Doe v. County of Milwaukee et al

Filing 330

ORDER signed by Judge J.P. Stadtmueller on 1/23/2018 DENYING 320 Defendant County of Milwaukee's Motion to Stay Execution on Judgment and to Waive Supersedeas Bond. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHONDA MARTIN,
Plaintiff,

v.

COUNTY OF MILWAUKEE and
XAVIER D. THICKLEN,

Case No. 14-CV-200-JPS-JPS

ORDER

Defendants.
On December 15, 2017, Defendant County of Milwaukee (the
“County”) filed a motion to stay execution on the judgment entered against
it on September 28, 2017. (Motion, Docket #320; Judgment, Docket #304).
Federal Rule of Civil Procedure 62 governs the County’s request. It
provides that an appealing party may obtain a stay of execution on a
judgment if they post supersedeas bond. Fed. R. Civ. P. 62(d). Here, that
bond must be sufficient to cover the $6.7 million awarded to Plaintiff in the
judgment. Rule 62 further states that “[i]f 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.” Id. 62(f). In light of this provision, the County also
asserts a right to a stay under Wisconsin law.
The County does not want to post the supersedeas bond and moves
the Court to waive the bond requirement. The Court has the discretion to
do so. Dillon v. City of Chicago, 866 F.2d 902, 904 (7th Cir. 1988). In
considering the County’s request, the Court looks to the criteria
enumerated in Dillon

(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 district court has in the
availability of funds to pay the judgment . . .;
(4) whether the defendant’s ability to pay the judgment is so
plain that the cost of a bond would be a waste of money . . .;
and
(5) whether the defendant is in such a precarious financial
situation that the requirement to post a bond would place
other creditors of the defendant in an insecure position[.]
Id. at 904-05 (citations and quotations omitted). Wisconsin similarly allows
a stay of a money judgment upon consideration of a non-exclusive list of
factors: 1) the likelihood of success on appeal, 2) the need to ensure
collectability of the judgment, 3) the appellant’s ability to recover their
money if a stay is not granted, 4) the harm to the appellee if they are not
paid until the appeal is denied, and 5) the public’s interest. See Scullion v.
Wis. Power & Light Co., 614 N.W.2d 565, 573-74 (Wis. Ct. App. 2000); see also
Wis. Stat. § 808.07(2).1
If the County alone were responsible for paying the judgment, the
factors might weigh in favor of waiving the bond requirement. The County
avers that it has ample funds to pay the judgment and that the collection
process should be quick. See (Docket #322). The Court notes, however, that

The Court is uncertain that the County’s Rule 62(f) argument is ripe. The
County’s opening brief suggests that it is not, stating that “if plaintiff properly
dockets the Judgment in the Milwaukee County Circuit Court, then by operation
of Wisconsin law it will be a lien[.]” (Docket #321 at 7) (emphasis added). Plaintiff’s
response makes no mention of whether the judgment has indeed been registered
in the state court. See (Docket #324 at 9-10). The County’s reply offers no
clarification. See (Docket #329 at 8-10). In any event, the request for a stay would
be denied under both Rule 62(d) and (f).
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financial health is always a fickle prospect for a government entity.
Depending on the length of the appeal, the County’s ability to pay may
change. Further, the County has not offered any alternative form of security
for paying the judgment. See N. Ind. Pub. Serv. Co. v. Carbon Cnty. Coal Co.,
799 F.2d 265, 281 (7th Cir. 1986) (appellant agreed to submit periodic
financial reports to district court regarding its finances).
As the County’s own briefing notes, and as Plaintiff emphasizes in
her response to the motion, things are not so simple. The Dillon and Scullion
factors are rendered less helpful because of a unique circumstance in this
case: the County and its insurer dispute who must pay the judgment.
(Docket #321 at 4-5). The County says that “[r]egardless of the resolution of
that dispute, however, a bond is unnecessary,” because Plaintiff will either
be paid either by the insurer or the County directly. Id. at 5.
What the County does not acknowledge is how time-consuming or
costly it may be for Plaintiff to wait for the resolution of that dispute or,
indeed, whether she would be forced to interject herself into the dispute in
order to compel payment. As the Seventh Circuit noted a few years before
Dillon, “[t]he philosophy underlying Rule 62(d) is that a plaintiff who has
won in the trial court should not be put to the expense of defending h[er]
judgment on appeal unless the defendant takes reasonable steps to assure
that the judgment will be paid if it is affirmed[.]” Lightfoot v. Walker, 797
F.2d 505, 506-07 (7th Cir. 1986). The County’s reply attempts to assure
Plaintiff that it will pay regardless of the pendency of its insurance dispute.
(Docket #329 at 4). This statement is made in a legal brief, however, and not
a contract or some other binding declaration that payment would be made

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to Plaintiff, as was the case in S.A. Healy Co. v. Milwaukee Metro. Sewerage
Dist., 159 F.R.D. 508, 512–13 (E.D. Wis. 1994).2
Posting a supersedeas bond is the norm to avoid execution of a
judgment during an appeal. Poplar Grove Planting & Refining Co., Inc. v.
Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979); see also N. Ind.
Pub. Serv. Co., 799 F.2d at 281 (“The rule requires [the appellate] to post a
bond if he wants an automatic stay, but not if he is content to throw himself
on the district judge’s discretion.”); Fed. Prescription Serv., Inc. v. Am. Pharm.
Ass’n, 636 F.2d 755, 760 (D.C. Cir. 1980) (“Because the stay operates for the
appellant’s benefit and deprives the appellee of the immediate benefits of
his judgment, a full supersedeas bond should be the requirement in normal
circumstances, such as where there is some reasonable likelihood of the
judgment debtor’s inability or unwillingness to satisfy the judgment in full
upon ultimate disposition of the case and where posting adequate security
is practicable.”). Because the County seeks an exception to Rule 62(d)’s
unequivocal bond requirement, it needed to convince the Court to waive
that “important safeguard.” Olympia Equip. Leasing Co. v. W. Union Tel. Co.,
786 F.2d 794, 800 (7th Cir. 1986) (Easterbrook, J., concurring). It has failed to
do so. Regardless of the County’s solvency, the Court is not satisfied that
Plaintiff’s judgment will be paid promptly if she obtains a favorable
resolution of the appeal. Plaintiff should not be made to endure what will
likely be further protracted litigation between the County and its insurer,

The County does offer the affidavit of Scott Manske, its comptroller, but
he merely describes the County’s financial health and generalized payment
procedures. (Docket #322). He does not say that Plaintiff will be paid immediately
if she defeats the County’s appeal. See generally id.
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after already waiting so long for a trial in this Court and after defending her
judgment on appeal. The County’s motion will, therefore, be denied.
Accordingly,
IT IS ORDERED that Defendant County of Milwaukee’s motion for
a stay of execution on the Court’s September 28, 2017 judgment and to
waive supersedeas bond (Docket #320) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 23rd day of January, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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