Free Motion to Stay - District Court of Arizona - Arizona

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Wayne Gill, Esq. (Fla Bar. No. 114953) WALTON LANTAFF SCHROEDER & CARSON LLP 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401 Telephone: (561) 689-6700 Facsimile: (561) 689-2647 Steven Plitt, Esq. (State Bar No. 007481) Daniel Maldonado, Esq. (State Bar No. 018483) KUNZ PLITT HYLAND DEMLONG & KLEIFIELD, P.C. 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1092 Telephone: (602) 331-4600 Facsimile: (602) 331-8600 Attorneys for Defendant/Counter-Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA U-Haul International, Inc.; U-Haul Company Of Pennsylvania; U-Haul Company Of Florida; and Republic Western Insurance Company, Plaintiffs, vs. Lumbermens Mutual Casualty Company, Defendants. No. CIV 04-0662 PHX DGC (Maricopa County Superior Court Cause No. CV 2004-002438) MOTION FOR AN ORDER STAYING EXECUTION OR ENFORCEMENT OF THE JUDGMENT ENTERED IN FAVOR OF PLAINTIFFS (Assigned to the Honorable David G. Campbell) LUMBERMENS MUTUAL CASUALTY

Defendant/Counter-Plaintiff,
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COMPANY ("LMC") by and through its undersigned counsel hereby moves this court, pursuant to the provisions of Rule 62(d) of the Federal Rules of Civil Procedure, to
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enter an order approving the attached supersedeas bond and staying execution or
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Case 2:04-cv-00662-DGC

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enforcement of the judgment entered in favor of plaintiffs, U-Haul International, Inc. and Republic Western Insurance Company ("Plaintiffs") on March 14, 2007, the order with regard to attorney fees on May 31, 2007, and order entered on June 6, 2007 taxing costs. This motion is supported by the accompanying memorandum of points and authorities. I. March 15, 2007, May 31, 2007 and June 6, 2007 Orders Pursuant to the Approval of the Supersedeas Bond Pursuant to Rule 62(d) of the Federal Rules of Civil Procedure, this Court is empowered to enter a stay when an appeal is taken by the appellant by giving a Supersedeas Bond. Rule 62(d) is a purely procedural mechanism to preserve the status quo during a stay pending appeal of a district court decision. Bass v. First Pacific

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Networks, Inc., 219 F.3d 1052, 1055 (9th Cir. 2000). See American Manufacturers Mutual Insurance Company v. American Broadcasting-Paramount Theaters, Inc., 87 S.Sct.1 17 L.Ed.2d 37 (1966)(party taking appeal from district court entitled to stay of money judgment as a matter of right, if bond posted).

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LMC hereby attaches to this motion the executed supersedeas Bond, a copy of which is attached hereto and the original of which LMC proposes to file with the Clerk of Court. The face amount of the bond is $2,858,000. As this Court is aware, on March 14, 2007, this Court entered judgment against LMC in the amount of $1,958,535.65. In

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addition, on May 31, 2007, plaintiffs were awarded attorney fees in the amount of $412,576.75. On June 5, 2007, the Court awarded $3,013.75 in costs, for a total sum of $2,374,126.19.

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The face in the amount of the bond is slightly more than 120 percent of the judgment, attorney fee award and costs, and secures the judgment in full, including post judgment interest and costs of appeal, if any. Consequently, LMC has obtained the

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attached Supersedeas Bond and requests that this Court approve the Supersedeas Bond and affect a stay of the judgment, attorney fee award and award of costs. Counsel have consulted about this motion. In particular, LMC's appellate counsel, John P. O'Malley, has consulted with counsel for plaintiffs, Mark Fragner.

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Counsel for Plaintiffs has authorized Lumbermens to state that Plaintiffs have no objection to the form or amount of the bond. II. CONCLUSION Based upon the foregoing, Defendant LMC respectfully requests that this Court

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to enter an order approving the attached supersedeas bond and staying execution or enforcement of the judgment entered in favor of plaintiffs, U-Haul International, Inc. and Republic Western Insurance Company ("Plaintiffs") on March 14, 2007, the order with regard to attorney fees on May 31, 2007, and order entered on June 5, 2007, taxing costs and interest. DATED this 25th day of June, 2007. WALTON LANTAFF SCHROEDER & CARSON LLP Wayne Gill, Esq. 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401

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KUNZ PLITT HYLAND DEMLONG & KLEIFIELD, P.C.

By: s/ Daniel Maldonado Steven Plitt Daniel Maldonado 3838 N. Central Avenue, Suite 1500 Phoenix, AZ 85012-1902 Attorneys for Defendant ORIGINAL electronically filed with the USDC this 25th day June, 2007, and a Copy delivered to Judge Campbell; and a COPY electronically served/mailed to: Gerald Gaffaney, Esq. David J. Ouimette, Esq. MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central, Suite 200 Phoenix, Arizona 85012 Attorneys for Plaintiff Bruce Friedman, Esq. Mark S. Fragner, Esq. RUBIN, FIORELLA & FRIEDMAN, LLP 292 Madison Avenue, 11th Floor New York, New York 10017 Attorneys for Plaintiff

s/ Tracey Griswold

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