Free Motion to Stay - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

MOTION FOR STAY OF EXECUTION OF THE JUDGMENT

Pursuant to Fed. R. CIV. P. 62(b) and (f), Defendant, City and County of Denver ("Denver"), hereby moves for a stay of execution of the judgment entered by the Court in this case. In support of this Motion, Denver states the following: D.C.COLO.LCivR 7.1 CERTIFICATION In accordance with D.C.COLO.LCivR 7.1, between January 8, 2007, and January 10, 2007, counsel for Denver communicated several times with counsel for Plaintiff, William R. Cadorna ("Cadorna"), about whether Cadorna would consent to this Motion. Although Cadorna's counsel indicated that he would notify Denver of Cadorna's position no later than noon on January 12, 2007, as of the time of the filing of this Motion, counsel for Denver had not received any such notification. A copy of the correspondence between the parties' counsel is attached to this Motion as Exhibit A.

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MOTION 1. On November 28, 2006, the Court entered judgment in this case. Ten

days later, on December 11, 2006, Denver filed three post-judgment motions: (1) A motion for a new trial pursuant to Fed. R. Civ. P. 59(a); (2) a motion to alter or amend the judgment, pursuant to Fed. R. Civ. P. 59(e); and (3) a motion for judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(b). 2. On January 4, 2007, the Court issued a briefing schedule on the post-

judgment motions. The schedule requires Cadorna to file any responses to the motions on or before January 31, 2007, and Denver to file any replies on or before February 23, 2007. STAY OF EXECUTION OF JUDGMENT 3. Denver now moves pursuant to Fed. R. Civ. P. 62(b) for a stay of

execution of the judgment until the post-judgment motions are resolved. Rule 62(b) provides in pertinent part: In its discretion and on such conditions for the security of an adverse party 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 a judgment made pursuant to Rule 59 . . . or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50 . . . . 4. Here, a stay of execution of the judgment is appropriate. First, Denver

has advanced substantive post-judgment motions challenging the propriety of the judgment and its amount. As a result, if one or more post-judgment motions are

granted, the amount of the judgment will either be reduced substantially or eliminated completely. 2

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5.

Second, because of the large amount of the judgment (and because

Cadorna is not, by all appearances, a wealthy individual), if he is permitted to execute on the judgment, and thereafter Denver prevails on its post-judgment motions, it may not be able to recover amounts paid to Cadorna. 6. Third, should the post-judgment motions be denied, Denver may file an

appeal of the judgment. Under Fed. R. Civ. P. 62(d) and (f), Denver has an absolute right to a stay pending appeal. The Court should grant Denver a pre-appeal stay so that Denver is not deprived of its right to stay execution of the judgment pending any appeal. SUPERSEDEAS BOND 7. Rule 62(b) authorizes the Court to condition a stay on the posting of

"security" (such as a supersedeas bond) for the adverse party. Rule 62(f), however, provides: In any state in which a judgment is a lien upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled . . . to such a stay as would be accorded the judgment debtor had the action been maintained in the courts of that state. Fed. R. Civ. 62(f). 8. Under Rule 62(f), therefore, a party is entitled to a stay on the same terms

and conditions as it would be entitled under state law if (a) the judgment would result in a lien on property of the judgment debtor, and (b) the judgment debtor is entitled to a stay under state law. Smith v. Village of Maywood, No. 84 2269, 1991 WL 277629, at *1 (N.D. Ill. Dec. 20, 1991) (Ex. B).

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9.

Here, both requirements are met. First, the judgment entered by the Court

constitutes a lien upon the property of Denver. A judgment is a lien so long as no "steps beyond mere ministerial acts must be taken to transform the judgment into a lien." Cote Corp. v. Thom's Transp. Co., No. Civ. 99-169-P, 2000 WL 1224757 (D. Me. Aug. 24, 2000) (Ex. C). In Cote Corp., for example, the court ruled that a judgment was a lien, and thus Rule 62(f) applied, because the judgment creditor had only to take the ministerial step of "fil[ing] an attested copy of the judgment in the registry of deeds or the proper place pursuant to the UCC . . . in order to attach the property of the judgment debtor." Id. at *1. Similarly, in Village of Maywood, the court ruled that a judgment was a lien, and thus Rule 62(f) was satisfied, because "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." Village of Maywood, 1991 WL 277629, at *1 (Ex. B). 9. The courts' analyses in Cote Corp. and Village of Maywood demonstrate

that the judgment entered by the Court here is a lien on Denver's property. To create a lien on personal property in Colorado, a judgment creditor does not even have to take the step of filing anything. In Colorado, the ministerial acts by a judgment creditor of obtaining a writ of execution from the clerk of the court and delivering it to the sheriff of the county in which the debtor's personal property is located "creates a lien, known as the execution lien, on all personal property, goods, and chattels of the judgment debtor located in the sheriff's county." 1C Cathy Stricklin Krendl, Colorado Methods of Practice

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§ 40.2 (2006). Thus, Colorado requires even less in the way of ministerial acts to create a lien than Illinois and Maine require. 10. The second requirement of Rule 62(f) ­ that Denver be entitled to a stay under state law without posting a bond ­ is also met. C.R.S. §30-35-501 provides: "In all actions, suits, and proceedings in any court in this state in which a county of this state shall be a party, such county may take an appeal or writ of certiorari, as provided by law or rule of court, without giving bond." (Emphasis added). 11. Likewise, Colo. R. Civ. P. 62(e) allows for Denver to be accorded a stay of

execution on the judgment against it without the need for Denver to post a bond. That Rule states: (e) Stay in Favor of the State of Colorado or Municipalities Thereof. When an appeal is taken by the State of Colorado, or by any county or municipal corporation of this state, or any officer or agency thereof acting in official capacity and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant unless otherwise ordered by the court. Colo. R. Civ. P. 62(e) (emphasis in original). 12. Other courts that have addressed this issue have held that under Rule

62(f), a stay of execution of a judgment may be granted to a municipality governmental entity without the need for a bond. See, e.g., McDonald v. McCarthy, No. 89-0319, 1990 WL 165940, at *1 (E.D. Pa. Oct. 22, 1990) (Ex. D); Hurley v. Atlantic City Police Dept., 944 F. Supp. 371, 374-375, 378 (D.N.J. 1996). Accordingly, Denver requests that execution of the judgment be stayed under Fed. R. CIV. P. 62(f) without the requirement that Denver post a bond.

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13.

Further, no practical reason exists for requiring Denver to post a bond to

stay execution of the judgment. There is no doubt as to Denver's ability to pay the amount of the judgment. 14. Still further, no harm will accrue to Cadorna. If the Court stays the

judgment during the pendancy of Denver's post-judgment motions without requiring Denver to post a bond, Denver agrees that it will pay Cadorna, from January 1, 2007, to the date on which the Court rules on the post-judgment hearings, the difference between the amount he is receiving from his pension payments and the amount he would be receiving if he were reinstated.1 15. Even further, Denver represents to this Court that if a stay is granted

without requiring Denver to post a bond, Denver will pay to Cadorna after all post-trial judgment motions, subsequent trials or proceedings, and appeals are completed and the mandate is issued, without the need for Cadorna to execute on a judgment, the amount, if any, that Denver is determined to owe to Cadorna. 16. Thus, a stay without requiring Denver to expend the resources necessary

to purchase a superfluous bond will not harm Cadorna in any way. To the contrary, it will benefit Cadorna. 17. Although Denver is requesting a stay of execution on the judgment without

the need to post a bond, if the Court believes a bond should be posted, Denver moves

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Thus, if the Court grants a stay without requiring Denver to post a bond, Denver will pay Mr. Cadorna $2,616.64 per month (less applicable withholdings), so that the amount he receives from the combination of his pension payments and Denver's payments (less applicable withholdings on Denver's payments) equals $5,304.00 per month, the amount of his salary. 6

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for the Court to issue an order (a) specifying the amount of the bond, and (b) temporarily staying execution of the judgment for 10 days from the date of the Court's order to allow Denver to post a bond in the amount specified by the Court. The amount of the bond should be equal to the judgment, including the amount of salary Mr. Cadorna would be receiving if his reinstatement were not stayed. See Strong v.

Laubach, 443 F.3d 1297, 1299 (10th Cir. 2006) ("The bond . . . is usually for the full amount of the judgment, though the district court has discretion in setting the amount."). 18. For the convenience of the Court, two proposed orders, each granting one

of the two alternative requests, are provided with this Motion. ACCORDINGLY, for the reasons set forth above, Denver requests the Court to stay execution of the judgment until the Court has ruled on the post-judgment motions filed by Denver without requiring it to post a bond. Alternatively, Denver requests the Court to specify the amount of bond that must be posted by Denver, and to stay temporarily execution of the judgment for 10 days to allow Denver to post a bond in the amount specified by the Court. Respectfully submitted this 12th day of January, 2007. BROWNSTEIN HYATT FARBER SCHECK, P.C. By: _s/ Richard P. Barkley_________ Richard P. Barkley Hamid M. Khan 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202-4437 (303) 223-1100

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s/ Christopher M.A. Lujan____________ CHRISTOPHER M.A. LUJAN Assistant City Attorney Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720.913.3100 Facsimile: 720.913.3190 E-mail: [email protected] ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on January 12, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Larry Trujillo Department of Safety Denver Fire Department 745 W. Colfax Denver, CO 80204 BROWNSTEIN HYATT FARBER SCHECK, P.C. By: _s/ Richard P. Barkley_________ Richard P. Barkley Hamid M. Khan 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202-4437 (303) 223-1100

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