Kwak et al v. Island Colony Hotel et al

Filing 581

ORDER GRANTING DEFENDANTS' MOTION TO REQUIRE PLAINTIFF TO FILE AN APPEAL BOND OR PROVIDE OTHER FINANCIAL SECURITY TO ENSURE PAYMENT OF COSTS ON APPEAL re 565 , 579 - Signed by Judge BARRY M. KURREN on 2/24/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

NAM SOON JEON, individually and
as Estate administrator of her deceased
husband, JUN SUNG KWAK,
Plaintiff,
vs.
445 SEASIDE, INC., AQUA HOTELS
AND RESORTS US/CANADA, and
ASSOCIATION OF APARTMENT
OWNERS OF ISLAND COLONY,

CV11-00015 SOM/BMK
ORDER GRANTING DEFENDANTS’
MOTION TO REQUIRE PLAINTIFF
TO FILE AN APPEAL BOND OR
PROVIDE OTHER FINANCIAL
SECURITY TO ENSURE PAYMENT
OF COSTS ON APPEAL

Defendants.
ORDER GRANTING DEFENDANTS’ MOTION
TO REQUIRE PLAINTIFF TO FILE AN APPEAL BOND OR
PROVIDE OTHER FINANCIAL SECURITY TO ENSURE
PAYMENT OF COSTS ON APPEAL
Before the Court is Defendants 445 Seaside, Inc. (“445 Seaside”),
Aqua Hotels and Resorts, LLC (“Aqua”) and Association of Apartment Owners of
Island Colony’s (“Association”) Motion to Require Plaintiff To File An Appeal
Bond or Provide Other Financial Security to Ensure Payment of Costs on Appeal.
(Doc. 565.) The Court heard this Motion on February 13, 2014. After careful
consideration of the Motion, the supporting and opposing memoranda, and the
arguments of counsel, the Court GRANTS Defendants’ Motion. As discussed

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below, the Court, however, reduces the amount of the bond, previously ordered at
the motion hearing from $15,000 to $5,000.
BACKGROUND
This lawsuit arises from the drowning and subsequent death of Jun
Sung Kwak (“Kwak”), who was visiting Hawaii from South Korea in January
2009. Mr. Kwak’s wife, Plaintiff Nam Soon Jeon (“Jeon”), brought this action
against the Defendants as Mr. Kwak’s estate administrator and wife.
On January 29, 2013, the District Court entered an order granting
summary judgment in favor of Defendant Association and against Jeon with
respect to all claims in the Third Amended Complaint. On January 31, 2013, the
District Court entered an order which in part denied Defendant Association’s
motion to dismiss Defendant 445 Seaside’s Cross-Claim.
The case was tried before a jury commencing on August 27, 2013.
On September 5, 2013, after Jeon rested her case, the District Court granted
Defendant Aqua’s and 445 Seaside’s oral motion for judgment as a matter of law
pursuant to FRCP Rule 50(a) based on Jeon’s failure to present any evidence on
legal causation. On September 5, 2013, a Judgment was entered in the District
Court. On September 5 and 25, 2013, Jeon filed notices of appeal from the
Judgment.

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DISCUSSION
The Federal Rules of Appellate Procedure (“FRAP”) Rule 7 provides:
In a civil case, the district court may require an appellant
to file a bond or provide other security in any form and
amount necessary to ensure payment of costs on appeal.
In determining whether to require an appellant to file a bond or other
security pursuant to Rule 7, courts consider several factors including: (1) the merits
of the appeal; (2) the risk that the appellant would not pay costs in the event the
appeal loses; (3) the appellant's financial ability to post a bond; and (4) whether
there is any evidence of bad faith or vexatious conduct. Dennings v. Clearwire
Corp., 928 F. Supp. 2d 1270, 1271 (W.D. Wash. 2013). In considering the three
factors, this Court finds as follows:
1.

The merits of the appeal.

This Court has been involved in this case almost from its inception,
has met with the parties and counsel on a number of occasions, and has been
presented with a number of motions filed by all of the parties. This Court is
therefore intimately familiar with the case and it is this Court’s opinion that the
likelihood that Jeon will succeed on her appeal is very small. Therefore, this factor
favors the Defendants.

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2.

The risk that the appellant would not pay the appellee’s
costs if the appellant loses.

There is no evidence before the Court that Jeon is willing to pay costs
if her appeal is unsuccessful. Jeon is a Korean national who does not reside in this
jurisdiction. There is no evidence that she owns any property or other possessions
in this jurisdiction. Therefore, the Court finds that there is a risk that Jeon will not
pay costs if her appeal is unsuccessful. This factor favors the Defendants.
3.

The appellant’s financial ability to post bond.

Although Jeon’s counsel argues that she is financially unable to post a
bond, her counsel fails to present any evidence to the Court beyond his plain
argument to establish such inability to pay. The Court therefore finds that this
factor favors Defendants.
4.

Evidence of Bad Faith or Vexatious Conduct.

The Court does not find evidence of bad faith or vexatious conduct.
Accordingly, this factor favors the Jeon.
Having considered the foregoing factors, the Court holds that it is
appropriate to require Jeon to post an appeal bond. The Court, however, reduces
the amount of the bond previously ordered at the February 13, 2014, hearing from
$15,000 to $5,000. The Court’s prior calculation encompassed both expected costs
on appeal and previously awarded costs before the district court. On
reconsideration, the Court holds that an appeal bond, when required pursuant to
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FRAP Rule 7, may be used only for costs on appeal and not for costs incurred in
district court. See In re American President Lines, Inc., 779 F.2d 714, 717 (D.C.
Cir. 1985) (holding that the size of an appeal bond may not be increased based
upon nonsatisfaction of a judgment below); see also U.S. for Use of Terry Inv. Co.
v. United Funding and Investors, Inc., 800 F.Supp. 879, 882 (E.D. Cal. 1992) (“A
bond under Rule 7 . . . may not be used as a surety against the original judgment.”)
CONCLUSION
For the foregoing reasons, this Court GRANTS Defendants’ Motion
to Require Plaintiff to File an Appeal Bond, and modifies the Court’s prior oral
ruling. Jeon is required to post an appeal bond in the amount of $5,000 no later
than March 17, 2014.
DATED: Honolulu, Hawaii, February 24, 2014.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Nam Soon Jeon, individually and as Estate administrator of her deceased husband, Jun Sung
Kwak v. 445 Seaside, Inc., Aqua Hotels And Resorts Us/Canada, and Association of Apartment
Owners of Island Colony, CV11-00015 SOM/BMK, ORDER GRANTING DEFENDANTS’
MOTION TO REQUIRE PLAINTIFF TO FILE AN APPEAL BOND OR PROVIDE OTHER
FINANCIAL SECURITY TO ENSURE PAYMENT OF COSTS ON APPEAL.

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