United States District Court, S.D. Georgia, Augusta Division
Randal Hall, Judge
September 2018, without notice to the aggrieved party
Defendant Husqvarna Outdoor Products, Inc., Plaintiff
Whitesell Corporation filed a privileged e-mail communication
as an exhibit to an opposition brief contravening the
Clawback Provision in the parties' Stipulated Protocol
for the Production of Documents. Husqvarna moved to strike
the filing and to sanction Whitesell's conduct. On
November 16, 2018, the Court granted Husqvarna's motion
and invited Husqvarna to submit a request for costs and
attorneys' fees. (Doc. No. 1101.) On April 16, 2018, the
Court awarded Husqvarna $8, 598.90 in costs and
attorneys' fees. (Doc. No. 1182.) The Clerk therefore
entered judgment in favor of Husqvarna against Whitesell for
$8, 598.90. (Doc. No. 1183.)
October 2018, Husqvarna and Defendant Electrolux Home
Products, Inc. filed a motion for sanctions against
Whitesell, seeking to strike Whitesell's claim for lost
profits in this case because of certain discovery violations.
After extensive briefing and an evidentiary hearing, the
Court entered an Order on February 14, 2019, granting
Defendants' motion for sanctions. (Doc. No. 1159.) The
Court determined that Whitesell failed to timely provide
responsive information within its possession to both
Defendants and the Court, first denying the information's
existence and then refusing to produce the information upon
Whitesell's self-serving conclusion that the information
was unreliable and unnecessary to the suit. (Id. at
5.) Further, the Court found that Whitesell's discovery
violations were particularly egregious in the context of this
multi-faceted, multi-year case and given that the subject
information was not produced until after the close of
discovery. (Id. at 11-13.) In short, the Court
concluded that Defendants suffered extraordinary and
irreparable prejudice because of Whitesell's conduct.
(Id. at 13-14.)
the Court invited Defendants to submit a request for
attorney's fees and costs. On April 17, 2019, the Court
awarded $189, 894.20 in fees and costs in favor of Husqvarna
and awarded $54, 509.13 in fees and costs in favor of
Electrolux in two separate Orders. (Doc. Nos. 1185 &
1187.) The Clerk therefore entered judgment in favor of
Husqvarna and against Whitesell for $189, 894.20 (doc. no.
1186) and in favor of Electrolux and against Whitesell for
$54, 509.13 (doc. no. 1188).
13, 2019, Whitesell filed a Notice of Appeal as to each of
the three Judgments awarding fees and costs to Defendants on
account of Whitesell's sanctionable conduct (hereinafter
"the Appeals'') . Thereafter, Whitesell filed
the instant motion asking the Court to stay the execution of
the Judgments during the pendency of the Appeals and to waive
the requirement to post a supersedeas bond.
judgment of a United States District Court becomes
enforceable thirty (30) days after the judgment is entered.
Fed.R.Civ.P. 62(a). Rule 62(b), however, provides that
"[a]t any time after judgment is entered, a party may
obtain a stay by providing a bond or other security."
That is, an appellant may obtain a stay of judgment pending
appeal as a matter of right upon posting a supersedeas bond.
The purpose of a supersedeas bond is to protect the appellees
from a loss resulting from the stay of execution. Poplar
Grove Planting & Ref. Co v. Bache Halsey Stuart,
Inc., 600 F.2d 1189, 1190-91 (5th Cir. 1979);
see Prudential Ins. Co. v. Boyd, 781 F.2d 1494, 1498
(11th Cir. 1986) (stating that the purpose of the
supersedeas bond is to preserve the status quo and protect
the rights of the non-appealing party during appeal).
Whitesell seeks a stay of execution without posting a
supersedeas bond. A district court certainly has the inherent
discretionary authority to stay an action and to waive the
bond requirement. See Howard v. Augusta-Richmond Cty.,
Ga., Comm'n, 2014 WL 7359095, *1 (S.D. Ga. Dec. 23,
2014); Tara Productions, Inc. v. Hollywood Gadgets,
Inc., 2011 WL 4020855, at *1 (S.D. Fla. Sept. 9, 2011)
(citations omitted). One circumstance in which a bond may be
waived is where the judgment debtor (the appellant)
demonstrates a present financial ability to pay the money
judgment. E.g., Tara Productions, 2011 WL
4020855, at *1; see also Avirgan v. Hull, 125 F.R.D.
185, 186 (S.D. Fla. 1989) (stating that a supersedeas bond is
not necessary where the appellant's ability to pay the
judgment is so plain that the cost of the bond would be a
waste of money).
case, Whitesell insists that its ability to pay the Judgments
is manifest, and therefore posting a bond would be a waste of
money. Defendants oppose the motion, not disputing
Whitesell's ability to pay the money judgment but instead
pointing out that the subject Orders and resulting Judgments
do not constitute "final decisions'7 as required by
28 U.S.C. § 1291. (Defs.' Resp. in Opp'n to
Pl.'s Mot. to Waive Bond, Doc. No. 1203, at 1-2 & n.2
(citing cases which i hold that orders
imposing sanctions for discovery abuses are not appealable
until after final judgment except under limited
Orders from which Plaintiff appeals effectively concern
discovery violations. Thus, the Court agrees with Defendants
that the Appeals are not from final decisions and that the
Eleventh Circuit Court of Appeals will most likely dismiss
the Appeals as premature. Nevertheless, because Whitesell has
the ability to pay the Judgments, the Court
GRANTS Whitesell's motion to waive the
bond requirement and to stay execution of the Judgments (doc.
no. 1199) pending the Appeals. Further, the Court
DENIES Whitesell's motion to the |
extent that it requests a stay of execution of the Judgments
following the Appeals without posting a supersedeas bond.
 In its Reply Brief, Whitesell argues
that the Court's entry of the Judgments effectively
changed their non-appealability; that is, because the Court
reduced to partial judgment the imposed discovery sanctions,
the Judgments were rendered immediately appealable. (Doc. No.
1214, ¶ 18.) In point of fact, a discovery sanction
"is not a separate claim that will support entry of
final judgment under Civil Rule 54(b)." 15B Charles Alan
Wright et al., Federal Practice and Procedure §
3914.30 (2d ed.); see also M.A. Mortenson Co. v. United
States, 877 F.2d 50, 52 (Fed. Cir. 1989) ("The
award of a discovery sanction . . . [is] not a substantive
right or cause of action .... Thus, the non-appealability of
a discovery sanction is not changed by the fact that it is
reduced to partial judgment under Rule 54(b).") (citing
Mulay Plastics, Inc. v. ...