United States District Court, D. Colorado
A. BRIMMER, United States District Judge
matter comes before the Court on Plaintiffs' Partially
Opposed Motion for Stay of Judgment Pending Appeal and to
Waive or Reduce Supersedeas Bond [Docket No.
January 9, 2018, this Court entered judgment in favor of
defendants on plaintiffs' claims under the Fifth and
Fourteenth Amendments of the U.S. Constitution and Article
II, § 15 of the Colorado Constitution. Docket No. 116.
The Court also awarded defendants their costs. Id.
On February 6, 2018, the Clerk of the Court entered a
judgment against plaintiffs and in favor of defendants for
costs in the amount of $9, 733.45. Docket No. 119. Plaintiffs
filed a notice of appeal on February 8, 2018. Docket No. 121.
On March 21, 2018, plaintiffs moved for a stay of the $9,
733.45 judgment for costs pending their appeal to the Tenth
Circuit and for waiver of the supersedeas bond. Docket No.
Rule of Civil Procedure 62(d) provides that a party appealing
a district court judgment “may obtain a stay by
supersedeas bond” that is “given upon or after
fling the notice of appeal or after obtaining the order
allowing the appeal.” The purpose of a supersedeas bond
is “to secure the judgment throughout the appeal
process against the possibility of the judgment debtor's
insolvency.” Grubb v. Federal Deposit Ins.
Corp., 833 F.2d 222, 226 (10th Cir. 1987). The general
rule is that the supersedeas bond will be equal to the
“full amount of the judgment.” Strong v.
Laubach, 443 F.3d 1297, 1299 (10th Cir. 2006). However,
the district court has the discretion to reduce or waive the
bond requirement if “the appellant demonstrates a
present financial ability to respond to the judgment that is
likely to continue” or if the appellant's
“present financial condition is such that posting a
full bond would impose an undue financial burden.”
Sierra Club v. El Paso Gold Mines, Inc., No. Civ. A.
01 PC 2163 OES, 2003 WL 25265871, at *8 (D. Colo. Apr. 21,
2003). In either circumstance, it is the appellant's duty
to demonstrate that a departure from the usual bond
requirement is warranted and to “present the court with
a financially secure plan that will provide adequate security
for the judgment creditor, in lieu of posting a supersedeas
bond.” Id.; see also Myers v. Mid-West
Nat'l Life Ins. Co., No. 04-cv-00396-CMA-KLM, 2009
WL 306366, at *2 (D. Colo. Feb. 6, 2009) (stating that the
appellant “bears the burden to demonstrate a good
reason for departing from the usual requirement of full
security”). A court deciding the amount of a
supersedeas bond may consider several factors, including:
(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 appellant's ability to pay the judgment is
obvious enough that the cost of the bond would be a waste of
money; and (5) whether the appellant is in such dire
financial circumstances that a bond would place the
appellant's other creditors at risk.
Myers, 2009 WL 306366, at *2 (citing Dillon v.
City of Chicago, 866 F.2d 902, 904-05 (7th Cir. 1988));
see also Boardwalk Apartments, L.C. v. State Auto Prop.
& Cas. Ins. Co., 2015 WL 899312, at *1 (D.
Kan. Mar. 3, 2015).
in this case seek a stay of the $9, 733.45 judgment for costs
and a waiver of the supersedeas bond requirement. In support
of their motion, plaintiffs assert that they have the
financial means to easily satisfy the amount of the judgment,
such that the posting of a bond would be a waste of money.
See Docket No. 127 at 5. They further contend that
defendants will have no difficulty quickly obtaining the $9,
733.45 if the Court's judgment is affirmed on appeal
because defendants can garnish plaintiffs' wages or bank
accounts or file liens on plaintiffs' two properties.
Id. at 6-7. Defendants do not oppose plaintiffs'
request for a stay, but they assert that plaintiffs have not
provided “any justifiable reason as to why they cannot
satisfy” the supersedeas bond requirement under
Fed.R.Civ.P. 62(d) or explained why their current
“financial position provides Defendants with adequate
security.” Docket No. 128 at 2. In particular,
defendants challenge the sufficiency of plaintiffs'
evidence regarding their current income, noting that
plaintiffs have not “provide[d] any kind of affidavit
or other sworn document attesting to their income and ability
to pay.” Id. at 4. Defendants further argue
that, even if plaintiffs are presently able to pay the $9,
733.45 judgment, their assurances that defendants will be
able to easily collect the judgment in the future are
“based on speculation as they have not provided any
bank account information or evidence ensuring they will be
employed following the Tenth Circuit appeal, ” and
“putting a lien on [plaintiffs'] property [would]
not get the Defendants their money judgment until such
property is sold.” Id. at 5.
Court agrees that plaintiffs have failed to justify a waiver
of the supersedeas bond requirement. Even assuming that the
exhibits filed in support of plaintiffs' motion are
sufficient to demonstrate plaintiffs' present ability to
pay the judgment, plaintiffs have failed to “present
the court with a financially secure plan that will provide
adequate security for the judgment creditor, in lieu of
posting a supersedeas bond.” Sierra Club, 2003
WL 25265871, at *8. Plaintiffs argue that defendants will be
able to quickly collect on the judgment by garnishing
plaintiffs' wages or bank accounts or by placing liens on
their properties. However, plaintiffs have not provided any
guarantee that those assets will still be available following
the outcome of their appeal. See Howard Town Center
Developer, LLC v. Howard University, 288 F.Supp.3d 11,
13 (D.D.C. 2017) (declining to waive supersedeas bond where
plaintiff had not provided “financially secure plan for
maintaining [the] same degree of solvency during the period
of an appeal”). The fact that defendants could place a
lien on plaintiffs' property is not a proper substitute
for the supersedeas bond requirement given that defendants
would have to wait until the property is sold to recover the
amount of the lien. See Hornick v. Boyce, No.
03-cv-02504-REB-CBS, 2007 WL 1795838, at *3 (D. Colo. June
20, 2007) (denying defendants' request to use judgment
lien on real property as substitute for supersedeas bond on
ground that defendants had not “demonstrated adequately
that their proposed alternative to the posting of a full
supersedeas bond [would] provide adequate security” to
plaintiff); Brooktree Corp. v. Advanced Micro Devices,
Inc., 757 F.Supp. 1101, 1104 (S.D. Cal. 1990) (waiving
supersedeas bond but requiring that defendant provide
“real property security in an appropriate
amount”). Given plaintiffs' assertions that they
have the present ability to satisfy the $9, 733.45 judgment,
the Court sees no reason to depart from the usual
requirements for a stay of judgment under Fed.R.Civ.P. 62(d).
See Walker v. Health Int'l Corp., No.
12-cv-3256-WJM-KLM, 2015 WL 5783328, at *3 (D. Colo. Oct. 5,
2015) (denying request for waiver of supersedeas bond where
plaintiff failed to show that defendants were “provided
adequate security, or that posting a full bond [was]
impossible or impractical”); see also XY, LLC v.
Trans Ova Genetics, LC, No. 13-cv-0876-WJM-NYW, 2016 WL
9734948, at *1 (D. Colo. July 27, 2016) (noting presumption
in favor of requiring a bond). Accordingly, plaintiffs may
obtain a stay of judgment upon the filing of a supersedeas
bond in the amount of $9, 733.45. See Physicians Ins.
Capital, LLC v. Praesidium All. Grp., LLC, 2013 WL
5232817, at *1 (N.D. Ohio Sept. 16, 2013) (“[A] stay is
a matter of right where the appellant posts a satisfactory
supersedeas bond.”); Frommert v. Conkright,
639 F.Supp.2d 305, 308 (W.D.N.Y. 2009) (noting that
Fed.R.Civ.P. 62(d) “provides for an automatic stay
pending appeal upon the posting of a supersedeas
that Plaintiffs' Partially Opposed Motion for Stay of
Judgment Pending Appeal and to Waive or Reduce Supersedeas
Bond [Docket No. 127] is DENIED.
“Although filing notice of appeal
generally divests the district court of jurisdiction over the
issues on appeal, the district court retains jurisdiction
over collateral matters not involved in the appeal.”
Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228,
1237 (10th Cir. 1998) (citations and internal quotation marks
omitted). Because plaintiffs' motion addresses a
collateral matter that is not the subject of their pending
appeal, the Court has jurisdiction to resolve the motion.
See Thunder Mountain Custom Cycles, Inc. v. Thiessen
Prods., Inc., No. 06-cv-02537-PAB-BNB, 2008 WL 5412469,
at *3 (D. ...