ORMOND et al v. ANTHEM, INC. et al

Filing 820

ORDER ON MOTION TO STAY - Mr. DeJulius's motion for a stay (Dkt. 816 ) is DENIED. Mr. DeJulius and Mr. Paul remain ORDERED to post either a surety bond or cash bond securing the amount of $250,000.00, jointly and severally. The bond must be posted within seven days of the date of this Order or by March 21, 2012. Signed by Judge Tanya Walton Pratt on 3/14/2013. Copy Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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Plaintiffs,
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vs.
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ANTHEM, INC.,
ANTHEM INSURANCE COMPANIES, INC., )
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Defendants.
KEVIN T. HEEKIN,
MARY E. ORMOND,
ESTATE OF MARY A. MOORE,

Case No. 1:05-cv-01908-TWP-TAB

ORDER ON MOTION TO STAY
This matter is before the Court on interested party Franklin DeJulius’s Motion to Stay
Order on Request for Appeal Bond (Dkt. 816). Having considered arguments from both sides,
the Court DENIES Mr. DeJulius’s Motion.
Mr. DeJulius seeks a stay of the Court’s February 28, 2013 order that he is jointly and
severally responsible for posting an appeal bond in this case. First, he argues his appeal of the
attorney’s fee award will not delay distribution of the class settlement fund, and that the Court
did not take this into account when ordering that he be responsible, jointly and severally, for the
imposed $250,000.00 bond. Second, Mr. DeJulius argues that Class Counsel sought the bond,
not to secure any likely future award of costs, but rather to end the appeal. Third, Mr. DeJulius
argues that he cannot afford to pay a $250,000.00 bond in full and therefore will be forced to
drop his appeal if the bond is enforced.
The Court rejects each of Mr. DeJulius’s arguments. To begin, Mr. DeJulius has not
addressed the factors the Court must employ when determining whether a stay is appropriate.

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When considering whether to grant a stay, the Court looks to the following factors: 1) whether
the appellant has shown a likelihood of success on appeal; 2) whether the appellant has
demonstrated a likelihood of irreparable harm if a stay is not granted; 3) whether a stay would
substantially harm other parties to the litigation; and 4) the public interest. Hinrichs v. Bosma,
410 F. Supp. 2d 745, 749 (S.D. Ind. 2006) (citing Glick v. Koenig, 766 F.2d 265, 269 (7th Cir.
1985)).
First, instead of addressing the appropriate factors, Mr. DeJulius raises new arguments
not presented in his original opposition to the bond. Despite Mr. DeJulius’s failure to argue in
opposition to the bond that his appeal would not cause a delay in distribution, the Court did
consider the effect of his appeal on settlement distributions. As Class Counsel points out, it
argued when moving for the bond that the appeal of attorneys’ fees would delay final settlement
distributions because “the issue of attorneys’ fees is inextricably intertwined with the amount of
net settlement funds for Class distribution.” Dkt. 798 at 23. Thus, in finding an appeal bond
necessary, the Court did consider the delay attributable to Mr. DeJulius’s appeal.
Second, in his Motion for Stay, Mr. DeJulius spends a great deal of time discussing Class
Counsel’s reasons for seeking a bond, and about the Seventh Circuit’s authority over the appeal
bond. However these issues have no bearing on the factors for determining a stay.
Finally, Mr. DeJulius raises for the first time that he cannot afford to pay a $250,000.00
bond. Federal Rule of Appellate Procedure 7 specifically 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. Rule 8(b) applies to a surety on a bond given
under this rule.” Class Counsel correctly argues that Mr. DeJulius need not be able to pay the
entire $250,000.00, but only the amount of a surety bond to secure the total amount. That said,

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the Court clarifies its Order granting an appeal bond and informs the objectors, Mr. DeJulius and
Mr. Paul, that they may post a surety bond rather than a cash bond. Furthermore, the Court
reminds Mr. DeJulius that the bond is entered jointly and severally, meaning that if one party
does not have the assets to pay an equal share, the other party must make up the difference.
Mr. DeJulius has not shown a likelihood of success on the merits and has not
demonstrated a likelihood of irreparable harm if a stay is not granted. Nor has he shown that a
stay is in the public interest. Accordingly, Mr. DeJulius’s motion for a stay (Dkt. 816) is
DENIED. Mr. DeJulius and Mr. Paul remain ORDERED to post either a surety bond or cash
bond securing the amount of $250,000.00, jointly and severally. The bond must be posted within
seven days of the date of this Order or by March 21, 2012.
SO ORDERED.

03/14/2013
Date: ____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
EDWIN PAUL
603 N. Highway 101, Suite A
Solana Beach, CA 92075

Neil F Mara
BERGER & MONTAGUE, P.C.
[e-mail]

Eric Hyman Zagrans
[e-mail]

Peter R. Kahana
BERGER & MONTAGUE, P.C.
[e-mail]

John J. Pentz
ATTORNEY AT LAW
[e-mail]

Todd S Collins
BERGER & MONTAGUE, P.C.
[e-mail]

H. Laddie Montague, Jr
BERGER & MONTAGUE P.C.
[e-mail]

Edward O’Donnell DeLaney
DELANEY & DELANEY LLC
[e-mail]
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Thomas M. Fisher
INDIANA OFFICE OF THE ATTORNEY
GENERAL
[e-mail]

Kathleen Ann DeLaney
DELANEY & DELANEY LLC
[e-mail]
Dennis Paul Barron
DENNIS PAUL BARRON LLC
[e-mail]

Cari C. Laufenberg
KELLER ROHRBACK L.L.P.
[e-mail]

Anne Kramer Ricchiuto
FAEGRE BAKER DANIELS LLP Indianapolis
[e-mail]

Lynn L. Sarko
KELLER ROHRBACK, L.L.P.
[e-mail]

Christopher G. Scanlon
FAEGRE BAKER DANIELS LLP Indianapolis
[e-mail]

T. David Copley
KELLER ROHRBACK, L.L.P.
[e-mail]
Michael F. Becker
THE BECKER LAW FIRM CO., L.P.A.
[e-mail]

Kevin M. Kimmerling
FAEGRE BAKER DANIELS LLP Indianapolis
[e-mail]
Matthew Thomas Albaugh
FAEGRE BAKER DANIELS LLP Indianapolis
[e-mail]
Paul A. Wolfla
FAEGRE BAKER DANIELS LLP Indianapolis
[e-mail]
Adam K. Levin
HOGAN LOVELLS US LLP
[e-mail]

Craig A. Hoover
HOGAN LOVELLS US LLP
[e-mail]
Peter R. Bisio
HOGAN LOVELLS US LLP
[e-mail]
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