The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER GRANTING DEFENDANT'S EX PARTE APPLICATION TO STAY ENFORCEMENT OF COURT'S ORDER WITHOUT POSTING A BOND (Doc. No. 159.)
On April 27, 2012, Defendant filed an ex parte application to stay enforcement and, if necessary, for an order setting the amount of a supersedeas bond. (Dkt. No. 159.) On April 30, 2012, Plaintiff filed an opposition. (Dkt. No. 161.) After a review of the briefing and applicable law, the Court GRANTS Defendant's ex parte application to stay enforcement pending a possible appeal without posting a bond until May 24, 2012.
On November 8, 2010, Plaintiff Mario B. accepted a Rule 68 offer of judgment which was filed with the Court. (Dkt. No. 61.) On November 10, 2010, the Clerk of Court entered judgment "in favor of plaintiff Mario B. Quinones against defendant Chase Bank USA, N.A. in the amount of $1,001.00, plus reasonable attorney fees and costs." (Dkt. No. 62.) As to attorney's fees, the Rule 68 offer of judgment states, " . . . plus reasonable attorney fees and costs incurred solely as to Mario Senior's claim for violation of the California Fair Debt Collection Practices Act (Cal. Civ. Code § 1788, et seq.) through and including the day of the making of this offer as determined by the Court, on noticed motion." (Dkt. No. 61) (emphasis in original).
On December 16, 2011, the Court granted in part and denied in part Plaintiff Mario B.'s motion for attorney's fees. (Dkt. No. 143.) Specifically, the Court granted attorney's fees in the amount of $47,141.00 and costs in the amount of $1026.50. (Id.) On January 3, 2012, Plaintiff Mario B. filed an application for writ of execution. (Dkt. No. 137.) Defendant filed an opposition on January 6, 2012. (Dkt. No. 140.) Plaintiff filed a reply on January 9, 2012. (Dkt. No. 141.) On January 6, 2012, Defendant also moved the Court to reconsider its order. (Dkt. No. 139.) On January 10, 2012, the Court stayed the application for writ of execution until ruling on Defendant's motion for reconsideration. (Dkt. No. 142.) On April 13, 2012, the Court issued an order denying Defendant's motion for reconsideration of its order granting in part and denying in part Plaintiff Mario B.'s motion for attorney's fees. (Dkt. No. 153.) On April 19, 2012, Defendant filed an ex parte application to confirm statutory stay of execution. (Dkt. No. 155.) On April 27, 2012, the Court denied Defendant's ex parte motion to confirm statutory stay of execution without posting bond. (Dkt No. 158.) On the same day, Defendant filed an ex parte application to stay enforcement and if necessary, for an order setting the amount of a supersedeas bond. (Dkt. No. 159.) On April 30, 2012, Plaintiff filed an opposition. (Dkt. No. 161.)
Defendant seeks a stay of enforcement of the Court's order granting in
part and denying in part Plaintiff's motion for attorney's fees until
May 24, 2012 while it decides whether to file an appeal by May 14,
2012, and after the parties hold a settlement conference before
Magistrate Judge Skomal which is currently scheduled on May 23, 2012.
Defendant states that the automatic stay provided for in Federal Rule
of Civil Procedure ("Rule") 62(a) ended on April 27, 2012*fn1
and it believes Plaintiff will apply for
a writ of execution on Monday, April 30, 2012. Therefore, Chase filed
the instant ex parte application.
In opposition, Plaintiff argues that Defendant has failed to establish the standard for establishing a stay pending an appeal under Federal Rule of Appellate Procedure 8(a)(1)(A).
Contrary to Plaintiff's argument, Defendant does not seek a stay pending an appeal but seeks a stay pending a possible appeal as it has not decided whether to file an appeal. Therefore, Plaintiff's analysis under Federal Rule of Appellate Procedure 8(a) does not apply as Appellate Rule 8(a) applies to a stay pending an actual appeal, not a possible appeal. See Fed. R. App. P. 8(a); Nat'l Fisheries Inst., Inc. v. U.S. Bureau of Customs and Border Protection, 05-00683, 2010 WL 5139443, *1 (Ct. Int'l Trade Dec. 17, 2010).
Federal Rule of Civil Procedure 62(a) provides for an automatic stay of execution of a judgment for fourteen days after entry of a judgment. Fed. R. Civ. P. 62(a). After the automatic stay, the Court may continue the stay during various post-judgment motions under Rule 62(b); see also Walnut Creek Manor, LLC v. Mayhew Ctr., LLC, 07-5664-CW, 2010 WL 653561, at *7 (N.D. Cal. 2010).
The Court has discretion to stay execution of a judgment without requiring a bond. See Brooktree Corp. v. Advanced Micro Devices, Inc., 757 F. Supp. 1101, 1104 (S.D. Cal.1990); Fed. Prescription Serv. v. Am. Pharm. Ass'n, 636 F.2d 755, 759-61 (D.C. Cir.1980) (affirming trial court's decision to waive the posting of bond noting that judgment debtor had a net worth of more than 47 times the amount of the judgment); Northern Indiana Pub. Serv. Co. v. Carbon Cnty. Coal Co., 799 F.2d 265, 281 (7th Cir. 1986) (district court has discretion to waive $2 million appeal bond as judgment debtor has the ability to pay the judgment).
A waiver of the bond requirement may be appropriate: "(1) where the defendant's ability to pay is so plain that the cost of the bond would be a waste of money; and (2) where the requirement would put the defendant's other creditors in undue jeopardy." Brooktree Corp., 757 F. Supp. at 1104 (citing Olympia Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 796 (7th Cir. 1986)).
Defendant argues that there is good cause to waive the bond requirement because Chase is a substantial banking institution that has the ability to pay the amount of the judgment and the length of the stay is only twenty-seven (27) days.*fn2 In addition, if Chase decides to file an appeal, it may be required to post another bond at that time and therefore having to post two bonds is not necessary. Plaintiff contends that Defendant has failed to meet the burden to waive the bond requirement and it attaches an e-mail from defense counsel that Defendant has no offices or ...