Blackorby v. BNSF Railway Company

Filing 264

Plaintiffs Motion to Stay Enforcement of Cost Award (Doc. #260) is granted in part and denied in part. Plaintiff is granted a stay predicated on a supersedeas bond with the following condition: within ten (10) days from the entry of this Order, Plaintiff shall post a supersedeas bond in the amount of $10,095.84 to cover the costs assessed against him. Signed on 7/10/18 by District Judge Stephen R. Bough. (Diefenbach, Tracy)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
EDWARD E. BLACKORBY,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

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Case No. 4:13-cv-00908-SRB

ORDER
Before the Court is Plaintiff’s Motion to Stay Enforcement of Cost Award (Doc. #260).
For the following reasons the motion is granted in part and denied in part. Plaintiff is granted a
stay predicated on a supersedeas bond with the following condition: within ten (10) days from
the entry of this Order, Plaintiff shall post a supersedeas bond in the amount of $10,095.84 to
cover the costs assessed against him.
Following a retrial and subsequent entry of judgment for Defendant, this Court awarded
Defendant $10,095.84 in costs. (Docs. ##248, 257). After this Court’s rulings on Plaintiff’s
post-trial motions (Doc. #258), Plaintiff filed an appeal. In the present motion Plaintiff requests
an order staying enforcement of those costs awarded to Defendant without requiring any bond or
surety. In the alternative Plaintiff requests the amount of any required bond “be set as low as
possible.” (Doc. #260, p. 6). Defendant’s response argues Plaintiff failed to provide sufficient
evidence to meet his burden. Plaintiff did not file a reply to Defendant’s brief.
I.

Legal Standard
Although Plaintiff appealed this case to the Eighth Circuit, Federal Rule of Appellate

Procedure 8 indicates that this Court retains jurisdiction to rule on a motion to stay imposition of
costs. Fed. R. App. P. 8(a)(1) (“A party must ordinarily move first in the district court for . . . a

stay of the judgment or order of a district court pending appeal.”); Payan v. United Parcel Serv.,
Case No. 2:14-cv-00400-JNP-DBP, 2017 WL 4844651, at *1 (D. Ut. Sept. 1, 2017). A stay
pending appeal is an “extraordinary remedy.” Mann v. Washington Metro. Area Transit
Authority, 185 F.Supp.3d 189, 194 (D.D.C. 2016) (internal citations omitted). “It is an intrusion
into the ordinary processes of administration and judicial review and thus is not a matter of right,
even if irreparable injury might otherwise result to the appellant.” Id. (citing Nken v. Holder,
556 U.S. 418, 427 (2009)). The Court considers four factors in evaluating a motion for stay:
(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 issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.
Id.
II.

Analysis
Plaintiff’s first request is a waiver of the bond requirement. To support his position,

Plaintiff relies on the factors articulated by the Seventh Circuit in Dillon v. Chicago, 866 F.2d
902, 904-05 (7th Cir. 1988). However, the Dillon factors are inapplicable to cases where the
judgment did not include a monetary award (such as here) and instead are best suited where there
has been a monetary judgment awarded. The analysis of other district courts around the country
confirm this distinction. See e.g., Payan, 2017 WL 4844651, at *1-2; Mann, 185 F.Supp.3d at
194-95; and Gonzalez v. Wells Fargo Bank, N.A., Case No. 1:13-cv-23281LENARD/GOODMAN, 2015 WL 12978820, at *3-4 (S.D. Fl. March 20, 2015) (collecting
cases). Having relied upon the wrong legal standard, Plaintiff failed to analyze the
aforementioned factors and therefore failed to meet his burden.
This Court attempts to construe Plaintiff’s arguments under Dillon into the context of the
factors applicable here. Plaintiff argued “this is not a case where Plaintiff’s claims were so
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clearly deficient that BNSF prevailed at every step along the way.” (Doc. #260, p. 4). Such a
statement is not sufficient to overcome Plaintiff’s burden of making a strong showing that he is
likely to succeed on the merits on appeal. Plaintiff also argued “there can be little argument that
a stay without bond will result in material damage to [Defendant.] By contrast, Plaintiff is a
single individual with limited financial resources.” (Doc. #260, p. 4). The Court finds this
argument goes to the second and third factors—whether Plaintiff will be irreparably injured
absent a stay and whether the issuance of the stay will substantially injure Defendant. Plaintiff’s
assertions that he has “limited financial resources” and the imposition of supersedeas bond is
“prohibitively expensive” do not rise to the level of irreparable injury. Likewise, Plaintiff has
not demonstrated that the issuance of a stay will substantially injure Defendant. Plaintiff makes
no argument regarding the public interest. Accordingly, Plaintiff has failed to meet his burden to
persuade the Court that a stay is justified in this case absent a bond.
In the alternative Plaintiff requests a stay pursuant to Federal Rule of Appellate
Procedure 62(d), which allows an appellant to obtain a stay by supersedeas bond. “A full
supersedeas bond should be required in the normal circumstances. District courts, however, have
inherent discretionary authority in setting supersedeas bonds.” Payan, 2017 WL 4844651, at *3
(citations omitted). Plaintiff “respectfully requests that the amount of any bond be set as low as
possible.” (Doc. #260, p. 6). Defendant makes no argument as to how much bond should be
required, instead focusing its argument on the inappropriateness of a bond waiver in the present
matter. Given the scant guidance from both parties, the Court finds a bond in the full amount of
the cost award is reasonable here because the case presents only normal circumstances. Id.
Further, Defendants have not provided any estimate or calculation of interest. Accordingly,

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Plaintiff will be granted a stay conditioned on posting a supersedeas bond in the amount of
$10,095.84 within ten days from the entry of this Order.
III.

Conclusion
Therefore Plaintiff’s Motion to Stay Enforcement of Cost Award (Doc. #260) is granted

in part and denied in part. Plaintiff is granted a stay predicated on a supersedeas bond with the
following condition: within ten (10) days from the entry of this Order, Plaintiff shall post a
supersedeas bond in the amount of $10,095.84 to cover the costs assessed against him.
IT IS SO ORDERED.

/s/ Stephen R. Bough
STEPHEN R. BOUGH, JUDGE
UNITED STATES DISTRICT COURT
DATE: July 10, 2018

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