United States District Court, S.D. California
ORDER: (1) DENYING THERMOLIFE'S REQUEST FOR A
STAY OF JUDGMENT WITHOUT BOND; (2) GRANTING PLAINTIFFS A
TEMPORARY STAY (ECF NOS. 328, 330)
JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE
ThermoLife has filed an Ex Parte Motion for Shortened
Briefing Schedule and Stay of Judgment Pending Decision of
Bond, (“MTN, ” ECF No. 328-2). ThermoLife makes
various requests: (1) the Court issue a stay pending
resolution of its Motion; (2) the Court set an immediate stay
of the Judgment pending appeal, or, (3) “if the Court
is not inclined to stay execution absent a bond, ” the
Court should set the amount of a supersedeas bond.
(Id. at 2-3.)
Court granted ThermoLife's request for expedited briefing
and ordered responses from both Defendants and from Stanford.
(ECF No. 329.) The Court also denied ThermoLife's request
for a stay of judgment pending resolution of its Motion.
(Id.) ThermoLife then filed a “Supplemental
Motion, ” also titled a “Renewed Motion” or
a “Motion for Reconsideration, ” essentially
asking the Court to reconsider its order and institute a stay
of judgment. (ECF No. 330.) Defendants and Stanford have
filed responses to ThermoLife's Motion. (See ECF
Nos. 331, 333, 334.)
Rule of Civil Procedure 62(d) states that a judgment debtor
is entitled as a matter of right to a stay of the execution
of a money judgment pending appeal upon the posting of a
supersedeas bond.” Brooktree Corp. v. Advanced
Micro Devices, Inc., 757 F.Supp. 1101, 1104 (S.D. Cal.
1990). Rule 62(d) states that “[i]f an appeal
is taken, the appellant may obtain a stay by supersedeas bond
. . . . 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.” Fed. R. Civ. P. 62(d). Pursuant to this
Rule, “[d]istrict courts have inherent discretionary
authority in setting supersedeas bonds” Rachel v.
Banana Republic, Inc., 831 F.2d 1503, 1505 n.1 (9th Cir.
1987), and “broad discretionary power to waive the bond
requirement if it sees fit.” Townsend v. Holman
Consulting Corp., 881 F.2d 788, 796-97 (9th Cir. 1989),
vacated on reh'g on other grounds, 929 F.2d 1358
(9th Cir. 1990) (en banc).
a party wishes a court to depart from the usual requirement
of a full security supersedeas bond, the burden is on the
moving party to show reasons for the departure from the
normal practice.” Salameh v. Tarsadia Hotel,
No. 09cv2739-GPC (BLM), 2015 WL 13158486, at *2 (S.D. Cal.
May 19, 2015) (internal citations omitted). A district court
may either waive the bond requirement or allow the judgment
debtor to use some alternative type of security.
Brooktree Corp., 757 F.Supp. at 1104. In determining
whether to waive the posting of a bond, the Court considers
what is known as the Dillon factors:
(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.
Dillon v. Chicago, 866 F.2d 902, 904-05 (7th Cir.
1988); see Salameh, 2015 WL 13158486, at *2 (citing
Dillon); see also Kranson v. Fed. Express
Corp., No. 11-cv-5826-YGR, 2013 WL 6872495, at *1 (N.D.
Cal. Dec. 31, 2013) (“Courts in the Ninth Circuit
regularly use the Dillon factors in determining
whether to waive the bond requirement.”).
Defendants request the Court order both ThermoLife and
Stanford to post a bond, either separately or jointly and
severally. (“Vital Resp., ” ECF No. 331;
“Hi-Tech Resp., ” ECF No. 333.) Stanford does not
opine on the issue of ThermoLife's bond, but requests the
Court not require Stanford to post a bond. (“Stanford
Resp., ” ECF No. 334.)
did not address the Dillon factors in its Motion.
ThermoLife cites to cases where other courts have granted a
stay without a bond “in light of defendant's clear
ability to pay.” (MTN 4 (citing cases).) ThermoLife
dedicates most of its Motion to the argument that a stay is
warranted. But, as mentioned above, ThermoLife has the
ability to institute a stay on its own by posting a bond; the
Court is not determining whether or not a stay should be
instituted. The Court only determines whether a stay may be
entered without a bond and/or the amount of a bond.
Court finds ThermoLife has not met its burden of proving a
stay should be entered without a bond. ThermoLife argues
Stanford has a clear ability to post a bond, but, this has no
bearing on ThermoLife's ability to post a bond.
ThermoLife has not indicated it is unable to pay the bond; in
contrast, it states “there is no danger that Stanford
and ThermoLife are not collectable.” (MTN 9.)
the Court DENIES ThermoLife's Motion for an order staying
enforcement without posting a supersedeas bond since it has
failed to meet its burden in showing an inability to obtain a
bond, or that it is entitled to a waiver of a bond.
recognizes that it and ThermoLife are jointly and severally
liable for the Judgment. (Stanford Resp. 2.) Stanford
requests it not be required to post a bond because its assets
are much greater than the judgment in this case and a bond is
not necessary to protect Defendants. (Id. at 5.)
However, because ThermoLife and Stanford are jointly and
severally liable, the Court determines the two must post a
bond jointly and severally. For ...