Free Motion to Stay - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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Filed 01/11/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-cv-1160-LTB-CBS Isabelle DerKevorkian, Plaintiff, v. Lionbridge Technologies, Inc. d/b/a Lionbridge US, Inc., et al., Defendants. DEFENDANT LIONBRIDGE TECHNOLOGIES, INC.'S UNOPPOSED FED.R.CIV.P. 62(b) MOTION TO STAY OF EXECUTION OF JUDGMENT PENDING DECISION ON MOTION FOR NEW TRIAL OR TO ALTER OR AMEND THE JUDGMENT (Certifying Compliance with D.C.COLO.L.Civ.R. 7.1A) Defendant Lionbridge Technologies, Inc. ("Lionbridge") respectfully moves the Court under Fed.R.Civ.P. 62(b) for a stay of execution on the judgment pending resolution of Lionbridge's pending motion under Fed.R.Civ.P. 59. Lionbridge is authorized to state that the plaintiff does not oppose this motion, as explained below. In support thereof, Lionbridge states as follows: I. Local Rule 7.1(A) Certification 1. Undersigned counsel hereby certifies that he conferred with Joel Maguire,

Esq., counsel for the plaintiff, with respect to the relief sought by this motion. Counsel for plaintiff does not oppose this motion on condition that Lionbridge post an irrevocable letter of credit in the amount of $700,000, securing the judgment until the pending Fed.R.Civ.P. 59(a) motions are decided. Lionbridge has agreed to post such security within fifteen (15) days of the Court's order granting a stay under Rule 62(b). Accordingly, this motion is unopposed.

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II.

Fed.R.Civ.P. 62(b) Permits The Court, In Its Discretion, To Stay Execution of the Judgment Pending Its Decision on The Rule 59 Motion 2. Fed.R.Civ.P. 62(b) provides: "In its discretion and on such conditions for

the security as the [plaintiff] as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend the judgment made pursuant to Rule 59[.]" See Fed.R.Civ.P. 62(b); Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2902. pp. 495 ­ 496 ("But if a post-trial motion is made, the court is given discretion in Rule 62(b) to stay execution or enforcement of the judgment pending disposition of the motion."). 3. Lionbridge has moved for a new trial, to alter or amend the judgment, or

to order remittitur. See Defendant Lionbridge Technologies, Inc.'s Motion For New Trial Pursuant to Fed.R.Civ.P. 59(a), To Alter Or Amend the Judgment Pursuant to Fed.R.Civ.P. 59(e), or To Order Remittitur, Doc. No. 133, filed December 26, 2006 ("Motion For New Trial"). The plaintiff has also moved to amend the judgment. See Plaintiff's Motion to Alter or Amend Judgment, Doc. No. 129, filed December 26, 2006. 4. Accordingly, the Court has the discretion to stay execution of the

judgment pending its decision on the motion. For the reasons explained below, the Court should exercise that discretion to order a stay of execution. III. Both Sides Agree That The Judgment Must Be Amended To Comply With Colorado's Statutory Damages Cap 5. is proper. In this case, neither side believes that the present amount of the judgment

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6.

As Lionbridge argued in its Motion For New Trial, and as plaintiff has

recognized, Colorado's statutory damages cap applies to the award of non-economic damages. See Motion For New Trial, pp. 2, 15 ­ 16. 7. Though the parties disagree as to what the precise cap should be, see id.,

p. 2, both sides agree that the judgment must be amended in some amount to comply with the cap. 8. Accordingly, permitting the plaintiff to execute on the judgment in the

meantime would be to allow execution of a judgment that exceeds Lionbridge's maximum liability in this case. 9. Lionbridge and plaintiff have agreed that Lionbridge will post an

irrevocable letter of credit ("ILOC") for the benefit of the plaintiff pending the Court's decision of the pending Rule 59 motion.1 10. By agreement of the parties, the amount of the ILOC will be $700,000.

The parties agree to this amount without prejudice to the arguments raised in their respective pending Rule 59 motions. 11. Because of the agreement of the parties, Lionbridge respectfully submits

that a $700,000 ILOC is "proper" for "the security of the [plaintiff]" under Rule 62(b). IV. Conclusion 12. For the foregoing reasons, Lionbridge respectfully requests that the Court

stay any execution on the judgment, pending its decision on Lionbridge's pending Rule 59 motion, and on condition that Lionbridge post an ILOC in the amount of $700,000 within 15 business days of the Court's order granting a stay. If Lionbridge appeals the eventual judgment, it may post a supersedeas bond on appeal. See Fed.R.Civ.P. 62(d). 3
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A form of proposed order is submitted for the convenience of the Court. Respectfully submitted this 11th day of January, 2007.

s/ Michael J. Hofmann David B. Wilson Michael J. Hofmann HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 Telephone: (303) 861-7000 Facsimile: (303) 866-0200 Email: [email protected]; [email protected] Attorneys for Lionbridge Technologies, Inc.

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 11th day of January, 2007, I electronically filed the foregoing DEFENDANT LIONBRIDGE TECHNOLOGIES, INC.'S UNOPPOSED FED.R.CIV.P. 62(b) MOTION TO STAY OF EXECUTION OF JUDGMENT PENDING DECISION ON MOTION FOR NEW TRIAL OR TO ALTER OR AMEND THE JUDGMENT (Certifying Compliance with D.C.COLO.L.Civ.R. 7.1A) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Joel C. Maguire [email protected] Attorneys for Plaintiff John Edwin Bolmer, II [email protected] [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected]

s/ Jackie Delay Jackie DeLay Phone: 303-866-0650 Email: [email protected]

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