United States District Court, W.D. Pennsylvania
STEELWORKERS PENSION TRUST, by DANIEL A. BOSH, CHAIRMAN, Plaintiff,
THE RENCO GROUP, INC., et al., Defendants.
Patricia L. Dodge United States Magistrate Judge.
September 30, 2019, the Court issued a Memorandum and Order
(ECF No. 89) granting Plaintiff's motion for summary
judgment in part, and an order (ECF No. 90) entering judgment
in Plaintiff's favor in the amount of $17, 774, 771.00 in
interest, attorney's fees and costs. Both Plaintiff and
Defendants have taken appeals. (ECF Nos. 91 and 92).
Plaintiff's appeal is limited to the appropriate interest
rate to which it claims to be entitled; specifically, it
seeks the application of a higher interest rate than that
applied by the Court, which would result, if it is
successful, in an increase in the amount of the judgment in
its favor. Defendants have not, to date, sought to post a
bond with respect to the monetary judgment entered against
December 5, 2019, at Plaintiff's request, the Clerk of
Court issued a writ of execution (ECF 99) and appointed a
process server with respect to the execution (ECF No. 100).
Shortly thereafter, Defendants filed an Emergency Motion to
Stay Execution of the Judgment (ECF No. 101). The Court
subsequently entered an order (ECF No. 102) temporarily
staying execution of the judgment; this order was
subsequently modified after a conference with the
parties. Plaintiff opposes the stay sought in
Defendants' emergency motion (ECF No. 107).
contend that Plaintiff cannot execute on the judgment because
Plaintiff, the prevailing party, took an appeal to the Third
Circuit Court of Appeals. In support of their position, they
rely upon Valley Auth. v. Atlas Mach. & Iron Works,
Inc., 803 F.2d 794, 797 (4th Cir. 1986), in which the
Court of Appeals for the Fourth Circuit held that
“where the prevailing party in the lower court appeals
from court's judgment, the appeal suspends the execution
of the decree.” The Fourth Circuit cited as support for
its position a United States Supreme Court case decided in
1863. See Bronson v. La Crosse & Milwaukee R.R.
Co., 68 U.S. 405, 409-10 (1863).
Defendants acknowledge, however, there is a split of
authority on this issue. The majority of circuits and
district courts have rejected the holding in Tennessee
Valley except when the prevailing party is challenging
the underlying judgment itself. They hold that a party who
seeks on appeal merely to increase the amount of a judgment
is not precluded from executing on the judgment during the
pendency of the appeal. See Carter v. United States,
333 F.3d 791, 793 (7th Cir. 2003); Trustmark Ins. Co. v.
Gallucci, 193 F.3d 558, 559 (1st Cir. 1999); Jack
Frost Labs., Inc. v. Physicians & Nurses Mfg. Corp.,
1997 WL 306956, at *2 (Fed. Cir. Feb. 7, 1997); Enserch
Corp. v. Shand Morahan & Co., 918 F.2d 462, 464 (5th
Cir. 1990); United States ex rel. Gonter v. General
Dynamics Marine Sys. Div. Elec. Boat, 2006 WL 3783140,
at *2 (N.D. Ohio Dec. 21, 2006).
the Court of Appeals for the Third Circuit has not addressed
this issue, many district courts within the Circuit have
reached the same result. See Nat'l Sec. Sys., Inc. v.
Iola, 2011 WL 94194, at *1 (D.N.J. Jan. 11, 2011);
Fonda Group, Inc. v. Scott Paper Co., 954 F.Supp.
123, 124 (E.D. Pa. 1997). But see Sealover v. Carey
Canada, 806 F.Supp. 59, 61-62 (M.D. Pa. 1992) (following
62(b) of the Federal Rules of Civil Procedure provides that:
At any time after judgment is entered, a party may obtain a
stay by providing a bond or other security. The stay takes
effect when the court approves the bond or other security and
remains in effect for the time specified in the bond or other
Civ. P. 62(b). Notably, Rule 62 makes no distinction
regarding whether an appeal was taken by the prevailing or
losing party, or which party's appeal occurred first.
Rather, its language clearly and unequivocally states that if
a party seeks a stay at any time after a judgment is entered,
it may do so by providing a bond or other security. As the
Seventh Circuit Court of Appeals has observed: “[Rule
62] requires a bond as a condition of the stay of a money
judgment during an appeal. There are some automatic
exceptions … but an appeal by the victor is not among
them.” BASF Corp. v. Old World Trading Co.,
979 F.2d 615, 617 (7th Cir. 1992). See also
Morse/Diesel, Inc. v. Fidelity & Deposit Co. of
Md., 1996 WL 22794, at *2 (S.D.N.Y. Jan. 23, 1996).
also cite to additional case law in support of their position
that they should not have to post a bond and contend that,
contrary to the holding in BASF, Rule 62 does not
mandate that a party seeking a stay must post a bond in every
case. However, in a decision on which Defendants
rely, Munoz v. City of Philadelphia, 537 F.Supp.2d
749, 751 (E.D. Pa. 2008), the district court held only that
it has inherent authority to grant a stay without the
requirement of a bond.
contend that “the law is not a head-counting
contest.” The Court agrees; however, it is not the
number of cases cited in support of Plaintiff's position
but the reasoning which forms the basis for those decisions
that is persuasive. In Plaintiff's appeal, it argues that
it is entitled to a higher interest rate than the rate
applied by the Court; in other words, it seeks an increase in
the amount of the judgment but is not contesting the judgment
itself. Simply put, execution is not inconsistent with the
position that Plaintiff takes on appeal.
the Court may have the inherent authority to exempt
Defendants from the requirement to post a bond or other
security, they have not provided a compelling reason to do
so, particularly when they acknowledge that they have the
ability to post adequate security. Unless and until
Defendants provide a bond that is approved by the Court,
there is no stay of execution proceedings.
this 13th day of December, 2019, it is hereby
ORDERED that Defendants' Emergency Motion to Stay
Execution of the Judgment (ECF No. 101) is denied without
prejudice to seek a stay pursuant to Fed.R.Civ.P. 62(b). In
order to provide adequate time for Defendants to obtain a
bond, if they choose to do so, and to seek the ...