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Minchala v. Terex Corp.


September 19, 2006


The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge


Currently pending before this Court is an application by defendant Cedarapids (" defendant" or " Cedarapids") pursuant to Local Civil Rule 54.2 of the United States District Courts for the Southern and Eastern Districts of New York (" Rule 54.2"), for an order directing plaintiff Segundo Minchala (" plaintiff" or " Minchala") to provide security for costs. See 11/10/05 Motion for Bill of Costs (" Def. Mot."). For the reasons that follow, defendant' s motion is denied.

Under Rule 54.2, this Court has the discretion whether or not to require a party to file an original bond for costs. Local Civ. R. 54.2.*fn1 Factors that courts consider in determining whether a bond should issue include: " 1) the party' s ability to pay; 2) whether the party is present within the United States; 3) the party' s compliance with past court orders; 4) the extent and scope of discovery; 5) the legal costs expected to be incurred; and, 6) the merit of the underlying claims." Kensington Int' l Ltd. v. Republic of Congo, No. 03 Civ. 4578(LAP), 2005 WL 646086, at *1 (S.D.N.Y. Mar. 21, 2005). However, the Second Circuit has cautioned that " the imposition of a security requirement may not be used as a means to dismiss suits of questionable merit filed by plaintiffs with few resources." Selletti v. Carey, 173 F.3d 104, 112 (2d Cir. 1999).*fn2

Having weighed the various factors, this Court declines to require the posting of a bond in this personal injury action. First, apparently recognizing that plaintiff is a person of extremely limited financial means, defendant does not contend that a bond is needed to prevent plaintiff from dissipating or moving his assets before the conclusion of this case. See id. (" [T]he primary purpose of the bond requirement is to insure that whatever assets a party does possess will not have been dissipated or otherwise have become unreachable by the time such costs actually are awarded.").*fn3 Nor does defendant allege that plaintiff is not available in the United States. Although defendant argues that it would be entitled to " substantial" costs if granted summary judgment, Def. Mot. at 2, defendant overlooks the fact that, in contrast to the cases on which defendant relies, defendant will not be entitled to recover attorney' s fees in the event it prevails.*fn4 Accordingly, these factors weigh against defendant' s request.

Defendant further submits that " plaintiff' s claim is questionable on the merits." Def. Mot. at 2. Currently pending before Judge Gershon is a motion for summary judgment, and this Court is not inclined to " pre-judge" the merits of that motion.*fn5 Suffice it to say, however, that whatever the outcome of that motion, defendant' s challenge to plaintiff' s expert' s opinions does not render Minchala' s claims so baseless as to warrant an order requiring security for costs. See Zen Music, Inc. v. CVS Corp., No. 98 CIV. 4246(DLC), 1999 WL 225530, at *2 (S.D.N.Y. Apr. 19, 1999) (" Although the defendants may be entitled to summary judgment, the record as presented on this motion indicates that [the non-moving party' s] case is not sufficiently baseless to require it to post a bond."). Moreover, the fact that plaintiff' s counsel caused delays in discovery does not suffice to support the issuance of an order requiring a bond, where the other factors discussed above weigh against defendant' s motion.*fn6

For the foregoing reasons, defendant' s Rule 54.2 application for an order directing plaintiff to provide security for costs is denied.



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