United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
December 15, 2017, Defendant County of Milwaukee (the
“County”) filed a motion to stay execution on the
judgment entered against it on September 28, 2017. (Motion,
Docket #320; Judgment, Docket #304). Federal Rule of Civil
Procedure 62 governs the County's request. It provides
that an appealing party may obtain a stay of execution on a
judgment if they post supersedeas bond. Fed.R.Civ.P. 62(d).
Here, that bond must be sufficient to cover the $6.7 million
awarded to Plaintiff in the judgment. Rule 62 further states
that “[i]f a judgment is a lien on the judgment
debtor's property under the law of the state where the
court is located, the judgment debtor is entitled to the same
stay of execution the state court would give.”
Id. 62(f). In light of this provision, the County
also asserts a right to a stay under Wisconsin law.
County does not want to post the supersedeas bond and moves
the Court to waive the bond requirement. The Court has the
discretion to do so. Dillon v. City of Chicago, 866
F.2d 902, 904 (7th Cir. 1988). In considering the
County's request, the Court looks to the criteria
enumerated in Dillon
(1) the complexity of the collection process;
(2) the amount of time required to obtain a judgment after it
is affirmed on appeal;
(3) the degree of confidence that the district court has in
the availability of funds to pay the judgment . . .;
(4) whether the defendant's ability to pay the judgment
is so plain that the cost of a bond would be a waste of money
. . .; and
(5) whether the defendant is in such a precarious financial
situation that the requirement to post a bond would place
other creditors of the defendant in an insecure position[.]
Id. at 904-05 (citations and quotations omitted).
Wisconsin similarly allows a stay of a money judgment upon
consideration of a non-exclusive list of factors: 1) the
likelihood of success on appeal, 2) the need to ensure
collectability of the judgment, 3) the appellant's
ability to recover their money if a stay is not granted, 4)
the harm to the appellee if they are not paid until the
appeal is denied, and 5) the public's interest. See
Scullion v. Wis. Power & Light Co., 614 N.W.2d 565,
573-74 (Wis. Ct. App. 2000); see also Wis.Stat.
County alone were responsible for paying the judgment, the
factors might weigh in favor of waiving the bond requirement.
The County avers that it has ample funds to pay the judgment
and that the collection process should be quick. See
(Docket #322). The Court notes, however, that financial
health is always a fickle prospect for a government entity.
Depending on the length of the appeal, the County's
ability to pay may change. Further, the County has not
offered any alternative form of security for paying the
judgment. See N. Ind. Pub. Serv. Co. v. Carbon Cnty. Coal
Co., 799 F.2d 265, 281 (7th Cir. 1986) (appellant agreed
to submit periodic financial reports to district court
regarding its finances).
County's own briefing notes, and as Plaintiff emphasizes
in her response to the motion, things are not so simple. The
Dillon and Scullion factors are rendered
less helpful because of a unique circumstance in this case:
the County and its insurer dispute who must pay the judgment.
(Docket #321 at 4-5). The County says that
“[r]egardless of the resolution of that dispute,
however, a bond is unnecessary, ” because Plaintiff
will either be paid either by the insurer or the County
directly. Id. at 5.
the County does not acknowledge is how time-consuming or
costly it may be for Plaintiff to wait for the resolution of
that dispute or, indeed, whether she would be forced to
interject herself into the dispute in order to compel
payment. As the Seventh Circuit noted a few years before
Dillon, “[t]he philosophy underlying Rule
62(d) is that a plaintiff who has won in the trial court
should not be put to the expense of defending h[er] judgment
on appeal unless the defendant takes reasonable steps to
assure that the judgment will be paid if it is
affirmed[.]” Lightfoot v. Walker, 797 F.2d
505, 506-07 (7th Cir. 1986). The County's reply attempts
to assure Plaintiff that it will pay regardless of the
pendency of its insurance dispute. (Docket #329 at 4). This
statement is made in a legal brief, however, and not a
contract or some other binding declaration that payment would
be made to Plaintiff, as was the case in S.A. Healy Co.
v. Milwaukee Metro. Sewerage Dist., 159 F.R.D. 508,
512-13 (E.D. Wis. 1994).
a supersedeas bond is the norm to avoid execution of a
judgment during an appeal. Poplar Grove Planting &
Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600
F.2d 1189, 1191 (5th Cir. 1979); see also N. Ind. Pub.
Serv. Co., 799 F.2d at 281 (“The rule requires
[the appellate] to post a bond if he wants an automatic stay,
but not if he is content to throw himself on the district
judge's discretion.”); Fed. Prescription Serv.,
Inc. v. Am. Pharm. Ass'n, 636 F.2d 755, 760 (D.C.
Cir. 1980) (“Because the stay operates for the
appellant's benefit and deprives the appellee of the
immediate benefits of his judgment, a full supersedeas bond
should be the requirement in normal circumstances, such as
where there is some reasonable likelihood of the judgment
debtor's inability or unwillingness to satisfy the
judgment in full upon ultimate disposition of the case and
where posting adequate security is practicable.”).
Because the County seeks an exception to Rule 62(d)'s
unequivocal bond requirement, it needed to convince the Court
to waive that “important safeguard.” Olympia
Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794,
800 (7th Cir. 1986) (Easterbrook, J., concurring). It has
failed to do so. Regardless of the County's solvency, the
Court is not satisfied that Plaintiff's judgment will be
paid promptly if she obtains a favorable resolution of the
appeal. Plaintiff should not be made to endure what will
likely be further protracted litigation between the County
and its insurer, after already waiting so long for a trial in
this Court and after defending her judgment on appeal. The
County's motion will, therefore, be denied.
IT IS ORDERED that Defendant County of
Milwaukee's motion for a stay of execution on the
Court's September 28, 2017 judgment and to waive