Johnson, et al v. Memphis, City of

Filing 653

ORDER in case 2:04-cv-02013-STA-egb; granting (639) Motion to Stay in case 2:00-cv-02608-STA-tmp. Signed by Judge S. Thomas Anderson on 5/31/2013. Associated Cases: 2:00-cv-02608-STA-tmp, 2:04-cv-02013-STA-egb, 2:04-cv-02017-STA-tmp(Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MARILYN JOHNSON; DURAND MARTIN;
FRED ACOSTA; RACHELLE BARHAM; MIKE
BISHOP; MIKE BLAKELY; SPENCER BRIGGS;
GLENDA BROWN; TRACY BURFORD; FELIX
CALVI; ROBIN CAMPBELL; TIM COOPER;
CRAIG COOK; JAMES CURRIN; SEAN G.
DAUBERGER; ANTHONY DAVIS; BRIAN
DEHAAN; CHAROLETTE EASTER; LARRY
ECHOLS; CHARLES GENTRY; JAMES GRISBY;
JOHN HARBER; ROBERT HONORE; MELANIE
HOWE; DOROTHY HYMAN; PHILLIP JACKSON;
CHORCIE JONES; URSULA JONES; STACEY
LAMONDUE; KATHLEEN LANIER; JAMES
LUCKETT; EDWARD LUELLEN; RUSSELL
MANESS; JOHN MANNON; JOSEPH MARROW;
MIKE MCCORD; MICHAEL MCCOLLUM;
ALISA MITCHELL; ALVIN MOORE; LESLEY
MURRELL; PAUL PRITT; MUNDY QUINN;
HERLANCER ROSS; CELIA TISBY; PAUL
TREMMEL; VERNON VAN BUREN; STEVE
WARE; KEDZIE WHITE; and CONSTANCE
YOUNG;

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
v.
)
)
CITY OF MEMPHIS,
)
)
Defendant,
)
)
and
)
FLORESA BILLINGSLEY; AUNDRA SEGREST;
)
LATANYA ABLE; GARY BADGETT; BERNICE
)
BLACK; BRUCE BIVENS; LOYCE BONDS;
)
SHERMAN BONDS; TASHA CARTER; CLIFTON
)
DATES; ERIC DATES; CARLOS DAVIS; MYRON )
FAIR; ANTHONY GARDNER; NOVELL GRAY;
)
BRYON HARDAWAY; ERIC HULSEY; ARLANDA )
JACKSON; ELVIN JACKSON; BOBBY JONES;
)
DEBORAH JONES; MYRON LAWRENCE; MARK )
LUCAS; RUSSELL MCDANIEL; VERTIE MCNEIL; )
JESSIE NELOMS; CARL RAY; JOHN SMITH;
)
1

No. 00-2608-STA-tmp
No. 04-2017-STA-tmp

DAFFNEY THOMAS; RYAN THOMAS; JAMES
VALENTINE; KEITH WATSON; JACKIE
WILLIAMS; JOHN WILLIAMS; and FRANK
WINSTON;
v.
CITY OF MEMPHIS,
Defendant.

)
)
)
)
)
)
)
)
)

No. 04-2013-STA-tmp

ORDER GRANTING STAY OF EXECUTION AND WAIVER OF SUPERSEDEAS
BOND

Before the Court is Defendant City of Memphis’ (“Memphis”) Motion for Stay of
Execution of Judgment and Waiver of the Supersedeas Bond Requirement (D.E. # 639) filed
April 2, 2013. Plaintiffs filed a Response (D.E. # 644) on April 5, 2013. Memphis filed a Reply
(D.E. # 647) on April 22, 2013. For the reasons stated herein, the Court GRANTS Memphis’
Motion for Stay of Execution of Judgment and Waiver of the Supersedeas Bond Requirement.
“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 stay takes effect when the court approves the
bond.” 1 A party filing a supersedeas bond is entitled to a stay of enforcement of a money
judgment as a matter of right. 2 “However ‘the Rule in no way necessarily implies that filing a
bond is the only way to obtain a stay. It speaks only to stays granted as a matter of right, it does
not speak to stays granted by the court in accordance with its discretion.’” 3 “[M]any district
courts . . . have held that a full supersedeas bond should almost always be required and should
1

Fed. R. Civ. P. 62(c).

2

Arban v. West Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003) (citing Fed. Prescription
Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980) (citing Am. Mfr. Mut. Ins.
Co. v. Am. Broad. Paramount Theatres, Inc., 385 U.S. 931 (1966))).
3

Id. (quoting Am. Pharm. Ass’n, 636 F.2d at 759).
2

only be excused where the appellant has demonstrated the existence of extraordinary
circumstances.” 4 One such extraordinary circumstance is where “the defendant’s ability to pay
the judgment is so plain that the cost of the bond would be a waste of money.” 5 The primary
concern is whether the defendant will retain the ability to pay the judgment through the pendency
of any appeal. 6
Memphis has introduced the declaration of Patrice Thomas (“Thomas”), the Comptroller
for Memphis. In this declaration, Thomas avows Memphis maintains a General Fund for, inter
alia, the purpose of satisfying money judgments. Thomas avers as of June 30, 2012, there was
an unassigned balance in Memphis’ General Fund of $61,667,000.00. (Thomas Decl. ¶ 3).
Thomas further states that based on this figure and on Memphis’ fiscal year-to-date activity,
there are sufficient funds in Memphis’ General Fund to promptly satisfy the Court’s monetary
award against Memphis if affirmed. (Id. ¶ 4-5). The Court finds that Memphis will retain its
ability to pay the Court’s judgment through the pendency of its appeal, and that Memphis’ ability
to do so is so plain that for Memphis to post a bond would simply waste money.
Plaintiffs argue the Court should apply the factors of Hilton v. Braunskill 7 to analyze
whether issuance of a stay is appropriate in this case. Plaintiffs further argue the Court
previously applied the Hilton factors to deny a stay of injunctive relief, and that the law of the
4

Monks v. Long Term Disability Benefits Plan for Certain Hourly Emps. of Champion
Int’l Corp. No. 703, No. 1:08-cv-752, 2012 WL 1598294, at *1 (S.D. Ohio May 7, 2012).
5

Arban v. W. Publ’g Corp., 345 F.3d 390, 409 (6th Cir. 2003) (quoting Olympia Equip.
Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986)).
6

See, e.g., Id.; Monks, 2012 WL 1598294, at *3 (S.D. Ohio May 7, 2012) (considering
other factors in denying waiver of supersedeas bond); O’Callaghan v. SPX Corp., No. 2:09-cv10196, 2010 WL 299497, at *1 (E.D. Mich. Jan. 20, 2010); Hawthorne v. Lincoln Gen. Ins. Co.,
No. 08-12325, 2009 WL 1519055, at *1 (E.D. Mich. June 1, 2009).
7

Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
3

case demands that the Court again deny a stay pending appeal. However, the Court notes that
district courts use the Hilton factors to review a motion for stay of prospective relief, not
retrospective relief. 8 Memphis does not ask for a stay of prospective relief; indeed, it has already
complied with the Courts’ orders for prospective relief, promoting each Plaintiff in accordance
with this Court’s orders. Instead, Memphis asks for a stay pending appeal of enforcement of the
Plaintiffs’ money judgment against it, which is retrospective relief. 9 Therefore, the Court finds
the Hilton factors inappropriate to the instant Motion.
Plaintiffs additionally argue Memphis has not demonstrated the “extraordinary
circumstances” that allow a court to waive the requirement of a supersedeas bond, and cite to an
order of this Court in Arvest Bank v. Byrd denying a waiver of supersedeas bond because the
appellant had not objectively demonstrated such extraordinary circumstance for support. 10
However, this Court specifically noted in the cited order that plain ability to pay the judgment so
as to make posting a bond a waste of money was such an extraordinary circumstance. 11
For the reasons given above, the Court GRANTS Memphis’ Motion for Stay and Waiver
of Supersedeas Bond.
IT IS SO ORDERED.

8

See, e.g., Titan Tire Corp. of Bryan v. United Steel Workers of Am., Local 890L, No. 094460, slip op. at 1 (6th Cir. March 10, 2010); Progressive Foods, LLC v. Dunkin’ Donuts Inc.,
No. 1:07CV3424, 2011 WL 1601335, at *2-4 (N.D. Ohio Apr. 27, 2011); W. & S. Life Ins. Co. v.
Crown Am. Corp., 877 F. Supp. 1041, 1048 (E.D. Ky. 1993).
9

Tellingly, Memphis moves the Court pursuant to Rule 62(d). The proper Rule under
which to move for stay of a “final judgment that grants, dissolves, or denies an injunction” is
Rule 62(c).
10

Order Denying Motion to Stay Enforcement of Judgment Pending Appeal at 5, Arvest
Bank v. Byrd, No. 10-cv-2004-SHM-tmp, D.E. # 211 (Mays, J.).
11

Id.
4

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: May 31, 2013.

5