Longo et al v. Trojan Horse, Ltd. et al

Filing 189

ORDER granting 180 Motion to Stay and granting 182 Motion to Stay. Signed by District Judge Terrence W. Boyle on 11/14/2016. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-418-BO

GARIBALDI LONGO, et al.,
Plaintiffs,
v.
TROJAN HORSE LTD., et al.,
Defendants.

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ORDER

This cause comes before the Court on defendant Ascensus Trust's motion to stay
judgment pending appeal and motion to stay the Court's consideration of plaintiffs' affidavit
concerning attorneys' fees and costs. For the reasons discussed below, both motions are granted.
BACKGROUND
By order entered September 20, 2016, this Court granted plaintiffs' motion to certify
class and granted in part and denied in part plaintiffs' motion for summary judgment. [DE 170].
Judgment was entered pursuant to Fed. R. Civ. P. 54(b) against Ascencus Trust and the nonappearing defaulted defendants in the amount of $2,985,914.27. [DE 171]. Plaintiffs' attorneys'
fees and costs were further awarded against defendants. By order entered September 30, 2016,
the Court entered default judgment against the appearing defaulted defendants following notice.
Fed. R. Civ. P. 55(b)(2); [DE 172 & 173]. All defendants were held to be jointly and severally
liable.
On October 11, 2016, Ascensus Trust noticed an appeal of this Court's order and
judgment. [DE 174]. On October 14, 2016, plaintiffs' class counsel filed an affidavit in support
of attorneys' fees, costs, and incentive awards. [DE 177]. On October 25, 2016, Ascensus filed
a motion to stay judgment pending appeal, attaching a supersedeas bond in the amount of

$2,985,914.27. [DE 180]. Thereafter Ascensus filed a motion to stay this Court's consideration
of plaintiffs' affidavit of attorneys' fees and costs pending resolution of Ascensus' appeal. [DE
182].
DISCUSSION
Federal Rule of Civil Procedure 62(d) states: "If an appeal is taken, the appellant may
obtain a stay by supersedeas bond .... The bond may be given upon or after filing the notice of
appeal or after obtaining the order allowing the appeal. The stay takes effect when the court
approves the bond." Fed. R. Civ. P. 62(d). Thus, an appellant may obtain a stay as ofright
pursuant to Rule 62(d) by obtaining a supersedeas bond. See, e.g., Southeast Booksellers Ass 'n v.
McMaster, 233 F.R.D. 456, 457 (D.S.C. 2006); Alexander v. Chesapeake, Potomac & Tidewater
Books, Inc., 190 F.R.D. 190, 192 (E.D. Va. 1999).

Plaintiffs oppose a stay of judgment pending appeal, arguing that Ascensus has not
posted a supersedeas bond for the full amount of the judgment. Although the Court's order on
summary judgment did hold that attorneys' fees and costs would be awarded to plaintiffs,
Ascensus is correct to argue that the judgment currently on appeal provides for an amount of
$2,985,914.27 as against Ascensus and the other defendants. Ascensus has posted a bond in this
amount and is therefore entitled to a stay of this Court's judgment pending appeal pursuant to
Rule 62(d). In light of its finding that a stay of judgment pending appeal is appropriate, the
Court further holds that a stay of its award of attorneys' fees and costs to plaintiffs is also
appropriate.

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CONCLUSION
For the foregoing reasons, Ascensus Trust's motion to stay judgment [DE 180] and
motion to stay consideration of plaintiffs' affidavit concerning attorneys' fees and costs [DE
182] are GRANTED.

SO ORDERED, this

1i__ day of November, 2016.

RRENCE W. BOYLE
UNITED STATES DISTRICT JUD

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