Free Motion to Stay - District Court of Colorado - Colorado

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

Document 221-3

Filed 01/12/2007

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Westlaw
Not Reported in F.Supp. Not Reported in F.Supp., 1991 WL 277629 (N. DII!.) (Cite as: Not Reported in F.Supp.) Page 1

Smith v. Village of MaywoodN.D. 111., 1991 Only the Westlaw citation is currently available. United States District Court, N.D. Illinois, Eastern Division. Frank SMITH, Jr. Plaintiff,
V.

VILLAGE OF MAYWOOD, a Municipal Corporation, and Robert Grace Defendant. No. 84 2269. Dec.20, 1991. MEMORANDUM OPINION AND ORDER PARSONS, District Judge. *1 The Court granted judgment in favor of the plaintiff, Frank Smith, and awarded an amount certain including attorney fees and costs. The defendant, Village of Maywood, has appealed the Court's judgment and now moves the Court to stay the execution of that judgment without the posting of a supersedeas bond pending the appeal taken in this case pursuant to Rules 62(0 and 62(d) of the Federal Rules of Civil Procedure. Smith has opposed Maywood's petition for a stay, citing Dillon v. City of Chicago, 866 F.2d 902 (7th Cir.1989). The Dillon Court enumerated five factors for a district court to consider in its decision on whether or not to require a bond:
"(1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment ...; (4) whether 'the defendant's ability to pay the bond is so plain that the cost of a bond would be a waste of money' ..., and (5) whether the defendant is in such a precarious financial situation that the requirement to post a bond would place other creditors of the defendant in an insecure position."

Id. at 905. (citations omitted). Smith asserts that Maywood's alleged precarious position FNI supports its position that the City should be required to post a bond. However, if it is true as Smith asserts that Maywood is in such a precarious financial position, then the fifth factor delineated by the Dillon court would support Maywood's position that a bond should not be required. Moreover, the third Dillon factor also weighs in favor of not requiring the filing of a bond as the Court is confidant that Maywood can satisfy a judgment for which they may ultimately be held to pay. This is because Maywood has multiple sources of revenue to pay a judgment: general taxing authority; statutory authority to issue revenue specific bonds; and statutory authority to levy taxes for the specific purpose of paying a judgment. Under these conditions, Maywood is entitled to a stay of the execution of the judgment without requiring the posting of a supersedeas bond under Rule 62(d). In addition to the above, however, Dillon deals only with Rule 62(d). Maywood asserts that it is also entitled to a stay of the judgment under Rule 62(f). Under that rule, Maywood would be entitled to a stay if: (1) the judgment would result in a lien on the property of the judgment debtor, and (2) the judgment debtor is entitled to a stay under state law. Hoban v. Washington Metropolitan Area Transit Authority, 841 F.2d 1157, 1158 (D.C.Cir.1988). Both facets of the rule are satisfied here. Pursuant to § 12-502 of the Illinois Code of Civil Procedure, Ill.Rev.Stat. ch. 110, ¶ 12-502 (1991), the judgment entered in favor of Smith would be a lien upon Maywood's real estate once Smith files a certified copy of the judgment in the office of the Recorder of Cook County. Also, pursuant to Illinois Supreme Court Rule 305(g), Ill.Rev.Stat. ch. 1 bA, ¶ 305(g) (1991) a municipality is entitled to a stay without requiring the posting of a bond. Under these circumstances, Maywood is

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EXHIBIT

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

Document 221-3

Filed 01/12/2007

Page 2 of 2 Page 3 of 3
Page 2

Not Reported in F.Supp., 1991 WL 277629 (N.D.Ill.) (Cite as: Not Reported in F.Supp.) entitled to a stay of the execution of the judgment pending appeal pursuant to Rule 62(1). ACCORDINGLY: *2 The Village of Maywood's Petition to Stay the Execution of Judgment pending appeal is granted. IT IS SO ORDERED. FN1. To support its assertion that the City of Maywood is in a precarious financial condition, Smith attached to its memorandum in opposition a newspaper article dated August 28, 1991 from the Maywood Herald. The article, however, is hearsay and cannot properly be considered by the Court. N.D.Il1., 1991. Smith v. Village of Maywood Not Reported in F.Supp., 1991 WL 277629 (N.D.Ill.) END OF DOCUMENT

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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