Free Motion to Stay - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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Filed 10/05/2007

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I N T HE U NITED S TATES D ISTRICT C OURT F OR T HE D ISTRICT O F C OLORADO Civil Action No. 01-cv-0413-JLK M.D. MARK, INC. Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. DEFENDANT'S MOTION TO STAY PROCEEDINGS TO ENFORCE THE JUDGMENT PENDING DISPOSITION OF POST-TRIAL MOTIONS

Defendant Kerr-McGee ("Kerr-McGee") hereby submits this motion to stay proceedings to enforce the judgment pending disposition of post trial motions. In support of this motion, Kerr-McGee states as follows: This Court entered judgment in favor of Plaintiff M.D. Mark, Inc. ("M.D. Mark") on September 28, 2007. Pursuant to Federal Rules of Civil Procedure 50 and 59, KerrMcGee intends to file the following post-trial motions on or before October 12, 2007: 1. 2. 3. Renewed Motion for Judgment as a Matter of Law; Motion for a New Trial and Remittitur; and Motion to Alter or Amend Judgment.

Kerr-McGee has also been informed that M.D. Mark intends to file its own post-trial motions. These motions may substantially affect the Court's final judgment, and,

Case 1:01-cv-00413-JLK-BNB

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therefore, the amount of the bond (if any) that Kerr-McGee may be required to post pending any appeal of the judgment. The Federal Rules provide that execution of judgment is stayed for 10 days after entry. F ED . R. C IV . P. 61(a). The Court also has discretion stay execution on a judgment pending disposition of post-trial motions under Rules 50 and 59, subject to "conditions for the security of the adverse party as are proper." F ED . R. C IV . P. 62(c). With respect to the security that may be required pending resolution of post-trial motions, case law regarding the posting of bonds pending appeal is instructive. The court has discretion under Rule 62(d) to authorize unsecured or partially secured stays pending appeal. Fed. Prescription Serv., Inc. v. Am. Pharm. Ass'n, 636 F.2d 755, 757-58 (D.C. Cir. 1980). The court also has the power to determine the amount of the security or to dispense with any security requirement whatsoever. See Id. at 759. In fact, security may be unnecessary where the judgment is a against a corporation with considerable assets able to pay the full amount. See Cont'l Oil Co. v. Frontier Refining Co., 338 F.2d 780, 783 (10th Cir. 1964). By this Motion, however, Kerr-McGee seeks only to stay enforcement of proceedings to enforce the judgment, and the posting of a supersedeas bond under Rule 61(d) (if any is ultimately required), until 10 days after the Court rules on post-trial motions. Kerr-McGee has several good faith bases to argue for a new trial, remittitur, and/or an amended or altered judgment, and intends to file motions stating the factual and legal bases therefor. M.D. Mark has also indicated that it intends to file a motion

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to alter or amend judgment. The Court's rulings on these motions may affect the amount of any bond that Kerr-McGee may be required to file pending appeal. As M.D. Mark conceded during closing arguments, Kerr-McGee does billions of dollars in business in the state of Colorado alone. See Trial Tr. 1326:17-19. Thus, it remains to be seen whether Kerr-McGee should be required to post a supersedeas bond even if it does not prevails on its post trial motions. For these reasons, Kerr-McGee requests a stay of proceedings to enforce the judgment pending the disposition of post-trial motions. WHEREFORE, Defendant Kerr-McGee Corp. respectfully requests that this Court GRANT its motion to stay proceedings to enforce the judgment and to stay the posting of a supersedeas bond, until 10 days after the Court rules on post trial motions.

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Dated this 5th of October, 2007. Respectfully submitted,

/s/M. Antonio Gallegos____________ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8513 Fax: (303) 975-5416 [email protected] [email protected] [email protected]

A TTORNEYS F OR D EFENDANTS

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CERTIFICATE OF CONFERENCE ­ D.C.COLO.LCivR 7.1 Undersigned counsel certifies that he conferred with Plaintiff's counsel regarding this Motion. Plaintiff's counsel stated that Plaintiff will oppose Defendant's Motion. Dated: October 5, 2007.

/s/M. Antonio Gallegos___________

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Certificate Of Service I hereby certify that, on October 5, 2007, I electronically filed the foregoing document with the Clerk of Court using CM/ECF system which will serve such filing by e-mail to: Harlan P. Pelz Daniele W. Bonifazi Pelz, Bonifazi & Inderwish [email protected] [email protected]

s/Randi L. Dixon ________________

3772646_1.DOC

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