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Robert J. Zebrowski, et al. v. Evonik Degussa Corporation

January 23, 2013

ROBERT J. ZEBROWSKI, ET AL.
v.
EVONIK DEGUSSA CORPORATION ADMINISTRATIVE COMMITTEE, ET AL.



The opinion of the court was delivered by: Ludwig, J.

MEMORANDUM

This is an ERISA action, 29 U.S.C. §§ 1001-1461. Jurisdiction is ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1); and federal question, 28 U.S.C. § 1331.

Defendants move for reconsideration (doc. no. 74) of the January 15, 2013 order (doc. no. 71), which dismissed a proposed supersedeas bond and denied the application for a stay of proceedings to enforce the judgment of December 4, 2012 pending appeal. Fed. R. Civ. P. 62(d).*fn1

The bond was deemed unsatisfactory in form and amount. See plaintiffs' answer (doc. no. 70) to defendants' application for approval of bond (doc. no. 69). Reconsideration will be denied. Defendants will be granted until Tuesday, February 5, 2013 within which to submit a supersedeas bond compliant with this memorandum.

On September 11, 2012, summary judgment on Counts One, Two, and Three of the complaint was entered against defendants and in favor of plaintiffs -- Robert J. Zebrowski, Robert

A. Woodruff, and Gregory Bialy, former executives of RohMax USA, Inc. Order and mem., Sept. 10, 2012 (doc. nos. 48, 49). Defendant Administrative Committee was found to have wrongfully denied payment of plaintiffs' vested retirement benefits in violation of its duties as administrator and fiduciary of defendants Evonik Degussa Corporation Retirement Plan (pension plan) and Evonik Rohmax USA, Inc. Non-Qualified Pension Plan (top hat plan). Id. Count Four of the complaint was dismissed as moot. Summary judgment was also entered in favor of plaintiff Zebrowski and against defendant Committee on its counterclaim that a portion of his top hat benefits were overpaid and should be returned by him.*fn2 Id.

On December 4, 2012, it was also ruled that defendants are liable to plaintiffs for past due plan benefits and prejudgment interest. Amended order and judgment, ¶ 1(a), (b) (c) (doc. no. 66 at 1-2); see also Sept. 10, 2012 order and mem. (doc. nos. 48, 49). In addition, defendants were held liable for taxes resulting from payment of the award of benefits and prejudgment interest. Id. ¶ 1(d), (e) at 2-3. Further, plaintiffs were granted statutory attorney's fees of $249,205, together with costs and expenses of $46,609.08, subject to the terms of the parties' fee petition stipulation (doc. no. 63). Id. ¶ 1(f) at 2; 29 U.S.C. § 1132(g)(1).

On January 2, 2013, defendants filed a notice of appeal of the December 4, 2012 judgment to our Court of Appeals (doc. no. 67). On January 3, 2013, defendants moved under Fed. R. Civ. P. 62(d) for approval of a supersedeas bond and a stay of execution on the judgment (doc. no. 69). On January 8, 2013, plaintiffs answered the motion (doc. no. 70), and on January 17, 2013, defendants replied (doc. no. 73).

Recognized grounds for granting reconsideration are: "(1) an intervening change in the law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice." Cottrell v. Good Wheels, 458 Fed. App'x 98, 101 (3d Cir. 2012) (citing N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The scope of reconsideration is "extremely limited" and "[s]uch motions are not to be used as an opportunity to relitigate the case." Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). Nor are they "a vehicle for registering disagreement with the court's initial decision, for rearguing matters already addressed by the court, or for raising arguments that could have been raised before but were not." Bostic v. AT&T of the V.I., 312 F. Supp. 2d 731, 733-34 (D.V.I. 2004).

Here, defendants' motion for reconsideration does not fit into any of the judicially recognized and approved categories or demonstrate that the court's rulings were unreasonable or create injustice.

A party on appeal of a money judgment may suspend the district court's enforcement jurisdiction by posting a supersedeas bond. See Fed. R. Civ. P. 62(d); Peacock v. Thomas, 516 U.S. 349, 359 & n.8 (1996). "The Rule plainly dictates that in the ordinary case execution on a judgment for money should not be stayed unless the party that prevailed in the district court is secured from loss." United States v. Kurtz, 528 F. Supp. 1113, 1114 (E.D. Pa. 1981) (Becker, J., later, C.J., 3d Cir. Court of Appeals, citing a predecessor of Rule 62(d) because "its standard is still vital"), aff'd, 688 F.2d 827 (3d Cir.), cert. denied, 459 U.S. 991 (1982). The stay is not effective unless, on the motion of the appellant, the court approves the bond. Fed. R. Civ. P. 62(d); see also Fed. R. App. P. 8(a).

Rule 62(d) does not articulate either the form or amount of the supersedeas bond. However, the former rule required that the amount "should normally be fixed to satisfy the judgment in full, plus interest, costs, and damages for delay." Kurtz, 528 F. Supp. at 1114 (citing prior Rule 62(d)).

Plaintiffs point to a number of substantial defects in the bond. Defendants contend that the objections either misapprehend "the nature of a supersedeas bond" or "would unduly complicate the submission of the bond" as contemplated by Rule 62(d). Defs. reply br. (doc. no. 73 at 2, 7). Defendants are incorrect -- the bond, as presented, does not provide the requisite security for the order and judgment.

The proposed bond names "Evonik Degussa Corporation" -- the sponsor*fn3 of the pension plan and top hat plan -- as the sole "Principal" obligor. Bond, defs. mot. ΒΆ 5, Ex. A (doc. nos. 69, 69-2 at 2). Its terms as stated may be fairly read to mean that "Principals" are the parties who are taking the appeal. However, the corporation, Evonik, was not found liable. It was not a party in the district court proceeding and is not a party in the appeal. See Notice of Appeal (doc. no. 67). Also, the bond does not list the defendants -- the Committee, the pension plan, or the top hat plan -- who are parties bound by the judgment and taking the appeal. Id. In addition, the bond does not name plaintiffs as obligees. Id. Instead, it lists "United ...


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