Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

01-cv-2056-JLK

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.

PLAINTIFFS' OPPOSITION TO "DEFENDANT PRATT & WHITNEY CANADA'S MOTION FOR STAY OF PROCEEDINGS TO ENFORCE JUDGMENT" (Doc. 245)

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U.S. Aviation v. Pilatus etc. et al.

Plaintiffs' Opposition to Motion for Stay
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INTRODUCTION. PWC is not entitled to another (second) stay of execution on the judgment. PWC's motion is expressly based on Rule 62 of the Federal Rules of Civil

Procedure. But Rule 62 contains no authority for the stay requested by PWC. Because Rule 62 does not allow the district court to stay enforcement of the judgment under the circumstances that now exist in this case, PWC's motion should be denied.

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BACKGROUND. On June 29, 2007, judgment was entered against PWC in the sum of

$1,474,834.08. (Doc. 212.) With accrued post-judgment interest, the total judgment against PWC now stands at $1,491,736.90.1 Writs of execution were issued on July 17, 2007. (Doc. 217 and 220.) Execution on the judgment was voluntarily stayed pending disposition of defendants' post-trial motions. (FED.R.CIV.P. 62(b).) Defendants' post-trial motions were denied on September 11, 2007 (Doc. 244), and the stay of execution expired on that same date. (Doc. 236.) The defendants did not seek to extend the stay before it expired. The defendants have not filed a Notice of Appeal, and the defendants have not posted a supersedeas bond.

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The Pilatus defendants have not requested a stay of execution, nor have the Pilatus Therefore, even if PWC's motion is granted, any stay of

defendants joined in PWC's motion.

enforcement should only be effective with regard to the judgment against PWC, and should not stay enforcement of the judgment against the Pilatus defendants.

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RULE 62 DOES NOT AUTHORIZE A STAY OF EXECUTION BETWEEN THE TIME POST-TRIAL MOTIONS ARE DENIED AND THE TIME WHEN DEFENDANTS FILE A NOTICE OF APPEAL AND POST A SUPERSEDEAS BOND. Rule 62 does not authorize the stay of execution that has been requested by PWC. In the context of this case, Rule 62 authorizes a stay of execution in only three

circumstances:

1.

First, execution on the judgment is automatically stayed for 10 days after judgment is entered. (FED.R.CIV.P. 62(a).)

2.

Second, the district court has discretion to stay enforcement of the judgment "pending disposition of" certain post-trial motions. (FED.R.CIV.P. 62(b).)

3.

Third, the district court may stay enforcement of the judgment pending appeal, but only after approving a supersedeas bond. (FED.R.CIV.P. 62(d).)

These are the only circumstances where a stay of enforcement is authorized by Rule 62. Because none of these circumstances exist in this case, the stay requested by PWC cannot be granted.

1.

First, the 10-day automatic stay created by Rule 62(a) expired long ago.

2.

Second, the discretionary stay "pending disposition of" certain post-trial motions created by Rule 62(b) expired on September 11, 2007.

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Third, PWC has not filed a Notice of Appeal, and it has not posted a supersedeas bond, so there can be no "Stay Upon Appeal" under Rule 62(d).

In short, there is no authority under Rule 62 for the stay that is being requested by PWC.2

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ANY FURTHER STAY OF EXECUTION SHOULD BE CONDITIONED ON THE POSTING OF A SUPERSEDEAS BOND IN THE FULL AMOUNT OF THE JUDGMENT. There seems to be no dispute that PWC has enough money to post a supersedeas

bond for the full amount of the judgment. To the extent the Court is inclined to grant PWC's motion, and temporarily stay enforcement of the judgment until October 11, 2007, plaintiffs respectfully request that any such stay be conditioned on the posting of (and court-approval of) a supersedeas bond in the full amount of the judgment (including accrued post-judgment interest.) (See, e.g., Miami Intern. Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. (D.Colo.) 1986) ["the purpose of a supersedeas bond is to secure an appellee from loss resulting from the stay of execution and that a full supersedeas bond should be the requirement in normal circumstances."])

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PWC has the power to stay enforcement of the judgment simply by filing a Notice of

Appeal, and posting an adequate supersedeas bond that is approved by the Court. (FED .R.CIV .P. 62(d).) For unexplained reasons, PWC has not yet done so. PWC's own failure to do what is necessary to obtain a stay under Rule 62(d) does not justify PWC's current request for a stay that is not contemplated by Rule 62.

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CONCLUSION. Based on the foregoing, plaintiffs respectfully submit that PWC's motion (Doc.

245) should be denied. To the extent the Court is inclined to grant PWC's motion, then plaintiff respectfully submits that any stay should be: (1) limited only to the judgment against PWC, and not the judgment against the Pilatus defendants, and (2) conditioned on the posting and court-approval of a supersedeas bond in the full amount of the judgment including accrued post-judgment interest. Respectfully Submitted, Dated: September 21 , 2007 s/ Jeffrey J. Williams Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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CERTIFICATE OF SERVICE U.S. Aviation Underwriters et al. v. Pilatus Business Aircraft etc. et al. D.Colorado Case No. 01-K-2056 [XXXXX] I hereby certify that on September 21 , 2007 , I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: For Defendant Pratt & Whitney Thomas J. Byrne, Esq. Byrne, Kiely & White 1120 Lincoln Street, Suite 1300 Denver, CO 80203 Tel. (303) 861-5511 Fax (303) 861-0304 Email: [email protected] [email protected]

For Pilatus Defendants Robert B. Schultz, Esq. Law Offices of Robert B. Schultz 9710 W. 82nd Avenue Arvada, CO 80005 Tel. (303)456-5565 Fax (303)456-5575 Email: [email protected]

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I hereby certify that on , I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: s/ Jeffrey J. Williams Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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