Electrolux Home Prod v. Whitesell Corp
Filing
1220
ORDER granting in part and denying in part 1199 Motion to Stay. The CourtGRANTS Whitesell's motion to waive the bond requirement and tostay execution of the Judgments pending theAppeals. However, the Court DENIES Whitesell's motion to theextent that it requests a stay of execution of the Judgments following the Appeals without posting a supersedeas bond. Signed by Chief Judge J. Randal Hall on 6/10/2019. (pts)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
WHITESELL CORPORATION,
*
5
Plaintiff,
*
■k
V.
*
CV
103-050
*
ELECTROLUX HOME PRODUCTS,
*
INC.,
*
HUSQVARNA,
A.B.,
and
HUSQVARNA OUTDOOR PRODUCTS,
INC.,
*
*
*
Defendants.
*
ORDER
In September 2018, without notice to the aggrieved party
Defendant
Husqvarna
Outdoor
Products,
Inc.,
Plaintiff
Whitesell Corporation filed a privileged e-mail communication
as an exhibit to an opposition brief contravening the Clawback
Provision
in
the
parties'
Production of Documents.
Stipulated
Protocol
for
the
Husqvarna moved to strike the filing
and to sanction Whitesell's conduct.
On November 16,
2018,
the Court granted Husqvarna's motion and invited Husqvarna to
submit a request
1101. )
On
for costs and attorneys'
April
16,
2018,
the
Court
$8,598.90 in costs and attorneys' fees.
fees.
awarded
(Doc.
No.
Husqvarna
(Doc. No. 1182. )
The
Clerk therefore entered judgment in favor of Husqvarna against
Whitesell for $8,598.90.
(Doc.
No.
1183. )
In October 2018, Husqvarna and Defendant Electrolux Home
Products, Inc. filed a motion for sanctions against Whitesell,
seeking to strike Whitesell's claim for lost profits in this
case because of certain discovery violations. After extensive
briefing and an evidentiary hearing, the Court entered an
Order on February 14, 2019, granting Defendants' motion for
sanctions.
(Doc.
No.
1159.)
Whitesell failed to timely
The
provide
Court
determined
that
responsive information
within its possession to both Defendants and the Court, first
denying the
produce
the
information's
information
existence
upon
and
then
Whitesell's
refusing
to
self-serving
conclusion that the information was unreliable and unnecessary
to
the
suit.
(Id.
at
5.)
Further,
the
Court found
that
Whitesell's discovery violations were particularly egregious
in the context of this multi-faceted, multi-year case and
given that the subject information was not produced until
after the close of discovery.
(Id. at 11-13.)
In short, the
Court concluded that Defendants suffered extraordinary and
irreparable prejudice because of Whitesell's conduct.
(Id. at
13-14.)
Again, the Court invited Defendants to submit a request
for attorney's fees and costs.
On April 17, 2019, the Court
awarded $189,894.20 in fees and costs in favor of Husqvarna
and
awarded
$54,509.13
in
fees
and
costs
in
favor
of
Electrolux in two separate Orders.
(Doc. Nos. 1185 & 1187.)
The Cleric therefore entered judgment in favor of Husqvarna and
against Whitesell for $189,894.20 (doc. no. 1186) and in favor
of Electrolux and against Whitesell for $54,509.13 (doc. no.
1188).
On May 13, 2019, Whitesell filed a Notice of Appeal as to
each
of
the
Defendants
on
three
Judgments
account
of
awarding
Whitesell's
(hereinafter "the Appeals").
fees
and
costs
sanctionable
to
conduct
Thereafter, Whitesell filed the
instant motion asking the Court to stay the execution of the
Judgments during the pendency of the Appeals and to waive the
requirement to post a supersedeas bond.
A judgment of a
United States
District Court becomes
enforceable thirty (30) days after the judgment is entered.
Fed. R. Civ. P. 62(a).
Rule 62(b), however, provides that
"[a]t any time after judgment is entered, a party may obtain
a stay by providing a bond or other security."
That is, an
appellant may obtain a stay of judgment pending appeal as a
matter of right upon posting a supersedeas bond.
The purpose
of a supersedeas bond is to protect the appellees from a loss
resulting from the stay of execution.
Poolar Grove Planting
& Ref. Co V. Bache Halsev Stuart. Inc.. 600 F.2d 1189, 1190-91
(5^^ Cir. 1979); see Prudential Ins. Co. v. Bovd. 781 F.2d
1494, 1498 (11*^^ Cir. 1986) (stating that the purpose of the
supersedeas bond is to preserve the status quo and protect the
rights of the non-appealing party during appeal).
Here, Whitesell seeks a stay of execution without posting
a
supersedeas
bond.
A
district
court
certainly
has
the
inherent discretionary authority to stay an action and to
waive the bond requirement.
See Howard v. Auausta-Richmond
Ctv.. Ga.. Common. 2014 WL 7359095, *1 (S.D. Ga. Dec. 23,
2014); Tara Productions. Inc. v. Hollywood Gadgets. Inc.. 2011
WL
4020855,
omitted).
where the
at
*1
(S.D.
Fla.
Sept.
9,
2011)
(citations
One circumstance in which a bond may be waived is
judgment debtor
(the
appellant) demonstrates a
present financial ability to pay the money judgment.
E.g.,
Tara Productions, 2011 WL 4020855, at *1; see also Aviraan v.
Hull. 125 F.R.D. 185, 186 (S.D. Fla. 1989) (stating that a
supersedeas bond is not necessary where the
appellant's
ability to pay the judgment is so plain that the cost of the
bond would be a waste of money).
In this case, Whitesell insists that its ability to pay
the Judgments is manifest, and therefore posting a bond would
be a waste of money.
Defendants oppose the motion, not
disputing Whitesell's ability to pay the money judgment but
instead pointing out that the subject Orders and resulting
Judgments do not constitute ^^final decisions" as required by
28 U.S.C. § 1291.
(Defs.' Resp. in Opp'n to PI.'s Mot. to
Waive Bond, Doc. No. 1203, at 1-2 & n.2 (citing cases which
hold that orders imposing sanctions for discovery abuses are
not appealable until after final judgment except under limited
circumstances).)
The
Orders
from
which
Plaintiff
concern discovery violations.^
appeals
effectively
Thus, the Court agrees with
Defendants that the Appeals are not from final decisions and
that the Eleventh Circuit Court of Appeals will most likely
dismiss
the
Appeals
as
premature.
Nevertheless,
because
Whitesell has the ability to pay the Judgments, the Court
GRANTS Whitesell's motion to waive the bond requirement and to
stay execution of the Judgments (doc. no. 1199) pending the
Appeals.
Further, the Court DENIES Whitesell's motion to the
extent that it requests a stay of execution of the Judgments
^ In its Reply Brief, Whitesell argues that the Court's
entry of the Judgments effectively changed their nonappealability; that is, because the Court reduced to partial
judgment the imposed discovery sanctions, the Judgments were
rendered immediately appealable. (Doc. No. 1214, SI 18.) In
point of fact, a discovery sanction "is not a separate claim
that will support entry of final judgment under Civil Rule
54(b)." 15B Charles Alan Wright et ai.. Federal Practice and
Procedure § 3914.30 (2d ed.); see also M.A. Mortenson Co. v.
United States. 877 F.2d 50, 52 (Fed. Cir. 1989) ("The award of
a discovery sanction . . . [is] not a substantive right or
cause of action . . . . Thus, the
non-appealability of a
discovery sanction is not changed by the fact that it is
reduced to partial judgment under Rule 54(b).") (citing Mulav
Plastics. Inc. v. Grand Trunk W. R.R. Co.. 742 F.2d 369 (7*^^
Cir. 1984) ("It also adds nothing that the judge certified his
order awarding sanctions for an immediate appeal under Rule
54(b).")).
following the Appeals without posting a supersedeas bond.
ORDER ENTERED at Augusta, Georgia, this /^^^day of June,
2019.
hall; chief judge
'ATES DISTRICT COURT
DISTRICT
OF GEORGIA
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