Tara Productions, Inc. v. Hollywood Gadgets, Inc. et al

Filing 187

ORDER denying [DE 176 and 177] Defendant's Motion for Protective Order and to Stay Deposition of Juda Levin Pending Outcome on Appeal. Please see Order for details. Signed by Magistrate Judge Barry S. Seltzer on 9/9/2011. (kas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-61436-CIV-COHN/SELTZER
TARA PRODUCTIONS, INC.,
Plaintiff,
vs.

HOLLYWOOD GADGETS, INC., et al.,
Defendants.
________________________________/
ORDER ON PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AND TO STAY
THIS CAUSE is before the Court on the Motion for Protective Order and to Stay
Deposition of Juda Levin Pending Outcome on Appeal (DE 176 and 177)1 filed by Juda
Levin pro se and the Court being sufficiently advised, it is hereby ORDERED that the
Motion is DENIED for the reasons set forth below.
On December 14, 2010, the District Court granted Plaintiff Tara Productions, Inc.’s
(“Tara Productions”) Motion for Entry of Default Judgment (DE 146) and entered a Final
Default Judgment against Defendants Juda Levin and Hollywood Gadgets, Inc., jointly and
severally, in the amount of $436,813.19, plus interest and attorney’s fees and costs (DE
147). On July 25, 2011, Defendant Levin filed a Notice of Appeal of those Orders (DE
171). It does not appear that Levin posted a supersedeas bond, nor does the record
reflect that he intends to do so.
On July 7, 2011, Tara Productions served on Levin and Hollywood Gadgets, Inc.,

1

The motion docketed as entry 177 is a duplicate of the motion docketed as entry
176; both, however, appear on the docket as pending motions.

a Notice of Taking Deposition Duces Tecum Via Telephone (DE 179-1); the deposition (in
aid of execution) was to commence on August 1, 2011.2 The Notice also required the
deponents to produce 33 categories of documents on or before July 25, 2011. On July 29,
2011, Levin moved the Court for a protective order, requesting that the Court stay his
deposition until his appeal has been decided. Levin argues that he would be prejudiced
if he were to provide testimony as to his assets and the Eleventh Circuit were later to
reverse the default judgment entered against him; he additionally argues that Tara
Productions would not be prejudiced by a stay. Although Levin has specifically requested
only that his deposition be stayed, it appears that he is actually seeking to stay execution
of the judgment pending his appeal.
Tara Productions responds that should Levin wish to stay enforcement of the
judgment, he can post a supersedeas bond in accordance with Federal Rule of Civil
Procedure 62(d).3 As the former Fifth Circuit has explained:
The purpose of a supersedeas bond is to preserve the status
quo while protecting the non-appealing party’s rights pending
appeal. A judgment debtor who wishes to appeal may use the
bond to avoid the risk of satisfying the judgment only to find

2

Because this Court would not have had sufficient time to rule on the motion before
the scheduled deposition date, it ordered that Tara Productions was precluded from taking
Levin’s deposition until such time as the motion had been fully briefed and the Court had
ruled on it. Order (DE 178).
3

Rule 62(d) provides: “If an appeal is taken, the appellant may obtain a stay by
supersedeas bond. . . . The bond may be given upon or after filing the notice of appeal or
after obtaining the order allowing the appeal. The stay takes effect when the court
approves the bond.” Fed. R. Civ. P. 62(d). Local Rule 62.1(a) provides: “A supersedeas
bond staying execution of a money judgment shall be in the amount of 110% of the
judgment, to provide security for interest, costs and any award of damages for delay. Upon
its own motion or upon application of a party the Court may direct otherwise.” S.D. Fla.
L.R. 62.1(a).
2

that restitution is impossible after reversal on appeal. At the
same time, the bond secures the prevailing party against any
loss sustained as a result of being forced to forgo execution on
a judgment during the course of an ineffectual appeal.
Poplar Grove Planting and Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 119091 (5th Cir. 1979).
In reply, Levin contends that although posting a supersedeas bond pursuant to Rule
62 is one method to stay of execution of a judgment, it is not the exclusive method. He
argues that nothing in Rule 62 precludes a party from requesting a court to stay a matter
(pending appeal) without posting a bond. Although Levin has failed to cite any authority
to support his position, courts have ruled that under some circumstances they do possess
the discretion to stay an action without the posting of a supersedeas bond. See, e.g.,
Miami Int’l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986) (“District courts . . .
have inherent discretionary authority in setting supersedeas bonds”; noting that Rule
62(d)’s bond requirement “does not prohibit a court, in extraordinary circumstances, from
permitting an alternate form of security for a stay pending appeal”); Fed. Pharm.
Prescription Serv. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980) (A Rule 62(d)
“bond speaks only to stays granted as a matter of right; it does not speak to stays granted
by the court in accordance with its discretion.”); HCB Contractors v. Forest Elec. Corp.,
168 F.R.D. 508, 512 (E.D. Pa. 1995) (“Posting a [Rule 62(d)] bond . . . is not the only
method by which a judgment debtor can obtain a stay. The propriety of any security
posted is a discretionary determination made by the court.”) (internal quotation marks and
citation omitted).
As one district court has noted:
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Rule 62(d) provides that a party may obtain a stay of a
judgment by posting a supersedeas bond. . . . [But] the court
possesses the power to waive the requirement of a
supersedeas bond. That power, however, has been exercised
only in extraordinary circumstances and only where alternative
means of securing the judgment creditor’s interest were
available.
* * *
In no case . . . has a court approved security different from a
full supersedeas bond without a specific showing of good
cause by the party seeking the stay. It is the appellant’s
burden to demonstrate objectively that posting a full bond is
impossible or impractical; likewise, it is the appellant’s duty to
propose a plan that will provide adequate (or as adequate as
possible) security for the appellee.
Grand Entm’t Group, Ltd. v. Star Media Sales, Inc., No. 86-5763, 1992 WL 114953, at *2
(E.D. Pa. May 18, 1992) (internal quotation marks and citation omitted).
The former Fifth Circuit has also spoken to the issue:
If a judgment debtor objectively demonstrates a present
financial ability to facilely respond to a money judgment and
presents to the court a financially secure plan for maintaining
that same degree of solvency during the period of an appeal,
the court may then exercise a discretion to substitute some
form of guaranty of judgment responsibility for the usual
supersedeas bond. Contrariwise, if the judgment debtor's
present financial condition is such that the posting of a full
bond would impose an undue financial burden, the court
similarly is free to exercise a discretion to fashion some other
arrangement for substitute security through an appropriate
restraint on the judgment debtor's financial dealings, which
would furnish equal protection to the judgment creditor.
Poplar Grove, 600 F.2d at 1191; see also Cunningham v. Ariel’s Gas & Food, Corp., No.
06-21459-Civ, 2007 WL 3274451, at *1 (S.D. Fla. Nov. 5, 2007) (Cooke, J.) (noting that
federal courts have recognized two instances where a bond may be unnecessary to stay
the execution of a judgment – “where the defendant’s ability to pay the judgment is so plain
that the cost of the bond would be a waste of money” and “where the requirement would
4

put the defendant’s other creditors in undue jeopardy.”); Avirgan v. Hull, 125 F.R.D. 185,
186 (S.D. Fla. 1989) (King, J.) (same).
Although the Court may possess the discretion to waive the bond requirement, it
declines to do so here. Levin has failed to proffer any reason why a supersedeas bond
should not be required to stay execution of the judgment and/or discovery in aid of
execution thereof. Based on the foregoing, it is hereby ORDERED as follows:
1.

Levin’s Motion for Protective Order and to Stay Deposition of Juda Levin

Pending Outcome on Appeal (DE 176 and 177) is DENIED.
2.

On or before September 23, 2011, Juda Levin shall produce to Tara

Productions all documents identified in the Notice of Taking Deposition Duces Tecum (DE
179-1) that are in his possession, custody, or control.4
3.

Tara Productions shall be permitted to take Juda Levin’s deposition in aid of

execution on a date and time mutually convenient to the parties and counsel. Levin and
Tara Productions shall forthwith confer and decide on a date certain for the deposition.
The deposition, however, shall be completed on or before October 7, 2011. If the parties
are unable to agree on a date for Levin’s deposition before September 19, 2011, Tara
Productions may unilaterally set the deposition date.
4.

Tara Productions Demand for Sanctions (DE 179) is DENIED.

Tara

Productions seeks sanctions against Levin in the form of an award of attorney’s fees
incurred in responding to the instant Motion. Tara Productions argues that sanctions are

4

The Eleventh Circuit has defined “control” as “the legal right to obtain the
documents requested upon demand.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.
1984).
5

warranted because Levin “knew or should have known that Rule 62(d) provided the sole
means for him to stay proceedings in aid of execution.” Demand for Sanctions at 5 (DE
179). However, as the Court has discussed above, Rule 62(a) is not the exclusive method
for obtaining a stay.
DONE AND ORDERED in Fort Lauderdale, Florida, this 9th day of September 2011.

Copies to:
All counsel of record
Juda Levin
341 11th St.
Lakewood, NJ 08071

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