United States District Court, D. New Jersey
B. SIMANDLE U.S. District Judge.
matter comes before the Court on Respondent Aviation
Technology & Turbine Service, Inc.'s
(“ATTS”) motion to stay execution on the judgment
in this matter pending appeal without being required to post
a supersedeas bond or, in the alternative, for approval of a
supersedeas bond. [Docket Item 26.] For the reasons set forth
below, the motion will be granted in part and denied in part;
the Court will grant a stay of the execution of judgment, but
will deny ATTS's request to waive the supersedeas bond.
Bond will be set at $289, 659.00, the amount awarded in favor
of Petitioner Ingenieria, Maquinaria Y Equipos de Colombia
S.A. (“IMECOL”) by the Colombian arbitration
panel and confirmed by this Court. The Court finds as
IMECOL and ATTS were parties to a three-year exclusive agency
agreement regarding the sale of commercial equipment in
Colombia. After ATTS failed to make commission payments to
IMECOL, IMECOL initiated proceedings against ATTS before a
Colombian arbitration panel pursuant to an arbitration clause
in the agency agreement. ATTS conceded it was notified of the
arbitration proceedings, but opted not to participate.
Ultimately, the arbitrators found in IMECOL's favor and
determined that ATTS and a Colombian subsidiary, ATTS
Energía, were jointly and severally liable to IMECOL
for $289, 659.00.
December 8, 2017, the Court confirmed the Colombian
arbitration award. [Docket Item 23.] ATTS has appealed that
decision [Docket Item 24], and now asks this Court to stay
execution on the $289, 659.00 judgment pending appeal and
waive the supersedeas bond requirement or, in the
alternative, to approve a supersedeas bond pursuant to
Fed.R.Civ.P. 62(d). [Docket Item 26.] IMECOL opposes this
motion. [Docket Item 27.]
Under Federal Rule of Civil Procedure 62(d), an appellant may
obtain a stay by supersedeas bond after filing a notice of
appeal on the docket. The appellant is “entitled to a
stay of a money judgment as a matter of right if he posts a
[supersedeas] bond in accordance with [Rule] 62(d).”
Pharmacia Corp. v. Motor Carrier Serv. Corp., 2008
WL 852255, at *4 (D.N.J. Mar. 28, 2008) (quoting American
Mfrs. Mut. Ins. Co. v. Am. Broadcasting-Paramount Theatres,
Inc., 87 S.Ct. 1, 3 (1966)). “In order to make the
other party whole, such a supersedeas bond must normally be
in a sum sufficient to pay the judgment and costs, interest,
and damages for delay.” Pharmacia Corp., 2008
WL 852255, at *4.
“Although the Third Circuit is silent on the issue of
whether courts may require a bond less than the amount of the
full judgment, district courts within the Third Circuit have
found that they have discretion under Rule 62(d) to waive the
bond requirement in whole or in part.” Montalvo v.
Larchmont Farms, Inc., 2011 WL 6303247, at *1 (D.N.J.
Dec. 15, 2011) (citing Church & Dwight Co. v. Abbott
Labs., 2009 WL 2230941, at *14 (D.N.J. July 23, 2009)).
Courts exercise this discretion “where there exists an
alternative means of securing the judgment” and there
are “exceptional circumstances.”
Montalvo, 2011 WL 6303247 at *1 (citing
Transamerica Occidental Life Ins. v. Total Systems,
Inc., 2011 WL 2447520, at *2 (D.N.J. July 23, 2009;
Church & Dwight Co., 2009 WL 2230941, at *14).
determining whether “exceptional circumstances”
exist, courts in this District consider the so-called
Dillon factors, which are:
(1) [T]he complexity of the collection process;
(2) [T]he amount of time required to obtain a judgment on
(3) [T]the degree of confidence that the district court has
in the availability of funds to pay the judgment;
(4) [W]hether the defendant's ability to pay the judgment
is so plain that the cost of a bond would be a waste of
(5) [W]hether the defendant is in such a precarious financial
situation that the requirement to post a bond would place the
other creditors of the debtor in an insecure position.
Hurley v. Atlantic City Police Dept., 944 F.Supp.
371, 374 (D.N.J. 1996) (citing Dillon v. City of
Chicago, 866 F.2d 902, 904-05 (7th Cir. 1988)).
Additionally, “it is the appellant's burden to
demonstrate objectively that posting a full bond is
impossible or impracticable; likewise it is the
appellant's duty to propose a plan that will provide
adequate (or as adequate as possible) security for the
appellee.” Hilburn, 2013 WL 1721648, at *2
(quoting AMG Nat'l Trust Bank v. Ries, 2008 WL
2312532, at *1 (E.D. Pa. June 4, 2008)).
Here, ATTS addresses some of the five Dillon factors
articulated above. Specifically, ATTS avers that it's
“financial strength and ability to satisfy the Judgment
are strong, ” and that “the company is capable of
expeditiously satisfying the Judgment using its own financial
resources.” (Resp. Br. at 2; Khan Decl. at ¶¶
4-5.) Furthermore, ATTS “assures [the Court] that it
will be able to pay the Judgment should it become final and
unappealable, ” and that “ATTS could wire the
full amount of the Judgment and any post-judgment interest of
other costs associated therewith to an appropriate account
held by plaintiff within ten (10) business days.”
(Resp. Br. at 3; Khan Decl. at ¶¶ 6-7.) Because