Blue v. River Rouge, City of et al

Filing 154

ORDER Denying Defendants' 150 Motion for Bond on Appeal. Signed by District Judge Mark A. Goldsmith. (EKar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SEXUAL SIN DE UN ABDUL BLUE,
Plaintiff,

Case No. 16-cv-10526
HON. MARK A. GOLDSMITH

vs.
CITY OF RIVER ROUGE, et al.,
Defendants.
_______________________________/

ORDER
DENYING DEFENDANTS’ MOTION FOR BOND ON APPEAL (Dkt. 150)
Before the Court is Defendants’ motion for bond on appeal (Dkt. 150). This Court entered
judgment in this case on August 23, 2018; Plaintiff Sexual Sin de un Abdul Blue filed a notice of
appeal on September 24, 2018. Defendants ask that this Court order Blue to post a bond of
$10,000.00 before permitting him to proceed with his appeal. For the reasons that follow, the
Court denies Defendants’ motion.
“In a civil case, the district court may require an appellant to file a bond or provide other
security in any form and amount necessary to ensure payment of costs on appeal.” Fed. R. App.
P. 7. The court has discretion to decide both the need for a bond and the amount of the bond.
Chiaverini, Inc. v. Frenchie’s Fine Jewelry, Coins & Stamps, Inc., No. 04-cv-74891, 2008 WL
2415340, at *1 (E.D. Mich. June 12, 2008). In making its determination, the court considers (i)
the appellant’s financial ability to post bond; (ii) the risk that he would not pay the appellee’s cost
if the appeal is unsuccessful; (iii) the merits of appeal; and (iv) whether appellant has shown any
bad faith or vexatious conduct. Harris v. Members of Bd. of Govs. of Wayne State Univ., No. 1011384, 2011 WL 4632864, at *2 (E.D. Mich. Oct. 5, 2011).

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As regards the first factor, Defendants argue that Blue had the financial means to pursue
this litigation for two years, he must be able to financially afford a bond. Def. Mot. at 5. They
also point to other supposed sources of income, including a magazine that Blue publishes in
California, at least three limited liability companies, a multi-state cleaning business, and profit
from rental properties. Def. Reply at 1-2 (Dkt. 153). However, the exhibit attached by Defendants
does not support these assertions. Defendants also point out that Blue was able to pay the filing
fee for his appeal, and say that the “time and expense associated with” Blue’s twenty-five motions
filed in this case demonstrate an ability to post bond. Id. at 2.
In response, Blue contends that he is indigent as a result of this case. Pl. Resp. at
PageID.3466 (Dkt. 152). He was granted permission to proceed in forma pauperis (“IFP”) at the
initiation of this case, see 2/12/2016 Order (Dkt. 4), and while his more recently-filed IFP
application suggests that he has more income now than he did three years ago, it does not show
that he could easily afford to pay a bond. The Court finds that this factor weighs in Blue’s favor.
Second, Defendants argue that there is a high risk of Blue failing to pay costs if his appeal
is unsuccessful. Def. Mot. at 5. They note that he has a history of ignoring the Court’s orders,
including orders to pay costs: he has failed to pay the costs and fees as ordered by the Court on
August 23, 2018. Id. at 5-6. The Court finds that this factor weighs in favor of imposing a bond.
See In re Polyurethane Foam Antitrust Litig., 178 F. Supp. 3d 635, 641 (N.D. Ohio 2016) (“A
pattern of noncooperation and noncompliance with court orders supports a conclusion that an
appellant may not pay the appeal costs if the appeal is unsuccessful.”) (quotations and alterations
omitted).
The third factor, the merits of Blue’s appeal, also weighs against imposing a bond. This
Court exercised its discretion in dismissing this case pursuant to Federal Rule 37(b)(2)(A)(v), and

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a reviewing court may disagree with the decision. As Blue observes, Pl. Resp. at PageID.3463,
the Court did not find Blue’s claims to be meritless.
Finally, the fourth factor – whether the appellant has shown bad faith or vexatious conduct
– also weighs in favor of requiring a bond on appeal. Blue’s case was dismissed due to his
disregard for the Court’s orders and repeated failures to follow the Local and Federal Rules. See
5/30/2018 R&R at 19 (Dkt. 137) (“Given Plaintiff’s contumacious pattern of non-compliance and
the fact that he has been undeterred by lesser sanctions, dismissal of Plaintiff’s claims is
appropriate.”). Blue engaged in “uncooperative and disobedient behavior and abuse of the legal
process.” 5/30/2018 R&R at 17.
Thus, two factors weigh in favor of imposing a bond, while two weigh against it. Because
bonds for costs are typically not required on appeal and because the factors are evenly split, the
Court in its discretion finds that imposition of a bond is unwarranted. Defendants’ motion for
bond on appeal (Dkt. 150) is denied.
SO ORDERED.
Dated: March 25, 2019
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on March 25, 2019.
s/Karri Sandusky
Case Manager

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