Opinion
Civil Action No. 1:02-cv-1918-GET.
January 27, 2006
ORDER
The above-styled matter is presently before the court on:
1) defendant Aeropostal Alas de Venezeula's motion for protective order [docket no. 200];
2) plaintiff's motion to compel [docket no. 201];
3) plaintiff's motion for registration of judgment [docket no. 209];
4) plaintiff's motion for bond pending appeal [docket no. 210];
5) plaintiff's motion for leave to file a supplemental brief [docket no. 211];
6) plaintiff's motion for hearing [docket no. 212].
Plaintiff filed the instant action for breach of contract and conversion of property on July 11, 2002 in the Northern District of Georgia with diversity jurisdiction pursuant to 28 U.S.C. § 1332. The action was filed by plaintiff's trustee in bankruptcy. On August 5, 2003, defendants filed a counterclaim against plaintiff for breach of contract and negligence. On December 22, 2004, this court issued an order granting plaintiff's motion for partial summary judgment on its contract claim against defendant Aeropostale Alas de Venezuela ("AAV"), denying plaintiff's motion for summary judgment as to Aeropostal Airlines, Inc., and denying defendants' motion for summary judgment on plaintiff's breach of contract claim. The court stayed the remaining issues in the motions for summary judgment pursuant to 11 U.S.C. § 362(a), due to plaintiff's pending bankruptcy. On February 10, 2005, this court issued an order dismissing defendants' counterclaim.
On April 5, 2005, the court held a jury trial. During the trial, plaintiff voluntarily dismissed all claims other than the breach of contract claim against AAV. Because this court determined the issue of liability in its December 22, 2004 order on the summary judgment motions, the only issue before the jury was the amount of damages to which plaintiff was entitled under the contract. The parties agreed to try the issue of attorneys' fees under the contract in a later hearing, without a jury. On April 8, 2005, the jury returned a verdict in favor of the plaintiff for $9,122,731.00. On June 8, 2005, this court orally granted plaintiff's motion for attorneys' fees on the issue of liability and held an evidentiary hearing regarding the amount of fees to award. On June 16, 2005, this court issued an order granting plaintiff's counsel attorneys' fees in the amount of $2,986,819.30 and costs in the amount of $77,207.56. AAV has filed notices of appeal regarding the judgment on the jury verdict, and the judgment on attorneys' fees.
Motion for Hearing
Plaintiff filed a motion requesting a hearing on plaintiff's motion for bond pending appeal and motion to compel. "Motions will be decided by the court without oral hearing, unless a hearing is ordered by the court." LR 7.1E, NDGa. After reviewing the motions and responses, the court finds that oral argument is not needed to decide the matters. Accordingly, plaintiff's motion for hearing [docket no. 212] is DENIED.
Motion for Leave to File Supplemental Brief
Plaintiff requested leave to file a supplemental brief for the court's consideration in deciding its motion to compel.
Local Rule 7.1B requires that "any party opposing a motion shall serve the party's response . . . not later than ten (10) days after service of the motion,"' and further provides that, "[f]ailure to file a response shall indicate that there is no opposition to the motion." LR 7.1B, ND Ga. As of the date of this order, AAV has not responded to plaintiff's motion for leave, which included a certificate of service. Accordingly, plaintiff's motion for leave [docket no. 211] is GRANTED AS UNOPPOSED.
Motion for Protective Order/Motion to Compel
Plaintiff explains that the parties have engaged in settlement negotiations due to AAV's representations that it is unable to pay the judgment amount. Plaintiff is conducting post-judgment discovery to determine AAV's financial status, because that has bearing on the amount plaintiff would accept. Two discovery requests are at issue in AAV's motion for protective order and plaintiff's motion to compel: notice of a 30(b)(6) deposition and requests to produce documents.
AAV's motion for protective order complains that it had insufficient time to prepare and produce witnesses for deposition because it was given only seven days notice. AAV does not argue that it is excused from or unable to comply with the request, but merely that it requires additional time. Similarly, AAV agreed that it possessed documents responsive to plaintiff's requests to produce that it had not yet provided, but argued in its response to plaintiff's motion to compel that it needed additional time to find them due to the volume of documents in its possession.
AAV filed its motion for protective order on October 4, 2005, and its response to plaintiff's motion to compel on November 4, 2005. Therefore, AAV has had over two months to discover the documents and prepare deposition witnesses. Because AAV offers no other reason it cannot comply with plaintiff's discovery requests, AAV's motion for protective order [docket no. 200] is DENIED, and plaintiff's motion to compel [docket no. 201] is GRANTED. AAV is DIRECTED to provide a witness for 30(b)(6) deposition within twenty (20) days of the date of this order. As plaintiff's request to produce seeks documents to inquire about during the deposition, AAV is DIRECTED to provide full responses to plaintiff's requests to produce sufficiently prior to the deposition to enable plaintiff to prepare for the deposition.
Motion for Registration of Judgment
Plaintiff seeks an order of the court to register its judgments in the United States District Court in the Southern District of Florida. Pursuant to 28 U.S.C. § 1963, a district court judgment for the recovery of money or property "may be registered by filing a certified copy of the judgment in any other district when the judgment has become final by appeal or expiration of the time for appeal or ordered by the court that entered the judgment for good cause shown." Because the appeal is still pending, plaintiff must show good cause.
"Good cause can be shown `upon a mere showing that the AAV has substantial property in the other [foreign] district and insufficient in the rendering district to satisfy the judgment."Assoc. Bus. Tel. Sys. Corp. v. Greater Capital Corp., 128 F.R.D. 63, 68 (1989) (quoting commentary to the 1988 amendment to 28 U.S.C. § 1983). The parties agree that AAV has no property or assets in Georgia. AAV contends that plaintiff cannot show that AAV has substantial property in the Southern District of Florida. Plaintiff has attached an affidavit by its attorney testifying that AAV's website lists four business offices located in Florida, and eight flights a day departing from Miami. This testimony is sufficient to conclude, for purposes of permitting registration, that AAV has substantial property in the Southern District of Florida.
AAV further argues that permitting registration in the Southern District of Florida violates the interest of judicial economy, because the Eleventh Circuit has tentatively scheduled the appeal for oral argument in mid-April. The court does not find that any prejudice to AAV will result from permitting plaintiff to register its judgments in the Southern District of Florida before the Eleventh Circuit issues its final order on the appeal. Accordingly, and for all the aforementioned reasons, plaintiff's motion for registration of judgment [docket no. 209] in the Southern District of Florida is hereby GRANTED.
Motion for Bond Pending A Meal
Plaintiff requests the court to issue an order requiring AAV to post a supersedeas bond. AAV has appealed the judgments entered in this court. Federal Rule 62 provides "the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule." Fed.R.Civ.P. 52(d). Because AAV has not posted a supersedeas bond, it has not obtained a stay. Accordingly, plaintiff filed garnishment proceedings in the State Court of Fulton County in order to enforce the judgments. AAV filed a motion to stay garnishment pending resolution of the appeals, seeking to obtain a stay without Rule 62's prerequisite posting of a supersedeas bond.
Local Rule 7.1B requires that "any party opposing a motion shall serve the party's response . . . not later than ten (10) days after service of the motion," and further provides that, "[f]allure to file a response shall indicate that there is no opposition to the motion." LR 7.1B, ND Ga. As of the date of this order, AAV has not responded to plaintiff's motion for bond pending appeal, which included a certificate of service. Accordingly, and for all the aforementioned reasons, plaintiff's motion for bond pending appeal [docket no. 210 is GRANTED AS UNOPPOSED and on the merits.
Summary
1) AAV's motion for protective order [docket no. 200] is DENIED;2) plaintiff's motion to compel [docket no. 201] is GRANTED;
3) plaintiff's motion for registration of judgment [docket no. 209] in the Southern District of Florida is GRANTED;
4) plaintiff's motion for bond pending appeal [docket no. 210] is GRANTED;
5) plaintiff's motion for leave to file a supplemental brief [docket no. 211] is GRANTED;
6) plaintiff's motion for hearing [docket no. 212] is DENIED. AAV is DIRECTED to provide a witness for 30(b)(6) deposition within twenty (20) days of the date of this order, and full responses to plaintiff's requests to produce sufficiently prior to the deposition to enable plaintiff to prepare for the deposition.
SO ORDERED.