IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
September 30, 2009
MARTIK BROTHERS, INC., PLAINTIFF
KIEBLER SLIPPERY ROCK, LLC, DEFENDANT
THE HUNTINGTON NATIONAL BANK , GARNISHEE
The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM IN SUPPORT OF ORDER OF COURT ENTERED IN OPEN COURT ON SEPTEMBER 28, 2009 RE: JOINT MOTION TO STAY (DOC. NO. 60)
On August 27, 2009, this Court entered an Order (Doc. No. 53) denying The Huntington National Bank's ("HNB's") Motion to Stay Execution of the Garnishment Action and to Determine that HNB has Priority in the Deposit Accounts, which HNB and Defendant Kiebler Slippery Rock, LLC ("Kiebler") have timely appealed. Joint Notice of Appeal (Doc. No. 59). Defendant Kiebler and garnishee HNB*fn1 have filed a Joint Motion for Stay Pending Appeal (Doc. No. 60) pursuant to Fed.R.Civ.P. 62(d), which requests this Court to stay execution of its final Order of August 27, 2009, and to waive the posting of security required by Rule 62(d). Subject to certain exceptions not applicable to this case, Rule 62(d) provides as follows:
(d) Stay with Bond on Appeal. If an appeal is taken, the appellant may obtain a stay by supersedeas bond . . . . The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond.
Following consideration of the Joint Motion for Stay, the response by plaintiff Martik Brothers, Inc., ("Martik"), and the memoranda of law in support and in opposition, and after oral argument on September 28, 2009, this Court denied the Joint Motion for Stay on the record in open court, finding that HNB*fn2 had not met its burden of proving it was entitled to a stay without bond. (Because Rule 62(d) contemplates appellant's posting of a supersedeas bond in order to obtain a stay of execution on a money judgment pending appeal, the burden is on the appellant to demonstrate good and sufficient reasons for departure from the usual requirement of a full security supersedeas bond. See Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189 (5th Cir. 1979); Avirgan v. Hull, 125 F.R.D. 185 (S.D. Fla. 1989)).
As stated more fully on the record, and as supported by the deposition testimony of Mr. Chris Hulton,*fn3 Martik Response in Opposition to Joint Motion at ¶¶ 5-13, the Court finds that appellants - movants do not have a reasonable likelihood of success on the merits of their appeal,*fn4 have not shown that they will be irreparably harmed by execution of the monetary judgment, and have not demonstrated that substantial harm to other parties will occur or that the public interest would be best served by denying the stay. See Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir. 1991).
For the foregoing reasons, the Court has denied the Joint Motion to Stay. (Order docketed at ECF entry dated September 29, 2009).