Free Motion for Bond - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

Document 309

Filed 02/12/2008

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-00413-JLK (BNB) M.D. MARK, INC., Plaintiff v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ______________________________________________________________________________ DEFENDANTS' UNOPPOSED MOTION TO STAY EXECUTION AND TO APPROVE SUPERSEDEAS BOND ______________________________________________________________________________ COME NOW Defendants Kerr-McGee Corporation ("Kerr-McGee") and Oryx Energy Company ("Oryx") (collectively "Defendants") and, pursuant to Rule 62(b) and (d) of the Federal Rules of Civil Procedure, move for a stay of execution of the Amended Judgment entered herein and for approval of the supersedeas bond. In support of this unopposed motion, Defendants would respectfully show the Court as follows: 1. On January 29, 2008, pursuant to order of the Court, the Clerk of the Court

entered an Amended Judgment against Defendants in the amount of $25,266,381.00 for actual damages plus prejudgment interest in the amount of $23,949,712.68 plus costs, which have been adjudged to be $12,713.42 ­ such that the total amount awarded by the Amended Judgment is $49,228,807.10. Further, postjudgment interest was awarded at the rate of 4.11%. 2. Accordingly, execution on the judgment is automatically stayed for 10 days

(through February 12, 2008) pursuant to Rule 62(a) of the Federal Rules of Civil Procedure. In addition, by order dated January 29, 2008, this Court expressly granted a stay of execution until

1

Case 1:01-cv-00413-JLK-BNB

Document 309

Filed 02/12/2008

Page 2 of 6

10 days after the entry of the Amended Judgment, which likewise is a stay of execution until February 12, 2008. 3. Defendants intend to appeal the Amended Judgment against them to the Tenth

Circuit. In order to stay execution of the Amended Judgment pending appeal, Defendants are filing concurrently with this motion a supersedeas bond in the amount of $53,375,241.36. A copy of the supersedeas bond is attached hereto as Exhibit 1. 4. Under Rule 62(d) of the Federal Rules of Civil Procedure, Defendants are entitled

to a stay of execution upon the filing of their supersedeas bond. The supersedeas bond filed by Defendants in this case fully protects Plaintiff M.D. Mark, Inc. by covering the total amount of the Amended Judgment (including damages, prejudgment interest, and costs), as well as covering the amount of post-judgment interest that would accrue on the Amended Judgment at the rate of 4.11% compounded annually during the anticipated duration of the appeal (24 months). Thus, the supersedeas bond is a full security supersedeas bond that completely protects the interests of Plaintiff in the Amended Judgment. In light of the posting of the supersedeas bond, any attempts by Plaintiff to execute on the Amended Judgment would be wrongful. 5. The sureties on the bond, Liberty Mutual Insurance Company and Safeco

Insurance Company of America are licensed to transact surety business in the State of Colorado and are approved sureties listed in the Federal Register. Copies of the pertinent pages of the Federal Register listing Liberty Mutual Insurance Company and Safeco Insurance Company of America as approved sureties are attached hereto as Exhibit 2. 6. Counsel for Defendants has conferred with counsel for Plaintiff M.D. Mark, Inc.,

and Plaintiff does not oppose the granting of this motion.

2

Case 1:01-cv-00413-JLK-BNB

Document 309

Filed 02/12/2008

Page 3 of 6

WHEREFORE, Defendants respectfully request that the Court enter an order (1) staying Plaintiff M.D. Mark, Inc. from executing upon the Amended Judgment or filing any proceedings to enforce the Amended Judgment against Defendants pending the appeal of this case, (2) approving Defendants' supersedeas bond, and (3) granting such other and further relief to which Defendants may be entitled.

3

Case 1:01-cv-00413-JLK-BNB

Document 309

Filed 02/12/2008

Page 4 of 6

Respectfully submitted,

s/ Marie R. Yeates___________ Marie R. Yeates VINSON & ELKINS LLP 1001 Fannin Street, Suite 2500 Houston, Texas 77002-6760 Phone: 713.758.4576 Fax: 713.615.5544 [email protected] Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8513 Fax: (303) 975-5416 [email protected] [email protected] [email protected] ATTORNEYS FOR DEFENDANTS

4

Case 1:01-cv-00413-JLK-BNB

Document 309

Filed 02/12/2008

Page 5 of 6

CERTIFICATE OF CONFERENCE Counsel for Defendants has conferred with counsel for Plaintiff M.D. Mark, Inc., and Plaintiff does not oppose the granting of this Motion.

s/ Marie R. Yeates___________

5

Case 1:01-cv-00413-JLK-BNB

Document 309

Filed 02/12/2008

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that, on February 12, 2008, I electronically filed a true and correct copy of the foregoing Defendants' Motion to Stay Execution of Judgment and for Approval of Supersedeas Bond with the Clerk of Court using CM/ECF system which will serve such filing by e-mail to: Harlan P. Pelz Daniele W. Bonifazi Pelz, Bonifazi & Inderwish [email protected] [email protected]

s/ Marie R. Yeates___________
Houston 3511471v1

6