WMCV Phase 3, LLC v. Couture International, Inc. et al

Filing 344

ORDER that 335 Motion to Reduce Award to Judgment is DENIED. FURTHER ORDERED that 340 Motion for a Stay of Execution Pending Appeal is GRANTED. Signed by Chief Judge Gloria M. Navarro on 1/19/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WMCV Phase 3, LLC

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Plaintiff,

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vs.
Shushok & McCoy, Inc., et. al.,

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Defendants.

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Case No.: 2:10-cv-0661-GMN-NJK
ORDER

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Pending before the Court is the Motion to Reduce Award to Judgment, (ECF No. 335),

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filed by Defendant Global Accents, Inc. (“Global Accents”). Plaintiff WMCV Phase 3, LLC

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(“WMCV”) filed a response in opposition, (ECF No. 336), and Global Accents replied, (ECF

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No. 337).
Also before the Court is WMCV’s Motion for a Stay of Execution Pending Appeal.

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(ECF No. 340). Global Accents filed a response in opposition, (ECF No. 341), and WMCV

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replied, (ECF No. 342). For the reasons set forth herein, the Court will deny Global Accents’

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Motion and grant WMCV’s Motion.

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I.

Background

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This case centers upon a dispute regarding lease agreements between WMCV and

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Defendants Global Accents and Couture International, Inc. On June 11 and 12, 2013, the Court

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conducted a bench trial which resulted in a judgment in favor of Global Accents as to its breach

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of contract claim against WMCV and a finding that Global Accents was entitled to reasonable

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attorney fees. (Order 16:19-22, ECF No. 209).

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Subsequently, Global Accents filed a Motion for Attorney Fees (“First Motion”), (ECF

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No. 213), in which it detailed its litigation costs through the end of trial. The Court granted this

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Motion and awarded Global Accents $32,769.98 in attorney fees. (ECF No. 269).

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On February 5, 2014, WMCV filed an untimely notice of appeal regarding the judgment

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against it. (ECF No. 221). On February 13, 2014, WMCV filed a Motion to Extend Time to

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Appeal, (ECF No. 225), to which Global Accents responded on February 28, 2014, (ECF No.

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230). On May 12, 2014, the Ninth Circuit dismissed the appeal for lack of jurisdiction. (ECF

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No. 250). On May 14, 2014, the Court denied WMCV’s Motion to Extend Time. (ECF No.

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251).
On May 27, 2014, Global Accents filed its Second Motion for Attorney Fees (“Second

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Motion”), (ECF No. 254), in which it sought to recover the fees incurred in opposing the

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Motion to Extend Time to Appeal. On May 28, 2014, Global Accents filed its Third Motion

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for Attorney Fees (“Third Motion”), (ECF No. 255), seeking to recover fees incurred in

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opposing the appeal before the Ninth Circuit. On December 16, 2014, the Court granted both

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the Second Motion and Third Motion, and ordered that WMCV pay an additional $8,567.50 in

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attorney fees. (ECF No. 307).

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WMCV filed a notice of appeal on March 24, 2015. (ECF No. 324). That appeal is still

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pending before the Ninth Circuit.

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II.

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Discussion
The Court will first address Global Accents’ Motion to Reduce Award to Judgment, and

will subsequently address WMCV’s Motion to Stay Execution of Judgment.

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A. Motion to Reduce Award to Judgment (ECF No. 335)

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In its Motion, Global Accents requests that the Court issue a judgment regarding the

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$8,567.50 attorney fee award ordered on December 16, 2014. However, it is well established

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that the filing of a notice of appeal divests a district court of jurisdiction over the matters being

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appealed. See, e.g., Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). In this

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case, the Court’s granting of Global Accents’ Second and Third Motions for Attorney Fees are

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part of the appeal currently pending before the Ninth Circuit. See (Notice of Appeal 2:8-11).

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Thus, the Court lacks jurisdiction to alter the current status of the award, and this Motion will

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be denied without prejudice. Global Accents will be given leave to re-file this Motion, if

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warranted, after the Ninth Circuit resolves the pending appeal.

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B. Motion to Stay Execution of Judgment (ECF No. 340)

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In its Motion, WMCV requests that the Court stay Global Accents’ ability to execute on

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the Judgment in this case while the appeal remains pending before the Ninth Circuit.
Following the resolution of post-trial motions, Federal Rule of Civil Procedure 62(d)

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entitles a defendant to an automatic stay of enforcement during the disposition of any appeal by

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posting a supersedeas bond. Fed. R. Civ. P. 62(d); see also Dillon v. City of Chicago, 866 F.2d

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902, 904 (7th Cir. 1988). Rule 62(d) provides, subject to the exceptions contained in

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subdivision (a) of the rule, that “[i]f an appeal is taken, the appellant may obtain a stay by

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supersedeas bond. . . . The bond may be given upon or after filing the notice of appeal or after

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obtaining the order allowing the appeal. The stay takes effect when the court approves the

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bond.” Fed. R. Civ. P. 62(d).

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“District courts have inherent discretionary authority in setting supersedeas bonds . . . .

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The purpose of a supersedeas bond is to secure the appellees from a loss resulting from the stay

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of execution and a full supersedeas bond should therefore be required.” Rachel v. Banana

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Republic, Inc., 831 F.2d 1503, 1505 (9th Cir. 1987). In determining the amount necessary to

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warrant a stay of execution, another court in this circuit has noted, “Although practices vary

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among judges, a bond of 1.25 to 1.5 times the judgment is typically required.” Cotton ex rel.

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McClure v. City of Eureka, 860 F. Supp. 2d 999, 1029 (N.D. Cal. 2012).

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In this case, WMCV has posted a bond in the amount of $62,003.28. (ECF No. 338).

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This amount represents a total roughly 50% greater than the sum of the Judgment issued in

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Global Accents’ favor ($33,869.98) and the subsequent attorney fee award ($8,567.50). As this

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value represents the higher end of the range typically required to warrant a stay of execution,

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and Global Accents does not dispute that this amount is sufficient to protect it from a loss

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resulting from a stay, the Court will grant WMCV’s Motion.

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Accordingly,

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IT IS HEREBY ORDERED that Defendant Global Accents, Inc.’s Motion to Reduce

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Award to Judgment, (ECF No. 335), is DENIED.
IT IS FURTHER ORDERED that Plaintiff WMCV Phase 3, LLC’s Motion for a Stay
of Execution Pending Appeal, (ECF No. 340), is GRANTED.

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DATED this ____ day of January, 2016.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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