CSX Transportation, Inc. v. Gilkison et al

Filing 1653

MEMORANDUM OPINION AND ORDER GRANTING 1640 LAWYER DEFENDANTS' MOTION FOR APPROVAL OF SUPERSEDEAS BOND AND STAY OF JUDGMENT PENDING APPEAL AND GRANTING IN PART AND DENYING IN PART 1638 CSX'S MOTION FOR ISSUANCE OF WRITS OF EXECUTION. C SX is DIRECTED to provide the Clerk's Office with sufficient information to allow for a writ of execution to be served upon defendant Harron. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/17/2013. (copy to counsel of record via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.

Civil Action No. 5:05CV202
(STAMP)

ROBERT N. PEIRCE, JR.,
LOUIS A. RAIMOND,
and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING LAWYER DEFENDANTS’ MOTION
FOR APPROVAL OF SUPERSEDEAS BOND AND
STAY OF JUDGMENT PENDING APPEAL AND
GRANTING IN PART AND DENYING IN PART
CSX’S MOTION FOR ISSUANCE OF WRITS OF EXECUTION
I.

Background

On December 20, 2012, a jury rendered a verdict in favor of
the plaintiff, CSX Transportation, Inc. (“CSX”), finding that the
above-named defendants’ conduct violated the federal Racketeer
Influenced

and

§ 1961, et seq.

Corrupt

Organizations

Act

(“RICO”),

18

U.S.C.

Further, the jury found that Robert N. Peirce, Jr.

and Louis A. Raimond (collectively the “lawyer defendants”) were
liable to CSX for fraud, and had participated in a conspiracy to
commit fraud with defendant Ray Harron, M.D. (“Harron”). The jury,
however, did not find that CSX was liable for fraud based on its
representations made during this litigation, as was alleged in the
defendants’ counterclaims.

The jury awarded CSX $429,240.47 in

relation to the RICO violations, but did not award CSX any monetary

relief in relation to the fraud claims.

This Court then entered a

judgment in favor of CSX as to these verdicts and ordered that CSX
also recover any post-judgment interest in accordance with 28
U.S.C. § 1961.
Thereafter, CSX filed a motion to amend the judgment to
reflect the statutorily-mandated trebling of RICO damages.

This

Court granted CSX’s motion and entered an amended judgment in the
amount of $1,287,721.41 with post-judgment interest.

CSX also

filed a motion for attorneys’ fees and a bill of costs.

This Court

stayed the motion for attorneys’ fees and a ruling on the bill of
costs pending the resolution of any appeal in this matter or other
resolution

of

the

defendant

Harron

civil

action.

filed

The

post-judgment

lawyer

defendants

motions

as

and

well.

Specifically, the defendants filed motions for judgment as a matter
of law or for a new trial.

This Court denied these motions.

After this Court entered its memorandum opinion and orders
denying the motions for judgment as a matter of law or for a new
trial, CSX filed a motion for the issuance of writs of execution
against all defendants.

The lawyer defendants then filed a notice

of appeal and a motion for approval of supersedeas bond and stay of
judgment pending the appeal.

The lawyer defendants also responded

in opposition to CSX’s motion for issuance of writs of execution.
CSX, thereafter, filed a response in opposition to the motion for
approval of supersedeas bond and stay of judgment, arguing that the

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bond was insufficient, as it did not take into account the possible
award of attorneys’ fees.

CSX also filed a reply in support of its

motion for issuance of writs of execution, stating that because the
lawyer defendants filed a notice of appeal and requested a stay of
execution, the issuance of writ of execution rests on whether such
motion will be granted. As to defendant Harron, however, CSX noted
that he had not taken any action to halt the execution of judgment
against him.

After CSX filed its reply to its motion for issuance

of writs of execution, defendant Harron did file a notice of
appeal,

but

did

not

file

any

motion

for

the

approval

of

a

supersedeas bond. The lawyer defendants then replied in support of
their motion for approval of supersedeas bond arguing that the bond
is sufficient as this Court has not entered a judgment regarding
CSX’s motion for attorneys’ fees.
For the reasons set forth below, this Court grants the lawyer
defendants’ motion for approval of supersedeas bond and stay of
judgment pending appeal.

As to CSX’s motion for the issuance of

writs of execution, this Court grants the motion insomuch as it
seeks a writ of execution against defendant Harron, but denies the
motion insomuch as it seeks writs of execution against the lawyer
defendants.

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II.
A.

Discussion

Motion for Approval of Supersedeas Bond and Stay of Judgment
Pending Appeal
Rule 62(d) of the Federal Rules of Civil Procedure provides

the following:
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.
This rule has been interpreted to entitle an appellant to a stay of
execution of the judgment as a matter of right upon the filing of
a supersedeas bond.

Lightfoot v. Walker, 797 F.2d 505, 506 (7th

Cir. 1986); Southeast Booksellers Ass’n v. McMaster, 233 F.R.D.
456, 457 (D. S.C. 2006); Alexander v. Chesapeake, Potomac and
Tidwater Books, Inc., 190 F.R.D. 190, 191 (E.D. Va. 1999).
The

lawyer

defendants

posted

a

bond

in

the

amount

of

$1,350,000.00, taking into account both the amended judgment and
post-judgment interest to be accrued. CSX argues that this bond is
not adequate as it does not take into account the attorneys’ fees
and expenses that CSX has requested but has not yet been awarded.
Further, CSX argues that the bond is inadequate because it does not
take

into

account

its

anticipated

appellate

fees

and

costs.

Therefore, CSX requests that the defendants be required to post a
bond in the amount of $12,972,750.

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This Court does not find CSX’s argument persuasive.

The

amount that CSX is entitled to based on the current judgment is
$1,287,721.41 with post-judgment interest.

Thus, if the judgment

was executed upon the lawyer defendants, this is the amount CSX
would

be

entitled

to

collect,

not

$12,972,750.

The

lawyer

defendants posted bond of $1,350,000 adequately protects CSX’s
interest in the current judgment.

This Court will not now engage

in speculation concerning the amount of attorneys’ fees it may or
may not award, or the amount of attorneys’ fees that CSX will incur
as

a

result

of

the

appeal.

Therefore,

because

the

lawyer

defendants’ bond takes into account the judgment and the postjudgment interest, this Court finds it to be adequate and hereby
approves such bond.

Accordingly, pursuant to Rule 62(d), the

lawyer defendants are entitled to a stay of execution of the
judgment.
B.

Motion For Issuance of Writs of Execution
Rule

69(a)(1)

of

the

Federal

Rules

of

Civil

Procedure

provides:
A money judgment is enforced by a writ of execution,
unless the court directs otherwise. The procedure on
execution--and in proceedings supplementary to and in aid
of judgment or execution--must accord with the procedure
of the state where the court is located, but a federal
statute governs to the extent it applies.
Therefore, based on Rule 69, CSX requested that this Court issue
writs of execution as to all defendants.

5

As stated in CSX’s reply, however, after the lawyer defendants
filed their notice of appeal and requested a stay of execution of
the judgment, the issue was whether this Court found that the
supersedeas bond posted by the defendants was adequate.

If so,

this Court would then stay the execution of the judgment as to the
lawyer defendants.

Thus, CSX’s motion for the issuance of a writ

of execution as to the lawyer defendants would be premature, as a
the judgment could not be executed during the stay.
reasons

stated

above,

this

Court

did

find

that

For the

the

lawyer

defendants’ supersedeas bond was adequate, and thus, stayed the
execution

of

the

judgment

as

to

the

lawyer

defendants.

Accordingly, insomuch as CSX’s motion for the issuance of writs of
execution pertains to the lawyer defendants, it is premature and,
therefore, denied subject to refiling after the stay is lifted.
Defendant Harron, however, at the time of CSX’s reply in
support of its motion for the issuance of writs of execution, had
not filed a notice of appeal or a motion for the approval of a
supersedeas bond. While defendant Harron has now filed a notice of
appeal,

he

still

has

not

filed

a

motion

for

supersedeas bond or any motion to stay execution.

approval

of

a

Furthermore,

defendant Harron has not responded in any way to CSX’s motion for
the issuance of writs of execution.

As such, this Court grants

CSX’s motion insomuch as it pertains to defendant Harron as
unopposed.

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III.

Conclusion

For the reasons stated above, the lawyer defendants’ motion
for approval of supersedeas bond and stay of judgment pending
appeal (ECF No. 1640) is GRANTED.

CSX’s motion for issuance of

writs of execution (ECF No. 1638) is GRANTED IN PART as it pertains
to defendant Harron, but DENIED IN PART as it pertains to the
lawyer defendants.

Accordingly, CSX is DIRECTED to provide the

Clerk’s Office with sufficient information to allow for a writ of
execution to be served upon defendant Harron.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

October 17, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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