Lakendus Cole et al v. City Of Memphis, Tennessee et al

Filing 250

ORDER granting 235 MOTION TO LIFT PARTIAL STAY OF JUDGMENT & CONCERNING MOTION FOR SUPPLEMENTAL AWARD OF ATTORNEYS FEES REIMBURSEMENT OF EXPENSES, AND POST-JUDGMENT INTEREST. Signed by Judge Jon Phipps McCalla on 2/28/2017. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
LAKENDUS COLE AND LEON
)
EDMUND, individually and as
)
representatives of all others similarly situated, )
)
)
Plaintiffs,
)
)
v.
)
)
)
CITY OF MEMPHIS,
and ROBERT FORBERT, SAMUEL HEARN, )
CHRISTOPHER BING, JOHN FAIRCLOTH, )
)
CARI COOPER and ROBERT SKELTON,
)
IN THEIR OFFICIAL CAPACITIES
)
AS CITY OF MEMPHIS
)
POLICE OFFICERS,
)
)
Defendants.
)

No. 2:13-cv-02117-JPM-dkv

JURY TRIAL DEMANDED

ORDER GRANTING MOTION TO LIFT PARTIAL STAY OF JUDGMENT
&
CONCERNING MOTION FOR SUPPLEMENTAL AWARD OF ATTORNEYS’ FEES
REIMBURSEMENT OF EXPENSES, AND POST-JUDGMENT INTEREST
Before the Court are Motions to Lift Partial Stay of Judgment (ECF No. 235) and for
Supplemental Award of Attorneys’ Fees Reimbursement of Expenses, and Post-Judgment
Interest (ECF No. 236) filed by Plaintiff Lakendus Cole, individually and on behalf of the class,
on January 25, 2017. Defendants City of Memphis and City of Memphis Police Officers Robert
Forbert, Samuel Hearn, Christopher Bing, John Faircloth, Cari Cooper, and Robert Skelton in
their official capacities (collectively, “Defendant City of Memphis” or “Defendant”) filed
responses in opposition on February 3, 2017 (ECF No. 242) and February 7, 2017 (ECF No.
243). With leave, Plaintiff filed a reply to Defendant City of Memphis’s response on the issue of

the Court lifting the partial stay on February 8, 2017. (ECF No. 246.) Defendants filed a surreply with leave in opposition on February 14, 2017. (ECF No. 249.) For the reasons stated
below, the Court GRANTS Plaintiff’s Motion to Lift Partial Stay of Judgment (ECF No. 235)
and ORDERS Defendant to file its response to Plaintiff’s Motion for Supplemental Award of
Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236) no
later than fourteen (14) days from the date of entry of this Order.
I.

BACKGROUND
On August 27, 2015, this Court entered a Judgment awarding Plaintiff $35,000.00 in

damages as awarded by the jury and $411.48 in prejudgment interest. (ECF No. 188 at PageID
2401.) The Court also granted Plaintiff’s request for post-judgment interest and attorney fees in
the amount of $447,998.03 for work conducted by Spence Law Firm, PLLC. (Id.)
On October 28, 2015, the Court stayed the “judgment against [Defendant City of
Memphis] for monetary damages without the posting of a supersedeas bond.” (ECF No. 207 at
PageID 2824.) The Court, however, did not stay “the injunctive relief in paragraphs 7(b) and 8
of the Order Granting Declaratory and Injunctive Relief, filed on June 3, 2015 (ECF No. 161), on
the basis that each of the four (4) factors required to be considered by a trial court in determining
whether to grant a stay weigh against the issuance of a stay of the injunctive relief.” (Id.)
Thereafter, Defendant appealed to the Sixth Circuit. (ECF No. 174.) The appeal concluded,
affirming the Court’s judgment on October 17, 2016 (ECF No. 232), and a mandate issued on
January 12, 2017 (ECF No. 234).
On January 25, 2017, Plaintiff filed two motions: (1) Motion to Lift Partial Stay of
Judgment (ECF No. 235) and (2) a Motion for Supplemental Award of Attorneys’ Fees
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Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). Plaintiff requests the
Court lift the partial stay now that the Sixth Circuit’s mandate has issued. (ECF No. 235.)
Plaintiff also requests that as the prevailing party on appeal he and the class he represents receive
reasonable attorneys’ fees, an enhancement of those fees by 1.15 (i.e. 15%), reimbursement of
fees and expenses, and post-judgment interest that includes attorneys’ fees and expenses from the
date of Judgment entered on August 27, 2015. (ECF No. 236-1 at PageIDs 3379-80.)
Defendant responded in opposition to the proposition that the Court lift the partial stay on
February 3, 2017. (ECF No. 242.) Defendant argues that the “Court has the power to continue
the partial stay” and “should exercise this power and continue the partial stay through final
disposition of the City’s certiorari petition.” (Id. at PageIDs 3415-16 (citing Am. Mfrs. Mut. Ins.
Co. v. Am. Broad.-Paramount Theatres, Inc., 87 S. Ct. 1, 3 (1966) (Harlan, J., in chambers) for
proposition that Federal Rule of Civil Procedure 62 “continues in force through the certiorari
stage;” and citing the All Writs Act. 28 U.S.C. § 1651(a) as giving this Court statutory power to
continue the stay.) Defendant contends that continuing the stay will not prejudice Plaintiff
because post-judgment interest will continue to accrue through the disposition of the certiorari
petition, and ultimately “maintain the status quo.” (Id. at PageIDs 3416, 3417.) Its petition is
also not made “with an improper purpose,” Defendant asserts, because “[t]here presently exists a
substantial split among the Circuits as to whether and to what extent there is a constitutional right
to intra-state travel.” (Id. at PageIDs 3416-17.)
On February 7, 2017, Defendant filed a response in opposition to Plaintiff’s Motion for
Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment
Interest (ECF No. 236). (ECF No. 243.)

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In his reply to Defendant’s response on the issue of the Court lifting the partial stay, filed
on February 8, 2017, Plaintiff argues that the Court cannot stay the execution of the Sixth
Circuit’s judgment, and that such a request must be sought from either the Sixth Circuit itself or
the United States Supreme Court pursuant to 28 U.S.C. § 2101(f). (ECF No. 246.)
Defendant contends in its sur-reply, filed on February 14, 2017, that it does not seek for
“this Court to stay execution of an appellate court judgment” and that Supreme Court rules
suggest this Court has jurisdiction to stay the case pending certiorari review. (ECF No 249 at
PageIDs 3448-49 (citing S. Ct. R. 23.3).)
II.

DISCUSSION
A.

Motion to Lift Partial Stay of Judgment (ECF No. 235)

Whether the district court’s jurisdiction is restored upon the Court of Appeals mandate
such that the district court may stay the execution of judgment pending an application to the
Supreme Court for certiorari, is a question that lacks binding precedent in the Sixth Circuit. The
question has been answered, however, by many district courts across the nation. The general
consensus is that district courts are not permitted on either legal or prudential grounds to issue a
stay following a Court of Appeals mandate pending an application to the Supreme Court for
certiorari. 1

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Kozman v. Trans World Airlines Inc., 145 F. Supp. 140, 141 (S.D.N.Y. 1956); United States v. Lentz,
352 F. Supp. 2d 718, 726 (E.D. Va. 2005); Hovater v. Equifax Servs., Inc., 669 F. Supp. 392, 393 (N.D. Ala. 1987);
Filardo v. Foley Bros., 191 Misc. 671, 78 N.Y.S.2d 689 (1948); In Re Stumes, 681 F.2d 524 (8th Cir. 1982); Mister
v. Illinois Central Gulf Railroad Co., 680 F.Supp. 297 (S.D. Ill. 1988) (also rejecting applicability of Fed.R.Civ.P.
62); Deretich v. City of St. Francis, 650 F.Supp. 645 (D. Minn. 1986); Studiengesellschaft Kohle, mbH v. Novamont
Corp., 578 F.Supp. 78 (S.D.N.Y. 1983); Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers AFL-CIO v. Local Lodge 504, No. CIV. A. 87-5689, 1989 WL 49516, at *1 (E.D. Pa. May 8, 1989);
William A. Graham Co. v. Haughey, 794 F. Supp. 2d 566, 568–69 (E.D. Pa. 2011); Ventas, Inc. v. HCP, Inc., No.
3:07-CV-238-H, 2011 WL 3678819, at *2 (W.D. Ky. Aug. 22, 2011); Kentucky Commercial Mobile Radio Serv.
Emergency Telecommunications Bd. v. Tracfone Wireless, Inc., 953 F. Supp. 2d 780, 781 (W.D. Ky. 2013); Hi-Lex
Controls, Inc. v. Blue Cross & Blue Shield of Michigan, No. 11-12557, 2014 WL 3928451, at *4 (E.D. Mich. Aug.

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Courts hold that there is no federal law or rule that would provide district courts legal
grounds to issue such a stay. Contrary to Defendant’s argument that this Court may continue its
Federal Rule of Civil Procedure 62 stay “through the certiorari stage” (ECF No. 242 at PageIDs
3415-16), courts find that “[t]he power of a district court to grant a stay of judgment pending
appeal [under Federal Rule of Civil Procedure 62(d)] terminates when the Court of Appeals
issues its mandate.” Gander v. FMC Corp., 733 F.Supp. 1346, 1347 (E.D. Mo.1990); accord
Kentucky Commercial Mobile Radio Serv. Emergency Telecommunications Bd. v. Tracfone
Wireless, Inc., 953 F. Supp. 2d 780, 781 (W.D. Ky. 2013); Hi-Lex Controls, Inc. v. Blue Cross
& Blue Shield of Michigan, No. 11-12557, 2014 WL 3928451, at *3 (E.D. Mich. Aug. 12,
2014).
It is one thing for a district court to grant a stay of its own judgment under Rule
62(d) pending the resolution of an appeal to the Court of Appeals. . . . It is quite
another thing for [a district] court to grant a motion to stay under the present
circumstances. The district court judgment has been superseded by the judgment
of the Court of Appeals, even though the latter affirms the district court judgment
in all respects. The defendants will be asking the Supreme Court to overturn the
judgment of the Court of Appeals, not that of the district court.
William A. Graham Co. v. Haughey, 794 F. Supp. 2d 566, 568–69 (E.D. Pa. 2011). The Court
agrees that its stay expired when the Sixth Circuit issued its mandate; to find otherwise would
permit district courts to stay Court of Appeals decisions whether or not they affirmed or reversed
the district court on the district court’s whim that the Supreme Court may grant the party’s
petition.
Courts find that authority to issue a stay following a Court of Appeal mandate is rooted in
28 U.S.C. § 2101(f), which only vests authority to grant such a stay with the Court of Appeals or
a Justice of the Supreme Court. See Hi-Lex Controls, 2014 WL 3928451, at *3; see also Sup.
12, 2014); United States v. Shaw, 115 F. Supp. 532, 532–33 (D.D.C. 1953) (“Any stay of proceedings must be
sought in the Court issuing the mandate rather than the Court receiving it.”).

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Ct. R. 23.2 (“A party to a judgment sought to be reviewed may present to a Justice an application
to stay the enforcement of that judgment. See 28 U. S. C. § 2101(f).”). “[I]t is simply not an
appropriate function for [a district] court to pass on the likelihood that the ruling of a higher
court will be accepted for review by the Supreme Court; rather, that function is properly
performed by the court of appeals or the Supreme Court, as contemplated by § 2101(f).” United
States v. Lentz, 352 F. Supp. 2d 718, 726 (E.D. Va. 2005) (internal quotation marks omitted).
The Court agrees with our sister courts that the language of § 2101(f) excludes the district courts
from issuing a stay of a mandate by the Court of Appeals pending an application to the Supreme
Court for certiorari. If Defendant desires a further stay of execution in this matter, it is the Sixth
Circuit or the Supreme Court which must issue the order, not this court.
The Court is also unpersuaded by Defendant’s argument that this Court has authority to
stay execution of the judgment under the All Writs Act 28 U.S.C. § 1651 or under the Supreme
Court’s Rules. The All Writs Act 28 U.S.C. § 1651(a) provides that “[t]he Supreme Court and
all courts established by Act of Congress may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §
1651(a). Unlike a stay pending appeal under 28 U. S. C. § 2101(f), 28 U.S.C. § 1651 provides
federal courts the authority to grant an injunction pending appeal. Hobby Lobby Stores, Inc. v.
Sebelius, 133 S. Ct. 641, 642, 184 L. Ed. 2d 448 (2012). “An injunction pending appeal barring
the enforcement of an Act of Congress would be an extraordinary remedy. . . .” Wisconsin Right
to Life, Inc. v. Fed. Election Comm'n, 542 U.S. 1305 (2004) (Rehnquist, J., in chambers); see
Respect Maine PAC v. McKee, 131 S.Ct. 445 (2010) (Mem.) (noting that the standard for
injunctive relief pending appeal is more demanding than the standard for a stay of a judgment)..
Defendant has not persuaded the Court why the “extraordinary remedy” of enjoining the
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execution of its judgment pending an application to the Supreme Court for certiorari is
meritorious in this case.
Defendant has also failed to persuade the Court that the Supreme Court’s Rules afford the
Court authority to stay execution of its judgment at this juncture. Supreme Court Rule 23
provides that “an application to stay the enforcement of [a] judgment” pursuant to 28 U. S. C.
§ 2101(f) may be reviewed by a Justice. Sup. Ct. R. 23.2. That application must, “[e]xcept for
most extraordinary circumstances,” set out how relief was “requested and first sought in the
appropriate court or courts below or from a judge or judges thereof. [The application must also]
identify the judgment sought to be reviewed. . . .” Sup. Ct. R. 23.3. The Court finds the
Supreme Court Rules do not contradict the Court’s interpretation above that 28 U.S.C. § 2101(f)
does not afford this Court authority to stay execution of its judgment after the Sixth Circuit’s
mandate while an application for certiorari is pending.
In sum, it would be improper under Federal Rule of Civil Procedure 62, 28 U.S.C.
§ 2101(f), and 28 U.S.C. § 1651 for the Court to stay or enjoin its execution of judgment in this
case at this stage. Because this Court lacks authority to stay the execution of its judgment at this
juncture, it GRANTS Plaintiff’s Motion to Lift Partial Stay of Judgment (ECF No. 235).
B.

Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of
Expenses, and Post-Judgment Interest (ECF No. 236)

Having granted Plaintiff’s Motion to Lift Partial Stay of Judgment (ECF No. 235), the
Court now turns to Plaintiff’s Motion for Supplemental Award of Attorney’s Fee,
Reimbursement of Expenses, and Post-Judgment Interest (ECF No. 236). On February 7, 2017,
Defendant responded to Plaintiff’s motion, requesting “that this Court reserve briefing and ruling

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on Plaintiffs’ Motion for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses,
and Post-Judgment Interest (“Fee Application”) until the partial stay is lifted.” (ECF No. 243.)
The Court now orders the parties to fully brief the issues presented in Plaintiff’s Motion
for Supplemental Award of Attorneys’ Fees, Reimbursement of Expenses, and Post-Judgment
Interest (ECF No. 236). Defendant must file its reply no later than fourteen (14) days from the
date of entry of this Order. Any further replies or responses will require leave of court in
accordance with local and federal rules.

IT IS SO ORDERED, this 28th day of February, 2017.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT COURT JUDGE

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