United States of America v. Kirtland et al

Filing 68

MEMORANDUM AND ORDER denying 57 Motion to Alter Judgment; denying 61 Motion for Order; denying 61 Motion. IT IS ACCORDINGLY ORDERED this 15th day of January, 2013, that the defendant's Motions to Alter or Amend and to Stay (Dkt. 57 and 61) are hereby denied. Signed by District Judge J. Thomas Marten on 1/15/2013.Mailed to pro se party Benjamin B. Kirtland, III by regular mail. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,
Plaintiff,

vs.

Case No. 11-4090-JTM

BENJAMIN B. KIRTLAND and MARY JEAN
KIRTLAND,
Defendants.

MEMORANDUM AND ORDER

This matter is before the court on the Motion to Alter and Amend (Dkt. 57) and Motion for
Stay (Dkt. 61) filed by defendant Mary Jean Kirtland. By prior Order (Dkt. 54), the court denied
defendant’s motion for summary judgment (Dkt. 39) and granted the plaintiff’s motion for summary
judgment (Dkt. 43), and correspondingly entered a judgement (Dkt. 56) against the defendant. In
its Order, the court found that certain transfers made by Kirtland’s former husband and codefendant, Benjamin Bostwick Kirtland III, were avoidable fraudulent transfers. The transfers
involved totaled $472,972.97 in value.
According to the government, the personal monetary judgment against Kirtland, which is
now collectible, would be for $55,015.64 ($50,489.24 for the proceeds from the Northwestern
Mutual account; $1,526.40 for the Reynolds American stock; and $3,000.00 for the value of the
family vehicle she traded in).

Although Kirtland has filed a Notice of Appeal, this court retains jurisdiction to consider her
previously-filed Motion to Alter or Amend. Fed. R.App. P. 4(a)(4)(B)(I). See Constien v. United
States, 628 F.3d 1207, 1212 n. 5 (10th Cir. 2010) (noting that advisory committee notes to Rule
4(a)(4)(B) indicate that “the appellate court's jurisdiction ... is suspended until such motions are
disposed of”).
Relief under Rule 59(e) is accorded only in narrow circumstances. See Brown v. Day, 477
F.Supp.2d 1110, 1112 (D.Kan.2007) (citing Adams v. Reliance Standard Life Ins. Co., 225 F.3d
1179, 1186 n. 5 (10th Cir.2000)). A motion to alter or amend judgment pursuant to Rule 59(e) may
be granted only if the moving party can establish: (1) an intervening change in the controlling law;
(2) the availability of new evidence that could not have been obtained previously through the
exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. Servants
of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000); Brumark Corp. v. Samson Res.
Corp., 57 F.3d 941, 948 (10th Cir.1995). Such a motion does not permit a losing party to rehash
arguments previously addressed or to present new legal theories or facts that could have been raised
earlier. Servants, 204 F.3d at 1012; Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332
(10th Cir.1996), cert. denied, 520 U.S. 1181, 117 S.Ct. 1461, 137 L.Ed.2d 564 (1997). The Court
has discretion whether to grant or deny a Rule 59(e) motion. See Phelps v. Hamilton, 122 F.3d 1309,
1324 (10th Cir.1997).
The defendant’s Motion to Alter or Amend presents two arguments, neither of which
supports the relief sought. First, she argues that the transfers were obligatory rather than voluntary.
Second, she contends that the transfer of the money from the Northwestern Mutual account cannot
be considered fraudulent, as she was operating as mere “courier” on behalf of her former husband.

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Kirtland’s argument relating to the supposed obligatory nature of the transfer under the
Property Settlement Agreement is an argument previously made to, and rejected by, the court. The
court explicitly found that the status of the transfers under Kansas law was not controlling as to
whether the transfers were voidable under federal law (Dkt. 54, at 24), and this remains the
appropriate conclusion of law.
Kirtland’s second argument is not supported by the uncontroverted facts submitted to the
court in connection with the summary judgment motions. Those facts established that the moneys
from the Northwestern account were in Kirtland’s possession and control after her husband
relinquished the account in June of 2010. The funds were then transferred to Kirtland’s checking
account in November of 2010. She was during this time the full owner of the proceeds, with the
ability to use the money for her own purposes, and judgment against the defendant was properly
entered as to these funds.
In her second motion, Kirtland asks that the court waive the posting of a bond for equitable
reasons, citing the extent of her financial resources, and asserting that such a waiver will not
prejudice the United States. (Dkt. 61, at 2). The government argues against a stay, citing D.Kan.R.
62.2, which provides that ordinarily, a stay of execution pending appeal requires the posting of a
supersedeas bond in “the amount of the judgment, plus 25% of that amount to cover interest and any
award of damages for delay.”
“[T]he purpose of a supersedeas bond is to secure an appellee from loss resulting from the
stay of execution and that a full supersedeas bond should be the requirement in normal
circumstances.” Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986). In

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deciding whether to reduce the amount of an appeal bond, the court may consider factors which
include
(1) the complexity of the collection process; (2) the amount of time required to
obtain a judgment; (3) the degree of confidence that the district court has in the
availability of funds to pay the judgment; (4) whether the defendant’s ability to pay
the judgment is so plain that the cost of a bond would be a waste of money; and (5)
whether the defendant is in such a precarious financial situation that a requirement
to post a bond would place other creditors of the defendant in an insecure position.
Brinkman v. Dep’t of Corrections, 815 F. Supp. 407, 408-409 (D. Kan. 1993). The burden is on the
party seeking a stay to objectively show that posting a full bond is impossible or impractical and “to
propose a plan that will provide adequate (or as adequate as possible) security for the appellee.”
United States v. Kurtz, 528 F.Supp. 1113, 1115 (D.Pa.1981)
The court will deny the request for a stay without the posting of any bond. Kirtland has failed
to provide any evidence directed to the relevant factors noted in Brinkman. Kirtland liquidated
assets, without authorization from the court, which were the subject of the competing summary
judgment motions. Further, while Kirtland complains that she cannot access the TIAA-CREF
account (which forms the overwhelming bulk of the judgment) because it is still in her former
husband’s name, the government has shown that an Order of Continuing Judgment has now been
served on the account, commencing the process for its liquidation. In contrast, the blanket stay
sought by the defendant would subject the government to the continuing risk of fluctuations in the
value of that account as well as the remaining vehicles. The court finds that the defendant has not
met her burden, and denies the motion for a stay.

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IT IS ACCORDINGLY ORDERED this 15th day of January, 2013, that the defendant’s
Motions to Alter or Amend and to Stay (Dkt. 57 and 61) are hereby denied.

s/J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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