GEORGE v. JUNIOR ACHIEVEMENT OF CENTRAL INDIANA, INC.

Filing 177

ORDER ON MR. GEORGE'S MOTION TO STAY - The Court GRANTS Mr. George's Motion to Stay. [Dkt. 173 .] The Court's consideration of JA's Bill of Costs, [dkt. 167 ], and Motion for Attorney's Fees, [dkt. 169 ], will be stayed until Mr. George's appeal from the Court's partial summary judgment order is final. Signed by Judge Jane Magnus-Stinson on 11/4/2011. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VICTOR GEORGE,
Plaintiff,

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vs.
JUNIOR ACHIEVEMENT OF CENTRAL INDIANA,
INC., et al.,
Defendants.

1:10-cv-0220-JMS-MJD

ORDER ON MR. GEORGE’S MOTION TO STAY
Presently pending before the Court is Plaintiff Victor George’s Motion to Stay Consideration, [dkt. 173], of Defendant Junior Achievement of Central Indiana, Inc.’s (“JA”) Bill of
Costs, [dkt. 167], and Motion for Attorney’s Fees, [dkt. 169]. For the following reasons, the
Court grants Mr. George’s request for a stay on the Court’s consideration of both motions.
On September 28, 2011, the Court entered partial summary judgment in favor of JA on
Mr. George’s ERISA claim and dismissed Mr. George’s remaining state law claims without prejudice. [Dkt. 159.] Mr. George filed a notice of appeal on October 7, 2011, [dkt. 161], and
represents that his appellant’s brief is due later this month, [dkt. 173 at 4].
On October 12, 2011, JA filed a Bill of Costs, [dkt. 167], and a Motion for Attorney’s
Fees, [dkt. 169]. The following day, Mr. George filed a Motion to Stay the Court’s Consideration of both motions. [Dkt. 173.] Mr. George contests both motions but argues that in the interests of judicial economy and to avoid piecemeal litigation, the Court should stay consideration of
the motions pending the outcome of his appeal.
JA does not contest the stay request on its Motion for Attorney’s Fees. [Dkt. 175 at 1.]
JA does, however, object to the Court staying a ruling on the Bill of Costs. JA argues that there

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is no dispute that it is the prevailing party and that no authority supports a stay. [Dkt. 175 at 23.]
Costs are appealable separately from the merits, and a district court may award costs even
while a substantive appeal is pending. Barton v. Zimmer, Inc., 2010 U.S. Dist. LEXIS 59936, *2
(N.D. Ind. 2010). The Court has discretion, however, to stay ruling on a bill of costs until after
the merits appeal is decided. Id. at *3. Piecemeal appeals are disfavored in the federal system.
Continental Cas. Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 518 (7th Cir.
1999).
If the Court grants the stay request on the motion for attorney’s fees (which the parties
agree it should do) but denies the stay request for the bill of costs, it is possible that two more
appeals could result in addition to the appeal of the Court’s partial summary judgment order that
is already underway. And if the Court denies Mr. George’s motion to stay, the parties will have
to brief the issues surrounding the fee petition and the bill of costs before the Court can rule on
the merits of those requests. Because Mr. George’s appellant’s brief in the pending appeal is due
later this month, [dkt. 173 at 4], there is not enough time for the parties to brief the merits of the
pending motions and the Court to rule on the same before Mr. George’s appellate deadline. Either way, disfavored piecemeal litigation could result.
Moreover, as Mr. George points out, the issue he raises in the pending appeal is an issue
of first impression in the Seventh Circuit, and there is a 3-2 split of authority between the federal
circuits that have addressed the issue. In addition to suggesting that Mr. George’s position in this
litigation may have been substantially justified, the outcome of the novel issue on appeal may
eliminate any entitlement JA has to costs and fees and moot JA’s pending motions.

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Finally, Mr. George contends that discovery will be necessary to determine the reasonableness of JA’s requests. [Dkt. 173 at 4.] JA does not dispute this contention. It is inefficient
for the parties to engage in discovery and the Court to rule on issues that may ultimately be moot
after the Seventh Circuit decides Mr. George’s pending appeal.
For the reasons stated herein, the Court GRANTS Mr. George’s Motion to Stay. [Dkt.
173.] The Court’s consideration of JA’s Bill of Costs, [dkt. 167], and Motion for Attorney’s
Fees, [dkt. 169], will be stayed until Mr. George’s appeal from the Court’s partial summary
judgment order is final.
11/04/2011
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Michael R. Bain
HUME SMITH GEDDES GREEN & SIMMONS
[e-mail]
Beth A Barnes
HUME SMITH GEDDES GREEN & SIMMONS
[e-mail]
Edward Gerard Bielski
STEWART & IRWIN P.C.
[e-mail]
Blake J. Burgan
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Darren Andrew Craig
FROST BROWN TODD LLC
[e-mail]

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Thomas L. Davis
FROST BROWN TODD LLC
[e-mail]
Edward O'Donnell DeLaney
DELANEY & DELANEY LLC
[e-mail]
Kathleen Ann DeLaney
DELANEY & DELANEY LLC
[e-mail]
Randall W. Graff
KOPKA PINKUS DOLIN & EADS
[e-mail]
Christine Marie Riesner
STEWART & IRWIN
[e-mail]
Christopher S. Stake
DELANEY & DELANEY LLC
[e-mail]
Danielle Beth Tucker
TAFT STETTINIUS & HOLLISTER LLP
[e-mail]
Heather L. Wilson
FROST BROWN TODD LLC
[e-mail]
Andrew P. Wirick
HUME SMITH GEDDES GREEN & SIMMONS
[e-mail]

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