United States District Court, W.D. Missouri, Western Division
EDWARD E. BLACKORBY, Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
STEPHEN R. BOUGH, JUDGE UNITED STATES DISTRICT COURT
the Court is Plaintiff's Motion to Stay Enforcement of
Cost Award (Doc. #260). For the following reasons the motion
is granted in part and denied in part. Plaintiff is granted a
stay predicated on a supersedeas bond with the following
condition: within ten (10) days from the entry of this Order,
Plaintiff shall post a supersedeas bond in the amount of $10,
095.84 to cover the costs assessed against him.
a retrial and subsequent entry of judgment for Defendant,
this Court awarded Defendant $10, 095.84 in costs. (Docs.
##248, 257). After this Court's rulings on
Plaintiff's post-trial motions (Doc. #258), Plaintiff
filed an appeal. In the present motion Plaintiff requests an
order staying enforcement of those costs awarded to Defendant
without requiring any bond or surety. In the alternative
Plaintiff requests the amount of any required bond “be
set as low as possible.” (Doc. #260, p. 6).
Defendant's response argues Plaintiff failed to provide
sufficient evidence to meet his burden. Plaintiff did not
file a reply to Defendant's brief.
Plaintiff appealed this case to the Eighth Circuit, Federal
Rule of Appellate Procedure 8 indicates that this Court
retains jurisdiction to rule on a motion to stay imposition
of costs. Fed. R. App. P. 8(a)(1) (“A party must
ordinarily move first in the district court for . . . a stay
of the judgment or order of a district court pending
appeal.”); Payan v. United Parcel Serv., Case
No. 2:14-cv-00400-JNP-DBP, 2017 WL 4844651, at *1 (D. Ut.
Sept. 1, 2017). A stay pending appeal is an
“extraordinary remedy.” Mann v. Washington
Metro. Area Transit Authority, 185 F.Supp.3d
189, 194 (D.D.C. 2016) (internal citations omitted).
“It is an intrusion into the ordinary processes of
administration and judicial review and thus is not a matter
of right, even if irreparable injury might otherwise result
to the appellant.” Id. (citing Nken v.
Holder, 556 U.S. 418, 427 (2009)). The Court considers
four factors in evaluating a motion for stay:
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.
first request is a waiver of the bond requirement. To support
his position, Plaintiff relies on the factors articulated by
the Seventh Circuit in Dillon v. Chicago, 866 F.2d
902, 904-05 (7th Cir. 1988). However, the Dillon
factors are inapplicable to cases where the judgment did not
include a monetary award (such as here) and instead are best
suited where there has been a monetary judgment awarded. The
analysis of other district courts around the country confirm
this distinction. See e.g., Payan, 2017 WL
4844651, at *1-2; Mann, 185 F.Supp.3d at 194-95; and
Gonzalez v. Wells Fargo Bank, N.A., Case No.
1:13-cv-23281-LENARD/GOODMAN, 2015 WL 12978820, at *3-4 (S.D.
Fl. March 20, 2015) (collecting cases). Having relied upon
the wrong legal standard, Plaintiff failed to analyze the
aforementioned factors and therefore failed to meet his
Court attempts to construe Plaintiff's arguments under
Dillon into the context of the factors applicable
here. Plaintiff argued “this is not a case where
Plaintiff's claims were so clearly deficient that BNSF
prevailed at every step along the way.” (Doc. #260, p.
4). Such a statement is not sufficient to overcome
Plaintiff's burden of making a strong showing that he is
likely to succeed on the merits on appeal. Plaintiff also
argued “there can be little argument that a stay
without bond will result in material damage to [Defendant.]
By contrast, Plaintiff is a single individual with limited
financial resources.” (Doc. #260, p. 4). The Court
finds this argument goes to the second and third
factors-whether Plaintiff will be irreparably injured absent
a stay and whether the issuance of the stay will
substantially injure Defendant. Plaintiff's assertions
that he has “limited financial resources” and the
imposition of supersedeas bond is “prohibitively
expensive” do not rise to the level of irreparable
injury. Likewise, Plaintiff has not demonstrated that the
issuance of a stay will substantially injure Defendant.
Plaintiff makes no argument regarding the public interest.
Accordingly, Plaintiff has failed to meet his burden to
persuade the Court that a stay is justified in this case
absent a bond.
alternative Plaintiff requests a stay pursuant to Federal
Rule of Appellate Procedure 62(d), which allows an appellant
to obtain a stay by supersedeas bond. “A full
supersedeas bond should be required in the normal
circumstances. District courts, however, have inherent
discretionary authority in setting supersedeas bonds.”
Payan, 2017 WL 4844651, at *3 (citations omitted).
Plaintiff “respectfully requests that the amount of any
bond be set as low as possible.” (Doc. #260, p. 6).
Defendant makes no argument as to how much bond should be
required, instead focusing its argument on the
inappropriateness of a bond waiver in the present matter.
Given the scant guidance from both parties, the Court finds a
bond in the full amount of the cost award is reasonable here
because the case presents only normal circumstances.
Id. Further, Defendants have not provided any
estimate or calculation of interest. Accordingly, Plaintiff
will be granted a stay conditioned on posting a supersedeas
bond in the amount of $10, 095.84 within ten days from the
entry of this Order.
Plaintiff's Motion to Stay Enforcement of Cost Award
(Doc. #260) is granted in part and denied in part. Plaintiff
is granted a stay predicated on a supersedeas bond with the
following condition: within ten (10) days from the entry of
this Order, Plaintiff shall post a supersedeas bond in the
amount of $10, 095.84 to cover the costs assessed against