Atlas Noble, LLC v. Krizman Enterprises et al
Memorandum Opinion and Order: In order to obtain a stay of enforcement proceedings, Atlas must post a supplemental supersedeas bond equal to the shortfall between the amount in the escrow account at the time of posting and the amount of the j udgment, plus the amount of pre-judgment interest, plus twelve (12) months of post-judgment interest, plus the $4,219.70 in costs awarded. Plaintiff's motion for stay of proceedings to enforce judgment (Doc. No. 108 ) is granted, provided plaintiff post the supersedeas bond described above. Judge Sara Lioi on 3/23/2016. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ATLAS NOBLE, LLC,
KRIZMAN ENTERPRISES, et al.,
CASE NO. 5:13CV1505
JUDGE SARA LIOI
Before the Court is plaintiff’s motion for stay of proceedings to enforce judgment (Doc.
No. 108), defendants’ response (Doc. No. 110), and plaintiff’s reply (Doc. No. 111). The motion
for stay is granted, but only on the condition that Atlas post a supplemental supersedeas bond as
set forth herein.
On July 11, 2013, Atlas Noble, LLC (“Atlas”) filed a one-count complaint for breach of
contract against defendants Krizman Enterprises, Wayne Hammond Enterprises, and MKE
Producing, Inc. (collectively, “defendants”) for their alleged failure to authorize release to Atlas
of a certain escrow account. Defendants counterclaimed, seeking a declaratory judgment that
they were entitled to the escrow monies, and further alleging two breach of contract claims
On November 16, 2015, following rulings on various motions, including cross-motions
for summary judgment, the Court entered final judgment in the amount of $2,411,290.00, plus
interest, in defendants’ favor and against plaintiff. (See Judgment Entry, Doc. No. 97-1.)
Cross-appeals are pending. (See Notice of Appeal, Doc. No. 102, December 15, 2015;
Notice of Cross-Appeal, Doc. No. 104, December 21, 2015.)1
Plaintiff now moves, under Fed. R. Civ. P. 62(d), for an order staying proceedings to
enforce the final judgment. Plaintiff asserts that, because all parties have appealed, because the
amount in the escrow account ($2,408,583.71 as of December 31, 2015) constitutes sufficient
security for the judgment (with the shortfall being de minimis), and because plaintiff is a viable
going concern, no additional security should be required as there is no appreciable risk of
defendants’ inability to recover the full judgment, plus interest.
Defendants do not oppose the Court’s exercise of its discretion to allow the escrow
account to serve as a portion of the necessary security for a stay of execution of the judgment.
But they argue that this Court should require a supplemental supersedeas bond to secure the
shortfall, plus an amount to secure the post-judgment interest for twelve months while the matter
is on appeal. Defendants rely on Verhoff v. Time Warner Cable, Inc., No. 3:05CV7277, 2007 WL
4303743, at *2 (N.D. Ohio Dec. 10, 2007) for the proposition that a full supersedeas bond should
almost always be required. Verhoff involved a case where the appellant asked that no bond be
required, primarily because it was clearly able to satisfy the full judgment, plus interest and
costs. The district court noted that ability to pay is but one factor to consider. Even so, it
ultimately set the bond at $300,000, an amount nearly $40,000 less than the sum of the judgment
plus anticipated costs and attorney fees, and also not accounting for interest that would accrue on
There is an additional cross-appeal of another order whereby the Court denied leave for Beau Croxton to intervene.
(See Memorandum Opinion and Order, Doc. No. 81, March 27, 2015; Notice of Cross-Appeal, Doc. No. 106,
December 29, 2015.)
In addition to arguing that the escrow account constitutes sufficient security, Atlas asserts
that no supplemental bond should be required because defendants themselves have appealed this
Court’s orders. But federal rules have the force of statute, and there is nothing in the language of
Rule 62(d) to suggest that, where the prevailing party has cross-appealed, the bond should be
suspended. Hamlin v. Charter Twp. of Flint, 181 F.R.D. 348, 352 (E.D. Mich. 1998). Finally,
Atlas argues that, since it has the ability to pay the judgment and the shortfall is relatively small,
“the cost of the bond would be a waste of money.” (Doc. No. 108 at 3896, quoting Arban v. West
Publ. Corp., 345 F.3d 390, 409 (6th Cir. 2003).)
“[C]ourts generally hold a full supersedeas bond should be required ‘and should only be
excused where the appellant has demonstrated the existence of extraordinary circumstances.’”
Infocision Mgmt. Corp. v. Found. for Moral Law, Inc., 5:08-cv-1342, 2012 WL 369454, at *3
(N.D. Ohio Feb. 3, 2012) (citing and quoting Johnson v. Conn. Gen. Life Ins. Co., No. 5:07-cv167, 2008 WL 918459, at *1 (N.D. Ohio Apr. 1, 2008)). “The burden [is] on the movant to
demonstrate the extraordinary circumstances required for a departure from the bond
requirement[.]” Physicians Ins. Capital, LLC v. Praesidium Alliance Grp., LLC, No.
4:12CV1789, 2013 WL 5232817, at *2 (N.D. Ohio Sept. 16, 2013) (internal quotation marks and
The Court concludes that defendants generally have the better view and that plaintiff has
failed to meet its burden to show extraordinary circumstances.
Therefore, in order to obtain a stay of enforcement proceedings, Atlas must post a
supplemental supersedeas bond equal to the shortfall between the amount in the escrow account
at the time of posting and the amount of the judgment, plus the amount of pre-judgment interest,
plus twelve (12) months of post-judgment interest, plus the $4,219.70 in costs awarded.2
Plaintiff’s motion for stay of proceedings to enforce judgment (Doc. No. 108) is granted,
provided plaintiff post the supersedeas bond described above.
IT IS SO ORDERED.
Dated: March 23, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
By separate order, the Court granted defendants’ motion for pre-judgment interest and deposition costs (Doc. No.
98), but also stayed execution of that order.
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