U.S. Bank National Association v. Wayman et al
Filing
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ORDER denying Defendant Gary N. Wayman's 59 Motion for Stay of Execution of Judgment Pending Appeal. Signed by Judge Cynthia Bashant on 5/25/2016. (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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U.S. BANK NATIONAL
ASSOCIATION,
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Case No. 13-cv-02203-BAS(BLM)
ORDER DENYING MOTION
FOR STAY OF EXECUTION OF
JUDGMENT PENDING APPEAL
Plaintiff,
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v.
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[ECF No. 59]
GARY N. WAYMAN,
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Defendant.
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I.
INTRODUCTION
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The Court granted summary judgment in this action in favor of Plaintiff and
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against Defendant Gary N. Wayman. (ECF No. 45.) On March 17, 2016, the Clerk
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of the Court entered judgment against Wayman in the amount of $159,666.75, plus
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interest and costs as allowed by law. (ECF No. 55.) Wayman filed a notice of appeal,
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and he now moves for a stay of the execution of the judgment pending resolution of
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his appeal. (ECF No. 59.) Plaintiff opposes. (ECF No. 63.)
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The Court found this motion suitable for determination on the papers submitted
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and without oral argument. See Civ. L.R. 7.1(d). For the following reasons, the Court
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DENIES Wayman’s Motion for Stay of Execution of Judgment Pending Appeal.
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II.
DISCUSSION
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With a few specified exceptions, Federal Rule of Civil Procedure 62(a)
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automatically stays the execution or enforcement of a judgment for fourteen days
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after entry of the judgment. A party who files an appeal may obtain a stay beyond
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this period by filing a supersedeas bond. Fed. R. Civ. P. 62 (d).
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The purpose of a supersedeas bond is to shield an appellee from a loss that
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could result from the stay. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1505 n.1
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(9th Cir. 1987); N.L.R.B. v. Westphal, 859 F.2d 818, 819 (9th Cir. 1988). A judgment
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debtor who wishes to appeal may also choose to use a supersedeas bond “to avoid
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the risk of satisfying the judgment only to find that restitution is impossible after
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reversal on appeal.” Planting & Ref. Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189,
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1191 (5th Cir. 1979). The judgment debtor may provide the bond “upon or after filing
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the notice of appeal.” Fed. R. Civ. P. 62 (d). “The stay takes effect when the court
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approves the bond.” Id.
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In the alternative, a district court has the discretion to “waive the bond
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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.
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Cal. 1990); accord Fed. Prescription Serv. v. Am. Pharmaceutical Ass’n, 636 F.2d
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755, 759–61 (D.C.Cir.1980) (noting Rule 62 “in no way necessarily implies that
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filing a bond is the only way to obtain a stay”); N. Ind. Pub. Serv. Co. v. Carbon
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Cnty. Coal Co., 799 F.2d 265, 281 (7th Cir.1986) (holding district court has
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discretion to waive $2 million appeal bond). In determining whether to waive the
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bond requirement, the court may consider 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 position
that the requirement to post a bond would place other creditors of the
defendant in an insecure position.
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Dillon v. Chicago, 866 F.2d 902, 904–905 (7th Cir.1988).
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Here, Wayman submits that he is currently discussing settlement options with
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Plaintiff and is contemporaneously pursuing a supersedeas bond to stay the action.
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(Mot. 2:17–22, ECF No. 59.) He requests the Court issue a stay “without the bond
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requirement” or, in the alternative, “issue a temporary stay of enforcement” until after
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the parties are able to further discuss settlement. (Id. at 3:19–4:3.)
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Having considered Wayman’s motion and supporting declaration, the Court
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finds that staying the execution of the judgment is not warranted. Wayman has not
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demonstrated that waiving the bond requirement temporarily or altogether is
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appropriate. For instance, there is no indication here that the bond requirement would
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place other creditors in an insecure position or that a bond would be an unnecessary
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waste. Accordingly, given that Plaintiff has the right to execute on the judgment, the
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Court finds Wayman must post a supersedeas bond if he wishes to stay the execution
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of the judgment pending resolution of his appeal.
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III.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant Gary N. Wayman’s
Motion for Stay of Execution of Judgment Pending Appeal (ECF No. 59).
IT IS SO ORDERED.
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DATED: May 25, 2016
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