Erickson Productions Inc v. Kraig R Kast

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERICKSON PRODUCTIONS INC, et al., Case No. 13-cv-05472-DMR

8 Plaintiffs, ORDER ON MOTION TO STAY 9 v. JUDGMENT PENDING APPEAL

10 KRAIG RUDINGER KAST, et al., Re: Dkt. No. 573 11 Defendants.

12 13 A jury returned a verdict in favor of plaintiffs Erickson Productions, Inc. and Jim Erickson 14 (together, “Erickson”) and against defendant Kraig R. Kast in the amount of $45,000 in statutory 15 damages under 17 U.S.C. § 504(c)(2) for willful copyright infringement. The court entered 16 judgment on May 24, 2024. [Docket No. 549.] Kast filed a notice of appeal to the United States 17 Court of Appeals for the Ninth Circuit and now moves to stay the judgment pending the appeal. 18 [Docket No. 573.] This matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For 19 the following reasons, the motion is denied. 20 I. DISCUSSION 21 The detailed factual background of this case is set forth in the court’s February 12, 2021 22 Order re: Willfulness and Damages Following Remand and August 26, 2024 Order on 23 Defendant’s Post-Trial Motions. [Docket Nos. 380, 572.] In relevant part, Erickson filed suit 24 against Kast in September 2013 alleging that Kast infringed Erickson’s copyrights in three photos. 25 A jury found that Kast vicariously and contributorily infringed Erickson’s copyrights and that he 26 did so willfully. It awarded Erickson $450,000 in statutory damages. On appeal, the Ninth Circuit 27 upheld the contributory infringement verdict and vacated the damages award. After further 1 jury trial in April 2024 on the issues of willfulness and statutory damages for contributory 2 copyright infringement. The jury awarded Erickson $45,000 in statutory damages for willful 3 contributory infringement and the court entered judgment on May 24, 2024. Kast, who is 4 representing himself,1 appealed the judgment and now moves to stay the judgment pending appeal. 5 Erickson opposes the motion. [Docket No. 574.] 6 Kast does not cite any authority for the relief he seeks but appears to move pursuant to 7 Federal Rule of Civil Procedure 62(b). Rule 62(b) provides that “[a]t any time after judgment is 8 entered, a party may obtain a stay by providing a bond or other security. The stay takes effect 9 when the court approves the bond or other security and remains in effect for the time specified in 10 the bond or other security.” “A supersedeas bond ensures that the appellee will be able to collect 11 the judgment plus interest should the court of appeals affirm the judgment.” Opticurrent, LLC v. 12 Power Integrations, Inc., No. 17-CV-03597-EMC, 2019 WL 2389150, at *25 (N.D. Cal. June 5, 13 2019) (citing Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1505 n.1 (9th Cir. 1987)) (denying 14 motion to stay execution of judgment pending appeal without posting bond), aff’d, 815 F. App’x 15 547 (Fed. Cir. 2020). Therefore, under Rule 62(b), Kast must post a bond in order to stay 16 enforcement of the February 12, 2021 judgment. He has not done so. In the alternative, Kast 17 must “‘objectively demonstrate’ the reasons for departing from the usual requirement of a full 18 supersedeas bond.” Cotton ex rel. McClure v. City of Eureka, Cal., 860 F. Supp. 2d 999, 1028 19 (N.D. Cal. 2012) (quoting Poplar Grove Planting & Refining Co., Inc. v. Bache Halsey Stuart, 20 Inc., 600 F.2d 1189, 1191 (5th Cir. 1979)). 21 Courts in the Ninth Circuit regularly use the following five factors set forth in Dillon v. 22 City of Chicago, 866 F.2d 902, 904 (7th Cir. 1988), to guide their determination of whether to 23 waive the bond requirement:

24 (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the 25 degree of confidence that the district court has in the availability of funds to pay the judgment; (4) whether the defendant’s ability to pay 26 the judgment is so plain that the cost of a bond would be a waste of 27 money; and (5) whether the defendant is in such a precarious financial 1 situation that the requirement to post a bond would place other 5 creditors of the defendant in an insecure position. 3 Dillon, 866 F.2d at 904-05 (internal citations omitted). See, e.g., Kranson v. Fed. Express Corp., 4 || No. 11-CV-05826-YGR, 2013 WL 6872495, at *1-2 (N.D. Cal. Dec. 31, 2013) (waiving the bond 5 requirement where the court was “confident that [defendant] Fed Ex has available funds to 6 || ultimately pay the judgment” and counsel attested that “once a completed payment request is 7 submitted, it takes less than 30 days . . . to issue payment”); Opticurrent, 2019 WL 2389150, at 8 *26 (applying Dillon factors and finding that the defendant had not satisfied its burden “to 9 || demonstrate that the usual requirement of a full supersedeas bond is not warranted” where its 10 || “ability to pay the judgment [was] not beyond question”). 11 Kast is aware of the applicable legal standard and the Dillon factors, as he cited Rule 62 a 12 and Dillon in a previous motion to stay a writ of execution prior to his second appeal. [See Docket

13 || No. 422 (Feb. 10, 2022 Order on Defendant’s Motions to Stay) 5-7.] Kast does not address the

v 14 || Dillon factors in the instant motion; instead, he argues that he “has prevailed twice before on

15 appeal and [that] it is likely that he will prevail again” by proving that there was insufficient 16 || evidence supporting the jury’s verdict that he was willful. Mot. 1-2. This argument is not

= 17 || persuasive. As the court previously held in denying Kast’s renewed motion for judgment as a

18 || matter of law, “substantial evidence supports the jury’s verdict that Kast’s contributory 19 infringement with respect to each of the three photos was willful[.]” Aug. 26, 2024 Order on 20 || Defendant’s Post-Trial Motions 5. Accordingly, the motion to stay is denied. 21 || IL CONCLUSION 22 For the foregoing reasons, Kast’s motion to stay the judgment pending appeal is denied.

24 IT IS SO ORDERED. □□ KC ERED □□ 25 || Dated: October 8, 2024 > Tis sO ORD 26 \ la Z\ Pope AAOIE □□ ONe Vagistene Tides □□ 2 Om™ AS