Shames et al v. Hertz Corporation et al

Filing 394

ORDER Granting 383 Motion for FRAP 7 Appeal Bond. For the reasons stated herein, the Court finds that the posting of an appeal bond is warranted and the amount of $15,000.00 requested by Class Counsel is reasonable. By 7/10/2013, Objectors G ordon Hansmeier; Thomas Lavery; and Cery Perle, Gary Bishop, Frank de Julius, and Andrew Cesare must either post a $15,000 bond or file a notice of dismissal of their appeal. Signed by Judge Michael M. Anello on 6/18/2013. (All non-registered users served via U.S. Mail Service)(leh) (jrl).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL SHAMES, et al.,

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NO. 07-CV-2174-MMA(WMC)
Plaintiffs,

ORDER GRANTING PLAINTIFF’S
MOTION FOR FRAP 7 APPEAL
BOND

vs.
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THE HERTZ CORPORATION, et al.,
Defendants.

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[Doc. No. 383]

Plaintiffs move the Court for imposition of an appeal bond pursuant to Federal Rule of

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Appellate Procedure 7. The Court set a June 3, 2013, deadline for filing of oppositions. Having

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received no oppositions, the Court took the matter under submission on June 10, 2013, pursuant to

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Local Civil Rule 7.1. For good cause shown, the Court GRANTS Plaintiff’s unopposed motion

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for appeal bond.

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At issue in the present motion is whether Objectors Gordon Hansmeier, Thomas Lavery,

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Cery Perle, Gary Bishop, Frank de Julius, and Andrew Cesare should be required to post an appeal

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bond. Pursuant to Rule 7 of the Federal Rules of Civil Procedure, in a civil case, the district court

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may require an appellant to file a bond or provide other security in any form and amount necessary

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to insure that any appellants have the ability to pay Plaintiffs’ costs and fees should opposing an

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appeal be necessary. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir.

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2001); Azizian v. Federated Dep’t Stores, Inc., 499 F.3d 950, 954-55 (9th Cir. 2007) (citing Fed.

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R. App. P. 7 (“Rule 7”)). “[T]he purpose of [an appeal bond] is to protect an appellee against the
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07CV2174

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risk of nonpayment by an unsuccessful appellant.” Fleury v. Richemont N. Am., Inc., No.

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C-05-4525, 2008 WL 4680033, at *6 (N.D. Cal. Oct. 21, 2008) (quotations and citations omitted).

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The Court first grants Plaintiffs’ motion on the basis that it is unopposed. However, the

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Court grants the motion on the merits as well. In determining whether a bond should be required,

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the Court should consider: (1) the appellant’s financial ability to post a bond; (2) the risk that the

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

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See id. at *6-7. Upon review of the record in this case, the Court finds that the posting of an appeal

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bond is warranted. With regard to the first factor, the ability to post a bond, none of the Objectors

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have presented evidence that they would be unable to pay an appeal bond. Thus, this factor weighs

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in favor of imposing an appeal bond. Fleury, 2008 WL 4680033, at *7. The second factor, the

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difficulty of collecting payment post-appeal, weighs in favor of imposing an appeal bond because

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most of the Objectors are present outside of this District. Id. The third factor, the merits of

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Objectors’ appeals also weigh in favor of requiring a bond. As discussed during the fairness

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hearing held on October 29, 2012, the Court has thoroughly considered each of the Objectors’

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objections to the settlement and has found them to be without merit.

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For the reasons set forth above, the Court finds that the posting of an appeal bond is

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warranted and the amount of $15,000.00 requested by Class Counsel is reasonable. On or before

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July 10, 2013, Objectors Gordon Hansmeier; Thomas Lavery; and Cery Perle, Gary Bishop, Frank

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de Julius, and Andrew Cesare1 must either post a $15,000 bond or file a notice of dismissal of their

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appeal.

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IT IS SO ORDERED.

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DATED: June 18, 2013

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Hon. Michael M. Anello
United States District Judge

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Hansmeier and Lavery must separately post $15,000 each. Perle, Bishop, de Julius, and
Cesare must post $15,000 as a group since they filed their appeal as a group and are represented by the
same counsel.
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