United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY, District Judge.
After a five day jury trial on the issue of damages, a jury returned a verdict awarding Plaintiffs $79, 014, 140 for claims arising out of the Sho-Me Defendants' (hereinafter Sho-Me) unauthorized use of electric transmission line easements on Plaintiffs' property for commercial telecommunications purposes.
Before the Court are Plaintiffs' Motion to Require the Sho-Me Defendants to Post Adequate Security for the Judgment, [Doc. 654], Sho-Me's Renewed Motion to Stay Judgment Without Bond, [Doc. 659], Sho-Me's Alternative Motion to Approve a Letter of Credit as Security for a Stay, [Doc. 661], Sho-Me's unopposed Motion to Approve the Form of a Letter of Credit as Security for a Stay of Judgment, [Doc. 691], and the Parties' Joint Amended Motion to Approve the Form of a Letter of Credit and Escrow Agreement as Security for a Stay of Judgment, [Doc. 715]. For the reasons set forth below, Plaintiffs' Motion to Require the Sho-Me Defendants to Post Adequate Security for the Judgment, [Doc. 654], is granted in part. Sho-Me's Renewed Motion to Stay Judgment Without Bond, [Doc. 659], is denied. Sho-Me's Motion to Approve a Letter of Credit as Security for a Stay of Judgment, [Doc. 661], is granted in part. Sho-Me's Motion to Approve Form of a Letter of Credit as Security for a Stay of Judgment, [Doc. 691], is denied as moot. The Parties' Joint Amended Motion to Approve the Form of a Letter of Credit and Escrow Agreement as Security for a Stay of Judgment, [Doc. 715], is granted.
Sho-Me has filed post-trial motions requesting judgment as a matter of law, a new trial, and an amended judgment. [Docs. 607, 638, 695]. Both Parties have also communicated an intention to appeal aspects of this litigation to the Eighth Circuit Court of Appeals. While posttrial motions and an appeal are pending, Sho-Me requests that the Court stay enforcement of the judgment without requiring Sho-Me to post a bond or provide other security. [Doc. 659]. Alternatively, Sho-Me asks the Court to approve a letter of credit as security for a stay in the amount of $10 million but not to exceed $90 million. [Docs. 661, 691]. Plaintiffs move the Court to require Sho-Me to post adequate security for a stay. [Doc. 654]. After initially opposing Sho-Me's proposal to secure the judgment with a letter of credit, Plaintiffs now agree with Sho-Me that a letter of credit from CoBank, ACB in an amount set by the Court will serve as an adequate form of security in the place of a supersedeas bond. [Docs. 715, 691-2]. Plaintiffs request security in the full amount of the judgment plus post-judgment interest and costs. See e.g., [Doc. 694].
The questions before the Court are limited to whether Sho-Me is required to post any security to obtain a stay pending post-trial motions and an appeal, what amount of security is adequate if security is required, and whether a letter of credit from CoBank in the form approved by the Parties is appropriate.
A. Sho-Me is Required to Post Security to Stay Enforcement of the Judgment
A court may stay the execution of a judgment - or any proceedings to enforce it - pending disposition of certain post-trial motions. Fed. R. Civ. Pro. 62(b). If an appeal is taken, the appellant may obtain a stay by posting a supersedeas bond, and the stay takes effect when the court approves the bond. Id. at 62(d). The purpose of a bond is to secure a prevailing party from loss resulting from the stay of execution of the judgment in its favor. Miami Int'l Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986). However, "[w]hat constitutes appropriate terms' is a matter left to the trial court's discretion, " Miami Int'l Realty Co., 807 F.2d at 873; Newburgh/Six Mile Ltd. P'ship II v. Adlabs Films USA, Inc., 2010 WL 3167393, at *1 (E.D. Mich. 2010), and a court may grant a stay without a bond or with a partial bond. United States v. Mansion House Ctr. Redev. Co., 682 F.Supp. 446, 449-50 (E.D. Mo. 1988).
Sho-Me argues an unsecured stay is appropriate because Sho-Me "can demonstrate the clear ability to satisfy the Judgment and any accumulated interest during the course of post-trial motions and an appeal." [Doc. 660, p. 7]. "[T]here is a presumption in favor of requiring a bond, and the party seeking [to] dispense with the requirement bears the burden of showing why a bond should not be required." Newburgh/Six Mile Ltd. P'ship II, 2010 WL 3167393, at *1; see also United States v. Peters, 2014 WL 4205065, at *2 (E.D. Mo. 2014). "[W]here there is some reasonable likelihood of the judgment debtor's inability or unwillingness to satisfy the judgment in full upon ultimate disposition of the case and where posting adequate security is practicable, " a full bond is appropriate. Miami Int'l Realty Co., 807 F.2d at 873. On the other hand, "no bond or a reduced bond would suffice when the creditor's interest, due to unusual circumstances, would not be unduly endangered." Id. Courts may consider a variety of factors in determining whether to waive a supersedeas bond:
(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.
Peters, 2014 WL 4205065, at *2; Dillon v. City of Chicago, 866 F.2d 902, 904-5 (7th Cir. 1988); see also Olympia Equip. Leasing Co. v. Western Union Tel. Co., 786 F.2d 794, 796 (7th Cir.1986); Arban v. W. Pub. Corp., 345 F.3d 390, 409 (6th Cir. 2003).
Upon consideration of these factors and the presumption in favor of requiring a bond, the Court finds that Sho-Me has not met its burden of demonstrating an ability to pay that is "so plain that the cost of a bond would be waste a of money" or that "due to unusual circumstances" Plaintiffs' interest would not be "unduly endangered" by a stay without any kind of security. In support of the argument that Sho-Me has a "clear ability" to satisfy the judgment and any accumulated post-judgment interest after post-trial motions and an appeal are resolved, Sho-Me relies on its borrowing capacity and its ability to repay a large loan through future electricity rate increases. Sho-Me relies primarily on a commitment letter from CoBank, which states that if there is a draw on a letter of credit issued by it to secure the judgment on behalf of Sho-Me, CoBank will loan Sho-Me Power the amount of the draw, on an unsecured basis, up to $90 million. [Doc. 662-1]. Sho-Me also asserts that it has a borrowing capacity of $243 million and a net book value in excess of $378 million, and it could borrow against its assets. However, if the Court permitted a ...