Free Motion to Stay - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 221-5

Filed 01/12/2007

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Westiaw.
Not Reported in F.Supp. Not Reported in F.Supp., 1990 WL 165940 (E.D.Pa.) (Cite as: Not Reported in F.Supp.) Page 1

H McDonald v. McCarthyE.D.Pa., 1 990.Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania. Timothy Scott McDONALD Albert J. McCARTHY, James McCarthy, Robert F. Goddu and Borough of Kennett Square. Civ. A. No. 89-0319. Oct. 22, 1990. Jeffrey L. Pettit, Phillips and Phelan, Philadelphia, Pa., for plaintiffs. Daniel J. Sherry, Christine M. Brenner, Philadelphia, Pa., for Albert J. McCarthy. John S. Halsted, Mark L. Tunnel!, Gawthrop, Greenwood & Haisted, West Chester, Pa., for all defendants. J. Keath Fetter, Malcolm & Riley, P.C., West Chester, Pa., for James McCarthy. John Churchman Smith, Media, Pa., for Robert F. Goddu. MEMORANDUM OPINION SHAPIRO, District Judge. *1 By Order of October 16, 1990, this court granted defendants' motion for a stay of the court's order of September 12, 1990. The court gave no reasons for its order of October 16 at the time it was issued because, based on newspaper accounts, the court believed that a prompt order was important to the parties. (See newspaper article attached as Exhibit A). The timing prevented any explanation of the court's action, which now follows, together with an amended orderJTl On February 2, 1990, a jury awarded plaintiff $40,000 in compensatory and punitive damages. By order of September 12, 1990, the court denied defendants' motion for judgment notwithstanding the verdict or for a new trial. Plaintiff moved for equitable relief in the form of reinstatement and

attorney's fees. The court awarded plaintiff attorney's fees of $50,213.38 and costs of $5,753.82 ($500 to be reimbursed to plaintiff), and denied equitable relief of reinstatement but did impose civil fines on individual defendants. See Memorandum and Order, September 12, 1990. All defendants have filed notices of appeal. Defendants also have moved for a stay of the September 12, 1990 order. Under Rule 62(d) of the Fed.R.Civ.P., an appellant may obtain a stay by the posting of a supersedeas bond. Defendants seek to avoid the bond requirement. Defendant Borough of Kennett Square, as a municipality, need not post bond. Under 42 Pa.C.S.A. § 4303, a judgment upon a jury verdict becomes a lien upon the property of a judgment debtor. Under Rule 1736(b) of the Pa.R.A.P., an appeal by a municipality from a money judgment in a state court acts as an automatic supersedeas, and under Rule l736(a)(2), such a supersedeas does not require a bond. Rule 62(f) of the Fed.R.Civ.P. provides that in any state in which a judgment is a lien upon the property of the judgment debtor, and in which the debtor is entitled to a stay of execution, the debtor also is entitled to be treated as if plaintiffs action had been brought in state court. Therefore, the Borough of Kennett Square need not post security to obtain a stay of this court's order of September 12, 1990. Albert J. McCarthy, James McCarthy and Robert F. Goddu, the individual defendants, stand in a different posture. Rule 1736(a)(2) of the Pa.R.A.P. applies as well to government officers acting in their official capacity. The july awarded the plaintiff punitive damages in the amount of $15,000; $6,000 each against Albert J. McCarthy and James McCarthy and $3,000 against Mayor Goddu, each in their individual, not official, capacity.2 The Borough of Kennett Square has made no

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EXHIBIT

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Case 1:04-cv-01067-MSK-CBS
Not Reported in F.Supp.

Document 221-5

Filed 01/12/2007

Page 2 of 3 Page 3 of4
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Not Reported in F.Supp., 1990 WL 165940 (E.D.Pa.) (Cite as: Not Reported in F.Supp.) representation that it will indemnify the individual defendants. Generally, municipalities indemnify their officers under 42 Pa.C.S.A. § 8548, but an exception exists for willful misconduct. See 42 Pa.C.S.A. § 8550. It is not clear that defendants will succeed in obtaining indemnification. Certainly, the uncertain prospect of such indemnification does not suggest that defendants should be exonerated from the usual bonding requirement to obtain a supersedeas; Fed.R.Civ.P. 62(d). *2 An appropriate amended order follows. AMENDED ORDER AND NOW, this 22d day of October, 1990, it is ORDERED that: I. This court's order of October 16, 1990 is VACATED. 2. Defendant's Motion for a Stay of the Court's order, entered September 12, 1990, denying defendant's Motion for Judgment NOV and for New Trial and directing payment of civil fines, judgment and plaintiff's attorneys' fees and costs is GRANTED in part and DENIED in part, as follows: A. The collection of said judgment, fines, fees and costs is stayed during the pendency of the appeal of defendant, Borough of Kennett Square; it shall not be required to post bond or security as a prerequisite to the entry or continuance of this stay order; B. The collection of said judgment, fines, fees and costs is not stayed during the pendency of the appeal of defendants Albert J. McCarthy, James McCarthy, and Robert F. Goddu unless and until said defendants jointly post a bond or security in the amount of one hundred thousand dollars ($100,000) in a form approved by the Clerk of Court. EXHIBIT A © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Case 1:04-cv-01067-MSK-CBS
Not Reported in F.Supp.

Document 221-5

Filed 01/12/2007

Page 3 of 3 Page 4 of 4
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Not Reported in F.Supp., 1990 WL 165940 (RD.Pa.) (Cite as: Not Reported in F.Supp.)

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000* more thisi OB. or the sqote Polio. D.pcrteoaot in operating with van 000 of cootrioted aeleOlec nod .ddltl000t $2flZfBe Am legal taU3 By Wools nkJ1im n-eisa tee* .lant 01 U psmpwtof the baroogh's On- offlaco shoot told for lbs flest oonepieiog wIth other, ofltctnl to McCtby end other towog4 c Whie Albeli A, McCarthy n hodget. And 00 Iho legal belles on- time to eIght semen residoote wIll fir, no ollkrr without proper caner, clAn and for Mofionalt Two other loonIer b.ghemgi n.gcs4 Bennett Sqaars pollee thief en.. enp.e.oaold nllelb, oat get tb borooghe bolk-ercalo MvCaelhy declIned to be interpending In federal in Febt000y ISo., be blind eb090 bc Jowl, 0.410000 far thin on. plnktep nervica OhIo 1.11. vIewed. been toilS two otlicen .1111 ow the b.ckgr000d of 1(000011 Sc fir, only one onCe hem gone to And whipping his levee-wan department sqaenalle aeflottolty In n-Other. problems I.. tale oldoa000d telL. In Fnhrtvary. UI DIstrict lodge Kenoeft Sqosroare into shape otter yo.nofdl.orfanioa- CheetoeCoonty reneeled that Intelg, Aqoaee in lawsuit. flIed I. lion anol pane moeslo th. borough had poiSed Ito fleet deft- within McC.rthy'o deportment. Norma Shapiro awarded $40.t00 to 00000ecto 1110 one on awbitloos pl.n for r. cIt to 00* than two decadan At l's. cement cod th000 former boater pats-timer Timothy Sooe Mc- Conoty Common POe.. Canet form. AmbItloteS - end ooprn.lrn yeeCeeod, Ohs tloortf.lI w.$127A1e. 1(1.0.05341000 patina ofllcee, 11ev, Dneald, who bed coeed McCarthy The heronglr.logalenlcnglga* Forced to d.fgnd McCarthy In. And with lb. potentIal that rIbS tfIedchOI-rlghteenlt. .gainat MoCS,' of fining hIm otter toe began I000stl, doot slap thee. spate of lotecoita flied by ble own noseS 00015 00010 produce en neon thy ned othe0 officIals for alleged salIne floe ohiaFa brother For .1105- Contending its h.oeeer. sri e won. the borough of Keneae Sqoorn largee defIcIt for thIn pier, tnof1015ft niotetlee. that Inctodo fabrIcating edlydo.plngdlrt and dabrla on ho,- i.tg 00 p0)105 lbs teb. the bee-gash loin. floanotat qn,gmirn Legal lean offlolale coo cottlng hacK Then-oat- en .11mW. P.On-Ofl.I ftt ondool- 000)1 property. tIled two 1.1000110 in July tIne I(05411E1"1 WUAREoo nose, coo. nod dcm.g.m no for hare 10emg pr.geo.. b.c been maclb Its hag iMeI ...roh... cheeting 0111- In thee cm.. thn borough paid sO

Legal battles straining Kennett Square budget

As deficit grows, Kennett Square faces more costs m legal battles

k4f*glT SQUAlL flu.. i-B onnenal. lion lent nIght wIth 00100gb SolIdUC rleolt of the p00111000 tabOo torlobn Haloed todlscno,anepp.cL bosh PivoeOyI500la Nctloelel Mutual Cawelty lujominnac. nlHceri.hoeg bY Pettooyteeni. Ptctiooel cod lotrr- "Moot of the people that 10001010 end Intornoeloeal Sneplna 11n.. In. nelloosI. geooine nootreversy en- *0001 see this reunIted once nod for eneanoe Cm of Chicago Iota halve.., theet." Intreotatlonal'e alt," tiobeete sold before the mertlnfi 'Ire very lr00100tlog, Were bor0000 to 00001 dOnu0000lo tIled to W.ot onSet flltois elate. Chailee. lolarnationni ooetenda it In the Oo.ceftoo1( lb. borough I, a rock and, herd plan. It we decide !ham no obtlgel100 10 pap or Mm- byteS fn now by coIling Some erev- to move on with ooe liven and not bore. the b0100gbl Ion- the roefa loan cod bonn-leg op to 1140000 appeal then lee have to esuOlce our leon-ed." fuelled, thea. beer are the loom Ifs sewer and water fonda. In legal 1000 sod el01 the ether monies eaepoocibllity of Peeotayteeois N. the oprtoti lb bald Ott bIting Ito, two that Were omen-dod tour. McDonald." ttousI, whloh Olin ha. declined to foIl-tIme ofllorre, earing ebeot And Other reeen000 see dectinlog. pay that $44,000, end pootponed 045000 in Borough M.nager l)ong Margnriet In its filing lnfer000Ionet cited pot- road Iospreoet000ta until 1901, mid thaI the borough woold collect lop prori.t000 that prohIbIt pay- And 00101010 hoc. pet to docile bebwoeo 040.000 nod $50500 low to o0000I for ecIlone that. emong other nhatherfocppral Ihe Mcl)ooaid osSr porklng teeS end earned income 11110gb slew feele telilfol vIolatIon to the Third U.S. Clrcnit Conet of tao.. thou otllcialo hod onproted of etanite or ordlo.nce eommitled by Appesle to PhIladelphIa. Any eppoci when they prepared the 1090 bndget. 'We ocetcinly ore going to try to ye with lhr hoowleelge or conoentol cooht bring more legal eats, Bor000h Cooeoell Prnnidcnt Kan- provide the same sorvi000 wifhont an losorrd." fotetontloont alan Cold tho dlepnte 00th Itobarle mId the Boroogh Coon- tax i0000see.' sold Urrgoetet. "hot

FNI. The court vacates its order of October 16, 1990. The court inadvertently included as named defendants several individuals in whose favor the court had entered a directed verdict at the close of the plaintiffs case. Also, the amount of the security was inadvertently calculated on attorneys fees only. FN2. In awarding punitive damages, the jury answered the following special interrogatory In what amount, if any, has plaintiff Timothy McDonald proved by a

preponderance of the evidence that the individual defendants acted maliciously or with callous indifference to his constitutional rights so that punitive damages should be awarded?
E.D.Pa., 1990. McDonald v. McCarthy Not Reported in F.Supp., 1990 WL 165940 (E.D.Pa.)

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