United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge
matter is before the Court on the Motion to Stay Execution of
Judgment Pending Appeal and for Approval of Supersedeas Bond,
ECF No. 579 in No. 8:11CV401; ECF No. 479 in No. 8:12CV307,
filed by Defendants' Werner Enterprises, Inc. and Drivers
Management, LLC's (collectively, “Werner”).
Plaintiffs oppose Defendants' Motion on several grounds.
For the reasons stated below, the Motion will be granted,
execution of judgment will be stayed, and Werner will be
directed to file the proposed supersedeas bond with the
Rule of Civil Procedure 62(d) provides that “[i]f an
appeal is taken, the appellant may obtain a stay by
supersedeas bond.” Fed.R.Civ.P. 62(d). The bond is
usually set “in an amount that will permit satisfaction
of the judgment in full, together with costs, interest, and
damages for delay.” 11 Charles Alan Wright et al.,
Federal Practice and Procedure § 2905 (3d ed.). District
courts have inherent, discretionary authority to set the
amount of and accept (or not) a supersedeas bond. Strong
v. Laubach, 443 F.3d 1297, 1299 (10th Cir. 2006);
Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1505
n.1 (9th Cir. 1987).
amount of the proposed supersedeas bond in this case covers
the full amount of the judgment, liquidated damages, attorney
fees, and costs awarded by this Court. See ECF No.
579-1. Further, Werner's ability to pay the judgment
appears unquestioned. Although Plaintiffs express concern
over whether the amount of the bond will adequately protect
class members, Plaintiffs themselves have previously
described Werner as “one of the five largest motor
carriers in the Unites States . . . worth more than $2
billion” with “plenty of cash on hand to handle
any pending concerns over this or other litigation.”
Pl. Br. at 2-3 n.1, ECF No. 363, Page ID 20711 (citing August
17, 2015 Press Release, “Werner Enterprises Increases
Quarterly Dividend”). The Court is satisfied that,
should the judgment be affirmed, Werner will be able to pay
the judgment amount, plus any amounts for post-judgment
interest or other court-approved costs.
also argue that the supersedeas bond is defective because it
lists Plaintiff Phillip Petrone as the obligee. Plaintiffs
theorize that if Werner is unable to pay the judgment amount,
only Petrone would have standing to enforce the bond, and he
alone would receive the entire amount of the bond. Plaintiffs
request that a new bond be issued, with the class
administrator, KCC, LLC, listed as the obligee. Otherwise,
according to Plaintiffs, the bond is defective under Rule
cite no authority for this position, and the Court concludes
the proposed bond is sufficient for purposes of the rule.
Courts have rejected arguments that a supersedeas bond must
name each judgment creditor to be benefitted, concluding that
Rule 62(d) does not require such detail. See Moreno v.
Ross Island Sand & Gravel, Co., No.
213CV00691KJMKJN, 2017 WL 2214964, at *2 (E.D. Cal. May 19,
2017); see also In re Wymer, 5 B.R. 802, 805 (B.A.P.
9th Cir. Cal. 1980) (holding that Rule 62(d) requires bond
only to be in “sufficient amount to cover the
unsatisfied judgment, costs on appeal, interest and damages
for delay.”). The proposed bond is sufficient to cover
the damages and additional expenses and is sufficient for
purposes of Rule 62(d). Plaintiffs identify no language in
Rule 62(d) or any other authority stating that the class
administrator must be listed as the obligee. In the unlikely
event that Werner is unable to pay the judgment amount, the
bond can be enforced in a manner that protects all
Plaintiffs argue that the bond fails to account for
post-judgment interest and post-verdict distribution costs.
The Court will not require Werner to amend the bond to
reflect such additional costs. For the reasons already
stated, Werner's ability to pay the judgment amount is
plainly apparent. See Kranson v. Fed. Express Corp.,
No. 11-CV-05826-YGR, 2013 WL 6872495, at *1 (N.D. Cal. Dec.
31, 2013) (waiving the bond requirement entirely where the
defendant's “ability to pay the judgment is so
plain that the cost of the bond would be a waste of
money”). Should additional costs and interest accrue,
the Court is confident that Werner will be able to pay the
full judgment amount.
IT IS ORDERED:
1. The Motion to Stay Execution of Judgment Pending Appeal
and for Approval of Supersedeas Bond, ECF No. 579 in No.
8:11CV401; ECF No. 479 in No. 8:12CV307, is granted;
2. Pursuant to Federal Rule of Civil Procedure 62(d), on or
before May 18, 2018, Werner shall file the proposed bond,
Bond No. 106899633, ECF No. 579-1, with the Clerk of the
Court, which will remain in full force and effect until
released by order of the Court;
3. Upon filing of the Bond, pursuant to Federal Rule of Civil
Procedure 62(c), execution of the Court's Judgment
entered against the Defendants is stayed, and no proceedings
may be brought to enforce the Judgment, until 30 days after
the final disposition of the appeal pending before the United
States Court of Appeals for the Eighth Circuit.