Free Motion to Stay - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 261

Filed 10/19/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge John L. Kane

Civil Action No. 01-cv-2056-JLK-MJW

UNITED STATES AVIATION UNDERWRITERS, INC. a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation,

Plaintiffs, Vs.

PILATUS BUSINESS AIRCRAFT, LTD, a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation, PILATUS AIRCRAFT, LTD, A Swiss corporation; PRATT & WHITNEY CANADA, INC., A Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

MOTION FOR APPROVAL OF SUPERSEDEAS BOND AND FOR STAY OF EXECUTION OF JUDGMENT

Pilatus Business Aircraft, LTD and Pilatus Flugzeugwerke Aktiengesellschaft/Pilatus Aircraft, Ltd, (jointly "Pilatus") defendants in the above named case, hereby move the Court pursuant to F.R.C.P. 62(d) for approval of their proposed supersedeas bond and for a stay of execution pending appeal and as grounds therefor states as follows:

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Case 1:01-cv-02056-JLK

Document 261

Filed 10/19/2007

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1. Judgment was entered against Pilatus in the amount of $589,000 on June 29, 2007. Pilatus timely filed its Notice of Appeal on October 11, 2007. Pilatus has had ongoing discussions with plaintiffs before and after filing their Notice concerning settlement, waiver of the bond and bond requirements. Although plaintiffs agreed to waive the bond requirement for co-defendant PWC, whose judgment is 50% higher than that against Pilatus, to date, they indicated that they will oppose this motion. Their position is egregious and intended solely for harassment since Pilatus, like PWC, is fully insured for this loss. 2. Pursuant to F.R.C.P. 62(d) Pilatus offers a letter of credit in the amount of $1 million issued by UBS USA through their New York office as security for the judgment pending resolution of the appeal. 3. Pursuant to F.R.C.P. 69(a) "proceedings supplementary to and in aid of a judgment and in proceedings on and in aid of execution shall be in accordance with the practice of the state in which the district court is held." A motion for stay of execution is a proceeding on and in aid of execution and therefore Colorado law applies. 4. The Comment to C.R.C.P. 121 1-23 states that it "specifies the types of security that will be prima facie acceptable as bonds in civil actions." Paragraph 4 states that "A letter of credit from a bank chartered by either the United States Government or State of Colorado may be accepted as bond." 5. "UBS AG (NYSE: UBS; SWX: UBSN; TYO: 8657) is a diversified global financial services company, with its main headquarters in London and New York. It is the world's largest manager of private wealth assets and is also the second-largest bank in Europe, by both market capitalisation and profitability. UBS has a major presence in the
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U.S., with its American headquarters located in Manhattan (Investment Banking); Weehawken, New Jersey (Private Wealth); and Stamford, Connecticut (Capital Markets). UBS's retail offices are located throughout the United States, and in over 50 other countries. UBS is an acronym, which originated from a predecessor firm, the Union Bank of Switzerland, however UBS ceased to be considered a representational acronym after its 1998 merger with Swiss Bank Corporation. UBS's global business groups are Private Banking, Investment Banking, and Asset Management. Additionally, UBS is one of the leading providers of retail banking and commercial banking services in Switzerland. Overall invested assets are 3.265 trillion Swiss francs (CHF), shareholders' equity is 47.850 billion CHF and market capitalization is 151.203 billion CHF by end of 2Q 2007." (en.wikipedia.org) 6. The District Court has inherent discretionary authority in setting supersedeas bonds upon appeal and may stay proceedings to enforce a judgment pursuant to F.R.C.P. 62(d) without requiring a supersedeas bond. Miami International Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986); Hamlin v. Charter Township of Flint, 181 F.D.R. 348, 353 (E.D.Mich. 1998). Plaintiffs are an Idaho corporation and a New York insurance company represented by California counsel who chose to sue a Swiss company in Colorado. Considering that, and the fact that they waived he bond requirement for PWC, the more liable defendant, it is reasonable for this court to order a stay of execution based on a $1 million letter of credit from the New York office of UBS USA.

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WHEREFORE, Pilatus requests that the Court enter an order approving the propose supersedeas bond and staying the execution of the judgment until 30 days after the appellate court has issued its mandate.

RESPECTFULLY SUBMITTED this 19th day of October 2007.

Schultz & Associates

By

/Robert B. Schultz Robert Schultz 9710 W. 82nd Ave. Arvada, CO 80005 Tel (303) 456-5565 Fax (303) 456-5575 Attorney For Defendants Pilatus Business Aircraft, Ltd And Pilatus Flugzeugwerke Aktiengesellschaft/ Pilatus Aircraft, Ltd

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Case 1:01-cv-02056-JLK

Document 261

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CERTIFICATE OF SERVICE I hereby certify that on this 19th day of October 2007, I caused the forgoing MOTION FOR APPROVAL OF SUPERSEDEAS BOND AND FOR STAY OF EXECUTION OF JUDGMENT to be served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following addresses:

Jon A. Kodani Jeff Williams Law Offices of Jon A. Kodani [email protected] Thomas Byrne Byrne, Kiely & White LLP [email protected]

__s/ Robert Schultz__________ Schultz & Associates [email protected]

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