Waine-Golston et al v. Time Warner NY Cable LLC et al
Filing
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ORDER Granting In Part and Denying In Part 115 Plaintiff's Ex Parte Motion to Stay Enforcement of Defendant's Bill of Costs Pending Appeal. Signed by Judge Gonzalo P. Curiel on 5/7/2013. (srm)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KEVIN WAINE-GOLSTON and
ANDRE CORBIN, individually and on
behalf of other members of the general
public similarly situated,
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vs.
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CASE NO. 11cv1057-GPB(RBB)
ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S EX PARTE
REQUEST TO STAY
ENFORCEMENT OF
DEFENDANT’S BILL OF
COSTS PENDING APPEAL
Plaintiff,
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TIME WARNER
ENTERTAINMENTADVANCE/NEW HOUSE
PARTNERSHIP, a New York general
partnership and DOES 1 through 10,
inclusive,,
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[Dkt. No. 115.]
Defendants.
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Before the Court is Plaintiff’s ex parte request to stay enforcement of
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Defendant’s bill of costs pending appeal. (Dkt. No. 115.) On March 27, 2013, the
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Court granted Defendant’s motion for summary judgment. (Dkt. No. 105.) On April
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10, 2013, Defendant filed a bill of costs in the amount of $3,218.051 with a hearing set
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for May 1, 2013. (Dkt. No. 107.) On April 16, 2013, Plaintiffs filed a notice of appeal
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to the Ninth Circuit. (Dkt. No. 109.) On April 30, 2013, the bill of costs hearing was
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The original bill of costs sought costs in the amount of $4,863.14; however, it was revised to
total $3,218.05 after excluding costs of “expedited” and “daily” deposition transcripts.
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continued to May 15, 2013. (Dk.t No. 114.) On the same day, Plaintiffs filed an ex
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parte motion to stay enforcement2 of Defendant’s bill of costs pending appeal. (Dkt.
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No. 115.) On May 3, 2013, Defendant filed an opposition. (Dkt. No. 117.) Based on
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the reasoning below, the Court GRANTS in part and DENIES in part Plaintiffs’ ex
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parte motion to stay enforcement of Defendant’s bill of costs.
Discussion
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Pursuant to Federal Rule of Civil Procedure 54(d), “[u]nless a federal statute,
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these rules, or a court order provides otherwise, costs—other than attorney’s
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fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). “Rule 54(d)
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creates a presumption in favor of awarding costs to prevailing parties, and it is
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incumbent upon the losing party to demonstrate why the costs should not be awarded.”
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Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999). Civil Local Rule
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54.1(g)(5) provides that “[e]xcept as otherwise provided by law, costs will be taxed on
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the date set notwithstanding the fact that an appeal may have been filed.” Civ. Local
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R. 54.1(g)(5).
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In assessing whether to issue a stay pending appeal, courts consider “(1) whether
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the stay applicant has made a strong showing that he is likely to succeed on the merits;
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(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance
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of the stay will substantially injure the other parties interested in the proceedings; and
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(4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
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The court’s authority to issue a stay is generally conditioned upon approval of a bond.
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Vacation Village, Inc. v. Clark Cnty., 497 F.3d 902, 913 (9th Cir. 2007) (“Federal Rule
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of Civil Procedure 62(d) . . . requires only that the appellant post a supersedeas bond
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in order to obtain a stay on appeal.”) Federal Rule of Civil Procedure 62(d) provides
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that “[i]f an appeal is taken, the appellant may obtain a stay by supersedeas bond . . .
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. The bond may be given upon or after filing the notice of appeal or after obtaining the
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As Defendants point out, it is not clear whether Plaintiffs are seeking a stay of the ruling on
Defendant’s bill of costs or a stay on the enforcement of costs. The Court addresses both arguments.
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order allowing the appeal. The stay takes effect when the court approves the bond.”
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Fed. R. Civ. P. 62(d).
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A party is entitled to a waiver of a bond and a discretionary stay in
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“extraordinary cases.” Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart,
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Inc., 600 F.2d 1189, 1190-91 (5th Cir. 1979). A district court may either waive the
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bond requirement or allow the judgment debtor to use some alternative type of security.
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Brooktree Corp. v. Advanced Micro Devices, Inc., 757 F. Supp. 1101, 1104 (S.D. Cal.
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1990). A waiver of the bond requirement is appropriate under two circumstances:
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“where defendant’s ability to pay is so plain that the cost of the bond would be a waste
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of money” and “where the requirement would put the defendant’s other creditors in
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undue jeopardy.” Id. at 1104 (citing Olympia Equipment v. Western Union Tele. Co.,
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786 F.2d 794, 796 (7th Cir. 1986)). The party seeking the waiver bears the burden
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showing the relief from the bond requirement is justified. Jardin v. DATAllegro, Inc.,
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08cv1462-IEG(WVG), 2011 WL 4835742, at *10 (S.D. Cal. Oct. 12, 2011).
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While Plaintiffs cite cases that the district court has discretion to issue a stay
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without the posting of a bond, they fail to address whether they meet the factors to
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warrant a waiver of the bond requirement. Accordingly, having failed to demonstrate
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that a waiver is justified, Plaintiffs are not entitled to a waiver of a bond if a stay is
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granted.
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As to the merits of the stay of enforcement, Plaintiffs argue that there is a strong
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possibility that they will succeed on the merits of their appeal. They also contend that
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they will be irreparably harmed as they are currently unemployed.3 Plaintiffs further
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assert that Defendant will not be harmed by a stay as it only needs to wait six months
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when the appellate briefings are due to collect costs. Lastly, they contend that the
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public interest favors the use of class action lawsuits.
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In a declaration, Plaintiff’s counsel also asserts that from his experience it is
harder for many current and former employees to find employment after serving as a
named class representative. This statement is not helpful as it is not clear whether
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in a class action case.
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Defendant opposes arguing that a stay is not warranted because Plaintiffs are not
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likely to succeed on the merits. They also argue that Plaintiffs will not be irreparably
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harmed absent a stay because besides the fact they are currently unemployed, they have
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not shown they are unable to pay costs of $3,218.05 between the two of them, or
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provide any documentation to such effect. There is also no public interest in class
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action cases because, in this case, the Court denied class certification and granted
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Defendant’s motion to summary judgment.
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The Court finds that the most relevant factor whether to issue a stay is whether
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Plaintiffs have made a strong showing that they are likely to succeed on the merits.
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While Plaintiffs have not demonstrated they are likely to succeed on the merits, the
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Court acknowledges that the legal issue on appeal is disputed by the parties and there
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is no binding precedent. Since the issue on appeal is disputed, a reversal on appeal
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may reverse the “prevailing party.” See Jardin v. DATAllegro, Inc., 08cv1462-
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IEG(WVG), 2011 WL 4835742, at *10 (S.D. Cal. 2011). Moreover, the Court sees no
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harm to Defendant, a large business, in holding off to collect $3,218.05. Accordingly,
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the Court exercises its discretion and stays the execution of the bill of costs taxed by
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the Clerk of Court. The parties have not directly addressed and the Court sees no
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reason to stay a ruling on Defendant’s bill of costs.
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Conclusion
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Based on the above, the Court DENIES Plaintiffs’ motion to stay a ruling on
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Defendant’s bill of costs. The bill of costs hearing shall proceed on May 15, 2013.
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Once the Clerk of Court has taxed costs, the Court GRANTS Plaintiffs’ motion to stay
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execution of the bill of costs conditioned upon Plaintiffs posting a supersedeas bond
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for the full amount of costs taxed by the Clerk of Court. Plaintiff shall post a
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supersedeas bond within 14 days of the date that the bill of costs are taxed. Once a
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bond has been posted, a stay shall remain in effect until the appeal before the Ninth
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Circuit, No. 13-55622 is fully resolved. If no bond is posted, there shall be no stay of
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enforcement and the bill of costs taxed by the Clerk of Court shall be subject to
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enforcement.
IT IS SO ORDERED.
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DATED: May 7, 2013
HON. GONZALO P. CURIEL
United States District Judge
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