Shubat, Chelsea et al v. Cave Enterprises Operations, LLC
Filing
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ORDER granting 43 Unopposed Motion to Stay Enforcement of Judgment. Signed by District Judge William M. Conley on 2/12/2021. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CHELSEA SHUBAT and ALLISON R. SHUBAT,
Plaintiff,
Case No.: 19-CV-588
vs.
CA VE ENTERPRISES OPERATIONS, LLC
D/B/A BURGER KING OF ASHLAND,
Defendant.
AGREED ORDER STAYING ENFORCEMENT OF JUDGMENT
This matter came before the Court upon the parties', Chelsea Shu bat and Allison R. Shubat
("Plaintiffs") and Defendant Cave Enterprises Operations, LLC d/b/a Burger King of Ashland
("Defendant") (collectively, the "Parties") stipulation to stay the execution of the final default
judgment entered in this matter on October 9, 2019 ("Judgment"). The stay is predicated upon
Defendant's provision of an irrevocable stand-by letter of credit (the "Letter of Credit") in the
amount of $438,000.00 issued Wells Fargo Bank, N.A., naming Plaintiffs as beneficiary. The
Patiies agree that the Letter of Credit sufficiently protects Plaintiffs' interest in the Judgment, and
warrants issuance of a stay pursuant to Federal Rule of Civil Procedure 62(d).
THE COURT BEING OTHERWISE ADVISED IN THE PREMISES:
1.
IT IS HEREBY AGREED AND ORDERED that the Letter of Credit is approved
as an agreed security for the Judgment under Fed. R. Civ. P. 62 during post-judgment and appellate
proceedings in this matter and Defendant shall procure and cause the same to be delivered to
Plaintiff's counsel within ten (10) days of the entry of this Order.
2.
IT IS FURTHER AGREED AND ORDERED that Plaintiffs may make demands
for payment on the Letter of Credit, and shall be entitled to the proceeds thereof up to but not
exceeding the unpaid amount of the Judgment (as may be amended by the Court or the United
States Court of Appeals for the Seventh Circuit), without further order of this Court and consistent
with the terms of the Letter of Credit upon the occuffence of one or more of the following events
("Demand Events"):
a.
If Defendant does not deliver an original Letter of Credit in accordance with
paragraph 1, one (1) business day following the last day to make such delivery;
b.
If Defendant does not take any appeal from the Judgment that would affect
the Judgment, five (5) business days following the last day to appeal;
c.
If Defendant takes an appeal affecting the Judgment and as a result the
United States Court of Appeals for the Seventh Circuit issues a mandate affirming or
modifying the Judgment without remanding any paii of the case, five (5) business days
following the issuance of the mandate; or
d.
If, within thirty (30) days or less prior to the expiration of the Letter of
Credit or any other circumstance that could reasonably cause the Letter of Credit to be
unenforceable in full accordance with its terms and the terms of this Order, Plaintiffs have
not been provided with delivery of a replacement letter of credit containing terms that are
the same in all material respects to the Letter of Credit. The Demand Event in this
paragraph 2(d) shall apply even if any appeal taken from the Judgment remains pending at
the time Plaintiffs make their demand for payment on the Letter of Credit.
e.
If Defendant takes an appeal affecting the Judgment and as a result the
United States Court of Appeals for the Seventh Circuit remands any part of the case to the
District Court for fmiher proceedings, then the provisions for paragraphs 2(b)-2(d) shall be
applied to the judgment entered following such fmiher proceedings; provided, however,
that if the Judgment is vacated at any time, the Letter of Credit may be terminated.
3.
IT IS FURTHER AGREED AND ORDERED, that upon occuffence of any of the
events set out in paragraph 2(a)-(d), taking into account paragraph 2(e), Plaintiffs may at their
discretion seek to execute on the Judgment by any means permitted by law, including without
limitation by drawing on the Letter of Credit, but Plaintiffs are not limited to execution on the
Letter of Credit. Should Plaintiffs choose to draw on the Letter of Credit following such events,
Plaintiffs shall file with this Court a notification of their intent to make a demand for payment on
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the Letter of Credit one (l) business day prior to making such demand. Upon occurrence of the
events set out in paragraph 2(6) or 2(d), taking into account paragraph 2( e), Plaintiffs shall be
entitled to draw upon the Letter of Credit up to the maximum amount of the Judgment (as it may
be modified and/or amended as on such date), plus post-judgment interest thereon pursuant to 28
U.S.C. ยง 1961. If an occurrence set out in paragraph 2(c), taking into account paragraph 2(e), is
the first event to occur under paragraph 2, Plaintiffs shall be entitled to draw on the Letter of Credit
as to that portion of the Judgment which has been affirmed by the United States Court of Appeals
for the Seventh Circuit. In the event this Court or the United States Court of Appeals for the
Seventh Circuit reduces the amount of the Judgment, Defendant may provide a replacement letter
of credit in the amount of the reduced judgment but otherwise with the same terms as the original
Letter of Credit authorized by this Order. The provisions of paragraphs 2-3 of this Order shall
apply to the reduced judgment.
4.
IT IS FURTHER AGREED AND ORDERED that, so long as (i) Defendant and
the issuer of the Letter of Credit maintain the Letter of Credit in compliance with the above terms
of this Order and (ii) no Demand Events authorizing a payment demand to be made on the Letter
of Credit have occurred, execution of or on Judgment is stayed and no execution may issue on the
Judgment nor may any proceedings be taken to enforce the Judgment during post-judgment or
appellate proceedings in this matter, other than as authorized in this Order. Nothing in this
paragraph shall preclude Plaintiffs from drawing upon the Letter of Credit consistent with the
terms of this Order. In the event that Defendant does not maintain the Letter of Credit in
compliance with the terms above, or the bank issuing the Letter of Credit fails to honor a payment
demand thereunder for any reason, no stay applies and execution on the Judgment may commence
without further Order of this Court.
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IT IS FURTHER AGREED AND ORDERED that, upon a showing of good cause, any
party may request that the Court modify or enforce the terms of this Order and this Court retains
jurisdiction to resolve any disputes concerning this Order.
IT IS SO ORDERED.
/1~
Entered this,~ day of February, 2021.
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