Lampkin v. Spangner ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRISHKA LAMPKIN AND ROBERT No. 2:20-cv-01204-JAM-JDP CORTEZ, 12 Plaintiffs, 13 ORDER DENYING PLAINTIFFS’ v. MOTION TO WAIVE BOND 14 COUNTY OF SACRAMENTO, M. SPANGER 15 in his official capacity, and MATTHEW CORTEZ, 16 Defendants. 17 18 Plaintiffs come now before the Court seeking an order 19 waiving supersedeas bond under Fed. R. Civ. P. 62(b)1 or, in the 20 alternative, an order approving bond. Mot. to Waive Bond 21 (“Mot.”) at 1, ECF No. 30. Defendant opposes the motion. Opp’n, 22 ECF No. 35. Plaintiffs replied. Reply, ECF No. 39. For the 23 reasons set forth below, the Court DENIES Plaintiffs’ motion to 24 waive bond.2 25 1 Plaintiffs cited Fed. R. Civ. P. 62(d), but, pursuant to an amendment in 2018, 62(d) is now 62(b). Committee Notes on Rules 26 – 2018 Amendment. 27 2 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for November 1, 2022. 1 I. OPINION 2 A. Legal Standard 3 Pursuant to Rule 62(b), a party may stay an execution of a 4 judgment pending appeal by posting a supersedeas bond with the 5 Court. See Vacation Vill., Inc. v. Clark Cty., Nev., 497 F.3d 6 902 (9th Cir. 2007)). Upon posting a supersedeas bond acceptable 7 to the Court, the moving party receives a stay “as a matter of 8 right.” Matter of Combined Metals Reduction Co., 557 F.2d 179, 9 193 (9th Cir. 1977); Hardesty v. Sacramento Metropolitan Air 10 Quality Management District, No. 2:10-cv-02414-KJM-KJN, 2019 WL 11 2715616, at *3 (E.D. Cal. June 28, 2019)(characterizing 12 Rule 62(b) as a "purely procedural mechanism to preserve the 13 status quo during a stay pending appeal of a district court 14 decision"). Local Rule 151 generally requires a bond in the 15 amount of 125 percent of the judgment amount. E.D. Cal. 16 L.R. 151(d) (citing Fed. R. Civ. P. 62). 17 A party seeking a waiver of Rule 62(b)’s bond requirement 18 must "objectively demonstrate" the reasons for departing from the 19 usual requirement of a full supersedeas bond. Cotton v. City of 20 Eureka, 860 F. Supp. 2d 999, 1028 (N.D. Cal. Mar. 16, 2012). 21 "Courts in the Ninth Circuit regularly use the Dillon factors in 22 determining whether to waive the bond requirement." Kranson v. 23 Fed. Express Corp., No. 11-cv-05826-YGR, 2013 WL 6872495, at *1 24 (N.D. Cal. Dec. 31, 2013). 25 The Dillion factors include: (1) the complexity of the 26 collection process; (2) the amount of time required to obtain a 27 judgment after it is affirmed on appeal; (3) the degree of 28 confidence that the district court has in the availability of 1 funds to pay the judgment; (4) whether the defendant's ability to 2 pay the judgment is so plain that the cost of a bond would be a 3 waste of money; and (5) whether the defendant is in such a 4 precarious financial situation that the requirement to post a 5 bond would place creditors of the defendant in an insecure 6 position. Dillon v. City of Chicago, 866 F.2d 902, 904-905 (7th 7 Cir. 1988) (internal citations and quotation marks omitted). 8 Upon a satisfactory showing of the Dillion factors, the Court may 9 exercise its inherent discretionary authority over supersedeas 10 bonds to waive the bond requirement. Rachel v. Banana Republic, 11 Inc., 831 F.2d 1503, 1505 n.1 (9th Cir. 1987)(discussing the 12 Court’s inherent authority over supersedeas bonds). 13 B. Discussion 14 The Court finds that Plaintiffs have failed to objectively 15 demonstrate sufficient reasons supporting waiver of Rule 62(b)’s 16 bond requirement. Plaintiffs’ motion fails to address any of the 17 Dillon factors initially. Plaintiffs also provide no 18 justification as to why the bond requirement should be waived 19 beyond the assertion that it is within the Court’s power to do 20 so. See Mot. at 1-3. 21 On reply, Plaintiffs make new arguments. Though it is 22 improper to raise arguments for the first time in a reply brief, 23 the Court will consider Plaintiffs’ arguments because, given the 24 Court’s denial of the motion, doing so would not prejudice the 25 Defendant. See M.H. v. Cty. of Alameda, 90 F. Supp. 3d 889, 895 26 (N.D. Cal. 2013) (exercising discretion to consider "improperly 27 made new arguments in . . . [the] reply brief" when the non- 28 moving party would not be prejudiced). 1 Plaintiffs contend that the Court should waive the bond 2 requirement because Plaintiffs’ motion to vacate is pending. 3 This argument is unavailing because the Court has already denied 4 Plaintiffs’ motion to vacate. See Order Denying Motion to 5 Vacate, ECF No. 42. 6 Plaintiffs next argue that a waiver of the bond requirement 7 is appropriate because “the requirement would put [Plaintiffs’] 8 other creditors in undue jeopardy.” Reply at 3, citing Cotton ex 9 rel. McClure v. City of Eureka, Cal., 860 F. Supp. 2d 999 (N.D. 10 Cal. 2012). Plaintiffs assert that, if forced to pay the 11 sanctions award, “Plaintiffs’ Counsel’s office will be unable to 12 pay the current and overdue invoices required to continue 13 working.” Reply at 4. Although this implicates the fifth Dillon 14 factor in Plaintiffs’ favor, the Court must still deny this 15 motion in light of the other Dillon factors. 16 Assuming arguendo that Plaintiffs’ counsel cannot afford to 17 pay both the sanction and the costs of running her office, the 18 Court must conclude that it has little confidence in the 19 availability of funds to pay the judgment and that Plaintiffs’ 20 “ability to pay the judgment” is not “so plain that the cost of a 21 bond would be a waste of time.” Dillon, 866 F.2d at 904-905. 22 Moreover, as Defendant points out, because Plaintiffs’ counsel is 23 appearing pro hac vice, there is greater complexity and time 24 necessary in the process to collect the judgment. Id. As such, 25 the remaining four Dillon factors militate against waiving a 26 bond. 27 In the absence of a waiver, Plaintiffs request that the 28 Court approve a supersedeas bond in the amount of $9,750.00, eee ee meee EI IEE OS ISIE ED EE 1 which is 1.25 times the judgment ordered at ECF No. 26. This 2] amount is in line with the Court’s Local Rules. E.D. Cal. 3 L.R. 151(d) (requiring a bond in the amount of 125 percent of the 4 judgment). However, because Plaintiffs have not filed a proposed 2 | bond instrument, there is presently nothing before the Court to 6 | approve. 7 ORDER 8 For the reasons set forth above, the Court DENIES 9} Plaintiffs’ Motion to Waive Bond. 10 IT IS SO ORDERED. 11 Dated: November 29, 2022 12 opens JOHN A. MENDEZ 14 SENIOR UNITED*STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28