Opinion
No. CV-07-1984-PHX-DGC.
January 22, 2010
ORDER
Defendant Horizon Distributors asks the Court to require that Plaintiff post a bond for costs on appeal. Dkt. #134. Plaintiff Taylor has filed no response. The Court will deny Horizon's motion. Dkt. #134.
Taylor filed a civil rights complaint. Dkt. #1. The Court granted his motion for leave to proceed in forma pauperis. Dkt. ##3, 4. The Court ultimately granted summary judgment in favor of Horizon. Dkt. #120. On August 12, 2009, Taylor filed a notice of appeal. Dkt. #127. Horizon now asks the Court to require that Taylor file a $10,000 bond to ensure payment of Horizon's costs on appeal, including attorneys' fees. Horizon notes that Taylor has failed to pay the current $7,486.30 judgment against him. Dkt. #134 at 3; see Fed.R.App.P. 7.
Under Federal Rule of Appellate Procedure 7, a "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 courts are split on whether the bond may include attorneys' fees. See Pedraza v. United Guar. Corp., 313 F.3d 1323 (11th Cir. 2002) (allowing attorneys' fees); Adsani v. Miller, 139 F.3d 67, 79 (2d Cir. 1998) (allowing attorneys' fees); Sckolnick v. Harlow, 820 F.2d 13 (1st Cir. 1987) (allowing attorneys' fees); In re Am. President Lines, Inc., 779 F.2d 714 (D.C. Cir. 1985) (not allowing attorneys' fees); United States v. United Funding and Investors, Inc., 800 F. Supp. 879 (E.D. Cal. 1992) (not allowing attorneys' fees).
The Court concludes that it need not address this split of authority. Taylor was granted in forma pauperis status because he demonstrated that he could not afford the modest filing fee in this case. Requiring him to post a bond of $10,000 would effectively foreclose his right to appeal. The Court will not exercise its discretion to require that Taylor post a bond he cannot afford.
IT IS ORDERED that Horizon's motion for bond for costs on appeal (Dkt. #134) is denied.