Edmo v. Corizon Incorporated et al

Filing 345

MEMORANDUM DECISION AND ORDER - Defendants Motion to Stay (Dkt. 338 ) is GRANTED in part and DENIED in part. Accordingly: Defendants request for an unbonded stay pending appeal is DENIED. Defendants request for an unbonded stay pending the conclus ion of mediation is GRANTED. The attorneys fee award (Dkt. 323 ) and all proceedings to enforce it are temporarily STAYED as to all Defendants. IDOC Defendants Motion for Protective Order (Dkt. 342 ) is DENIED as MOOT. Defendants Joint Motion to Exceed Page Limit (Dkt. 343 ) is GRANTED. Signed by Judge B Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (lm)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ADREE EDMO,

Case No. 1:17-cv-00151-BLW

Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.
IDAHO DEPARTMENT OF
CORRECTION, et al.,
Defendants.

INTRODUCTION
Before the Court is Defendants’ fully briefed Motion to Stay (Dkt. 338).1
For the reasons explained below, the Court will grant the motion in part and deny it
in part.
BACKGROUND
In this action, Plaintiff Adree Edmo obtained an injunction ordering
Defendants to provide her with “adequate medical care,” including gender

1

Because the Court grants a stay of all enforcement proceedings pending mediation, this
Order also resolves IDOC Defendants’ Motion for Protective Order. Dkt. 342.

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confirmation surgery. Dkt. 149, at 45. After three years of appellate litigation
surrounding the injunction, the parties negotiated a settlement of all remaining
claims, and the underlying action came to an end.
In October 2021, Edmo filed a motion for attorneys’ fees and expenses for
representation over a four-year period before this Court, the Ninth Circuit Court of
Appeals, and United States Supreme Court. Dkt. 315. On September 30, 2022, this
Court issued its Memorandum Decision and Order awarding Edmo $2,586,048.80
in attorneys’ fees and $45,544.20 in litigation expenses. Dkt. 323. Shortly
thereafter, Defendants filed a timely Notice of Appeal as to the fee award. Dkt.
324.
Since the automatic stay of the fee award expired, Edmo has made repeated
efforts to collect on the judgment. She has filed writs of execution (Dkts. 330 &
336), inquired with Court staff and the U.S. Marshals as to the requisite detail for
such writs, and served Rule 69(a)(2) discovery on Corizon. Pl.’s Resp. at 4, Dkt.
341. Defendants have objected each step of the way and asked the Court to delay
collection efforts. Dkts. 331 & 332. Denying Defenants’ motion, the Court noted
that if Defendants wish to delay enforcement of the fee award, they must squarely

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ask the Court for a stay. Dkt. 337. They do so now.2
LEGAL STANDARDS
1.

Mandatory Stays under Federal Rule of Civil Procedure 62(f)
A litigant who loses in federal court may seek to stay enforcement of the

judgment pending appeal. Federal Rule of Civil Procedure 62 provides several
avenues to do so, but ordinarily the appellant must post a bond under Rule 62(b).
One exception is found in Rule 62(f), which provides: “If a judgment is a
lien on the judgment debtor's property under the law of the state where the court is
located, the judgment debtor is entitled to the same stay of execution the state court
would give.” Thus, if Rule 62(f) applies and a state court would grant a stay
without requiring the appellant to post a bond, the federal court must do the same.
Idaho’s rules governing stays are found in Idaho Rule of Civil Procedure 62.
Relevant here, Rule 62(e) provides that “[t]he court must not require a bond,
obligation or other security from the appellant when granting a stay on an appeal
by the state of Idaho or its officers, agencies or subdivisions.”
Taken together, Federal Rule 62(f) and Idaho Rule 62(e) mean that if a state

2

Defendants Idaho Department of Corrections, Josh Tewalt, Bree Derrick, and Al
Ramirez filed this Motion to Stay, Dkt. 338, which was subsequently joined by Defendants
Corizon, LLC and Dr. Scott Eliason, Dkt. 340.

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officer, agency, or subdivision loses in federal court and the federal judgment
constitutes a lien on state property under Idaho law, the federal court must grant a
stay on appeal without requiring a bond or other security. The key question, then,
is whether a given federal judgment creates a lien under Idaho law.
Idaho Code specifically prohibits “nonconsensual common law liens,”
defined to include any lien “not provided for by a specific state or federal statute.”
I.C. § 45-811. Under that provision, though, judgment liens are excluded from the
definition of nonconsensual common law liens and therefore are not generally
prohibited. Case law has, nevertheless, made clear that “[a] judgment lien is purely
a creature of statute and does not exist in the body of our common law.”
Messenger v. Burns, 86 Idaho 26, 29 (1963) (citing Platts v. Pacific First Federal
Savings & Loan Ass’n of Tacoma, 62 Idaho 340, 340-347 (1941)).
Idaho statutes specifically provide for creation of judgment liens on real
property. Under Idaho Code § 10-1110, a judgment creates a lien on real property
when a “transcript or abstract of any judgment or decree” is “recorded with the
recorder of any county of this state . . . from the time of such recording, and not
before, the judgment so recorded becomes a lien upon all real property of the
judgment debtor in the county.” Thus, as the Idaho Supreme Court has explained,
the “judgment lien is obtained by the act of recording a judgment, not by the act of

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obtaining a judgment.” Golub v. Kirk-Scott, Ltd., 342 P.3d 893, 901 (Idaho 2015). 3
Conversely, Idaho Code does not broadly provide for the creation of
judgment liens on personal property. Instead, it identifies specific circumstances in
which such liens arise. See, e.g., I.C. § 22-2201 (liens in trespassing animals); I.C.
§ 47-45-801 (vendors’ liens); I.C. § 3-205 (attorney liens in client judgments).
Thus, because judgment liens are creatures of statute and nonconsensual common
law liens are prohibited, a federal court judgment only becomes a lien on personal
property in Idaho if it falls within one of the statutorily prescribed circumstances. 4
2.

Discretionary Stays under Federal Rule of Civil Procedure 62(b)
A litigant may also stay enforcement of a federal court judgment “by

providing a bond or other security” at “any time after judgment is entered.” Fed. R.
Civ. P. 62(b). The two main reasons for requiring a bond are to (1) protect the

3

See also Amato v. U.S., 94 F.Supp.2d 1077, 1081 (D. Idaho 1999) (“A lien simply does
not exist if the judgment . . . has not been recorded.”); Alpha Mortgage Fund II v. Drinkard, 169
Idaho 446, 451 (2021) (quoting Grazer v. Jones, 154 Idaho 58, 65 (2013)) (“A judgment lien is
distinct from the underlying judgment . . ..”); Fulton v. Duro, 107 Idaho 240, 247 (Idaho Ct.
App. 1984).
4

Defendants argue that Federal Rule 62(f) is not limited to judgment liens but includes
all types and varieties of lien. A plain reading of the Rule suggests otherwise: a judgment that “is
a lien” is called a judgment lien. Moreover, Idaho Code specifically prohibits nonconsensual
common law liens. I.C. §§ 45-811(1) & (2). Thus, to the extent Defendants claim the fee award
created a non-statutory lien simply because it falls within the definition of “lien,” that argument
plainly fails.

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prevailing party “from the risk of a later uncollectible judgment and [2]
compensate him for delay in the entry of the final judgment.” N.L.R.B. v. Westphal,
859 F.2d 818, 819 (9th Cir. 1988).
Although a full bond “should be the requirement in normal circumstances,”
Federal Prescription Service, Inc. v. American Pharmaceutical Ass’n, 636 F.2d
755, 760 (D.C. Cir. 1980), district courts nevertheless have “broad discretionary
power to waive the bond requirement” as they see fit. Townsend v. Holman
Consulting Corp., 881 F.2d 788, 796 (9th Cir. 1989), vacated on other grounds,
929 F.2d 1358 (9th Cir. 1990). Because bonds protect prevailing parties’ interests,
however, “the burden is on the moving party to demonstrate the reasons for
‘departing from the usual requirement of a full security supersedeas bond.’” Estate
of Casillas v. City of Fresno, 471 F.Supp.3d 1035, 1037 (E.D. Cal. 2020) (quoting
Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d
1189, 1190 (5th Cir. 1979)).
A.

Applicable Standard

Courts have used two different tests to analyze motions for unbonded stays
of money judgments: the traditional four-factor Hilton test and the five-factor
Dillon test. Some courts apply only one of the two tests. See, e.g., Educ. Logistics,
Inc. v. Laidlaw Transit, Inc., No. CV 07-06-M-DWM, 2013 WL 12134035, at *1

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n.1 (D. Mont. May 13, 2013); Balla v. Idaho State Board of Corrections, No. 1:CV
81–1165–BLW, 2010 WL 3001442 (D. Idaho July 28, 2010). Others apply both
tests in sequence. See, e.g., Cayuga Indian Nation of New York v. Pataki, 188
F.Supp.2d 223, 255 (N.D.N.Y. 2002); United States v. Moses, No. 4:19-cv-00108DCN, 2021 WL 1617376 (D. Idaho Apr. 23, 2021). Recognizing these competing
approaches, the parties address both tests in their briefing. The Court takes this
opportunity to clarify the proper approach.
The United States Supreme Court set forth the traditional standard governing
motions to stay enforcement of federal court judgments in Hilton v. Braunskill, 481
U.S. 770, 776 (1987). See also Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir.
2011). Courts applying that test look to four equitable factors: “(1) whether the
stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Hilton, 481 U.S. at 776.
Balancing these factors, courts exercise discretion to decide whether a stay is
appropriate. Nken v. Holder, 556 U.S. 418, 433–34 (2009).
The Dillon test, in contrast, was first articulated by the Seventh Circuit in
Dillon v. City of Chicago, 866 F.2d 902 (7th Cir. 1988), and has since been

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adopted by many federal courts across the country. Courts applying the Dillon test
look to five factors:
(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 had in the availability of
funds to pay the judgment; (4) whether the defendant's ability to pay
the judgment is so plain that the costs of a bond would be a waste of
money; and (5) whether the defendant is in such a precarious financial
situation that the requirement to post a bond would place other
creditors of the defendant in an insecure position.
Id. at 904–07.
The Ninth Circuit has not directly weighed in, but many federal courts apply
the Dillon test rather than the traditional Hilton test when deciding whether to
waive the bond requirement and stay a money judgment under Rule 62(b). 5 The
Court agrees with that approach.
While the Hilton and Dillon tests both help courts determine whether a stay

5

See, e.g., Pacific Rim Land Dev., No. 19-cv-00016, 2020 WL 4361150, at *2 (D. N.
Mariana Islands June 4, 2020) (“[T]he Hilton test, while applicable to appeals involving
injunctive relief, does not apply to motions to stay money judgments.”); Compania de
Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua, S.A.B. de C.V., No. 1:15-CV02120-JLK, 2019 WL 8223560, at *3 (D. Colo. May 21, 2019); United States v. Birdsong, CV
17-72-M-DWM, 2019 WL 1026277, at *2 (D. Mont. Mar. 4, 2019); John Wiley & Sons, Inc. v.
Book Dog Books, LLC, 327 F. Supp. 3d 606, 649 (S.D.N.Y. 2018); Rajala v. Gardner, No. 092482, 2014 WL 4455038, at *1 n.4 (D. Kan. Sept. 10, 2014); Educ. Logistics, Inc. v. Laidlaw
Transit, Inc., No. CV 07-06-M-DWM, 2013 WL 12134035, at *1 n.1 (D. Mont. May 13, 2013);
Cotton ex rel. McClure v. City of Eureka, Cal., 860 F.Supp.2d 999, 1028 (N.D. Cal. 2012); Bolt
v. Merrimack Pharm., Inc., No. S-04-0893 WBS DAD, 2005 WL 2298423, at *2 (E.D. Cal.
Sept. 20, 2005); Schreiber v. Kellogg, 839 F. Supp. 1157, 1161 (E.D. Pa. 1993).

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is appropriate, they derive from different provisions of the federal rules and
therefore apply in different circumstances. The traditional Hilton test applies when
a party seeks to stay an injunction pending appeal under Rule 62(d). 6 Accordingly,
it balances the competing equities of pre- and post-appeal enforcement of
injunctive relief. The Dillon test, in contrast, helps a court decide whether to waive
the bond requirement and grant a stay under Rule 62(b). Accordingly, its factors
focus on the purposes of requiring a bond in the first place. In re Nassau Cty., 783
F.3d 414, 418 (2d Cir. 2015); Moses, 2021 WL 1617376, at *4.
In sum, when a party seeks to stay a money judgment without posting bond
under Rule 62(b), the Dillon test provides the proper analytical framework. Here,
Defendants ask the Court to stay enforcement of the attorneys’ fee award—a
money judgment—without requiring a bond. The Court will therefore apply the
Dillon test.
ANALYSIS
Defendants first argue that they are entitled to a mandatory stay under

6

See Compania de Inversiones Mercantiles, 2019 WL 8223560, at *2 (“It is in the
context of current Rule 62(d), not Rule 62(b), that courts typically apply the four-factor test
traditionally used to evaluate injunctions.”); Grand Entm't Group, Ltd. v. Star Media Sales, Inc.,
No. 86–5763, 1992 WL 114953, at *1 (E.D. Pa. May 18, 1992) (“[Nearly] every court that has
applied the four-factor test in the Rule 62 context has done so upon a motion to stay an
injunction . . . not a motion to stay a monetary judgment.”).

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Federal Rule of Civil Procedure 62(f) because the fee award created liens against
state property under Idaho law. Alternatively, Defendants ask the Court to exercise
its discretion under Federal Rule of Civil Procedure 62(b) to stay execution of the
fee award (1) pending appeal, (2) until the date specified in the Amended Writ of
Execution, or (3) until thirty days after issuance of a decision in the ongoing
mediation.
For the reasons explained below, the Court finds that Defendants are not
entitled to a mandatory stay because no judgment liens have arisen against them
under Idaho law. The Court will, however, exercise its discretion and stay
enforcement of the fee award until the conclusion of mediation.
1.

The Court is not required to stay enforcement of the fee award under
Rule 62(f).
Defendants’ arguments for a mandatory stay rest on the premise that the

abstract of judgment, writs of execution, and/or fee award automatically created
liens against them under Idaho law. That premise does not hold up.
First, no judgment liens arose against Defendants’ real property because
Edmo did not record anything with any county recorder. Pl.’s Resp. at 7, Dkt. 341.
Since it is the “act of recording a judgment” that creates a judgment lien against
real property in Idaho, no lien exists. Golub, 157 Idaho at 901.
Second, Defendants have not pointed to any Idaho statute under which a

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judgment lien was created against their personal property. They rely, instead, on
Idaho’s broad statutory definition of “lien,” Idaho Code § 45-101, and on
inapposite case law stating that purchasers of real property take subject to existing
unrecorded liens of which they are aware. See Kalange v. Rencher, 136 Idaho 192,
196 (2001) (holding actual knowledge of an existing consensual lien eliminates
recordation requirement). But there is no dispute that, under Idaho law, liens may
arise in many ways against many forms of property. That does not, however,
change the fact that judgment liens are creatures of statute and Defendants have not
pointed to any statute arguably creating a lien in this case.
Finally, the fee award could not have created any broad non-statutory lien
because Idaho law specifically prohibits any lien “not provided for by a specific
state or federal statute.” I.C. § 45-811.
In sum, Defendants have not established the prerequisites for a mandatory
stay under Idaho Rule 62(e) and Federal Rule 62(f). Accordingly, whether a stay
should issue is within the Court’s discretion.
2.

The Court will exercise its discretion under Rule 62(b) to stay
enforcement of the fee award pending the outcome of mediation.
A.

Defendants have not shown why this Court should grant an
unbonded stay pending appeal.

Defendants first ask the Court to stay execution of the fee award until their

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appeal concludes. But ultimately, the Dillon factors do not support granting such a
lengthy unbonded stay.
(1)

Complexity of Collection Process and Time to Obtain
Judgment

Addressing the first two Dillon factors, Defendants assert that the collection
process in this case is complex and time consuming due to the number and
character of defendants subject to the fee award. Def.’s Br. at 11, Dkt. 338-2;
Def.’s Joinder at 4, Dkt. 340. They believe this complexity supports granting an
unbonded stay because, without one, it could be difficult to “unscramble the egg”
if they succeeded on appeal. Def.’s Resp. at 11, Dkt. 338-2. Edmo rejects
Defendants’ characterization, stating that even if Defendants succeeded on appeal,
“it would result in a simple accounting transaction” that they “should easily be able
to grasp.” Pl.’s Resp. at 11, Dkt. 341.
The Court agrees that collections in this case may be somewhat complex and
time consuming. The number and character of defendants and size of the award are
all contributing factors. 7 Indeed, Edmo’s collection efforts have already prompted
significant motion practice before this Court. Dkts. 326, 331, 332, 333 & 342.

7

If anything, Edmo’s allegations regarding Corizon’s recent restructuring make it even
more likely that post-appeal collections would be time consuming.

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But the complexity of collections cuts both ways. Ordinarily, complexity
weighs against waiving the bond requirement, because the more complex the
collection process, the more difficult it will be for the prevailing party to enforce
the judgment after defending the appeal. See Moses, 2021 WL 1617376, at *3
(finding complexity of collections weighed against granting an unbonded stay);
Twin Falls NSC, LLC v. Southern Idaho Ambulatory Surgery Center, LLC, No:
1:19-cv-00009-DCN, 2020 WL 7265839, at *4 (D. Idaho Dec. 10, 2020) (same).
That is true here. If Edmo cannot begin the time-consuming collection process
until the appeal concludes, the already-lengthy delay in executing on the judgment
would be substantially extended.
On the other hand, the complexity of collections can support a short
unbonded stay where, for example, the appeal is likely to conclude while
collections are ongoing—or to use Defendants’ metaphor, while the egg is still on
the griddle. In such cases, it may ultimately be less burdensome to delay
collections for a short period until a final outcome is clear. But that rationale is
inapplicable here. It is not clear how long Defendants’ appeal will take, but civil

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appeals to the Ninth Circuit often take a year or more.8 And, as Edmo notes, it
could take much longer if either party seeks further appellate review, including a
motion for rehearing en banc before the Ninth Circuit, or a petition for certiorari
before the U.S. Supreme Court. Consequently, staying execution for a lengthy and
indeterminate period in this case would not promote simplicity.
In sum, the relative complexity of collections in this case weighs against
granting an unbonded stay pending appeal.
(2)

Ability to Pay the Judgment

Next, Defendants address the third and fourth Dillon factors by providing a
detailed report of IDOC Defendants’ solvency. Def.’s Joinder at 4–7, Dkt. 340.
Because all Defendants are jointly and severally liable for the fee award, they
explain, “the State of Idaho is a backstop for the judgment” which eliminates all
risk to Edmo of not collecting after the appeal. Id. Detailing the State’s solvency
accordingly to several metrics, Defendants argue that the main purpose of the bond
requirement—to protect against uncollectable judgments—is served without a
bond in this case.

8

United States Court of Appeals for the Ninth Circuit, Frequently Asked Questions,
https://www.ca9.uscourts.gov/general/faq/#:~:text=For%20a%20civil%20appeal%2C%20approx
imately,months%20after%20briefing%20is%20complete (last visited Dec. 15, 2022).

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Evidence of a government entity’s solvency weighs in favor of granting an
unbonded stay by minimizing the risk of an uncollectible judgment. See Dixon v.
City of Coeur d’Alene, No. 2:10-cv-00078-LMB, 2011 WL 13137320, at *3 (D.
Idaho Dec. 19, 2011). Put another way, proof of a defendant’s solvency is
sometimes itself sufficient, without a bond, to protect a prevailing part from the
risk of a judgment becoming uncollectible. For example, this Court applied that
rationale to grant an unbonded stay in Dixon v. City of Coeur d’Alene, where the
City gave “adequate assurances” of its ability to pay the judgment after appeal. Id.
In the same vein, federal courts across the country have granted unbonded stays to
demonstrably solvent government entities.9
Here, Defendants have demonstrated that at least one defendant—the Idaho
Department of Corrections—is and will almost certainly remain capable of paying

9

See Manriquez v. Vangilder, 16-cv-01320-HSG, 2021 WL 1749915, at *2 (N.D. Cal.
May 4, 2021); Lewis v. County of San Diego, 13-CV-02818-H-JMA, 2018 WL 1071704 (S.D.
Cal. Feb. 27, 2018); Grant v. Lockett, No. 5:15-cv-0445 (DNH/TWD), 2019 WL 1872967, at *45 (N.D.N.Y. Apr. 26, 2019); Ramirez v. Escondido Unified Sch. Dist., No. 11cv1823 DMS
(BGS), 2014 WL 12675341, at *2 (S.D. Cal. Apr. 17, 2014); Cayuga Indian Nation of New York,
188 F.Supp.2d at 255; Ortiz v. New York City Housing Authority, 22 F.Supp.2d 15, 40 (E.D.N.Y.
1998); River Oaks Marine, Inc. v. Town of Grand Island, No. 89–CV–1016S, 1992 WL 406813
(W.D.N.Y. Dec. 10, 1992); Olympia Equip. Leassing, Co. v. W. Union Tel. Co., 786 F.2d 794,
796 (7th Cir. 1986).

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the entire judgment. 10 Def.’s Joinder at 5–6, Dkt. 340. And it is undisputed that
Edmo may collect the fee award from any named defendants regardless of any
indemnity agreements that may exist between IDOC and Corizon. Moreover,
unlike in the cases Edmo cites, Defendants have so far made no improper attempt
to avoid payment of the judgment. They do not wish to pay and are appealing the
award. That is their prerogative. But it does not itself suggest any disregard for the
rule of law or authority of this Court. Accordingly, the Court finds that there is
little risk that Edmo will be unable to enforce the judgment after appeal.
But does a defendant’s ability to pay always justify granting an unbonded
stay pending appeal? No. Why? Because protection against uncollectible
judgments is not the only interest served by the bond requirement. Cotton ex rel.
McClure v. City of Eureka, Cal., 860 F.Supp.2d 999, 1028 (N.D. Cal. 2012)
(“Defendants' ability to pay the judgment is but one of many factors the Court is to
consider in connection with a request to waive a supersedeas bond.”). As already
noted, bonds also “compensate [the prevailing party] for delay in the entry of the
final judgment.” Westphal, 859 F.2d at 819. In other words, a bond

10

To demonstrate the State’s solvency, Defendants point to a state constitutional
requirement to keep a balanced budget, a “very healthy general fund,” a AAA Issuer Default
Rating from Fitch, and a AA+ rating from Standard and Poor. Def.’s Joinder at 5-6, Dkt. 340.

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counterbalances the detriment a prevailing party suffers from delayed recovery by
ensuring that, once the appeal has concluded, the prevailing party does not have to
wage yet another battle to collect the judgment. Instead, the funds are there for the
prevailing party’s taking.
Here, Edmo prevailed on her motion for attorneys’ fees on September 30,
2022 and has an interest in timely collection of the award.11 Regardless of
Defendants’ solvency, an unbonded stay would deprive Edmo of that interest
without any countervailing benefit and force her to refrain from initiating
potentially time-consuming collection efforts until after she prevails on appeal. It
therefore cannot be said that a bond would be a waste of money; rather, it would
ensure that Edmo can promptly enforce the judgment after appeal without the
burden of time-consuming collection efforts. Thus, although Defendants’ ability to
pay weighs in their favor, something more is necessary to justify a lengthy
unbonded stay in this case.
In sum, taking all the Dillon factors into account, Defendants have not

11

Defendants argue that Edmo has no interest in the fee award because she already
received the benefits of pro bono representation. But a party’s interest in attorneys’ fees is not
extinguished simply because she was represented pro bono. Venegas v. Mitchell, 495 U.S. 82,
87–88 (1990). Put another way, client-attorney fee arrangements do not abridge the
enforceability of attorneys’ fee awards.

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persuaded the Court to depart from the ordinary practice of requiring a bond before
granting a stay pending appeal. 12
B.

The Court will not stay enforcement of the fee award for a period
of ninety days after receipt of the Amended Writ of Execution.

Defendants next ask the Court to stay enforcement of the fee award until
“the date specified” in the November 23 Amended Writ of Execution—that is,
until ninety days after Defendants’ receipt of the writ. Pl.’s Br. at 14–15, Dkt. 3382. Permitting execution before then, Defendants argue, would deny them the
opportunity to use the property they “particularly wish to use to satisfy the
judgment.” Id.
Defendants misunderstand the interplay between the judgment and writ of
execution. Their obligation to pay the fee award did not arise when the amended
writ (Dkt. 336) was issued on November 23; it arose when the judgment (Dkt. 323)
was issued on September 30. Thus, after the automatic 30-day stay lapsed,
Defendants were obliged to pay the judgment regardless of whether a writ

12

Even if the Court applied the Hilton test, the outcome would not change. Defendants are not
likely to succeed on appeal by repeating arguments already carefully considered by this Court.
Nor would they suffer irreparable harm without a stay: at worst, they would suffer the reparable
harm of expending time and resources to recover any amount reversed on appeal. Nor does the
public interest support a stay. Defendants do make a stronger balance-of-hardships argument:
post-judgment interest reduces any harm of a stay to Edmo and, without a stay, the scheduled
mediation would become meaningless. But that showing is not alone enough to justify granting a
lengthy unbonded stay pending appeal.

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subsequently issued.
Edmo’s writs, in contrast, are simply attempts to enforce Defendants’ preexisting obligation to pay the judgment. Accordingly, the broad terms of one writ
do not preclude her from seeking collection through, for example, a more detailed
writ directing the U.S. Marshals to execute on particular accounts or assets.
Moreover, the amended writ was specifically addressed to the U.S. Marshal and, as
Defendants note, lacked sufficient detail to be executed. Dkt. 336.
The Court will not suspend Defendants’ underlying obligation to pay based
on one of Edmo’s attempts to collect.
C.

The Court will, however, stay enforcement of the fee award
pending the outcome of mediation.

Defendants alternatively request an unbonded stay pending the outcome of
mediation. The Dillon factors apply differently to this request in three ways, and
the Court finds that a temporary stay is appropriate.
First, the complexity of the collection process favors granting a stay pending
the outcome of mediation. Given that mediation is set to occur in less than three
weeks, collection efforts will likely still be ongoing at that time. Thus, if a
settlement is reached while Edmo’s collection efforts are under way, Defendants’
concern with “unscrambling the egg” very well may materialize.
Second, Edmo’s interest in timely collection of the judgment is minimally

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impacted by a short stay pending mediation. Indeed, Edmo’s discovery related to
collections is ongoing and will likely continue beyond the scheduled mediation
date. A short stay pending mediation will therefore not cause Edmo any significant
hardship.
Finally, a temporary stay would promote settlement efforts. As noted, if
collection occurs before the scheduled mediation, Defendants’ incentive to settle
will be substantially diminished. A short stay is therefore likely to promote the
“just, speedy, and inexpensive” resolution of this appeal. Fed. R. Civ. P. 1.
The Court will therefore grant a stay of enforcement pending the outcome of
mediation.
ORDER
IT IS ORDERED that:
1.

Defendants’ Motion to Stay (Dkt. 338) is GRANTED in part and
DENIED in part. Accordingly:
a.

Defendants’ request for an unbonded stay pending appeal is
DENIED.

b.

Defendants’ request for an unbonded stay pending the
conclusion of mediation is GRANTED. The attorneys’ fee
award (Dkt. 323) and all proceedings to enforce it are

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temporarily STAYED as to all Defendants.
c.

This stay shall automatically terminate upon the conclusion of
mediation with the Ninth Circuit Mediation Program. Within
fourteen days after the stay lifts, Defendants shall pay the fees
and costs awarded to Plaintiff by the Court’s September 30,
2022 Order (Dkt. 323) or post a supersedeas bond to obtain a
stay in accordance with Rule 62(b) of the Federal Rules of Civil
procedure.

2.

IDOC Defendants’ Motion for Protective Order (Dkt. 342) is
DENIED as MOOT. The stay imposed by this Order extends to “all
proceedings to enforce” the fee award, including Edmo’s postjudgment discovery efforts, as to all defendants.

3.

Defendants’ Joint Motion to Exceed Page Limit (Dkt. 343) is
GRANTED.

DATED: December 28, 2022
_________________________
B. Lynn Winmill
U.S. District Court Judge

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