JACOBS v. CITY OF PITTSBURGH et al

Filing 679

OPINION setting forth the reasons the motion for stay and waver of bond requirement 677 will be GRANTED, the motions for a writ of execution 665 666 will be denied as premature, and the motion for reconsideration 664 will be denied. An appropriate order will be entered. Signed by Chief Judge Joy Flowers Conti on 1/16/2018. (kjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDRE JACOBS,
Plaintiff,
v.
MICHAEL O’KEEFE,
WILLIAM EMERICK, RAMON
RUSTIN, JAMES DONNIS, RONALD
POFI, LOUIS LEON, DALE
CHAPMAN, ROBERT BEVERIDGE,
BRIAN BOSACK, ROBBIE PINDEL,
WILLIAM KAVALS, DALE
MCCALL, KENNETH STANTON,
KENNETH RUBEL, AND MICHAEL
CRAPIS, in their individual and official
capacities,
Defendants.

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Civil Action No. 08-470

OPINION
I. Introduction
Pending before the court are a series of motions with respect to requests by pro se
plaintiff Andre Jacobs (“plaintiff”) for the court to order defendants who are employees or
former employees of Allegheny County to pay the judgment entered against them and his taxable
costs. (ECF Nos. 664, 665, 666.) Pending also before the court is defendants’ motion for a stay
of execution of judgment pending appeal and waiver of bond requirement. (ECF No. 677.) The
court will grant the defendants’ request for a stay without the issuance of bond and deny
plaintiff’s motions requesting execution of judgment because this case is currently on appeal to
the Third Circuit Court of Appeals and waiver of the bond requirement is appropriate under
Federal Rule of Civil Procedure 62(f). Plaintiff’s motion for reconsideration will be denied

because his requests for costs are premature in light of Local Rule of Court 54, and he did not set
forth a valid basis upon which that decision should be reconsidered.
II. Background
On June 21, 2017, after more than nine years of litigation, a jury returned a verdict
finding in favor of plaintiff with respect to many—but not all—of his claims asserted against
defendants under 42 U.S.C. § 1983. (ECF No. 632.) On June 27, 2017, plaintiff filed a Bill of
Costs. (ECF No. 634.) Judgment was entered on August 28, 2017. (ECF No. 657.) On that date,
plaintiff filed a Supplemental Bill of Costs. (ECF No. 659.) On September 13, 2017, plaintiff
filed a motion to order reimbursement of pretrial expenses. (ECF No. 660.) On September 27,
2017, defendants—with the exception of James Donnis—filed their notice of appeal. (ECF No.
661.) On October 2, 2017, the Clerk of Courts sent the parties a letter, which was filed on the
docket, informing them that he was going to defer consideration of the plaintiff’s Bill of Costs
and Supplemental Bill of Costs until after the disposition of the appeal, pursuant to Local Rule
54 B. (ECF No. 663.) On October 3, 2017, this court denied the motion to order reimbursement
of pretrial expenses as premature in light of the Clerk of Court deferring consideration of the Bill
of Costs and Supplemental Bill of Costs until the disposition of the appeal. (ECF No. 664.)
On October 10, 2017, plaintiff file a supplemental motion for writ of execution, a motion
for writ of execution or order for security bond, and a notice of appeal along with a motion for
reconsideration of the court’s order denying the motion to order reimbursement of pretrial
expenses. (ECF Nos. 665, 666.) On December 14, 2017, defendants filed an amended notice of
appeal, which added defendant James Donnis to the appeal. (ECF No. 673.) On December 15,
2017, defendants filed responses to plaintiff’s pending motions. (ECF Nos. 674-76.) On
December 21, 2017, defendants filed a motion to stay execution of judgment pending appeal and

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waiver of bond requirement. (ECF No. 677.) On January 5, 2018, plaintiff filed a response to that
motion. (ECF No. 678.)
The pending motions having been fully briefed are now ripe to be decided by the court.
III.

Motion for Stay of Execution of Judgment Pending Appeal and Waiver of
Bond Requirement (ECF No. 677)

Federal Rule of Civil Procedure 62, entitled “Stay of Proceedings to Enforce a
Judgment[,]” in pertinent part provides:
(d) Stay with Bond on Appeal. If an appeal is taken, the appellant may obtain a
stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2).
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.
…
(f) Stay in Favor of a Judgment Debtor Under State Law. If 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.
This case is currently on appeal. The court will grant defendants’ request for a stay,
pursuant to Rule 62(d). The court must decide whether to require defendants to post a bond.
Defendants were sued in their individual and official capacities, and, therefore, the verdict in
favor of plaintiff against defendants in their official capacities is a verdict against Allegheny
County, and Rule 62(f) is implicated in this case. Under Pennsylvania law, a verdict or judgment
entered against Allegheny County creates a lien on real property owned by Allegheny County.
231 Pa. Code §§ 3022-23. Pursuant to Pennsylvania Rule of Appellate Procedure 1736(a)(2), a
political subdivision of the Commonwealth of Pennsylvania is not required to post a security in
order to stay an execution of judgment. The Pennsylvania Rules of Civil Procedure define a
political subdivision as “any county.” Pa. R. Civ. P. 76; Feldman v. Phila. Housing Auth, Civ.

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Action No. 91-5861, 1994 WL 46514, at *1 (E.D. Pa. Feb. 16, 1994). The court concludes that
the judgment entered in this case is a lien on Allegheny County’s property under Pennsylvania
law, and, under Pennsylvania law, Allegheny County is exempted from posting a security to stay
the execution of judgment. Allegheny County’s solvency and ability to pay the judgment has not
been attacked or questioned in this case. Sealover v. Carey Canada, 806 F.Supp. 59, 62-63 (M.D.
Pa. 1992) (“Proof by the losing party of its ability to pay the judgment is a recognized exception
to the Rule 62(d) bond requirement, provided the court is assured that the defendant will remain
solvent and maintain that same ability to pay the judgment throughout the appeal process.”).
Thus, this court will not require Allegheny County to post a security in this case to stay the
execution of judgment. Defendants’ motion for stay of execution of judgment pending appeal
and waiver of bond requirement (ECF No. 677) will be granted, and plaintiff’s motions seeking
an execution of judgment (ECF Nos. 665, 666) will be denied as premature in light of the stay.
IV. Motion for Reconsideration of Denial of Motion for Reimbursement (ECF No. 668)
This court denied the motion to order reimbursement of pretrial expenses as premature in
light of the Clerk of Court deferring consideration of the Bill of Costs and Supplemental Bill of
Costs until the disposition of the appeal. (ECF No. 664.) Plaintiff has not provided the court a
valid basis upon which to reconsider that decision. Local Rule of Court 54 provides:
1. Absent extenuating circumstances, the Clerk of Court will tax costs for a
prevailing party only after the time for filing an appeal has expired. Generally,
costs will not be taxed while an appeal is pending because of the possibility that
the judgment may be reversed. However, if a party believes there is a reason why
there should be an immediate taxation in a particular case, that party may make a
written request for taxation prior to resolution of the appeal.
LCvR 54(B)(1). This case is on appeal. Defendants appealed many rulings and decisions of this
court. If defendants are successful on appeal, plaintiff would not be entitled to an award of costs
as a prevailing party. FED. R. CIV. P. 54(d). The
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proper

procedure

in

this

case

is

for

consideration of plaintiff’s Bill of Costs and Supplemental Bill of Costs to be deferred until the
cross-appeals are decided by the court of appeals. 1 The court is not otherwise convinced that
there is cause for immediate taxation in this case. Although plaintiff is a pro se litigant, the rule
does not provide an exception for pro se litigants. Plaintiff’s motion for reconsideration (ECF
No. 668) will be denied.
V. Conclusion
For the reasons set forth in this opinion, the motion for stay of execution of judgment
pending appeal and waiver of bond requirement (ECF No. 677) will be granted, the motions for a
writ of execution (ECF Nos. 665, 666) will be denied as premature in light of the stay, and the
motion for reconsideration (ECF No. 664) will be denied. The execution of judgment is stayed
pending resolution of the appeal, and the bond requirement for defendants will be waived. An
appropriate order will be entered.
By the court,
Dated: January 16, 2018

/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Judge

cc:
ANDRE JACOBS
DQ-5437
SCI Albion
10745 Route 18
Albion, PA 16475

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Plaintiff’s argument that whether he is entitled to costs is not on appeal misses the mark.
(ECF No. 678.) Plaintiff’s entitlement to costs, including pretrial expenses, arises out of his
status as a prevailing party. Whether plaintiff prevailed in this case is squarely before the court of
appeals. Thus, deferment of consideration of his Bill of Costs and Supplemental Bill of Costs is
appropriate.
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