Petrone v. Werner Enterprises, Inc. et al

Filing 587

MEMORANDUM AND ORDER - The Motion to Stay Execution of Judgment Pending Appeal and for Approval of Supersedeas Bond, ECF No. 579 in Case No. 8:11CV401; ECF No. 479 in Case No. 8:12CV307, is granted. Pursuant to Federal Rule of Civil Procedure 62( d), on or before May 18, 2018, Werner shall file the proposed bond, Bond No. 106899633, ECF No. 579 -1, with the Clerk of the Court, which will remain in full force and effect until released by order of the Court. Upon filing of the Bond, pursuant t o Federal Rule of Civil Procedure 62(c),execution of the Court's Judgment entered against the Defendants isstayed, and no proceedings may be brought to enforce the Judgment, until30 days after the final disposition of the appeal pending before the UnitedStates Court of Appeals for the Eighth Circuit. Member Cases: 8:11-cv-00401-LSC-MDN, 8:12-cv-00307-LSC-MDN Ordered by Chief Judge Laurie Smith Camp. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PHILIP PETRONE, et al.,
Plaintiffs,

MEMORANDUM AND ORDER

vs.
8:11CV401
WERNER ENTERPRISES, INC., AND
DRIVERS MANAGEMENT, LLC;
Defendants.
PHILIP PETRONE, et al.;
8:12CV307
Plaintiffs,
vs.
WERNER ENTERPRISES, INC., AND
DRIVERS MANAGEMENT, LLC,
Defendants.

This matter is before the Court on the Motion to Stay Execution of Judgment
Pending Appeal and for Approval of Supersedeas Bond, ECF No. 579 in Case No.
8:11CV401; ECF No. 479 in Case No. 8:12CV307,1 filed by Defendants’ Werner
Enterprises, Inc. and Drivers Management, LLC’s (collectively, “Werner”).

Plaintiffs

oppose Defendants’ Motion on several grounds. For the reasons stated below, the
Motion will be granted, execution of judgment will be stayed, and Werner will be
directed to file the proposed supersedeas bond with the Court.

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Because the Motions and related documents are identical in both cases, the Court will omit
reference to the ECF filing numbers in Case No. 8:12cv307. Unless otherwise indicated, all references to
the record before the Court will be to filings in Case No. 8:11cv401.

DISCUSSION
Federal Rule of Civil Procedure 62(d) provides that “[i]f an appeal is taken, the
appellant may obtain a stay by supersedeas bond.” Fed. R. Civ. P. 62(d). The bond is
usually set “in an amount that will permit satisfaction of the judgment in full, together
with costs, interest, and damages for delay.” 11 Charles Alan Wright et al., Federal
Practice and Procedure § 2905 (3d ed.). District courts have inherent, discretionary
authority to set the amount of and accept (or not) a supersedeas bond. Strong v.
Laubach, 443 F.3d 1297, 1299 (10th Cir. 2006); Rachel v. Banana Republic, Inc., 831
F.2d 1503, 1505 n.1 (9th Cir. 1987).
The amount of the proposed supersedeas bond in this case covers the full
amount of the judgment, liquidated damages, attorney fees, and costs awarded by this
Court. See ECF No. 579-1. Further, Werner’s ability to pay the judgment appears
unquestioned.

Although Plaintiffs express concern over whether the amount of the

bond will adequately protect class members, Plaintiffs themselves have previously
described Werner as “one of the five largest motor carriers in the Unites States . . .
worth more than $2 billion” with “plenty of cash on hand to handle any pending concerns
over this or other litigation.” Pl. Br. at 2-3 n.1, ECF No. 363, Page ID 20711 (citing
August 17, 2015 Press Release, “Werner Enterprises Increases Quarterly Dividend”).
The Court is satisfied that, should the judgment be affirmed, Werner will be able to pay
the judgment amount, plus any amounts for post-judgment interest or other courtapproved costs.
Plaintiffs also argue that the supersedeas bond is defective because it lists
Plaintiff Phillip Petrone as the obligee. Plaintiffs theorize that if Werner is unable to pay
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the judgment amount, only Petrone would have standing to enforce the bond, and he
alone would receive the entire amount of the bond. Plaintiffs request that a new bond
be issued, with the class administrator, KCC, LLC, listed as the obligee. Otherwise,
according to Plaintiffs, the bond is defective under Rule 62(d).
Plaintiffs cite no authority for this position, and the Court concludes the proposed
bond is sufficient for purposes of the rule.

Courts have rejected arguments that a

supersedeas bond must name each judgment creditor to be benefitted, concluding that
Rule 62(d) does not require such detail. See Moreno v. Ross Island Sand & Gravel,
Co., No. 213CV00691KJMKJN, 2017 WL 2214964, at *2 (E.D. Cal. May 19, 2017); see
also In re Wymer, 5 B.R. 802, 805 (B.A.P. 9th Cir. Cal. 1980) (holding that Rule 62(d)
requires bond only to be in “sufficient amount to cover the unsatisfied judgment, costs
on appeal, interest and damages for delay.”). The proposed bond is sufficient to cover
the damages and additional expenses and is sufficient for purposes of Rule 62(d).
Plaintiffs identify no language in Rule 62(d) or any other authority stating that the class
administrator must be listed as the obligee. In the unlikely event that Werner is unable
to pay the judgment amount, the bond can be enforced in a manner that protects all
Plaintiffs.
Finally, Plaintiffs argue that the bond fails to account for post-judgment interest
and post-verdict distribution costs. The Court will not require Werner to amend the
bond to reflect such additional costs. For the reasons already stated, Werner’s ability to
pay the judgment amount is plainly apparent. See Kranson v. Fed. Express Corp., No.
11-CV-05826-YGR, 2013 WL 6872495, at *1 (N.D. Cal. Dec. 31, 2013) (waiving the
bond requirement entirely where the defendant’s “ability to pay the judgment is so plain
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that the cost of the bond would be a waste of money”). Should additional costs and
interest accrue, the Court is confident that Werner will be able to pay the full judgment
amount.
Accordingly,
IT IS ORDERED:
1.

The Motion to Stay Execution of Judgment Pending Appeal and for
Approval of Supersedeas Bond, ECF No. 579 in Case No. 8:11CV401;
ECF No. 479 in Case No. 8:12CV307, is granted;

2.

Pursuant to Federal Rule of Civil Procedure 62(d), on or before May 18,
2018, Werner shall file the proposed bond, Bond No. 106899633, ECF No.
579-1, with the Clerk of the Court, which will remain in full force and effect
until released by order of the Court;

3.

Upon filing of the Bond, pursuant to Federal Rule of Civil Procedure 62(c),
execution of the Court’s Judgment entered against the Defendants is
stayed, and no proceedings may be brought to enforce the Judgment, until
30 days after the final disposition of the appeal pending before the United
States Court of Appeals for the Eighth Circuit.

Dated this 15th day of May, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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