United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge
the Court is the Motion for a Security (Doc. 71) filed by
Defendants Shaun R. Thompson, Jon G. Moog, Michell D. Hill,
Heather L. McGuyer, and Amy Scott Smith. Defendants request
that the Court order Plaintiff Robert Myers to provide a
security of at least $7, 000 to ensure payment of costs on
appeal pursuant to Federal Rule of Appellate Procedure 7.
Myers filed an untimely response to Defendants' request
wherein he made his own request for a stay of enforcement of
judgment in this Court. (Doc. 73 at 4.) For the following
reasons, the Court will grant Defendants' Motion and Deny
to Federal Rule of Appellate Procedure 7, "the district
court may require an appellant to file a bond or provide
other security in any form and amount necessary to ensure
payment of costs on appeal.'' The Ninth Circuit has
determined that "costs on appeal" may include
appellate attorney's fees when the applicable
"fee-shifting statute" includes them as recoverable
costs. Azizian v. FederatedDep't Stores, Inc.,
499 F.3d 950, 958 (9th Cir. 2007). Here, 42 U.S.C. §
1988(b) applies and provides that reasonable attorney's
fees are recoverable "as part of the costs."
Nonetheless, neither Rule 7 nor the Ninth Circuit provide
clear guidance as to when the Court should require a bond.
Ninth Circuit has indicated that due process concerns warrant
a consideration of the appellant's ability to post a
bond. See Azizian, 499 F.3d at 961 (Requiring a bond
for anticipated attorney's fees could be improper where
"other factors, such as financial hardship, indicate
that the bond would unduly burden a party's right to
appeal."). Beyond that, Courts within the Ninth Circuit
have looked to the following factors: (1) the merits of the
appeal; (2) the risk that the appellant would not pay costs
in the event the appeal loses; and (3) the appellant's
financial ability to post a bond. See, e.g., Dennings v.
Clearwire Corp., 928 F.Supp.2d 1270, 1271 (W.D. Wash.
2013); Nam Soon Jeon v. 445 Seaside, Inc., 2014 WL
769774, at * 1 (D. Haw. Feb. 24, 2014); Swenson v.
Bushman Inv. Properties, Ztaf., 2013 WL 6491105, at * 1
(D. Idaho Dec. 9, 2013); Embry v. ACER America
Corp., 2012 WL 2055030, at *1 (N.D. Cal. June 5, 2012).
Absent objection, the Court applies these three factors here.
the Court addresses the merits of the appeal. Despite
Myers' repeated arguments to the contrary, the Court has
consistently found the underlying merits of this case to be
without factual or legal basis. Lacking a factual and legal
foundation, the Court finds Myers' appeal also lacking in
merit. Second, as to the risk that Myers' will not pay
costs of appeal, the Court notes that Myers has relocated to
Oklahoma, a location outside of the District of Montana and
outside of the Ninth Circuit. Courts within the Ninth Circuit
have recognized the "difficulty and risk associated with
collecting costs from out-of-state appellants."
Gonzales v. City of Antioch, 2016 WL 631992, at *2
(N.D. Cal. Feb. 17, 2016); see also Nam Soon Jeon,
2014 WL 769774, at *2; Dennings, 928 F.Supp.2d at
1271-72. Additionally, the Court finds Myers' failure to
pay awards in this case to-date to indicate an increased risk
of non-payment. Myers has made no attempt to pay the judgment
ordered in this case and has not obtained a stay of the
judgment by posting a supersedeas bond as would be required
by Federal Rule of Civil Procedure 62(b). Instead, Myers has
been unresponsive to Defendants' requests to discuss
payment. Lastly, there is no indication that Myers is
incapable of posting a bond. The burden to show an inability
to post a bond falls on Myers himself. See Swenson,
2013 WL 6491105, at *2; Nam Soon Jeon, 2014 WL
769774, at *2; Embry, 2012 WL 2055030, at *1.
Myers' response does not address this issue in any way.
The Court finds all three factors support a bond in this
found a bond warranted here, the Court turns to a
consideration of an appropriate bond amount. Defendants
request $7, 000. Defendants assert that this amount is
"likely an under-estimation of [their] costs on appeal,
given that Myers is likely to file more objections and
appellate documents once this Court requires him to provide a
security," (Doc. 72 at 5-6.) Defendants further assert
that the $7, 000 request reflects 40 hours of work at a rate
previously approved by this Court. (Id. at 5.) Myers
did not address these assertions. Based on previous
experiences with Myers, the Court fully agrees with
Defendants that 40 hours of labor is a likely
under-estimation. Consequently, if the Court were to make any
adjustments to the amount requested, it would be to increase
it. Nonetheless, because it is the amount requested and it is
based on a reasonable fee amount, the Court will require
security in the amount of $7, 000.
concluding, the Court must address Myers' "motion to
stay." (Doc. 73 at 4.) Myers concluded his response to
Defendants' Motion with the following: "[f]or the
foregoing reasons this court should stay its judgment of
attorney fees pending appeal. (See Doc. 70 notice of appeal)
To deny the motion to stay is a continuation of a knowing
injustice by the court on the Plaintiff." (Doc. 73 at
4.) Despite Myers' claim, Myers has not made such a
motion. First, Myers did not provide "foregoing
reasons" for the Court to stay its judgment. Myers did
not make any reference to controlling authority or
peripherally attach his arguments to the notion that he was
requesting a stay of the judgment. Instead, Myers response to
Defendants' Motion merely rehashes his perception of the
merits of his case. The reasons Myers believes this Court got
his case wrong are proper material for an appellate brief but
do not require this Court to stay its judgment. As mentioned
above, Federal Rule of Civil Procedure 62(b) requires Myers
to provide a supersedeas bond to be approved by the Court
before a stay will issue. Second, Myers filed neither a
motion nor a brief in support of a stay. He filed a response.
As Myers has been told before, he is required to comply with
this Court's Local Rules.
Defendants indicate that they do not oppose a stay of the
enforcement of judgment, the Court will not do so before the
legal prerequisites have been met-a motion requesting a stay
with supporting authority and the provision of a bond by
Myers. Until such time as Myers complies with these
prerequisites, the $16, 829.75 award remains valid and
IT IS ORDERED that Defendants' Motion (Doc. 71) is
GRANTED and Myers is HEREBY ORDERED to either: (1) post a
bond of $7, 000 by July 11, 2019, or (2) file a notice of
dismissal of his appeal.
FURTHER ORDERED that Myers' response (Doc. 73), liberally
construed as a motion for a stay of ...