Free Motion to Stay - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COUR T FOR THE DISTRICT OF COLORADO Civil Action No . 00-N-230 3 SHEILA KEELAN, Plaintiff, vs. DENVER MERCHANDISE MART, a Colorado corporation , Defendant.

MOTION OF DEFENDANT FOR A STAY OF PROCEEDINGS TO ENFORC E JUDGMENT AND FOR APPROVAL OF SUPERSEDEAS BON D

Defendant, Denver Merchandise Mart ("Defendant"), by and through its attorneys , Allen & Vellone, P .C., pursuant to Rule 62(d) of the Federal Rules of Civil Procedure and Rul e 8(a) of the Federal Rules of Appellate Procedure, moves this court for a stay of judgment an d approval of a supersedeas bond . 1. Undersigned counsel hereby certifies pursuant to D .C .COLO.LR 7 .1(a) that he

has conferred with counsel for Plaintiff who states she does not object to the Motion or the amount of the bond . 2. Judgment was rendered by the Court in favor of Plaintiff Sheila Keelan

("Plaintiff') on July 28, 2005 in the amount of $64,513 .49 in attorneys' fees and expenses, and $823 .53 in costs . 3. Defendant has timely filed a Notice of Appeal to the United States Court o f

Appeals for the Tenth Circuit Court on August 29, 2005 .

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5.

Defendant requests the Court to set the supersedeas bond in the amount o f

$75,000 .00, which would amply cover the Judgment contained in this matter, costs awarded , post judgment interest, plus costs on appeal, as required by Rules 7 and 8 of the Federal Rules o f Appellate Procedure . 6. A supersedeas bond in the amount of $75,000 .00 is filed contemporaneously with

this Motion, and a copy of it is attached hereto as Exhibit A . Respectfully submitted this 29 `" day of August, 2005 . ALLEN &

Kevin D . en Jennifer E . Schlatter 1600 Stout St ., Suite 1100 Denver, CO 80202 Telephone : (303) 534-449 9 ATTORNEYS FOR DEFENDANT

CERTIFICATE OF MAILIN G I hereby certify that on the 29th day of August, 2005, I placed a true and correct copy of the foregoing in the United States Mail, first-class postage prepaid, addressed to the following : Richard C . LaFond, Esq . Charlotte N . Sweeney, Esq . LaFond & Sweeney, L .L.C . 1756 Gilpin St . Denver, CO 80218

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UNITED STATES DISTRICT COUR T FOR THE DISTRICT OF COLORAD O

DENVER MERCHANDISE MART , Plaintiff v. SHEILA G. KEELAN , Defendant

§ § § § § § § §

Case No . 00-cv-02303-EWN-CB S

Bond Number LPM878877 1

SUPERSEDEAS BOND Know All Men by These Presents, That Denver Merchandise Mart, as Principal, and Fidelity and Deposi t Company of Maryland, as Surety, are hereby bound unto Sheila G . Keelan, her heirs, executors and administrators ("Appellee"), in the sum of SEVENTY FIVE THOUSAND AND NO/100 DOLLAR S ($75,000.00), covering the judgment below in the amount of $64,513 .49 in attorneys' fees and expenses , $823 .53 in costs pursuant to 28 U .S.C. 1920, costs which may be awarded on appeal, and post-judgment interest, for the payment of which, we jointly and severally bind ourselves, our heirs, executors o r administrators, firmly by these presents . Sealed with our seals and dated this 25a' day of August 2005 . The Condition of the Above Obligation, That Whereas, the above bound Principal has applied for an d obtained an appeal to supersede and reverse a judgment recovered by the said Appellee against the sai d Principal on the 28`h day of July, 2005 . Now,_if the saidPrincipal shall prosecute to effect the said suit and shall pay and satisfy-such-judgment-a s the appeals court shall render in this case, then this obligation shall be void ; otherwise to remain in ful l force and effect . In no event shall the liability of the surety exceed the penal sum of this bond . Denver Merchandise Mfrt,3 . p4C

Fidelity and Deposit Company of Marylan d By: 2r C -- <~SICt~ l Karen Kubica, Attorney in Fact



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Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAN D COLONIAL AMERICAN CASUALTY AND SURETY COMPAN Y
KNOW ALL MEN BY THESE PRESENTS : That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and th e COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, corporations of the S c .. aryland, by PAUL C . (t'' · Article VI, Section 2 , ' ROGERS, Vice President, and T . E . SMITH, Assistant Secretary, in pursuance of -u,y . .~i . er . T, red to ybe in full forc e of the By-Laws of said Companies, which are set forth on the reverse es ell A. and effect on the date hereof, does hereby nominate, consti .,~ f· "~} : .i j ~ aTJ' i r .!v i ~ ent and Attorney-in-Fact, to WESTBROOK and Karen KUBICA, all of D it; · eed : any and all bonds an d e t' i.~ · re make, execute, seal and deliver, for, an to s, Community Survivors and Communit y .R "+Tii undertakings, EXCEPT b gs in pursuance of these presents, shall be as binding upon sai d *R, yo c b . . . s ~ Guardians. and thpurposes, as if they had been duly executed and acknowledged by the Companies, as fully . . . ·· 'C . ny C· HO at its office in Baltimore, Md ., in their own proper persons . This power of attorne y regularly elected off of James W . BAUGHMAN, Kelly A. KNISEL, Steven E . LEWIS, dated August 6, 2001 . revokes that issued o
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The said Assistant Secretary does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article VI , Section 2, of the By-Laws of said Companies, and is now in force . IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names an d affixed the Corporate Seals of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIA L AMERICAN CASUALTY AND SURETY COMPANY, this 23rd day of September, A .D . 2003 . ATTEST : FIDELITY AND DEPOSIT COMPANY OF MARYLAN D COLONIAL AMERICAN CASUALTY AND SURETY COMPAN Y

By : T. E . Smith State of Maryland City of Baltimore Assistant Secretary Paul C. Rogers Vice Presiden t

1 ss: J

On this 23rd day of September, A .D . 2003, before the subscriber, a Notary Public of the State of Maryland, dul y commissioned and qualified, came PAUL C . ROGERS, Vice President, and T . E . SMITH, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AN D SURETY COMPANY, to me personally known to be the individuals and officers described in and who executed th e preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally an d each for himself deposeth and saith, that they are the said officers of the Companies aforesaid, and that the seals affixed to th e preceding instrument is the Corporate Seals of said Companies, and that the said Corporate Seals and their signatures as suc h officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations . TN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first abov e written .

Notary Publi c Dennis R. Hayden My Commission Expires : February 1, 2005

POA-F 168-0301

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EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAN D "Article VI, Section 2 . The Chairman of the Board, or the President, or any Executive Vice-President, or any of the Senio r Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of D rectors or by the Executive Committee , shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Residen t Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or t o authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations , policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments i n the nature of mortgages, . . .and to affix the seal of the Company thereto .

i

"

EXTRACT FROM BY-LAWS OF COLONIAL AMERICAN CASUALTY AND SURETY COMPAN Y "Article VI, Section 2 . The Chairman of the Board, or the President, or any Executive Vice-President, or any of the Senio r Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee , shall have power, by and with the concurrence of the Secretary or any one of the Assistant Secretaries, to appoint Residen t Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or t o authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations , policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments i n the nature of mortgages, . . .and to affix the seal of the Company thereto . " CERTIFICAT E I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and th e COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, do hereby certify that the foregoing Power o f Attorney is still in full force and effect on the date of this certificate ; and I do further certify that the Vice-President wh o executed the said Power of Attorney was one of the additional Vice-Presidents specially authorized by the Board of Dtector s to appoint any Attorney-in-Fact as provided in Article VI, Section 2, of the respective By-Laws of the FIDELITY AN D DEPOSIT COMPANY OF MARYLAND, and the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY . This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of th e Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990 and of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURET Y COMPANY at a meeting duly called and held on the 5th day of May, 1994 . RESOLVED : "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore o r hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid an d binding upon the Company with the same force and effect as though manually affixed . IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies ,

"

this

25th

day of

August

2005

o'ditinucA u
Assistant Secretary

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ZURIC H THIS IMPORTANT DISCLOSURE NOTICE IS PART OF YOUR BON D
We are making the following informational disclosures in compliance with The Terrorism Risk Insurance Act o f 2002 . No action is required on your part . Disclosure of Terrorism Premiu m The premium charge for risk of loss resulting from acts of terrorism (as defined in the Act) under this bond i s $ waived . This amount is reflected in the total premium for this bond . Disclosure of Availability of CoveraaeforTerrorism Losse s As required by the Terrorism Risk Insurance Act of 2002, we have made available to you coverage for losse s resulting from acts of terrorism (as defined in the Act) with terms, amounts, and limitations that do not diffe r materially as those for losses arising from events other than acts of terrorism . Disclosure of Federal Share of Insurance Company's Terrorism Losse s The Terrorism Risk Insurance Act of 2002 establishes a mechanism by which the United States government wil l share in insurance company losses resulting from acts of terrorism (as defined in the Act) after a insurance compan y has paid losses in excess of an annual aggregate deductible . For 2002, the insurance company deductible is 1% o f direct earned premium in the prior year ; for 2003, 7% of direct earned premium in the prior year ; for 2004, 10% o f direct earned premium in the prior year ; and for 2005, 15% of direct earned premium in the prior year. The federal share of an insurance company's losses above its deductible is 90% . In the event the United States governmen t participates in losses, the United States government may direct insurance companies to collect a terrorism surcharg e from policyholders . The Act does not currently provide for insurance industry or United States governmen t participation in terrorism losses that exceed $100 billion in any one calendar year . Definition of Act of Terroris m The Terrorism Risk Insurance Act defines "act of terrorism" as any act that is certified bythe eneetary af th e Treasury, in concurrence with the Secretary of State and the Attorney General of the United States : I . to be an act of terrorism ; 2. to be a violent act or an act that is dangerous to human life, property or infrastructure ; 3. to have resulted in damage within the United States, or outside of the United States in the case of an ai r carrier (as defined in section 40102 of title 49, United 17 States Code) or a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insuranc e coverage is subject to regulation in the United States), or the premises of a United States mission ; and 4. to have been committed by an individual or individuals acting on behalf of any foreign person or foreig n interest as part of an effort to coerce the civilian population of the United States or to influence the policy o r affect the conduct of the United States Government by coercion . But, no act shall be certified by the Secretary as an act of terrorism if the act is committed as part of the course of a war declared by Congress (except for workers' compensation) or property and casualty insurance losses resultin g from the act, in the aggregate, do not exceed $5,000,000 . These disclosures are informational only and do not modify your bond or affect your rights under the bond . Copyright Zurich American Insurance Company 2003 -0050749 .doc