Walker v. Health International Corporation, et al
ORDER 194 Motion to Strike Plaintiff's Statement is DENIED; GRANTED in part and DENIED in part 195 Motion to Stay; 198 Motion for Setoff is DENIED. Execution of the Final Judgment in this case shall be STAYED solely uponPlaintiffs delivery to the Clerk of Court, and the Clerks approval of, a bond in the amount of $20,511.50, hereby ORDERED by Judge William J. Martinez on 10/05/2015.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-3256-WJM-KLM
HEALTH INTERNATIONAL CORPORATION, a Florida corporation,
HSN, INC., a Delaware corporation, and
HSN INTERACTIVE LLC, a Delaware corporation,
ORDER ON POST-JUDGMENT MOTIONS
Plaintiff Andre L. Walker (“Plaintiff”) brought this action against Defendants
Health International Corp., HSN, Inc., and HSN Interactive LLC (collectively
“Defendants”), which was settled by written agreement (“Agreement”) on May 6, 2014.
(ECF No. 145.) Finding that Plaintiff’s litigation conduct after entering into the
Agreement was vexatious and had unnecessarily multiplied the proceedings, the Court
granted Defendants’ request for an award of attorneys’ fees and costs. (ECF No. 180.)
A Judgment Awarding Attorneys’ Fees in Defendants’ favor was entered on April 27,
2015. (ECF No. 192.) This matter is before the Court on three post-judgment motions:
Defendants’ Motion to Strike Plaintiff’s Statement (ECF No. 194), Plaintiff’s Motion to
Stay Judgment Pending Appeal and for Waiver of Supersedeas Bond (ECF No. 195),
and Defendants’ Motion for Setoff (ECF No. 198). For the reasons set forth below,
Defendants’ Motion to Strike and Motion for Setoff are denied, and Plaintiff’s Motion to
Stay and for Waiver of Bond is granted in part as to the stay and denied in part as to
the waiver of supersedeas bond.
The relevant factual and procedural history was recited in the Court’s August 4,
2014 Order Granting Defendants’ Motion for Dismissal (“Dismissal Order”), and is
incorporated herein. (ECF No. 180 at 1-4.) After the Dismissal Order was entered, the
Court denied Plaintiff’s Motion for Reconsideration (ECF No. 187) and ruled on
Defendants’ request for attorneys’ fees (ECF No. 191), resulting in the Judgment
Awarding Attorneys’ Fees (ECF No. 192). On May 14, 2015, Plaintiff filed a
“Statement,” purportedly “[i]n order to clarify issues for appeal,” which argued that
Plaintiff’s opposition to Defendants’ fee affidavit was improperly stricken as untimely
and asserted that “Plaintiff is the prevailing party in this case.” (ECF No. 193 at 1–2.)
On May 19, 2015, Defendants responded to the Statement by moving to strike it,
arguing that it was an improper attempt to “fabricate a record for appellate purposes
after the fact.” (ECF No. 194 at 2.)
On May 21, 2015, Plaintiff filed a Notice of Appeal (ECF No. 196) and
contemporaneous Motion to Stay Judgment Pending Appeal and for Waiver of
Supersedeas Bond (ECF No. 195). The following day, Defendants filed a Motion for
Setoff, requesting an order permitting Defendants to offset their payments to Plaintiff
due under the Agreement by the amount Plaintiff owed Defendants pursuant to the
Judgment. (ECF No. 198.) All three motions are now fully briefed, and the Court will
discuss them each in turn.
Defendants’ Motion to Strike
Defendants seek an order striking Plaintiff’s Statement, asserting that it is an
improperly filed, unsupported argument regarding issues the Court has already
addressed, namely the award of attorneys’ fees in Defendants’ favor. (ECF No. 194.)
Plaintiff filed no response to the Motion to Strike.
The Court finds Plaintiff’s Statement generally superfluous and his arguments
therein perplexing at best. To the extent that Plaintiff intends his Statement to “clarify
issues for appeal,” the Court fails to see how Plaintiff’s briefs on appeal will be
insufficient to do so. However, Defendants have not shown that the Statement must be
stricken. Plaintiff does not seek relief from this Court in the Statement, and merely
raises issues already present in other briefing in this case. (See ECF No. 193.) As
such, the Court finds no reason to strike the Statement, and this request is denied.
Defendants’ Motion to Strike also contains a separate request for attorneys’ fees,
costs, and sanctions against Plaintiff. (ECF No. 194 at 2.) Defendants’ request violates
this Court’s Revised Practice Standard III.B., which requires that “[a]ll requests for the
Court to take any action . . . must be contained in a separate, written motion[.]” See
also D.C.COLO.LCivR. 7.1(c) (“A motion . . . shall be made in a separate paper.”).
Accordingly, this request is also denied.
Plaintiff’s Motion to Stay and for Waiver of Supersedeas Bond
Plaintiff’s Motion to Stay and for Waiver of Supersedeas Bond cites Federal Rule
of Civil Procedure 62(d), and recognizes that pursuant to that rule, a stay of execution
of the judgment is generally obtained by a judgment debtor’s posting of a supersedeas
bond. (ECF No. 195 at 2); Fed. R. Civ. P. 62(d) (“If an appeal is taken, the appellant
may obtain a stay by supersedeas bond . . . . The stay takes effect when the court
approves the bond.”). “[T]he rationale for requiring a bond pending appeal . . . is to
secure the judgment throughout the appeal process against the possibility of the
judgment debtor’s insolvency.” Grubb v. FDIC, 833 F.2d 222, 226 (10th Cir. 1987);
Miami Int’l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986) (“the purpose of a
supersedeas bond is to secure an appellee f rom loss resulting from the stay of
execution”). Rule 62(d) does not provide for any waiver of the bond requirement, and
the Tenth Circuit has held that “a full supersedeas bond should be the requirement in
normal circumstances.” Id.; Peacock v. Thomas, 516 U.S. 349, 359 n.8 (1996) (“The
district court may only stay execution of the judgment pending the disposition of certain
post-trial motions or appeal if the court provides for the security of the judgment
Generally, the bonded amount equals the full amount of the judgment. Olcott v.
Del. Flood Co., 76 F.3d 1538, 1559 (10th Cir. 1996). T he Court has discretionary
authority to set the amount of the bond in order to ensure that judgment creditors are
protected and judgment debtors are not irreparably injured. Miami Int’l Realty, 807 F.2d
at 874 (approving a reduced supersedeas bond based on appellant’s lack of sufficient
assets to post bond in the full amount of the judgment and danger that execution of
judgment would cause appellant irreparable harm and risk his insolvency).
In its discretion, the Court may reduce or waive the bond requirement, and some
courts have imposed additional requirements, such as the debtor “propos[ing] a plan
that will provide adequate (or as adequate as possible) security for the appellee.” Id. at
873–74 (internal quotation marks omitted); see also, e.g., Pruett v. Skouteris, 2011 WL
282435, at *7 (W.D. Tenn. Jan. 6, 2011) (“Although a court may forego the requirement
of a bond in certain circumstances, there is a presumption in favor of requiring a bond,
and the party seeking to dispense with the requirement bears the burden of showing
why a bond should not be required.”).
The Court considers several factors in determining whether to waive the
supersedeas bond requirement: (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 Court has in the availability of funds to pay the judgment;
(4) whether the appellant’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 appellant is in such a precarious
financial situation that the requirement to post a bond would place its other creditors at
risk. Dillon v. City of Chicago, 866 F.2d 902, 904–05 (7th Cir. 1988) (waiving bond
requirement because City demonstrated the existence of previously appropriated and
available funds for the purpose of paying judgments without substantial delay or other
Here, Plaintiff argues that the supersedeas bond requirement should be waived
entirely because Defendants already owe to Plaintiff, pursuant to the Agreement, a
larger sum than Plaintiff owes Defendants under the Judgment. (ECF No. 195 at 3.)
Plaintiff appears to argue that Defendants’ obligations under the Agreement provide
them with adequate security, but Plaintiff has not explained how this is so when
Defendants’ payment obligations are incremental over the course of ten years.
Defendants point this out in their Response, but Plaintif f declined to file a Reply.
Plaintiff does not present any other argument that good cause exists for waiver.
The Court has considered the relevant factors, and finds that Plaintiff has failed
to show good cause to waive the bond requirement. Defendants’ payments due under
the Agreement are separate obligations not challenged under the appeal, and do not
establish sufficient security. Moreover, satisfaction of the Judgment via these
payments would occur over the course of many months and would necessarily
complicate and protract the collection process. Plaintiff has made no argument that it
faces any hardship in posting a supersedeas bond. Accordingly, the Court finds that
Plaintiff has failed to show that Defendants are provided adequate security, or that
posting a full bond is impossible or impractical. See Miami Int’l Realty, 807 F.2d at
873–74. The Court concludes that waiving the bond requirement is inappropriate here,
and the Motion to Stay and for Waiver of Supersedeas Bond is denied as to waiver.
Nevertheless, Plaintiff may obtain a stay of execution of the Judgment pursuant
to the terms of Rule 62(d), by posting a supersedeas bond in the amount of the
Judgment. The Motion to Stay is therefore granted in that respect, and a stay will be
effective upon the posting of adequate security.
Defendants’ Motion for Setoff
Defendants move for an order permitting the parties to apply their mutual debts
as against each other, so that Defendants might defer their monthly payments to
Plaintiff under the Agreement until the amount of the Judgment has been satisfied.
(ECF No. 198 at 2.) The Court recognizes this payment plan from Plaintiff’s proposal in
his request for waiver of supersedeas bond, but Defendants rejected such proposal in
the context of security for a stay of execution of the judgment. Defendants
nevertheless propose this payment plan in a different context, but without addressing
the fact that Plaintiff’s debt under the Judgment is currently on appeal.
The Court declines to order any payment plan at this time, in the form of setoff or
otherwise, given the pending appeal and the Court’s order above that the execution of
the Judgment will be stayed upon Plaintiff’s posting of a supersedeas bond.
Defendants’ Motion for Setoff is therefore denied as premature. Should the Judgment
be affirmed, the parties may revisit this issue.
For the foregoing reasons, the Court hereby ORDERS as follows:
Defendants’ Motion to Strike Plaintiff’s Statement (ECF No. 194) is DENIED;
Defendants’ Motion for Setoff (ECF No. 198) is DENIED;
Plaintiff’s Motion to Stay Judgment Pending Appeal and for Waiver of
Supersedeas Bond (ECF No. 195) is GRANTED IN PART as to the stay and
DENIED IN PART as to the waiver of bond; and
Execution of the Final Judgment in this case shall be STAYED solely upon
Plaintiff’s delivery to the Clerk of Court, and the Clerk’s approval of, a bond in the
amount of $20,511.50.
Dated this 5th day of October, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
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