FULMORE v. M & M TRANSPORT SERVICES, INC.

Filing 151

ENTRY - The Court hereby accepts M&M Transport's supersedeas bond in the aggregate amount of $3,500,000.00. However, M&M Transport must file its anticipated motions and the supersedeas bonds by or on September 3, 2013. Once they are filed, the Court will enter a stay of judgment pending disposition of the anticipated post-trial motions. If M&M Transport does not file its anticipated motions and the supersedeas bonds by or on September 3, 2013, no stay will be granted. A ruling on t he Motion to Stay Execution of Judgment (Dkt. 138 ) is deferred. M&M Transport's Motion to Approve Supersedeas Bond in the Amount of $500,000.00 (Dkt. 139 ) and Motion to Approve Supersedeas Bond in the Amount of $3,000,000.00 (Dkt. 145 ) are GRANTED. Signed by Judge Tanya Walton Pratt on 8/29/2013. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CARL S. FULMORE,
Plaintiff,
v.
M & M TRANSPORT SERVICES, INC.,
Defendant.

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) Case No. 1:11-cv-00389-TWP-TAB
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ENTRY ON MOTION TO STAY AND
MOTIONS TO APPROVE SUPERSEDEAS BONDS
This matter is before the Court on Defendant M&M Transport Services, Inc.’s (“M&M
Transport”) Motion to Stay Execution of Judgment (Dkt. 138), Motion to Approve Supersedeas
Bond in the Amount of $500,000.00 (Dkt. 139) and Motion to Approve Supersedeas Bond in the
Amount of $3,000,000.00 (Dkt. 145). For the reasons discussed below, M&M Transport’s
Motions are GRANTED in part.
I. DISCUSSION
Following trial, a jury entered a verdict in the amount of $400,000.00 in compensatory
damages and $2,850,000.00 in punitive damages on Plaintiff Carl S. Fulmore’s (“Mr. Fulmore”)
claim for harassment on the basis of race and $113.00 under the Indiana Wage Claims Statute.
Thereafter, the Court entered judgment on the verdict (Dkt. 132). Because M&M Transport is
preparing post-trial motions under Rule 50(b) for judgment notwithstanding the verdict, and
under Rule 59 for a new trial and, in the alternative, for remittitur of the compensatory and
punitive damage award, it has moved the Court to stay execution of the judgment and allow
posting of supersedeas bond in the aggregate amount of $3,500,000.00. Specifically, M&M
Transport proposes to secure a bond in the amount of $500,000.00 issued by Vigilant Insurance

Company (“Vigilant”) and a separate bond in the amount of $3,000,000.00 issued by Corepoint
Insurance Company (“Corepoint”).
Mr. Fulmore objects to any stay of the judgment on the basis that he does not believe the
jury’s verdict should be altered. Further, he objects to the bond posting scheme offered by M&M
Transport and alleges while Vigilant is a reputable bonding company, the soundness of
Corepoint is poor. Mr. Fulmore asserts that Corepoint “does not have as good a history” as
Vigilant.
On appropriate terms for the opposing party's security, the court may stay the execution
of a judgment—or any proceedings to enforce it—pending disposition of any of the following
motions: (1) under Rule 50, for judgment as a matter of law; (2) under Rule 52(b), to amend the
findings or for additional findings; (3) under Rule 59, for a new trial or to alter or amend a
judgment; or (4) under Rule 60, for relief from a judgment or order. Fed. R. Civil P. 62. Rule
62(b) does not provide independently for a stay of judgment, but rather gives the district judge
authority to stay the underlying judgment only while considering post-trial motions. Notably,
M&M Transport has not yet filed the listed motions, but as indicated above, is preparing motions
to submit by the deadline of September 3, 2013. The purpose of a Rule 62(b) supersedeas bond
serves the interest of both parties only during post-trial proceedings. If said post-trial motions are
not filed by or on September 3, 2013, a stay will not be appropriate. That said, the Court, in its
discretion, finds M&M Transport’s Rule 62(b) motion to stay should be granted, contingent on
the submission of said motions.
Additionally, the Court grants M&M Transport’s motions to approve supersedeas bonds,
totaling $3,500,000.00. Mr. Fulmore’s objections are not supported by law. As of July 1, 2013,
Corepoint, the surety of $3,000,000.00, is approved by the United States Department of the

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Treasury as a surety, pursuant to 31 U.S.C. § 9304. (See Dkt. 150-1). Mr. Fulmore has not put
forth evidence that undermines this approval. Therefore, the proposed bonds are approved and
M&M Transport has proposed sufficient security supporting its request for a stay of the
judgment.
II. CONCLUSION
Accordingly, the Court hereby accepts M&M Transport’s supersedeas bond in the
aggregate amount of $3,500,000.00. However, M&M Transport must file its anticipated motions
and the supersedeas bonds by or on September 3, 2013. Once they are filed, the Court will enter
a stay of judgment pending disposition of the anticipated post-trial motions. If M&M Transport
does not file its anticipated motions and the supersedeas bonds by or on September 3, 2013, no
stay will be granted. A ruling on the Motion to Stay Execution of Judgment (Dkt. 138) is
deferred.
M&M Transport’s Motion to Approve Supersedeas Bond in the Amount of $500,000.00
(Dkt. 139) and Motion to Approve Supersedeas Bond in the Amount of $3,000,000.00 (Dkt.
145) are GRANTED.

SO ORDERED.
08/29/2013
Date: _________________

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

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DISTRIBUTION:
Richard L. Darst
COHEN GARELICK & GLAZIER
[e-mail]
Melissa S. Vare
JACKSON LEWIS LLP
[e-mail]
Michael W. Padgett
JACKSON LEWIS LLP
[e-mail]
Craig W. Wiley
JACKSON LEWIS LLP - Indianapolis
[e-mail]

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