Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01469-SLR Document 70 Filed 12/21/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Stanford L. Burris :
Plaintiff,
: Civ. N0. O4-l469—SLR
v. :
Richards Paving, Inc.
Defendant
DEFENDANT RICHARDS PAVING, INC.,’S
RESPONSE TO PLAINTIFF’S MOTION FOR SETTING OF BOND
Defendant Richards Paving, lnc., (hereafter referred to as "Richards Paving")
hereby moves this Court to enter an order denying plaintiffs motion for setting of bond.
1. Plaintiff is correct in that there is not a lot of case law on this issue.
2. Under Hurley v. Atlantic City Police Department, the predominant view in the
Third Circuit is that Fed.R.Civ.P. 62(d) permits the district court judge to exercise
her own discretion to grant a stay without a bond or with a modified bond. 944
F. Supp. 371, 374, (D.N.J. 1996).
3. Furthermore, several factors can be used to determine whether the bond should be
waived. gl. Among those considerations is the degree of confidence that the
district court has in the availability of the funds to pay the judgment and whether
the defendant’s ability to pay the judgment is so plain that the cost of a bond
would be a waste of money. gl.
4. hr the present case, the defendant has been in business for over 30 years and has
continued to grow since its inception in 1973. As evident by the information on
its website, Richards Paving currently performs paving work in the states of

Case 1:04-cv-01469-SLR Document 70 Filed 12/21/2006 Page 2 of 3
Delaware, Maryland and Pennsylvania with no signs of slowing down. Based on
Richards Paving’s substantial business history, its ability to pay the judgment
should be “so plain” to the Court, that the imposition of a bond would be a waste
of money.
5. The Court should not impose a bond pending the outcome of defendant’s renewed
motion for judgment as a matter of law. Pursuant to Fed.R.Civ.P. 62(f), in any
state where the judgment is a lien on the property, and the judgment debtor is
entitled to a stay of execution, then a judgment debtor is entitled to the same stay
of execution that it would have had in the state court.
6. Pursuant to 10 Del.C. §§35 and 47, a judgment in Delaware could act as a lien on
defendant’s property. Under Rule 62(b) of the Delaware Superior Court Rules,
there is no mention of a bond requirement in order for the Court to stay the
execution of the judgment pending the motion for directed verdict. Pursuant to
Fed.R.Civ.P 62(f), Richards Paving should be entitled to the same stay of
execution that it would have under DE laws. In other words no bond should be
imposed while the Court reviews defendant’s motion for renewed judgment as a
matter of law.
7. As the Court is keenly aware, the bond only becomes an issue, if the defendant
appeals the final judgment. While the defendant has not made a final
determination of whether it will exercise its appeal rights, it appears that plaintiff
is using intimidation tactics to discourage Richards from appealing by requesting
the Court impose an unnecessary $160,000 bond. Plaintiffs only contention is a
bald assertion that Plaintiff, "does face the very real potential of an inability to

Case 1:04-cv-01469-SLR Document 70 Filed 12/21/2006 Page 3 of 3
collect the judgment." However, he offers no proof or evidence to support that
assertion.
8. Finally, plaintiffs motion to set a bond is premature since no appeal has been
filed. Likewise, the Court’s decision on defendant’s motion for remittitur and
plaintiffs motion for attorney’s fees will impact any bond amount the Court
imposes since, the judgment and fees may be significantly reduced.
WHEREFORE, for the reasons stated above, Richards Paving respectfully requests
that this Court deny plaintiff s motion to set bond.
ELZUFON AUSTIN REARDON
TARLOV & MONDELL, P.A.
Matthew P. Donelson, ID #4243
300 Delaware Avenue, Suite 1700
P.O. Box 1630
Wilmington, DE 19899-1630
(302) 428-3181
Attorney for Defendant
Dated: December 21, 2006 Richards Paving, Inc.