequent review of the docket in this case, however,
the Court observed that a “number of docketing errors may have occurred,” and concluded that the
issue of the appellate bond presented in this Motion “should not be addressed” until the “issue of
which appeals remain active [in this case] has been settled.” (See Order Requesting Additional
Briefing on the Status of Appeals at the Ninth Circuit at 1-2, Docket Item No. 247.) In that Order,
the Court explained that it would “reconsider its ruling” on this Motion following briefing on
whether any appeals remain active. (Id. at 2.) On May 3 and 4, 2012, the parties submitted briefing
indicating that the appeal at issue in the present Motion is still active. (See Docket Item Nos. 250,
251.) Accordingly, the Court reconsiders its ruling on the present Motion at this time.

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$346,814.51 in order to pursue his appeal. (Id. at 4-5.)2 Plaintiff contends that such a bond is

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appropriate because the Objector has the ability to post a bond and because his appeal is frivolous.

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(Id. at 10-13.) The Court finds it appropriate to take the Motion under submission without oral

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argument. See Civ. L.R. 7-1(b). Based on the papers submitted to date, the Court GRANTS in part

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Plaintiff’s Motion, but will require a bond of only $70,650.

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“[T]he district court may require an appellant to file a bond or provide other security in any

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form and amount necessary to ensure payment of costs on appeal.” Azizian v. Federated Dep’t

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Stores, Inc., 499 F.3d 950, 954-55 (9th Cir. 2007) (citing Fed. R. App. P. 7). “[T]he purpose of [an

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appellate bond] is to protect an appellee against the risk of nonpayment by an unsuccessful
appellant.” Fleury v. Richemont N. Am., Inc., No. C-05-4525 EMC, 2008 WL 4680033, at *6 (N.D.

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For the Northern District of California

United States District Court

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Cal. Oct. 21, 2008) (quotations and citations omitted). In determining whether a bond should be

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required, the court should consider (1) the appellant’s financial ability to post a bond; (2) the risk

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that the appellant would not pay the appellee’s costs if the appeal loses; and (3) the merits of the

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appeal. See id. at *6-7. While an appellate bond should be sufficient to cover costs on appeal, those

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costs may only include attorney fees if the claim is brought under a fee-shifting statute that would

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allow recovery from an objecting class member, as opposed to a defendant. Azizian, 499 F.3d at

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953-54. Even if a district court concludes that attorney fees are likely to be awarded on the ground

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that an appeal is frivolous, the district court may not include such fees in an appellate bond. See id.

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at 954.

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Upon review, the Court finds that the posting of an appellate bond is warranted in this case.
With regards to the first factor–namely, the ability to post a bond–Objector has not submitted any

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In his Motion, Plaintiff asks that the Court require that both Objector Cannata and a second
Objector in this case, Christopher Bandas, post an appeal bond of $346,814.51 “joint[ly] and
severally.” (See Motion at 17.) However, after Plaintiff filed his Motion, Objector Bandas’ appeal
in this matter was dismissed for failure to pay appellate fees. (See Docket Item No. 241.)
Accordingly, the Court considers Plaintiff’s Motion only as to Objector Cannata. Objector Bandas
has represented to the Court that he has moved the Ninth Circuit Court of Appeals to reopen his
appeal. (See Docket Item No. 252.) In the event that the Bandas appeal again becomes active,
Plaintiff may re-file his motion as to Objector Bandas.

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a bond will pose a substantial hardship, this factor weighs in favor of requiring a bond.4 With

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regards to the second factor–the difficulty of collecting payment post-appeal–Objector Cannata

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resides outside of the jurisdiction of the Ninth Circuit,5 which also weighs in favor of requiring a

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bond.6 Finally, the Court finds that the merits of Objector’s appeal weigh heavily in favor of

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requiring a bond, insofar as his objections to the settlement are lacking in merit. Objector’s primary

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objections to the settlement are that the claims process is overly burdensome and that the amount of

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attorney fees requested is excessive.7 However, the Court carefully considered each of these

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objections and overruled them prior to approving the settlement. (See Docket Item No. 217.) Thus,

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because all three factors weigh in favor of requiring an appellate bond, the Court finds that a bond is

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For the Northern District of California

evidence or even contended that he is unable to post a bond.3 In the absence of evidence that posting

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United States District Court

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warranted.

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With regards to the amount of the bond, however, the Court finds that the $346,814.51

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requested by Plaintiff is not warranted. Plaintiff requests only $70,650 in anticipated costs and

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$276,164.51 in anticipated “delay damages,” which Plaintiff contends will result from the delay in

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class members obtaining relief caused by Objector’s appeal.8 The Court finds, however, that unlike

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costs, which may be included in the value of a bond under Rule 7, such anticipated damages may not

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(See Response to Plaintiff’s Motion for Rule 7 Appeal Bond, hereafter, “Opp’n,” Docket
Item No. 238.)
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See Fleury, 2008 WL 4680033, at *7 (“There is no indication that plaintiff is financially
unable to post bond, and thus this factor weighs in favor of a bond.”) (citation omitted).

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(See Opp’n at 1 (listing address in Cleveland, Ohio).)

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See Fleury, 2008 WL 4680033, at *7.

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(See Docket Item No. 200.) Although Objector originally filed his objections on behalf of
his minor children, the Court granted Objector’s Motion to substitute himself as Objector after it
became clear that Objector, and not his children, were members of the class. (See Docket Item No.
217.)
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(Motion at 5.)
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be required as part of a bond.9 Thus, because Plaintiff only anticipates incurring $70,650 in actual

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costs, the Court finds that a bond of $70,650 is appropriate.

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Accordingly, the Court GRANTS in part Plaintiff’s Motion to Require an Appellate Bond.

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Objector Cannata shall either: (1) post a bond of $70,650 within 14 days of the publication of this

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Order, or (2) file a notice of dismissal of his appeal.

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Dated: June 5, 2012
JAMES WARE
United States District Chief Judge

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For the Northern District of California

United States District Court

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See Fleury, 2008 WL 4680033, at *8.
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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

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Adam Gutride [e-mail]
Adam Joseph Bedel [e-mail]
Jeffery David McFarland [e-mail]
Joseph Darrell Palmer [e-mail]
Sam Cannata [e-mail]
Seth Adam Safier [e-mail]
Stan Karas [e-mail]
Todd Michael Kennedy [e-mail]

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Dated: June 5, 2012

Richard W. Wieking, Clerk

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By:
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For the Northern District of California

United States District Court

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/s/ JW Chambers
William Noble
Courtroom Deputy