BRPS LLC v. Tenney Realty Services LLC ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 BRPS LLC, No. CV-18-08249-PCT-ROS 10 Plaintiff, ORDER 11 v. 12 Tenney Realty Services LLC, 13 Defendant. 14 15 Plaintiff BRPS LLC seeks a stay pending appeal of the judgment awarding 16 Defendant Tenney Realty Services LLC $40,770.50 in attorneys’ fees. (Doc. 63). Pursuant 17 to Federal Rule of Civil Procedure 62 “a party may obtain a stay” of a judgment “by 18 providing a bond or other security.” That rule has been interpreted as allowing for an 19 “automatic stay” upon the posting of the appropriate bond or other security. Wishtoyo 20 Found. v. United Water Conservation Dist., No. CV 16-3869-DOC-PLA, 2019 WL 21 8226058, at *1 (C.D. Cal. Apr. 11, 2019). District courts have discretion to determine the 22 appropriate amount of the bond or other security. Am. Ass’n of Naturopathic Physicians 23 v. Hayhurst, 227 F.3d 1104, 1109 (9th Cir. 2000). 24 The first portion of BRPS’s motion requests the Court “set[] a supersedeas bond” 25 reflecting the amount of the attorneys’ fees judgment plus eighteen months of post- 26 judgment interest. (Doc. 63 at 1). BRPS states it is willing to post a bond of $41,510.50. 27 BRPS then requests that “upon the posting of the bond,” the Court “stay execution of the 28 Judgment on Attorney Fees.” (Doc. 63 at 3). But the motion goes on to state that once 1 BRPS “posts the bond, the Court should also direct the Clerk of the Court to deposit the 2 funds in the Federal Court Registry Investment System (“CRIS”) or other form of interest 3 bearing account for the ultimate benefit of BRPS.” (Doc. 63 at 3). Given this latter 4 statement, it appears BRPS does not wish to post a bond. Instead, BRPS wishes to deposit 5 $41,510.50 with the Clerk of Court to act as a form of “other security” sufficient to allow 6 for a stay of the judgment.1 7 Defendant Tenney Realty “does not contest the calculations proposed by Plaintiff” 8 but requests the Court set the amount of security at $80,000. Tenney Realty explains that 9 the Court has the discretion “to increase the amount of [security] under certain 10 circumstances.” (Doc. 64 at 2). And Tenney Realty believes the Court should exercise 11 that discretion to require security reflecting the possibility that Tenney Realty will be 12 awarded its attorneys’ fees on appeal. (Doc. 64 at 3). In its reply, BRPS argues Tenney 13 Realty’s position is “outrageous” and that “no federal court has ever held that a potential 14 award of attorneys’ fees on appeal may be included in a supersedeas bond.” (Doc. 65 at 15 5). 16 Contrary to BRPS’s position, some federal courts have concluded the size of a 17 supersedeas bond can be increased to include “additional attorneys’ fees, which the 18 appellate court may award.” Jang v. Sagicor Life Ins. Co., No. EDCV171563JGBKKX, 19 2019 WL 6434766, at *4 (C.D. Cal. July 10, 2019). See also Sazerac Co., Inc. v. Fetzer 20 Vineyards, Inc., No. 3:15-CV-04618-WHO, 2018 WL 620123, at *4 (N.D. Cal. Jan. 30, 21 2018) (setting supersedeas bond amount to include “additional attorneys’ fees” on appeal). 22 The majority position, however, appears to be the amount of a supersedeas bond should 23 not include expected additional attorneys’ fees. See, e.g., CSX Transp., Inc. v. Peirce, No. 24 5:05CV202, 2013 WL 5674850, at *2 (N.D. W. Va. Oct. 17, 2013) (in setting supersedeas 25 amount court would not “engage in speculation” regarding the amount of attorneys’ fees 26 1 As explained by one court, providing a “bond” and depositing cash with the Clerk of 27 Court are two distinct ways of providing sufficient security to obtain a stay pending appeal. See Edwards v. McElliotts Trucking, LLC, No. CV 3:16-1879, 2018 WL 6531680, at *14 28 (S.D. W. Va. Dec. 11, 2018) (noting “production of cash runs counter to the very concept of a ‘bond’”). 1 || that might be awarded on appeal); Rezendes v. Domenick’s Blinds & Decor, Inc., No. 8:14- CV-1401-T-33JSS, 2015 WL 5735419, at *2 (M.D. Fla. Sept. 22, 2015) (same). 3 While the Court may have the authority to increase the amount of security to reflect 4|| a possible award of attorneys’ fees, it is not appropriate to do so here. Considering recent 5 || authority, BRPS’s appeal is not frivolous. See, e.g., Specialty Companies Grp. LLC vy. 6 || Meritage Homes of Arizona Inc, 248 Ariz. 434, 461 P.3d 454 (Ct. App. 2020) (addressing limitations period and concluding that “enforcing an existing judgment against an alter ego || is no different from enforcing the judgment against a named judgment debtor’). In 9|| addition, there is no indication BRPS would be unable to satisfy an additional award of 10 || attorneys’ fees at the conclusion of the appeal. Therefore, security in the amount of the 11 |} judgment, plus a small amount for interest is appropriate. 12 Accordingly, 13 IT IS ORDERED the Motion for Leave to Post Supersedeas Bond (Doc. 63) is GRANTED IN PART. BRPS shall deposit $41,510.50 with the Clerk of Court, to be 15 || placed in an interest-bearing account. 16 IT IS FURTHER ORDERED upon the deposit of $41,510.50, all enforcement of 17 || this Court’s judgment (Doc. 59) shall be stayed and no execution of any form may issue 18 || until ten days following issuance of the mandate by the Court of Appeals. 19 Dated this 19th day of June, 2020. 20 fo - 21 C | . ES . 22 Honorable Ros yn ©. Silver 3 Senior United States District Judge 24 25 26 27 28 -3-