Ford v. Bender et al

Filing 235

Magistrate Judge Judith G. Dein: MEMORANDUM OF DECISION AND ORDER granting 231 Defendants' Motion for Stay of Execution Pending Appeal and for Waiver of Bonds. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ALBERT FORD,
Plaintiff,
v.
JAMES BENDER, et al.,
Defendants.

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CIVIL ACTION
NO. 07-11457-JGD

MEMORANDUM OF DECISION AND ORDER ON
DEFENDANTS’ MOTION FOR STAY OF EXECUTION
PENDING APPEAL AND FOR WAIVER OF BONDS
November 29, 2012
DEIN, U.S.M.J.
I. INTRODUCTION
This matter is before the court on the defendants’ “Motion for a Stay of Execution
Pending Appeal and for Waiver of Bonds” (Docket No. 231), by which the defendants
are seeking a stay of execution of the judgment of the District Court, pending a decision
on their appeal to the Court of Appeals for the First Circuit. In addition, the defendants
request that no bond or other security be required.
After consideration of the parties’ written submissions and oral arguments, the
motion was ALLOWED in open court on November 27, 2012, subject to the condition
that the Commonwealth of Massachusetts file an affidavit attesting that it unequivocally
assumes the obligation to satisfy any judgment against Messrs. Bender and St. Amand,
including any award of attorneys’ fees and costs, as authorized by Mass. Gen. Laws

ch. 258, § 9,1 despite the fact that the defendant officials have since retired from service.
Moreover, the Commonwealth will confirm therein that it will not claim that the named
defendants “acted in a grossly negligent, willful or malicious manner,” thereby excusing
its obligation to indemnify under the statute. This Memorandum of Decision and Order is
being entered to address the arguments raised by the parties in their pleadings.
II. ANALYSIS
Federal Rule of Civil Procedure 69 sets the applicable procedure for enforcement
of a money judgment. Rule 69 states in relevant part:
A money judgment is enforced by a writ of execution, unless the
court directs otherwise. The procedure on execution – and in
proceedings supplementary to and in aid of judgment or execution –
must accord with the procedure of the state where the court is
located, but a federal statute governs to the extent it applies.
Fed. R. Civ. P. 69(a)(1) (emphasis added).
The defendants contend that state law governs the issuance of the execution in this
case, and that Mass. Gen. Laws ch. 235, § 16 precludes the issuance of an execution upon
a judgment “until the exhaustion of all possible appellate review thereof[.]” Therefore,
1

Mass. Gen. Laws ch. 258, § 9 provides that “[p]ublic employers may indemnify public
employees, and the commonwealth shall indemnify persons holding office under the constitution,
from personal financial loss, all damages and expenses, including legal fees and costs, if any, in an
amount not to exceed $1,000,000 arising out of any claim, action, award, compromise, settlement
or judgment by reason of an intentional tort, or by reason of any act or omission which constitutes
a violation of the civil rights of any person under any federal or state law, if such employee or
official or holder of office under the constitution at the time of such intentional tort or such act or
omission was acting within the scope of his official duties or employment. No such employee or
official, other than a person holding office under the constitution acting within the scope of his
official duties or employment, shall be indemnified under this section for violation of any such civil
rights if he acted in a grossly negligent, willful or malicious manner.”

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the defendants argue, no execution should issue. This argument is without merit. Since
there is a federal statute that governs the issuance of an execution, Mass. Gen. Laws
ch. 235, § 16 does not apply in the instant case.
It is well established that the Federal Rules of Civil Procedure “qualify as federal
statutes” under Rule 69(a). Office Depot Inc. v. Zuccarini, 596 F.3d 696, 701 (9th Cir.
2010), and cases cited. Fed. R. Civ. P. 62(a) governs the issuance of an execution and
provides:
Except as stated in this rule, no execution may issue on a judgment,
nor may proceedings be taken to enforce it, until 14 days have
passed after its entry. But unless the court orders otherwise, the
following are not stayed after being entered, even if an appeal is
taken:
(1) an interlocutory or final judgment in an action for an
injunction or a receivership; or
(2) a judgment or order that directs an accounting in an action for
patent infringement.
(Emphasis added). This Federal Rule, which differs from Massachusetts law, controls.
See Elias Bros. Rests., Inc. v. Acorn Enters., Inc., 931 F. Supp. 930, 938, 939 (D. Mass
1996) (Fed. R. Civ. P. 62(a) governing the issuance of an execution and requirement of a
bond controls overs Massachusetts rule precluding issuance of execution until time for
appeal has expired).2 See also Schneider v. Nat’l R.R. Passenger Corp., 72 F.3d 17, 19
(2d Cir. 1995) (Federal “Rule 69(a) adopts state procedures for execution only to the

2

Although Elias relied on an earlier version of Fed. R. Civ. P. 69(a), the subsequent
amendments were merely stylistic. See Advisory Comm. Note (2007); Zuccarini, 596 F.3d at 700
n.1.

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extent that they do not conflict with any applicable ‘statute of the United States.’ This
term includes the Federal Rules of Civil Procedure, since they have the force and effect
of federal statutes.”).
The cases relied on by the defendants do not compel a different result. Whitfield
v. Municipality of Fajardo, 564 F.3d 40, 42-43 (1st Cir. 2009), relates to the enforcement
of “an idiosyncratic Puerto Rico indemnity law” which apparently does not conflict with
any federal rule or statute. Moreover, the Whitfield court concluded that it lacked jurisdiction to review the District Court’s nonfinal order relating to efforts undertaken to
collect a judgment, so it did not address the merits of the dispute. Similarly, Gabovitch v.
Lundy, 584 F.2d 559, 561(1st Cir. 1978), addresses the need to follow state process in
attaching a bank account. It also does not address the situation before this court involving
conflicting federal and state statutes. For the reasons detailed herein, the parties’ rights
and obligations with respect to an execution are governed by Fed. R. Civ. P. 62(a).
Fed. R. Civ. P. 62(d) provides in relevant part that “[i]f an appeal is taken, the
appellant may obtain a stay by supersedeas bond . . . . The stay takes effect when the
court approves the bond.” See also Fed. R. App. P. 7 (“the district court may require an
appellant to file a bond or provide other security . . . to ensure payment of costs on
appeal”); Fed. R. App. P. 8(a)(1) (party must first seek a stay or approval of a supersedeas bond in the district court). The defendants argue that this court should consider
the four factors enunciated in Hilton v. Braunskill, 481 U.S. 770, 107 S. Ct. 2113, 95 L.
Ed. 2d 724 (1987), to support a stay of execution without a bond pending appeal. In
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Hilton, the court addressed a stay of execution in a case granting habeas relief and ruled
that the court should “follow the general standards for staying a civil judgment[,]”
namely, “(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether the issuance of the stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.” Id. at 775-76, 107 S. Ct. at 211819. However, this is “the traditional standard for issuing injunctions” and while it is
“arguable that a monetary judgment may also be stayed under” this standard, “[s]tays of
monetary judgments are ordinarily sought under either Fed. R. Civ. P. 62(d) [Stay with
Bond on Appeal] or 62(f) [Stay in Favor of a Judgment Debtor Under State Law].”
Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 17 & n.4 (1st Cir. 2002). See also
Schreiber v. Kellogg, 839 F. Supp. 1157, 1161 (E.D. Pa. 1993), and cases cited (holding
that the four part test applies to injunctions and “is not applicable to a motion for a stay
under rule 62(d)”). Therefore, it is questionable whether Hilton applies in the instant
case.
This issue does not have to be resolved, however, because this court concludes that
a supersedeas bond will not be required if the Commonwealth files the affidavit ordered
above. “Courts have held that no bond is required if: (1) the defendant’s ability to pay is
so plain that the posting of a bond would be a waste of money . . . .” Acevedo-Garcia,
296 F.3d at 17. Even in such a case, however, it is appropriate for the court to require
“adequate documentation” to support the claim of ability to pay. See id. and cases cited.
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This court will accept the affidavit of the Commonwealth as adequate proof that any
judgment will be satisfied.
III. ORDER
For the reasons detailed herein, the defendants’ “Motion for a Stay of Execution
Pending Appeal and for Waiver of Bonds” (Docket No. 231) is ALLOWED, subject to
the condition that the Commonwealth of Massachusetts file an affidavit attesting that it
unequivocally assumes the obligation to satisfy any judgment against Messrs. Bender and
St. Amand, including any award of attorneys’ fees and costs, as authorized by Mass. Gen.
Laws ch. 258, § 9, despite the fact that the defendant officials have since retired from
service. Moreover, the Commonwealth will confirm therein that it will not claim that the
named defendants “acted in a grossly negligent, willful or malicious manner,” thereby
excusing its obligation to indemnify under the statute. The affidavit shall be filed by
December 7, 2012.

/ s / Judith Gail Dein
Judith Gail Dein
U.S. Magistrate Judge

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