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ALDASORO v. KENNERSON

December 7, 1995

JOSE ALDASORO and DOMINGO ENRIQUEZ, Plaintiffs,
v.
JOHN KENNERSON, Officially as the REGISTRAR OF VOTERS OF IMPERIAL COUNTY, and EL CENTRO SCHOOL DISTRICT, Defendants.



The opinion of the court was delivered by: BREWSTER

ORDER DENYING PLAINTIFFS' MOTION FOR STAY OF EXECUTION PENDING APPEAL AND GRANTING 10 DAY STAY OF EXECUTION OF THIS ORDER

 The above-captioned matter was raised by ex parte application of plaintiff submitted Nov. 6, 1995. After due consideration of all the moving and opposition papers and good cause appearing, plaintiffs' motion for stay of execution pending appeal is hereby DENIED; plaintiffs, however, shall be granted a 10 day stay of execution of this Order Denying Plaintiffs' Motion for Stay, to give plaintiffs time to file a motion for stay with the court of appeals for the Ninth Circuit.

 I. Background

 Final judgment in the above-captioned matter was entered in favor of defendants on Aug. 4, 1995. By Order dated Aug. 9, 1995, the Clerk of the Court taxed costs against plaintiffs in the amount of $ 19,462.01, which amount consisted of certain deposition and witness costs and fees. On Sept. 1, 1995, plaintiffs timely filed their notice of appeal of the underlying judgment. Plaintiffs moved for retaxation of costs on Sept. 29, 1995. By Order dated Oct. 25, 1995, this Court denied plaintiffs' motion for retaxation of costs, on the basis that "all of the depositions and subpoenas in dispute were reasonable necessary and material to disposition of issues in the underlying litigation." *fn1"

 On Nov. 6, 1995, plaintiffs submitted an ex parte application for stay of execution of costs pending appeal. By Order dated Nov. 8, 1995, this Court set a Dec. 4, 1995 hearing date on plaintiffs' motion for stay of execution and entered a temporary stay of execution until the motion was decided. The issue now before the Court is the propriety of a stay of execution of the Court Clerk's Aug. 9, 1995 taxation order pending appeal.

 II. Discussion

 A. Introduction

 Plaintiffs move for a stay of execution on two grounds. First, plaintiffs contend they are entitled to a stay pursuant to Fed. R. Civ. P. 62(f), on the basis that (i) in California, a judgment is a lien, and (ii) plaintiffs would be entitled to a stay without bond under California law. Second, and in the alternative, plaintiffs urge the Court to grant a stay pursuant to Fed. R. Civ. P. 62(c) and 62(d), and exercise its discretion to waive the ordinary bond requirement for equitable reasons. Finally, plaintiffs request that should the Court be inclined to deny the motion for stay, plaintiffs nevertheless be given a 10 day stay execution in order to move for a stay with the court of appeals for the Ninth Circuit.

 B. Standard of Law

 Fed. R. Civ. P. 62 provides in pertinent part:

 
Stay of Proceedings to Enforce a Judgment
 
****
 
(c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant in injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party ....
 
(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained ...

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