Gillispie v. Miami Township et al

Filing 568

ENTRY AND ORDER GRANTING 554 MOTION FOR STAY OFEXECUTION/RESPONSE TO PLAINTIFFS MOTION TO ENFORCE filed by Matthew Scott Moore; DENYING 539 Motion to Enforce Judgment filed by Roger Dean Gillispie. Signed by Judge Thomas M. Rose on 3/1/2024. (jmb)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROGER DEAN GILLISPIE,

:
:
Plaintiff,
:
Case No. 3:13-cv-416
:
v.
:
Judge Thomas M. Rose
:
THE CITY OF MIAMI TOWNSHIP, et al.,
:
:
Defendants,
:
:
:
:
______________________________________________________________________________
ENTRY AND ORDER DENYING PLAINTIFF’S MOTION TO ENFORCE
JUDGMENT (DOC. NO. 539) AND GRANTING MOTION FOR STAY OF
EXECUTION/RESPONSE TO PLAINTIFF’S MOTION TO ENFORCE
JUDGMENT (DOC. NO. 554)
______________________________________________________________________________
This case is currently before the Court on two connected motions. First, Plaintiff Roger
Dean Gillispie (“Gillispie”) has filed Plaintiff’s Motion to Enforce Judgment (the “Motion to
Enforce”) (Doc. No. 539). Now that the Court has issued a final appealable order requiring
Intervenor Miami Township Board of Trustees (the “Township”) to indemnify Defendant Matthew
Scott Moore (“Moore”) for the $45 million jury verdict returned in Gillispie’s favor, Gillispie
seeks to enforce the verdict against the Township. (Doc. No. 539 at PageID 18315-16.) In short,
Gillispie contends that the Township should be required to pay him the $45 million verdict reached
against Moore, plus interest. (Id. at PageID 18316.) However, as this case has since been
appealed, Gillispie submits that, in lieu of enforcement, Moore or the Township must be required
to post a full supersedeas bond, “inclusive of the verdict, pre-judgment interest, post-judgment
interest, costs, and attorney’s fees.” (Id. at PageID 18320.)

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Second, Moore has filed Motion for Stay of Execution/Response to Plaintiff’s Motion to
Enforce Judgment (the “Motion for Stay”) (Doc. No. 554). While responding to the Motion to
Enforce, Moore additionally moves the Court for a stay of execution regarding Gillispie’s
judgment against him. (Doc. No. 554 at PageID 20105.) Moore submits in his Motion for Stay
that enforcement should be stayed pending appeal and that the Township has the duty to post any
supersedeas bond ordered by the Court. In any event, Moore suggests that the Township itself
serves as adequate security while the Parties’ appeals are pending.
For the reasons discussed below, the Court DENIES the Motion to Enforce (Doc. No. 539)
and GRANTS the Motion for Stay (Doc. No. 554).
I.

BACKGROUND
At this juncture, the Court assumes the Parties are quite familiar with the facts of this case

and will not reiterate them here.1 Instead, the Court will set forth the procedural posture of the
Motion to Enforce and the Motion for Stay (collectively, “Motions”).
On November 8, 2023, after much deliberation, the Court issued its Order Entering
Judgment on Miami Township Board of Trustees’ Intervenor Complaint for Declaratory Judgment
and Relief (Doc. No. 529). There, the Court found that the Township must “indemnify Moore in
the full amount of the verdict entered against him,” and “that the Township owes a duty to defend
Moore in connection with [Gillispie’s] claims,” pursuant to Ohio Rev. Code § 2744.07. (Doc. No.
529 at PageID 18294.) With this being the final appealable order in this matter, the Parties
subsequently filed their respective appeals. (See Doc. Nos. 531, 532, 533.)
On December 21, 2023, Gillispie filed the Motion to Enforce (Doc. No. 539). Moore
filed his response in opposition to the Motion to Enforce on January 10, 2024 (Doc. No. 554), and

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For a full factual background of this case, see Doc. No. 519 at PageID 18084-94.

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the Township filed its response in opposition to the same on January 11, 2024 (Doc. No. 555).
Gillispie then filed his reply in support of the Motion to Enforce on February 1, 2024 (Doc. No.
565). Hence, the Motion to Enforce is ripe for review and decision.
As previously stated, Moore submitted his Motion for Stay and his response in opposition
to the Motion to Enforce as a single document. (Doc. No. 554 at PageID 20105.) As such, Moore
filed his Motion for Stay on January 10, 2024 (Doc. No. 554). Pursuant to the Court’s order,
Gillispie and the Township filed their respective responses in opposition to the Motion for Stay on
January 31, 2024 (Doc. Nos. 563; 564). Moore filed his reply in support of the Motion for Stay
on February 20, 2024 (Doc. No. 567). Thus, the Motion for Stay is likewise ripe for review and
decision.
II.

ANALYSIS
Briefly, Gillispie would have the $45 million dollar verdict in this case enforced against

the Township. (Doc. No. 539 at PageID 18320.) However, the Township argues that Gillispie
lacks standing to assert Moore’s right to indemnification when seeking enforcement of the
judgment rendered against Moore. (Doc. No. 555 at PageID 20111-12.)
Barring enforcement, Gillispie asks that the Court order Moore or the Township to post a
full bond pending appeal. (Doc. No. 539 at PageID 18320.) Conversely, Moore contends that he
is entitled to a stay as a matter of right. (Doc. No. 554 at PageID 20106-08.) Though, in the event
that the Court finds Moore unentitled to a stay as a matter of right, Moore requests that the Court
stay execution of the present judgment pending appeal without bond. (Id. at PageID 20105-06.)
The Court will address Gillispie’s Motion to Enforce as to the Township and Moore’s
Motion for Stay accordingly.

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1. Gillispie’s Standing to Enforce as to the Township2
The Court must first determine whether Gillispie possesses standing to enforce any
judgment against the Township. Although Gillispie received a $45 million verdict against Moore,
Gillispie seeks to enforce that verdict solely against the Township. (See Doc. No. 539 at PageID
18315-16.) Gillispie reasons that the Court has ordered the Township to indemnify Moore for the
amount of the jury verdict in this matter pursuant to Ohio Rev. Code § 2744.07 and therefore, the
Township is obligated to pay the jury verdict upon enforcement. (Id.) On the other hand, the
Township argues that Gillispie lacks “standing to assert or enforce Moore’s indemnification rights
under [Ohio Rev. Code] 2744.07.” (Id. at PageID 20112.)
The Court previously determined that Gillispie does not have standing to enforce Moore’s
statutory right to indemnification under Ohio Rev. Code § 2744.07. (Doc. No. 518 at PageID
18072-74.) Section 2744.07 “provides that a political subdivision ‘shall indemnify and hold
harmless an employee.’ Thus, the right to indemnification is personal to the employee.” Ayers v.
Cleveland, 2020-Ohio-1047, 156 N.E.3d 848, 853 (Ohio 2020) (emphasis in original). Indeed, the
Ohio Supreme Court determined in Ayers “that R.C. 2744.07(A)(2) does not permit a judgment
creditor to proceed directly against an indemnitor.” Id.
Based on this principle, the Court presently finds—as it did previously—that Gillispie is
without standing to enforce the jury verdict in this case against the Township. Plainly, Gillispie is
a judgment creditor and the Township is merely Moore’s indemnitor. At no point has the
Township been found liable for Gillispie’s underlying claims. Further, Moore’s indemnification
rights, as determined by the Court, are personal to Moore and they are Moore’s rights alone to

2

See also Doc. No. 518 at PageID 18072-74.

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enforce.

Therefore, the Court DENIES the Motion to Enforce to the extent that it seeks

enforcement as to the Township.
2. Stay of Execution
As a practical matter, the next issue the Court must address is whether a stay of execution
respecting Gillispie’s $45 million verdict is warranted. Although Gillispie’s Motion to Enforce
initially seeks enforcement of the jury verdict, the majority of the Motion to Enforce argues for
Moore or the Township to post a full bond pending appeal. (See Doc. No. 539 at PageID 1831820.) Moore’s Motion for Stay places the issue of a bond front and center, arguing for either a stay
of execution as a matter of right or a stay pending appeal without otherwise requiring bond. (Doc.
No. 554.)
Stays of enforcement actions as a matter of right are governed by Fed. R. Civ. P. 62. Arban
v. West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003). Pertinent here, “Rule [62(b)] entitles a
party who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right.”
Id. (citing Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980));
see also Fed. R. Civ. P. 62(b).
Specifically, Rule 62(b) provides that:
At any time after judgment is entered, a party may obtain a stay by providing a
bond or other security. The stay takes effect when the court approves the bond or
other security and remains in effect for the time specified in the bond or other
security.
To explain, imposing a bond requirement on an appealing party serves to both protect the status
quo and provide adequate security to protect the non-appealing party’s interest in his judgment.
Volunteer Energy Servs. Inc. v. Option Energy LLC, No. 1:11-CV-554, 2014 WL 879458, at *1-2
(W.D. Mich. Mar. 5, 2014) (quoting Poplar Grove Planting & Ref. Co., Inc. v. Bache Halsey
Stuart, Inc. 600 F.2d 1189, 1191 (5th Cir. 1979)). On one hand, posting bond will permit an
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appealing party “‘to avoid the risk of satisfying the judgment only to find that restitution is
impossible after reversal.’” Hamlin v. Charter Twp. Of Flint, 181 F.R.D. 348, 351 (E.D. Mich.
1998) (quoting Poplar Grove, 600 F.2d at 1190). On the other hand, a bond requirement insulates
a “non-appealing party ‘from the risk of a later uncollectible judgment’ and ‘provides
compensation for those injuries which can be said to be the natural and proximate result of the
stay.’” Hamlin, 181 F.R.D. at 351 (quoting NLRB v. Westphal, 859 F.2d 818, 819 (9th Cir. 1988);
Moore v. Townsend, 577 F.2d 424, 427 (7th Cir. 1978)) (internal citations omitted). “Because of
Rule [62(b)]’s dual protective role, a full supersedeas bond should almost always be required.”
Hamlin, 181 F.R.D. at 351 (internal citations omitted).
However, Rule 62(b)’s bond requirement has not been found to be inflexible. Pucci v.
Somers, 834 F. Supp. 2d 690, 706-07 (E.D. Mich. 2011) (quoting Olympia Equip. Leasing Co. v.
W. Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986)). Rule 62(b) “in no way necessarily implies
that filing a bond is the only way to obtain a stay.” Arban, 345 F.3d at 409 (internal citations and
quotation marks omitted). Rather, courts have discretion to permit a stay secured by a reduced
bond or no bond at all in extraordinary circumstances:
where the defendant’s ability to pay the judgment is so plain that the cost of the
bond would be a waste of money; and—the opposite case, one of increasing
importance in an age of titanic damage judgments—where the requirement would
put the defendant’s other creditors in undue jeopardy.
Olympia Equip., 786 F.2d at 796; see also Arban, 345 F.3d at 409; see also Hamlin, 181 F.R.D. at
353; see also Pucci, 843 F. Supp. 2d at 706.
As previously stated, Gillispie requests that either Moore or the Township be required to
post a full supersedeas bond, despite Moore’s request for a stay pending appeal without bond.
(Doc. No. 539 at PageID 18318-20.) The Court considers Moore’s and the Township’s right to a
stay in turn.
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i. Moore’s Right to a Stay Pending Appeal
In his Motion for Stay, Moore asserts his entitlement to a stay pending appeal on two
grounds. (See Doc. No. 554.) To start, Moore contends that he is entitled to a stay of enforcement
as a matter of right pursuant to Fed. R. Civ. P. 62(f). Rule 62(f) provides that “[i]f a judgment is
a lien on the judgment debtor’s property under the law of the state where the court is located, the
judgment debtor is entitled to the same stay of execution the state court would give.” Fed. R. Civ.
P. 62(f). To this end, Moore argues that, under Ohio law, the jury verdict against him here
constitutes a lien against his property. (Doc. No. 554 at PageID 20106.) Under his theory, Moore
would be entitled to a stay pending appeal as a matter of right pursuant to state law. (Id. at PageID
20107.)
The Court finds Moore’s position regarding Fed. R. Civ. P. 62(f) to be without merit. In
Ohio, a money judgment “shall be a lien upon lands and tenements of each judgment debtor within
any county. . . from the time there is filed in the office of the clerk of the court of common pleas
of such county a certificate of judgment. . ..” Ohio Rev. Code § 2329.02. Importantly, a money
judgment rendered in Ohio “does not independently constitute a lien.” Kennedy v. Cty. Of
Zanesville, OH, No. 2:03-cv-1047, 2008 U.S. Dist. LEXIS 67230, at *1, 2008 WL 3993894, at *1
(S.D. Ohio Aug. 20, 2008). Rather, a judgment creditor must file a “facially compliant certificate
of judgment in a specific county” to acquire a judgment lien in Ohio. In re Purdy, 591 B.R. 307,
310 (Bankr. N.D. Ohio 2018). Presently, Gillispie has not filed a certificate of judgment to create
a judgment lien on Moore’s property, nor does Gillispie desire to do so. (Doc. No. 564 at PageID
20884.) Without this, the jury verdict against Moore here does not constitute a lien. Therefore,
Moore is not entitled to a stay as a matter of right under Rule 62(f).

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Notwithstanding, Moore may still prevail in his request for a stay pending appeal without
bond. Moore argues that the Court should grant a stay pending appeal pursuant to Fed. R. Civ. P.
62(b) and utilize its discretion to set aside the typical bond requirement. (Doc. No. 554 at PageID
20105.) Moore submits that the Township is bound to indemnify Moore and must be post adequate
security pending appeal if required by the Court. (Id.) However, Moore seems to suggest that the
Township itself is adequate security in this case because the township is a political subdivision
with taxing authority. (Id. at PageID 20105-06.)
In response, Gillispie argues broadly against disposing of the typical bond requirement
here. (Doc. No. 564 at PageID 20879-83.) Essentially, Gillispie posits that neither Moore nor the
Township have established extraordinary circumstances to allow the Court to forego bond pending
appeal. (Id.)
The Court finds that the circumstances of this case warrant a stay of enforcement
proceedings as to Moore without bond. Despite Gillispie’s argument that Moore has failed to
establish extraordinary circumstances, Gillispie clearly indicates that Moore has insubstantial
resources. (Id. at PageID 20882.) Moore confirms as much in his reply briefing, stating that he
does not have the funds to post a full bond. (Doc. No. 567 at PageID 20918.) Moore does not
abandon his assertion that the Township is obligated to post adequate security and the Court will
address Moore’s argument on this issue below. For purposes of determining whether Moore is
entitled to a stay, the Court notes that Moore’s inability to post a full bond is apparent to both
Gillispie and Moore himself. As it is also apparent to the Court, the Court finds that requiring
Moore to post a full bond here would not only unduly burden Moore’s right to an appeal, but it
would impede the interests of Moore’s other creditors. As such, the Court will grant Moore a stay
of execution without bond pending appeal.

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ii. The Township’s Right to a Stay Pending Appeal
Regardless, the Court otherwise finds that the Township itself constitutes adequate security
for a stay pending appeal. As discussed above, Gillispie lacks standing to enforce Moore’s
indemnification rights. However, Moore may assert his right to be indemnified by the Township
for purposes of posting a supersedeas bond and Moore does so in his Motion for Stay. (Doc. No.
554 at PageID 20105-06.) In this regard, Moore’s Motion for Stay is effectively a motion to
enforce the Court’s declaratory judgment finding that the Township must defend and indemnify
Moore pursuant to Ohio Rev. Code. § 2744.07. (See Doc. No. 529.) Fundamentally, Moore argues
that the Township is adequate security for Gillispie’s judgment pending appeal because the
Township is a sovereign entity with taxing authority. (Doc. No. 554 at PageID 20105-06.) The
Township continues to contest its duty to indemnify Moore and maintains that it need not post a
supersedeas bond in this matter. (Doc. No. 563 at PageID 20872.)
For the instant analysis, the Court assumes that Moore may enforce his indemnification
rights against the Township for purposes of posting a supersedeas bond or other security. While
the Township does not set forth an ability or inability to post bond, the Court can make its
determination here based on publicly available records. For the 2024 fiscal year, the Township
has estimated gross revenues of $23,506,884 and estimated expenses in the amount of
$22,219,757. (See MIAMI TOWNSHIP, BUDGET, https://www.miamitownship.com/293/Budget (last
visited February 21, 2024).) On net, the Township is projected to end the fiscal year with
$1,287,127.3

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The Township cannot dedicate its entire operating budget to paying a bond in this case and remain compliant with
state law. Pursuant to Ohio Rev. Code § 2744.06, judgments against a political subdivision or one of its employees
“shall be paid from funds of the political subdivision[] that have been appropriated for that purpose.” Ohio Rev. Code
§ 2744.06(A).

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Even if the Township were to indiscriminately use its operating budget to post a
supersedeas bond, doing so would cause the Township substantial economic harm. To be sure,
requiring the Township to post a full bond here would almost certainly threaten the interests of the
Township’s creditors. For perspective, the Township’s list of creditors is not simply made up of
financial institutions. The Township’s citizens are its creditors. Citizens pay property taxes to the
Township and in return the Township provides the citizens with municipal services. If the
Township cannot afford to render those services because this Court forced it to pay a bond, then
the Township would plainly be in default to its citizenry.
In addition, as Moore suggests, the Township is a sovereign entity with taxing authority.
If ultimately required by the Sixth Circuit to indemnify Moore for the $45 million verdict in
Gillispie’s favor, the Township can budget accordingly. But the Township is a constant. It cannot
up and move to avoid the Court’s jurisdiction in the interim.
Thus, the Court finds that extraordinary circumstances preclude imposing a supersedeas
bond requirement on the Township and, in any event, the Township itself constitutes adequate
security for Gillispie’s judgment pending appeal.
III.

CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s Motion to Enforce Judgment (Doc.

No. 539) and GRANTS the Motion for Stay of Execution/Response to Plaintiff’s Motion to
Enforce Judgment (Doc. No. 554). In accordance with this order, all proceedings to enforce the
Court’s judgment are STAYED WITHOUT BOND pending a final disposition of this case on
appeal.

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DONE and ORDERED in Dayton, Ohio, this Friday, March 1, 2024.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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