Opinion
Civil Action No. 91-40079-NMG.
June 5, 2001
MEMORANDUM AND ORDER
This Court presided over a jury trial in the above-captioned civil action from May 15 to June 7, 2000. Most of the claims asserted by both parties were tried to the jury and it returned a verdict in favor of and awarded damages to Harold L. Bowers d/b/a HLB Technology, Inc. ("Bowers") on his patent infringement, copyright infringement and breach of contract claims against Baystate Technologies, Inc. ("Baystate"). Finding the copyright damages duplicative of the contract damages, this Court then reduced the award and, after adding pre-judgment interest, entered a judgment for Bowers in the amount of $5,270,942. Baystate appealed.
By an order entered January 29, 2001 ("the Stay Order"), this Court stayed execution on the judgment by Bowers pending appeal. Finding that Baystate was unable to post a full supersedeas bond as required by Fed.R.Civ.P. 62(d) and Local Rule 62.2, this Court approved alternate security. Baystate was ordered 1) to post a $500,000 bond, 2) to pledge 20% of its issued and outstanding stock to Bowers, and 3) to comply with certain conditions designed to preserve the value of its assets and provide Bowers with some oversight authority.
Now pending before this Court are 1) Baystate's motion to approve alternate security in lieu of the $500,000 bond (Docket No. 488), 2) Baystate's motion, in the alternative, to extend the stay for 30 days (Docket No. 490), and 3) Bower's cross motion to lift the stay (Docket No. 492).
Contrary to Bowers' assertion, this Court finds that a stay is still warranted according to the factors set forth in Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Accordingly, the stay will remain in effect and the cross motion to lift the stay is denied.
The Court is persuaded that 1) since receiving the Stay Order, Baystate has tried unsuccessfully to obtain a bond through three different insurance brokers, 2) its primary lender has refused to issue to it a letter of credit, and 3) having reviewed Baystate's most recent financial statements and affidavits, the posting of a $500,000 bond could well lead to Baystate's demise. Therefore, in lieu of the $500,000 bond previously required, Baystate will increase from twenty percent (20%) to forty percent (40%) the amount of its issued and outstanding stock pledged to Bowers as alternate security. The remaining terms of the Stay Order will remain in full force and effect.
ORDER
For the reasons set forth in the Memorandum above:
1) the motion of the defendant, Baystate Technologies, Inc., to approve alternate security in lieu of a supersedeas bond (Docket No. 488) is ALLOWED; Baystate shall increase the percentage of its issued and outstanding stock pledged to Bowers from twenty percent (20%) to forty percent (40%);
2) the motion of defendant, Baystate Technologies, Inc., to extend the stay of execution for an additional thirty days (Docket No. 490) is DENIED as moot; and
3) the cross motion of plaintiff, Harold L. Bowers d/b/a HLB Technology, to lift the stay of execution (Docket No. 492) is DENIED.
So ordered.