Clark et al v. Shawnee, Kansas, City of
MEMORANDUM AND ORDER granting in part 166 Motion for Order to Stay Taxation of Costs. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 12/6/17. Mailed to pro se parties Jonathan Clark, Eric S. Clark by regular mail (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
and ERIC S. CLARK,
Case No. 15-4965-SAC
THE CITY OF SHAWNEE, KANSAS,
MEMORANDUM AND ORDER
The clerk of the court entered judgment in this action on January
5, 2017, which complied with the court’s summary judgment order and with
Fed. R. Civ. P. 54(d)(1) and 58(b), in that it “further ordered and adjudged
that the plaintiffs recover nothing, the action be dismissed, and the
defendant, City of Shawnee, Kansas, recover costs from the plaintiffs,
Jonathan Clark and Eric S. Clark.” (ECF# 141). The defendant City filed the
next day a bill of costs that included a line item for “attorneys’ fees under 42
U.S.C. § 1988” in the amount of $32,517.50.” ECF# 142. The court
subsequently ordered the clerk in the taxation of costs to disregard the
request for attorney’s fees as improperly included in the bill. ECF# 149. By
text entry on the docket sheet, the defendant was instructed to submit a
revised bill of costs for the remaining costs, and this was done (ECF## 151
and 152). The amended bill of costs seeks a total of $509.25. Id.
The plaintiffs filed a notice of appeal on February 28, 2017,
(ECF# 161), and the Tenth Circuit filed its order and judgment on
September 1, 2017, dismissing the appeal for want of jurisdiction (ECF#
165). Having received notice that the clerk of the court intends to tax costs
on December 13, 2017, the plaintiffs now move the court to stay taxation of
costs until their calculated time for filing a writ of certiorari with United
States Supreme Court expires or until the Supreme Court finally acts upon
their initiated proceedings there. ECF# 166.
According to Fed. R. Civ. P. 62(d), an appellant may obtain by a
supersedeas bond a stay of execution upon district court’s judgment. This
court has recognized:
“Fed.R.Civ.P. 62(d) allows for a stay pending appeal if the appellant
files a supersedeas bond. The stay is a matter of right.” United States
v. Wylie, 730 F.2d 1401, 1402, n. 2 (11th Cir. 1984). The general rule
is for the district court to set a supersedeas bond in the full amount of
the judgment plus interest, costs, and damages for delay. It is
incumbent upon the moving party to objectively demonstrate good
cause for any departure from this general rule. Poplar Grove, Etc. v.
Bache Halsey Stuart, Inc., 600 F.2d 1189 (5th Cir. 1979). D.Kan. Rule
221 [now D. Kan. Rule 62.1] provides that “a supersedeas bond
staying execution of a money judgment shall, unless the court
otherwise directs, be in the amount of the judgment, plus 25% of that
amount to cover interest and any award of damages for delay.”
District courts have inherent discretionary authority in setting
supersedeas bonds. Miami Intern. Realty Co. v. Paynter, 807 F.2d 871
(10th Cir. 1986). Fed.R.Civ.P. 62 has been construed to apply to
nonmonetary judgments as well as monetary judgements. See, e.g., J.
Perez & Cia., Inc. v. United States, 578 F.Supp. 1318, 1320
(D.P.R.1984), aff'd on other grounds, 747 F.2d 813 (1st Cir.1984).
Metz v. United States, 130 F.R.D. 458, 459 (D. Kan. 1990); see Strong v.
Laubach, 443 F.3d 1297, 1299 (10th Cir. 2006) (“Federal Rule of Civil
Procedure 62(d) allows a stay of a judgment effective upon a district court's
approval of a supersedeas bond. The bond secures the judgment against
insolvency of the judgment debtor and is usually for the full amount of the
judgment, though the district court has discretion in setting the amount.”).
The court concludes that the plaintiffs’ conclusory affidavits stating that the
imposition of costs prior to February of 2018 “would be a financial hardship”
are insufficient to meet the plaintiffs’ burden of objectively demonstrating
good cause. There is nothing in the record of this case to demonstrate
objectively how the amount of costs in contention would cause a financial
hardship on the plaintiffs as to be good cause for departing from the general
rule requiring a supersedeas bond in the full amount. Thus, the court will
grant the plaintiffs’ motion to stay on the condition that a supersedeas bond
in the amount of $509.25 is posted no later than December 12, 2017. If the
required bond is not timely posted, the clerk may proceed with the taxation
of costs on December 13, 2017.
IT IS THEREFORE ORDERED that the plaintiffs’ motion to stay
taxation of costs (ECF# 166) is granted in part on the condition that they
post a supersedeas bond pursuant to Fed. R. Civ. P. 62(d) and D. Kan. Rule
62.2 in the full amount of the amended bill of costs no later than December
12, 2017. If the required bond is not posted by that date, the clerk of the
court is not stayed from executing the taxation of costs pursuant to Fed. R.
Civ. P. 54(d) and D. Kan. Rule 54.1 on December 13, 2017, or after.
Dated this 6th day of December, 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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