Quinones et al v. Chase Bank USA, N.A. et al
Filing
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ORDER Granting 159 Defendant's Ex Parte Application to Stay Enforcement of Court's Order Without Posting a Bond. The Court Grants Defendants ex parte application to stay enforcement of the Courts order granting in part and denying in part Plaintiffs motion for attorneys fees without posting a bond until May 24, 2012. Signed by Judge Anthony J. Battaglia on 5/1/12. (ecs)(jrd)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MARIO B. QUINONES and MARIO I.
QUINONES,
Plaintiffs,
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v.
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Civil No.
09cv2748-AJB(BGS)
ORDER GRANTING DEFENDANT’S
EX PARTE APPLICATION TO STAY
ENFORCEMENT OF COURT’S ORDER
WITHOUT POSTING A BOND
CHASE BANK USA, N.A.,
(Doc. No. 159.)
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Defendant.
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On April 27, 2012, Defendant filed an ex parte application to stay enforcement and, if necessary,
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for an order setting the amount of a supersedeas bond. (Dkt. No. 159.) On April 30, 2012, Plaintiff filed
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an opposition. (Dkt. No. 161.) After a review of the briefing and applicable law, the Court GRANTS
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Defendant’s ex parte application to stay enforcement pending a possible appeal without posting a bond
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until May 24, 2012.
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Background
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On November 8, 2010, Plaintiff Mario B. accepted a Rule 68 offer of judgment which was filed
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with the Court. (Dkt. No. 61.) On November 10, 2010, the Clerk of Court entered judgment “in favor
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of plaintiff Mario B. Quinones against defendant Chase Bank USA, N.A. in the amount of $1,001.00,
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plus reasonable attorney fees and costs.” (Dkt. No. 62.) As to attorney’s fees, the Rule 68 offer of
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judgment states, “ . . . plus reasonable attorney fees and costs incurred solely as to Mario Senior’s claim
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for violation of the California Fair Debt Collection Practices Act (Cal. Civ. Code § 1788, et seq.)
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through and including the day of the making of this offer as determined by the Court, on noticed
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motion.” (Dkt. No. 61) (emphasis in original).
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On December 16, 2011, the Court granted in part and denied in part Plaintiff Mario B.’s motion
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for attorney’s fees. (Dkt. No. 143.) Specifically, the Court granted attorney’s fees in the amount of
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$47,141.00 and costs in the amount of $1026.50. (Id.) On January 3, 2012, Plaintiff Mario B. filed an
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application for writ of execution. (Dkt. No. 137.) Defendant filed an opposition on January 6, 2012.
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(Dkt. No. 140.) Plaintiff filed a reply on January 9, 2012. (Dkt. No. 141.) On January 6, 2012,
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Defendant also moved the Court to reconsider its order. (Dkt. No. 139.) On January 10, 2012, the Court
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stayed the application for writ of execution until ruling on Defendant’s motion for reconsideration.
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(Dkt. No. 142.) On April 13, 2012, the Court issued an order denying Defendant’s motion for
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reconsideration of its order granting in part and denying in part Plaintiff Mario B.’s motion for
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attorney’s fees. (Dkt. No. 153.) On April 19, 2012, Defendant filed an ex parte application to confirm
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statutory stay of execution. (Dkt. No. 155.) On April 27, 2012, the Court denied Defendant’s ex parte
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motion to confirm statutory stay of execution without posting bond. (Dkt No. 158.) On the same day,
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Defendant filed an ex parte application to stay enforcement and if necessary, for an order setting the
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amount of a supersedeas bond. (Dkt. No. 159.) On April 30, 2012, Plaintiff filed an opposition. (Dkt.
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No. 161.)
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Discussion
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Defendant seeks a stay of enforcement of the Court’s order granting in part and denying in part
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Plaintiff’s motion for attorney’s fees until May 24, 2012 while it decides whether to file an appeal by
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May 14, 2012, and after the parties hold a settlement conference before Magistrate Judge Skomal which
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is currently scheduled on May 23, 2012. Defendant states that the automatic stay provided for in Federal
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Rule of Civil Procedure (“Rule”) 62(a) ended on April 27, 20121 and it believes Plaintiff will apply for
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Plaintiff argues that there is no automatic stay of execution under Rule 62(a) since it only
applies to the original judgment and not in a subsequent order ruling on a motion for reconsideration.
The Court agrees with Plaintiff’s conclusion as Rule 62(a) specifically states that the 14 day automatic
stay may be issued on a judgment. See Fed. R. Civ. P. 62(a). Rule 62(b) provides for stays pending
the disposition of a motion, including motions for reconsideration under the applicable Rule. See Fed.
R. Civ. P. 62(b). Therefore, there is currently no stay of the Court’s order.
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a writ of execution on Monday, April 30, 2012. Therefore, Chase filed the instant ex parte application.
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In opposition, Plaintiff argues that Defendant has failed to establish the standard for establishing
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a stay pending an appeal under Federal Rule of Appellate Procedure 8(a)(1)(A).
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Discussion
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Contrary to Plaintiff’s argument, Defendant does not seek a stay pending an appeal but seeks a
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stay pending a possible appeal as it has not decided whether to file an appeal. Therefore, Plaintiff’s
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analysis under Federal Rule of Appellate Procedure 8(a) does not apply as Appellate Rule 8(a) applies
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to a stay pending an actual appeal, not a possible appeal. See Fed. R. App. P. 8(a); Nat’l Fisheries Inst.,
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Inc. v. U.S. Bureau of Customs and Border Protection, 05-00683, 2010 WL 5139443, *1 (Ct. Int’l Trade
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Dec. 17, 2010).
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Federal Rule of Civil Procedure 62(a) provides for an automatic stay of execution of a judgment
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for fourteen days after entry of a judgment. Fed. R. Civ. P. 62(a). After the automatic stay, the Court
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may continue the stay during various post-judgment motions under Rule 62(b); see also Walnut Creek
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Manor, LLC v. Mayhew Ctr., LLC, 07-5664-CW, 2010 WL 653561, at *7 (N.D. Cal. 2010).
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The Court has discretion to stay execution of a judgment without requiring a bond. See
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Brooktree Corp. v. Advanced Micro Devices, Inc., 757 F. Supp. 1101, 1104 (S.D. Cal.1990); Fed.
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Prescription Serv. v. Am. Pharm. Ass’n, 636 F.2d 755, 759-61 (D.C. Cir.1980) (affirming trial court’s
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decision to waive the posting of bond noting that judgment debtor had a net worth of more than 47 times
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the amount of the judgment); Northern Indiana Pub. Serv. Co. v. Carbon Cnty. Coal Co., 799 F.2d 265,
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281 (7th Cir. 1986) (district court has discretion to waive $2 million appeal bond as judgment debtor
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has the ability to pay the judgment).
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A waiver of the bond requirement may be appropriate: “(1) where the defendant’s ability to pay
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is so plain that the cost of the bond would be a waste of money; and (2) where the requirement would
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put the defendant’s other creditors in undue jeopardy.” Brooktree Corp., 757 F. Supp. at 1104 (citing
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Olympia Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986)).
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Defendant argues that there is good cause to waive the bond requirement because Chase is a
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substantial banking institution that has the ability to pay the amount of the judgment and the length of
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the stay is only twenty-seven (27) days.2 In addition, if Chase decides to file an appeal, it may be
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required to post another bond at that time and therefore having to post two bonds is not necessary.
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Plaintiff contends that Defendant has failed to meet the burden to waive the bond requirement and it
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attaches an e-mail from defense counsel that Defendant has no offices or employees anywhere other than
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Delaware. (Opp., Ex. A.) However, Plaintiff does not argue that Defendant does not have the ability
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to pay the judgment.
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The Court takes judicial notice that Chase Bank USA, N.A., is a national banking association.
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(Dkt. No. 155-1, Krog Decl., Ex. D.)3 Therefore, it has the ability to pay the amount of the judgment.
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In addition, since the stay is temporary until May 24, 2012, the Court concludes that it would be a waste
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of resources to obtain a bond. Accordingly, the Court exercises its discretion and GRANTS Defendant’s
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ex parte application to stay enforcement of the Court’s order granting in part and denying in part
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Plaintiff’s motion for attorney’s fees until May 24, 2012 without posting a bond.
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Conclusion
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Based on the above, the Court GRANTS Defendant’s ex parte application to stay enforcement
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of the Court’s order granting in part and denying in part Plaintiff’s motion for attorney’s fees without
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posting a bond until May 24, 2012.
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IT IS SO ORDERED.
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DATED: May 1, 2012
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Hon. Anthony J. Battaglia
U.S. District Judge
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As of the date of the Court’s order, the length of the stay is twenty-four (24) days.
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In Defendant’s prior ex parte application, the Court granted Defendant’s request for judicial
notice that Chase is a national banking association subject to 12 U.S.C. § 91. (Dkt. No. 158.)
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