Gill et al v. Bausch & Lomb Supplemental Retirement Income Plan I et al

Filing 82

ORDER denying 79 Motion to Stay Enforcement of the Judgment and granting 80 Motion to Defer Ruling on Plaintiff' Application for Attorneys' Fees consistent with this ORDER. Signed by Hon. Michael A. Telesca on 4/10/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DANIEL E. GILL, THOMAS C.
McDERMOTT,and JAY T. HOLMES,

DECISION AND ORDER
No. 6:09-CV-6043(MAT)

Plaintiffs,
-vsBAUSCH & LOMB SUPPLEMENTAL
RETIREMENT INCOME PLAN I, BAUSCH &
LOMB INCORPORATED and COMPENSATION
COMMITTEE OF THE BAUSCH & LOMB
BOARD OF DIRECTORS,
Defendants.

I.

Introduction
On March 3, 2014, this Court issued a Decision and Order

denying

Defendants’

Motion

for

Summary

Judgment

and

granting

Plaintiffs’ Motion for Summary Judgment. The Court found, in
pertinent

part,

that

the

issuance

of

lump

sum

payments

to

Plaintiffs, and the corresponding discontinuance of their monthly
benefit payments under the Bausch & Lomb Supplemental Retirement
Income Plan I, violated the Employee Retirement Income Security
Act.
On March 19, 2014, Plaintiffs filed a Motion for Attorneys’
Fees (Dkt ##76, 77). On April 2, 2014, Defendants filed a Notice of
Appeal (Dkt #78) with the United States Court of Appeals for the
Second Circuit. Also on April 2, 2014, Defendants filed a Motion to
Stay Enforcement of the Judgment Pending Appeal (Dkt #79) and a

Motion to Defer a Ruling on Plaintiffs’ Application for Attorneys’
Fees (Dkt #80). The Court issued a scheduling order directing that
Plaintiffs’ responses to these two motions be filed by noon on
April 8, 2014. Plaintiffs timely filed their opposition papers to
Defendants’ motions, which are now fully submitted and ready for
decision.
For the reasons discussed below, Defendants’ Motion to Stay
Enforcement of the Judgment Pending Appeal is denied; Defendants’
Motion to Defer a Ruling on Plaintiffs’ Application for Attorneys’
Fees is granted; and Plaintiffs’ Motion for Attorneys’ Fees is
denied without prejudice to their right to refile after completion
of the appellate proceedings before the Second Circuit.
II.

Discussion
A.

Defendants’ Motion to Defer a Ruling on Plaintiffs’
Motion for Attorneys’ Fees

Though Defendants have filed a notice of appeal, this Court
retains jurisdiction over Plaintiffs’ application for attorneys’
fees. See, e.g., Tancredi v. Metropolitan Life Ins. Co., 378 F.3d
220, 225 (2d Cir. 2004) (“[N]otwithstanding a pending appeal, a
district

court

retains

matters,

including

residual

claims

for

jurisdiction
attorneys’

over

collateral

fees.”)

(citations

omitted). However, the Court is not required to resolve this motion
before the appeal is completed. Where the losing party takes an
appeal on the merits of case, the district court has the discretion
to defer ruling on the prevailing party’s motion for attorney’s

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fees. See 1993 Advisory Committee Notes to FED. R. CIV. P. 54(d)
(stating that “if an appeal on the merits of the case is taken, the
[district] court may rule on the claim for fees, may defer its
ruling on the motion, or may deny the motion without prejudice
directing under subdivision (d)(2)(B) [of Rule 54] a new period for
filing after the appeal has been resolved”).
As Plaintiffs note, Rule 54(d)(2) “permits the court, where
appropriate, to make a quick resolution of the fee motion so that
any appeal of that issue might be consolidated with an appeal of
the merits.” 10 MOORE’S FEDERAL PRACTICE-CIVIL § 54.151. However,
immediate resolution of the collateral issue of whether Plaintiffs
are entitled to attorneys fees “is unlikely to assist the Court of
Appeals.” Dulin v. Board of Com’rs of Greenwood Leflore Hosp.,
Civ. A. No. 4:07–CV–194–A–V, 2013 WL 5464689, at *2 (N.D. Miss.
Sept. 30, 2013). As Defendants point out, if they are successful on
appeal, this will moot Plaintiffs’ motion for attorneys’ fees
because Plaintiffs no longer will be prevailing parties entitled to
such fees. Thus, deferring a ruling on Plaintiffs’ motion for
attorneys’ fees until the Second Circuit resolves Defendants’
appeal ensures that this Court only has to address the motion for
attorneys’ fees by the party that ultimately prevails. Under these
circumstances,

the

Court

finds

that

delaying

resolution

of

Plaintiffs’ request for attorneys’ fees until Defendants’ appeal on
the merits has been decided is the “more prudent course of action.”
Dulin, 2013 WL 5464689, at *2 (denying plaintiff’s motion for

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attorneys’ fees without prejudice to his right to refile after a
merits ruling on the appeal “[i]n order to avoid the piecemeal
litigation

that

would

necessarily

follow

from

ruling

on

[p]laintiff’s request prior to a decision on the second appeal of
th[e] matter”).
B.

Defendants’ Motion to Stay Enforcement of the Judgment

A party seeking a stay of enforcement of a judgment pending
appeal can obtain a stay as matter of right under Rule 62(d) of the
Federal Rules of Civil Procedure by posting a supersedeas bond to
secure the amount of the judgment. FED. R. CIV. P. 62(d); see also
De la Fuente v. PCI Telecommunications, Inc., 269 F. Supp.2d 237,
240 (S.D.N.Y. 2003) (citing 11 C. Wright, A. Miller, & M. Kane,
FEDERAL PRACTICE AND PROCEDURE § 2905, 520 (1995)).
Here, Defendants seek a stay of the Court’s judgment without
being required to post a supersedeas bond. Before granting such a
request, the Court first must consider “(1) whether the petitioner
is likely to prevail on the merits of his appeal, (2) whether,
without

a

stay,

the

petitioner

will

be

irreparably

injured,

(3) whether issuance of a stay will substantially harm other
parties interested in the proceedings, and (4) wherein lies the
public interest.” De la Fuente, 269 F. Supp.2d at 240 (citing
Hilton v. Braunskill, 481 U.S. 770, 777 (1987); other citation
omitted). Each of these requirements must be “applied flexibly
according to the unique circumstances of each case.” Morgan Guar.
Trust Co. of N.Y. v. Republic of Palau, 702 F. Supp. 60, 65
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(S.D.N.Y. 1988), vacated on other grounds, 924 F.2d 1237 (2d Cir.
1991) (citation omitted). Because a supersedeas bond is designed to
protect the appellee, the party seeking the stay without bond has
the burden of “objectively demonstrat[ing]” why the court should
“depart from the usual requirement of a full security supersedeas
bond to suspend operation of an unconditional money judgment.”
Teachers Ins. & Annuity Assoc. of Am. v. Ormesa Geothermal, No. 87
Civ. 1259(KMW), 1991 WL 254573, at *3 (S.D.N.Y. Nov. 21, 1991)
(quoting Poplar Grove Planting & Refining Co. v. Bache Halsey
Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979)); see also
Palazzetti Import/Export, Inc. v. Morson, No. 98 Civ. 722(FM), 2002
WL 562654, at *3 (S.D.N.Y. Apr. 16, 2002).
Defendants argue that they are entitled to a stay without bond
because

no

immediate

payments

of

benefits

will

be

due

to

Plaintiffs, given that Defendants are entitled a credit for the
lump-sum payments already paid. Defendants calculate that the
earliest any payment would be due to Plaintiffs is sometime in
2018, which they estimate will be long past the completion of any
appellate proceedings. That may be true, but the caselaw is clear
that the party seeking a stay without posting bond bears the burden
of establishing its entitlement to such relief which Defendants
have not

done.

As

Plaintiffs point

out,

Defendants

have not

addressed whether the posting of a bond during the pendency of
their appeal would cause them “irreparable harm”, and their failure
to offer specific and substantiated reasons as to this factor is

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sufficient to deny their request. See E.E.O.C. v. Everdry Mktg. &
Mgmt., Inc., No. 01-CV-6329P, 2008 WL 4514890, at *2 (W.D.N.Y. Oct.
2, 2008) (“EMM simply states in conclusory fashion that although it
may be able to obtain the funds necessary to post the bond, ‘doing
so would deplete the organization of assets used to ensure the
normal conduct of business during what could be a two to three year
appellate

process.’

Such

unsubstantiated

assertions

are

insufficient to satisfy EMM’s burden (citations omitted; internal
citation to record omitted).
IV.

Conclusion
For the reasons discussed above, the Court grants Defendants’

Motion to Defer Ruling on Plaintiffs’ Application for Attorneys’
Fees. Plaintiffs’ Motion for Attorneys’ Fees accordingly is denied
without prejudice to their right to re-file such motion no later
than fourteen (14) days after the date a ruling on the merits of
Defendants’ appeal by the United States Court of Appeals for the
Second Circuit is entered on the docket of the Western District of
New York.
The Court denies Defendants’ Motion to Stay Enforcement of the
Judgment.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 10, 2014
Rochester, New York
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