Free Proposed Supersedeas Bond - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 279

Filed 02/22/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge John L. Kane

Civil Action No. 01-cv-2056-JLK-MJW

UNITED STATES AVIATION UNDERWRITERS, INC. a New York corporation; and PAUL LEADABRAND, an Idaho resident,

Appellees, Vs.

PILATUS BUSINESS AIRCRAFT, LTD, a Colorado corporation, PILATUS AIRCRAFT, LTD, A Swiss corporation; and PRATT & WHITNEY CANADA, INC., A Canadian corporation, Appellants.

RESPONSE TO PLAINTIFFS' OBJECTIONS TO SUPERSEDEAS BOND

Pilatus Business Aircraft, LTD and Pilatus Flugzeugwerke Aktiengesellschaft/Pilatus Aircraft, Ltd, (jointly "Pilatus") hereby respond to the Plaintiffs' objections (Doc. 274) and urge the Court to approve the attached AMENDED SUPERSEDEAS BOND that corrects the post judgment interest and states the actual date the letter of credit was received by the Court. First Objection, post-judgment interest. This is corrected from 4.89 to 4.98 in the Amended Supersedeas Bond.

Case 1:01-cv-02056-JLK

Document 279

Filed 02/22/2008

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Second Objection. The letter of credit amount of $1,000,000.00. This is the amount proposed in Pilatus' Motion filed on October 19, 2007 (Doc. 261). "Pursuant to F.R.C.P. 62(d) Pilatus offers a letter of credit in the amount of $1 million issued by UBS USA through their New York office as security for the judgment pending resolution of the appeal." The order approving this letter of credit issued by UBS in the amount $1,000,000.00 was signed three months later on February 4, 2008 without opposition (Doc. 272). In reliance on the Court's order and the Plaintiffs' lack of opposition, Pilatus incurred expense and effort to obtain the approved letter of credit (now in the Court's Registry). Third Objection, Fed. R. Civ. P. 65.1. This rule on its face, applies only to sureties. It does not apply to UBS which is not a surety ­ it is a bank. Instead, this bond is based on Fed. R. Civ. P. 69(a) "proceedings supplementary to and in aid of a judgment and in proceedings on and in aid of execution shall be in accordance with the practice of the state in which the district court is held" and on Col.R.Civ.P. 121 1-23 which describes the types of security that will be prima facie acceptable as bonds in civil actions including a "letter of credit from a bank chartered by either the United States Government or State of Colorado." Finally, Plaintiffs cited the wrong form. The proposed bond is based on the correct form (See http://www.cod.uscourts.gov/Documents/Forms/super_bond_cash.pdf) that does not include the surety clause urged by the Plaintiffs. WHEREFORE, Pilatus requests that the Court approve the proposed supersedeas bond.

Case 1:01-cv-02056-JLK

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RESPECTFULLY SUBMITTED this 22nd day of February 2008.

Schultz & Associates

By

/Robert B. Schultz Robert Schultz 9710 W. 82nd Ave. Arvada, CO 80005 Tel (303) 456-5565 Fax (303) 456-5575 Attorney For Defendants Pilatus Business Aircraft, Ltd And Pilatus Flugzeugwerke Aktiengesellschaft/ Pilatus Aircraft, Ltd

Case 1:01-cv-02056-JLK

Document 279

Filed 02/22/2008

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of February 2008, I caused the forgoing RESPONSE TO PLAINTIFFS' OBJECTIONS TO SUPERSEDEAS BOND to be served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following addresses:

Jon A. Kodani Jeff Williams Law Offices of Jon A. Kodani [email protected] Thomas Byrne Byrne, Kiely & White LLP [email protected]

__s/ Robert Schultz__________ Schultz & Associates [email protected]