Opinion
Civil No. 3-96-CV-10165
August 10, 2000
ORDER
IT HAS COME TO THE COURT'S attention that clerical errors are present in the judgment entered in this matter on July 27, 2000. Pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, this Court may correct such mistakes sua sponte at any time. Accordingly, IT IS ORDERED that plaintiff's name in the caption of the judgment is corrected from Ssangyoung (USA), Inc. to Ssanguong (U.S.A.)) Inc.
IT IS FURTHER ORDERED that pamgraphthrcv of the judgment is revised to read as follows:
IT IS ORDERED AND ADJUDGED: Judgment is entered in favor of Innovation Group, Ltd., and David J. Sub and against Ssangyong (U.S.A.), Inc. in the amount of $7,477,242.00, plus interest from the date of judgment A separate judgment is also entered in favor of Innovation Group, Ltd. and David J. Sub and against Ssangyong (U.S.A.), Inc. and Sang Won Shim in the amount of $1,000.00, plus interest from the date of judgment. The Court directs that both sides pay their own fees and costs.
ORDER
THE COURT HAS BEFORE IT Ssangyong (U.S.A.), Inc's and S.W. Shim's (collectively, "Ssangyong") combined motion to stay execution pending consideration of post-trial motions, and motion for extension of time to appeal, filed August 4, 2000. Immolation Group, Ltd. and David J. Sub (collectively, "IGL") resister the notions and filed a cross-motion for imposition of a supersedeas bond on August 8, 2000. A telephonic hearing was held by the Court on August 9, 2000, and the motions are now considered fully submitted.I. MOTION TO STAY EXECUTION/CROSS MOTION FOR BOND
Rule 62(h) of the Federal Rules of Civil Procedure provides in relevant part:
In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proededings to enforce a judgment pending the disposition of a motion for new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60 . . . .
Fed.R.Civ.P. 62(b). "Rule 62, taken in its entirety, indicates a policy against any unsecured stay of execution after the expiration of the time for filing a motion for new trial." Marcelletti Sons Construction Co. v. Milicreek Township Sewer Authority, 31 F. Supp. 920, 928 (W.D. Pa. 1970) (quoting Van Huss v. Landsberg, 262 F. Supp. 867, 870 (W.D. Mo. 1967)); see also International Wood Processors v. Power Dry, Inc., 102 F.R.D. 21, 214 (D.S.C. 1984) (quoting Marcelletti and Van Huss). Nevertheless, at least one circuit has held that a stay without bond may be granted if doing so does not unduly endanger the judgment creditor's interest in ultimate recovery." Texaco, Inc. v. Pennzoil Co., 784 k.2d 1133, 1155 (2d Cir. 19S6).
In the present case, the Court is confident that a brief stay' of execution will not "unduly endanger" IGL's and David Suit's ability to collect on the judgments. During the telephonic hearing held on August 9, counsel for Ssangyong assured the Court and opposing counsel that Ssangyong is in the procoss of obtaining a bond or bonds in the full amount of the judgments. After consulting with its insurance carriem, livwever, Ssangyong has learned it may be thirty days before the fill amount cat be posted. In view of the size of the judgments, the Court finds such a delay to be reasonable. Accordingly, Ssangyong's motion for stay of execution is GRANTED upon condition that it post the appropriate bond(s) with the Clerk of Court on or before September 8, 2000.
Counsel for Ssangyong also indicated in the hearing that it will post either a $100.000 bond, or cash in the same amount, on or before Friday, August 11, 2000 as evidence of its good faith.
II. MOTION FOR EXTENSION OF TIME
Ssangyong also moves for an extension of time in which to file an appeal until thirty days from the date this Court enters a ruling on its pending motion for reconsideration, motion for amendment of findings of fact and conclusions and judgments and motion for relief from judgment or order. Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure provides that the thirty day time period for filing a notice of appeal will be toll until the district court has entered a ruling disposing of the last of six specified post-trial motions, including a motion to alter or amend the judgment under Rule 59 of the Federal Rules Civil Procedure, and a motion for relief from judgment under Rule 60.
In resisting Ssangyong's motion for extension of time, IGL and Sub coniend die substance of Ssangyong' post-trial motion does not appropriately fall within either Rule 59 or Rule 60, but rather, amounts to a second attempt to address issue fully considered by the Court at trial. The Court cannot evaluate this contention without addressing the merits of Ssangyong's post-trial motion, which will not be fully submitted for several weeks. Accordingly., because the Court finds neither IGL nor Suit will be widly prejudiced by a brief extension of time, Ssangyong's request is both reasonable and appropriate. Ssangyong's motion for extension of time to file an appeal is GRANTED.
III. CONCLUSION
For the reasons outlined above, Ssangyong's and Shim's motion for stay of execution pending resolution of post-trial motions is GRANTED upon condition that, on or before September 8, 2000, Ssangyong post with the Clerk of Court a bond in the amount of $7,477,242.00, and that Ssangyong and Shim post a bond or cash in the amount of $1,000. IGL and David Suit's cross-motion for imposition of a supersedes bond is GRANTED to the extent Ssangyong and Shim must file the appropriate bond(s) on or before September 8, 2000.
Ssangyong's motion for extension of time to file an appeal is GRANTED. IT IS ORDERED that any appeal must be filed within thirty (30) days in the date this Court enters its ruling on Ssangyong's motion for reconsideration, motion for amendment of findings of fact and conclucions and judgments and motion for relief from judgment or order.
IT IS ORDERED.