Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation et al

Filing 325

MEMORANDUM DECISION AND ORDER denying 303 Motion to Alter Judgment; denying 303 Motion for Relief from Judgment Under Rule 60; granting 318 Motion to Stay Judgment pending appeal; granting 318 Motion to Permit Defendants to Post Alternative Security and Offset the Amount of Security Required - the court accepts the Tribe's Becker Litigation Reserve Fund as sufficient security to stay the 2/11/22 judgment, and the court permits the Tribe to temporarily setoff the $236,392.75 judgment by the allowable costs that Mr. Becker owes, $26,868.59. The Tribe shall maintain the Becker Litigation Reserve Fund until further order from the court. Signed by Judge Tena Campbell on 5/4/22 (alt)

Case 2:16-cv-00958-TC Document 325 Filed 05/04/22 PageID.12736 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LYNN D. BECKER,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.

Case No. 2:16-cv-00958-TC

UTE INDIAN TRIBE OF THE UINTAH
& OURAY RESERVATION, a federally
recognized Indian Tribe and a federally
chartered corporation, the UINTAH AND
OURAY TRIBAL BUSINESS
COMMITTEE, and UTE ENERGY
HOLDINGS LLC, a Delaware LLC,

District Judge Tena Campbell

Defendants.
Following the Tenth Circuit’s remand order in Becker v. Ute Indian Tribe of Uintah &
Ouray Reservation (Becker III), 11 F.4th 1140 (10th Cir. 2021), the court denied the Tribe’s
motion to reconsider Judge Waddoups’s sanctions order. (ECF No. 297.) With nothing left to do
but implement the Tenth Circuit’s mandate, the court dismissed the case without prejudice,
entering a $330,272.25 sanctions judgment1 against the Tribe. (Id.; ECF No. 300.) The Tribe
quickly filed three postjudgment motions:
1. a motion to recover costs against Plaintiff Lynn D. Becker’s two injunction bonds (ECF
No. 302);
2. a Rule 59 motion to alter or amend judgment, or alternatively, a Rule 60 motion for relief
from judgment (ECF No. 303); and

1
Of this sum, Mr. Becker was awarded $236,392.75, and Movant John P. Jurrius was awarded $93,879.50. (ECF
No. 300.)

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3. a motion (a) for a stay pending a ruling on the Tribe’s Rule 59 motion, (b) for a stay
pending appeal, (c) to permit the Tribe to post alternative security, and (d) to offset the
amount of security required by other cost awards (ECF No. 318).2
Then the Tribe filed a notice of appeal, which the Tenth Circuit abated pending the
court’s resolution of the Rule 59 motion. Becker v. Ute Indian Tribe of Uintah & Ouray Rsrv.,
No. 22-4022 (10th Cir. Mar. 31, 2022). The court has since granted the Tribe’s unopposed
motion to recover costs against Mr. Becker’s injunction bonds, awarding the Tribe $20,000.
(ECF No. 315.) For the following reasons, the court DENIES the Rule 59 motion and GRANTS
the motion for stay.
I.

Motion to Amend Judgment
The Tribe filed a “Rule 59 motion to alter or amend judgment, or alternatively, a Rule 60

motion for relief from judgment.” (ECF No. 303.) It argues that the court “prematurely” entered
judgment because the court did not wait for the Tribe’s costs to be taxed by the Clerk of Court or
for the costs to be taxed against the injunction bonds. Relief under Rule 59(e) is appropriate
when “the court has misapprehended the facts, a party’s position, or the controlling law.” Nelson
v. City of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019) (quoting Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). Similarly, relief under Rule 60(b)(1) requires
showing that “the judge has made a substantive mistake of law or fact in the final judgment or
order.” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996).
“A bill of costs shall be filed in the case and, upon allowance, included in the judgment or
decree.” 28 U.S.C. § 1920; see also DUCivR 54-2(c) (“Costs taxed by the clerk will be included

2
The original motion to stay was at ECF No. 304, but the Tribe later filed an amended motion (ECF No. 318),
relevant here.

2

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in the judgment or decree.”). Here, the Clerk of Court already included the Tribe’s costs in the
judgment. (See ECF No. 301 at 1 (“Total costs allowed for Defendants are $13,065.93 and are
included in the Judgment.”).) Even setting that aside, the court does not need to amend the
judgment to include the already-taxed costs. Rule 54 draws “[a] sharp distinction between the
judgment on the merits and an award of costs.” Buchanan v. Stanships, Inc., 485 U.S. 265, 268
(1988). And Rule 58 instructs that “the entry of judgment may not be delayed . . . in order to tax
costs or award fees.” Fed. R. Civ. P. 58(e).
Simply put, “the entry of judgment and the taxation of costs are entirely separate legal
acts,” and “a motion for costs is not properly one to alter or amend the judgment under Rule
59(e).” 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2781 (3d
ed.) (citing Md. Cas. Co. v. Jacobson, 37 F.R.D. 427, 430 (W.D. Mo. 1965)); 10 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2679 (4th ed.) (citing Samaad v.
City of Dall., 922 F.2d 216 (5th Cir. 1991)). The court did not err by entering judgment before
the Tribe’s costs were taxed, so the Tribe has not shown its entitlement to relief under Rule 59 or
Rule 60. For that reason, the court DENIES the Tribe’s Rule 59 motion.
II.

Motion for Stay Pending Appeal
The Tribe also filed a motion asking for four appeals-related reliefs. (ECF No. 318.) The

Tribe is appealing Judge Waddoups’s sanctions order (and this court’s order affirming it), and it
wants the court to stay this judgment pending appeal. Instead of posting a traditional
supersedeas bond, the Tribe wants to use a litigation reserve fund to secure its obligation to pay
the judgment. And it wants to setoff against the $330,272.25 judgment the $13,065.93 in costs
taxed in this case, the $11,774.66 in costs taxed in the companion case (No. 2:16-cv-00579-TC),

3

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an additional $2,028.00 in costs taxed in the companion case, and the $20,000.00 from the
injunction bonds.3
To stay execution of a judgment, a party must “provid[e] a bond or other security.” Fed
R. Civ. P. 62(b). “[A] full supersedeas bond should be the requirement in normal
circumstances,” as it “secure[s] an appellee from loss resulting from the stay of execution.” Mia.
Int’l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986). District courts have discretion to
set the bond amount or to waive the bond requirement altogether. Id. Because the court should
presumptively require a bond equal to the full amount of the judgment, it is the Tribe’s burden to
establish good cause for not requiring a $330,272.25 bond. See Fox v. Pittsburg State Univ.,
319 F.R.D. 342, 343 (D. Kan. 2017).
The Tribe, through the Uintah and Ouray Tribal Business Committee, passed a resolution
approving a “Becker Litigation Reserve Fund.” (Mot. Ex. A (Resolution 22-106), ECF No.
318‑1.) This resolution authorized the Tribe’s Comptroller, Skyler Massey, to invest
$330,272.25 into a Federated Government Obligations Fund (ticker symbol GOIXX) held with
KeyBank. (Mot. Ex. C (Massey Decl.), ECF No. 318-3.) Although the Tribe says that by
establishing this fund it has “provid[ed] . . . other security,” the funds are still under the Tribe’s
exclusive control. It is effectively asking that the court waive the bond requirement, rather than
permit posting alternative security.
Courts commonly look to five factors in deciding whether to waive the supersedeas-bond
requirement:

3

Mr. Becker is solely liable for the $13,065.93 in costs taxed in this case, the $11,774.66 in costs taxed in the
companion case, and the additional $2,028.00 in costs taxed in the companion case, which total $26,868.59. But the
$20,000 payable against the injunction bonds is payable by Travelers Casualty and Surety Company of America and
Hartford Fire Insurance Company, not Mr. Becker. (See Mem. Decision & Order at 4, ECF No. 315.) Any setoff
can only reduce the Tribe’s potential liability to Mr. Becker from $236,392.75 to $209,524.16.

4

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(1) the complexity of the collection process; (2) the amount of time required to
obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that
the court has in the availability of funds to pay the judgment; (4) whether
defendants’ ability to pay the judgment is so plain that the cost of a bond would be
a waste of money; and (5) whether defendants are in such a precarious financial
situation that the requirement to post a bond would place other creditors of the
defendant in an insecure position.
Fox, 319 F.R.D. at 343–44; see also Dillon v. City of Chi., 866 F.2d 902, 904–05 (7th Cir. 1988)
(listing the same factors).
Here, factors (1) and (2) weigh in favor of the Tribe. The Tribe has earmarked the full
judgment amount and has placed it into a litigation reserve fund, thereby simplifying the
collection process and reducing the time needed to collect the judgment. See Dutton v. Johnson
Cnty. Bd. of Cnty. Comm’rs, 884 F. Supp. 431, 435 (D. Kan. 1995) (waiving the bond
requirement when Johnson County established a Risk Management Reserve Fund sufficient to
cover the judgment). Factor (3) also weighs in favor of the Tribe. Not only have the funds
already been deposited, but the court also finds credible Committee Chairman Shaun Chapoose’s
declaration testifying to the Tribe’s financial ability. (Mot. Ex. D (Chapoose Decl.), ECF No.
318‑4.) Factor (4) is inapplicable. While the court is satisfied with the steps the Tribe has taken
to establish the litigation reserve fund, the Tribe’s ability to pay is not “so plain.” And because
factor (5) is, in a way, the inverse of factor (3), it also weighs in favor of the Tribe. Beyond
complaining about Mr. Jurrius’s attempts to collect an earlier arbitration award, Mr. Becker and
Mr. Jurrius do nothing to show that the Tribe’s financial situation is otherwise “precarious.”
Because the Tribe has shown its ability to pay the $330,272.25 judgment, the court will
waive the formal bond requirement.4 And because the Tribe is entitled to collect on three cost

4
This waiver should not be construed by the Tribe as permission to liquidate the Becker Litigation Reserve Fund or
to otherwise attempt to obstruct or impede any future collections efforts.

5

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awards against Mr. Becker (totaling $26,868.59),5 the court sees no reason why the Tribe cannot
exercise its right of setoff and temporarily6 reduce its liability to Mr. Becker from $236,392.75 to
$209,524.16. Cf. Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 18 (1995); Mass. Cas. Ins. Co.
v. Forman, 600 F.2d 481, 485 (5th Cir. 1979).
CONCLUSION
The Tribe has not shown its entitlement to relief under Rule 59 or Rule 60, but it has
shown that the Becker Litigation Reserve Fund satisfies Rule 62(b). Accordingly,
IT IS ORDERED that the Tribe’s Rule 59 motion (ECF No. 303) is DENIED.
IT IS FURTHER ORDERED that the Tribe’s motion for stay pending appeal (ECF No.
318) is GRANTED. The court accepts the Tribe’s Becker Litigation Reserve Fund as sufficient
security to stay the February 11, 2022 judgment, and the court permits the Tribe to temporarily
setoff the $236,392.75 judgment by the allowable costs that Mr. Becker owes—$26,868.59.
IT IS FURTHER ORDERED that the Tribe shall maintain the Becker Litigation
Reserve Fund until further order from the court.
IT IS FINALLY ORDERED that the court’s February 11, 2022 judgment (ECF No.
300) is hereby STAYED pending appeal. (ECF No. 305.)
DATED this 4th day of May, 2022.
BY THE COURT:

TENA CAMPBELL
United States District Judge

5

Again, the injunction bonds are payable by the two insurance companies, not Mr. Becker, so the court cannot credit
the $20,000 against the amount the Tribe owes Mr. Becker.

6

Because the sanctions order (and thereby the money judgment in Mr. Becker’s favor) could be reversed on appeal,
the Tribe does not ask for a permanent setoff.

6