HCB Contractors v. Rouse & Associates

168 F.R.D. 508, 36 Fed. R. Serv. 3d 1417, 1995 U.S. Dist. LEXIS 13827, 1995 WL 564440
CourtDistrict Court, E.D. Pennsylvania
DecidedSeptember 20, 1995
DocketCiv. A. Nos. 91-5350, 91-1732
StatusPublished
Cited by4 cases

This text of 168 F.R.D. 508 (HCB Contractors v. Rouse & Associates) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
HCB Contractors v. Rouse & Associates, 168 F.R.D. 508, 36 Fed. R. Serv. 3d 1417, 1995 U.S. Dist. LEXIS 13827, 1995 WL 564440 (E.D. Pa. 1995).

Opinion

MEMORANDUM

PADOVA, District Judge.

Rouse & Associates (the “Owners”) have moved pursuant to Fed.R.Civ.P. 62 for a stay of execution pending appeal of the judgment order entered in favor of HCB in the amount .of $35 million dollars without posting a bond. They also move for an expedited hearing on the remaining counts of the Second Amended Complaint (“unarbitrated claims”). For the following reasons, I will (1) conditionally grant a limited stay without bond as to the Tower and Retail elements only; (2) impose an appropriate plan of alternative security designed to preserve HCB’s present position during appeal or until further order; and (3) deny the motion for an expedited hearing on the remaining counts which involve only lien priority and execution issues.

I. BACKGROUND

The judgments in this case result from this Court’s confirmation of an arbitration award resolving the complex and interrelated claims, cross-claims, and pass-throughs among the general contractor, design team, subcontractors, consultants, and owners of the four project elements (Tower, Retail, Hotel, and Garage) comprising the landmark Liberty II development in Philadelphia, Pennsylvania.1 In the remaining counts (unarbitrated claims), HCB seeks an equitable mortgage, equitable lien, the imposition of constructive trusts, and injunctive relief prioritizing their recovery. The Arbitration Award resolved all other matters in the Second Amended Complaint.

On July 18, 1995,1 certified all judgments relating to the arbitration award as final pursuant to Fed.R.Civ.P. 54(b) and placed the unarbitrated claims into civil suspense. But for the Rule 54(b) certification, an appealable judgment would not exist in this case until all claims were adjudicated, including the unarbitrated claims. Several appeals to the United States Court of Appeals for the Third Circuit have been taken from the judgments by various parties to the litigation, including appeals by the Owners and HCB. The Owners seek to overturn HCB’s judgment and vacate the award. Third party defendant Walters Mechanical Division of Space Engineering Mechanical Corporation (“Walters”) also wants to overturn the judgment and vacate the award. HCB asks to overturn a judgment against HCB and in favor of First Indemnity of America Insurance Company as surety to Walters.

II. STAY OF EXECUTION WITHOUT BOND

The Owners move pursuant Fed.R.Civ.P. 62(d), (f), and (h). Each subsection of Rule 62 presents unique standards which the moving parties must meet. The differences between these standards is of no controlling significance at this time. What is important [512]*512is that the Owners ask the Court to relax the supersedeas bond requirement imposed in Rule 62(d). I have determined the stay and bond issues applying Rule 62(d).2

The purpose of requiring the posting of a supersedeas bond is “to preserve the status quo during the pendency of an appeal, [protecting the winning party] from the possibility of loss resulting from the delay in execution.” Schreiber v. Kellogg, 839 F.Supp. 1157, 1159 (E.D.Pa.1993).

Posting a bond, however, is not the only method by which a judgment debtor can obtain a stay. “The bond speaks only to stays granted as a matter of right; it does not speak to stays granted by the court in accordance with its discretion.” Federal Prescription Service v. American Pharmaceutical Assoc., 636 F.2d 755, 759 (D.C.Cir.1980). “The propriety of any security posted is a discretionary determination made by the court.” Silver v. Mendel, No. 86-7104, 1992 WL 163285 at *1 (E.D.Pa. July 8, 1992).

In discussing the parameters of Rule 62(d), Judge Poliak has noted:

a party may obtain a stay of a judgment by posting a supersedeas bond____the court possesses the power to waive the requirement of a supersedeas bond. That power, however, has been exercised only in “extraordinary circumstances,” and only where alternative means of securing the judgment creditor’s interest were available.
* * * * H: *
In no case has a court approved security different from a full supersedeas bond without a specific showing of good cause by the party seeking the stay. It is the appellant’s burden to demonstrate objectively that posting a full bond is impossible or impracticable; likewise, it is the appellant’s duty to propose a plan that will provide adequate (or as adequate as possible) security for the appellee.

Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., No. 86-5763, 1992 WL 114953 at *1-2 (E.D.Pa. May 18, 1992) (citation omitted). I will address the Owners’ Motion with these standards in mind.

A. IMPOSSIBILITY AND IMPRACTICABILITY

The Owners have the responsibility of demonstrating objectively that posting the full supersedeas bond is impossible or impracticable. In the sworn verifications of Willard Rouse, the Owners state the following: (1) the Owners lack sufficient assets to borrow funds to provide a cash bond or obtain a supersedeas bond; (2) neither a surety agent nor a bonding company will provide the bond if the Owners cannot furnish sufficient collateral; (3) the Owners cannot provide sufficient collateral because they are without liquid assets, and the only assets available to them are their equity interests in the respective Properties; and (4) any execution would precipitate a foreclosure by Teachers Insurance and Annuity Association of America (“Teachers”) which would most likely wipe out the Owners and place them into bankruptcy. HCB, by verification, points to some net cash flow from the Owners’ operations. However, there is no countervailing submission from HCB that such cash flow would be sufficient to fund or purchase a supersedeas bond.3

Having no substantial liquid assets other than their interests held in the respective project elements, I find that the Owners are unable to provide a cash bond or obtain a supersedeas bond. See Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 874 (10th Cir.1986) (submitting affidavits stating inability to pay judgment sufficient; execution of [513]*513judgment would cause irreparable harm because it would render debtor insolvent); Sil-' ver, 1992 WL 163285 at *2 (providing that affidavits, tax records, and bankruptcy documents are substantial verification); C. Albert Sauter Co., Inc. v. Richard S. Sauter Co., Inc., 368 F.Supp. 501, 520 (E.D.Pa.1973) (finding uncontradicted financial statements illustrate insufficient assets; execution of judgment inappropriate when it would terminate company as a going concern).

HCB argues that the partners and principals of the Owners individually should be required to post bond or other security from their individual assets. I disagree.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

SALT RIVER SAND AND ROCK CO. v. Dunevant
213 P.3d 251 (Court of Appeals of Arizona, 2009)
Salt River Sand & Rock Co. v. Dunevant
213 P.3d 251 (Court of Appeals of Arizona, 2009)
Scullion v. Wisconsin Power & Light Co.
2000 WI App 120 (Court of Appeals of Wisconsin, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
168 F.R.D. 508, 36 Fed. R. Serv. 3d 1417, 1995 U.S. Dist. LEXIS 13827, 1995 WL 564440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hcb-contractors-v-rouse-associates-paed-1995.