Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HARRIS v. BUTLER

April 9, 1997

JOHN W. HARRIS, Plaintiff, against TIMOTHY BUTLER, WILLIAM MAYS, ROBERT RIVERA, and SALVATORE MINUTELLA, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 I. Introduction

 Plaintiff filed this § 1983 action pro se on September 4, 1991 against defendant Timothy Butler. On March 7, 1994, plaintiff filed an Amended Complaint in which he named defendants William Mays, Robert Rivera and Salvatore Minutella. As defendants Butler and Mays failed to plead or otherwise defend themselves as required by the Federal Rules of Civil Procedure, default judgments were entered against them on September 5, 1996. I denied defendants' motion to vacate the default judgments, and awarded plaintiff $ 40,000 in damages. See Harris v. Butler et al., 1997 U.S. Dist. LEXIS 1920, No. 91 Civ. 6352, 1997 WL 79823 (S.D.N.Y. Feb. 25, 1997) (the "February 25 Opinion and Order"). Plaintiff now moves for the award of attorney's fees pursuant to 42 U.S.C. § 1988, and defendants move pursuant to Rule 62(d) of the Federal Rules of Civil Procedure to stay the execution of the default judgments entered against them. For the reasons set forth below, plaintiff is granted leave to withdraw his motion without prejudice, and defendants' motion is denied.

 II. Plaintiff's Motion for Attorney's Fees

 On April 1, 1997, plaintiff requested leave to withdraw his motion for attorney's fees without prejudice. Defendants do not oppose this request. Because the withdrawal of plaintiff's motion will not prejudice any party, plaintiff's request to withdraw his motion is granted. Plaintiff may resubmit this motion if the judgment in his favor is affirmed.

 III. Defendants' Motion for Stay of Execution of Judgment

 A. Applicable Legal Standard

 Rule 62(d) states in pertinent part that "when an appeal is taken the appellant by giving a supersedeas bond may obtain a stay." It is commonly understood that "the purpose of a supersedeas bond is to preserve the status quo while protecting the non-appealing party's rights pending appeal." Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190-91 (5th Cir. 1979). See also Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1154 (2d Cir. 1986), rev'd on other grounds, 481 U.S. 1, 95 L. Ed. 2d 1, 107 S. Ct. 1519 (1987). In considering whether to order a stay of judgment pending appeal, courts in this district have typically considered:

 
(1) whether the petitioner is likely to prevail on the merits of his appeal; (2) whether, without a stay, the petitioner will be irreparably injured; (3) whether issuance of a stay will substantially harm other parties interested in the proceedings; (4) wherein lies the public interest.

 Morgan Guaranty Trust Company of New York v. Republic of Palau, 702 F. Supp. 60, 65 (S.D.N.Y. 1988) (citing McSurely v. McClellan, 225 U.S. App. D.C. 67, 697 F.2d 309, 317 (D.C. Cir. 1982), cert. denied, 474 U.S. 1005, 88 L. Ed. 2d 457, 106 S. Ct. 525 (1985)), vacated on other grounds, 924 F.2d 1237 (2d Cir. 1991). See also Frankel v. ICD Holdings S.A., 168 F.R.D. 19, 21 (S.D.N.Y. 1996); Federal Ins. Co. v. County of Westchester, 921 F. Supp. 1136, 1139 (S.D.N.Y. 1996) (citing Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987)).

 B. Analysis

 It is common practice to stay the execution of a judgment pending appeal pursuant to Rule 62(d) upon posting of a supersedeas bond. Such a stay would be granted here were defendants willing to post a bond in the full amount of the judgments against them. However, defendants request that a stay be granted, but state they are unable to post a supersedeas bond in any amount. See Affidavit of Timothy Butler ("Butler Aff."), dated March 11, 1997 at P 6; Affidavit of William Mays ("Mays Aff."), dated March 11, 1997 at P 7. Essentially, defendants ask that the Court relieve ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.