Free Motion to Stay - District Court of Arizona - Arizona

1 James W. Armstrong (No. 009599) SACKS TIERNEY P.A. 2 4250 North Drinkwater Blvd., 4th Floor Scottsdale, Arizona 85251-3693 3 Telephone: (480) 425-2600 [email protected] 4 Attorneys for Defendant 5 6 7 8 9 Ericsson Inc., 10 11
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

No. CV '03-00375 PHX JAT Plaintiff, v. UNOPPOSED MOTION FOR STAY PENDING APPEAL

12 Continental Promotion Group, Inc., 13 14 15 16 Pursuant to Rule 62(d) of the Federal Rules of Civil Procedure, Defendant Defendant.

SACKS TIERNEY

17 Continental Promotion Group, Inc. ("CPG") hereby moves for a stay of all proceedings to 18 enforce or execute upon the Judgments entered in favor of Plaintiff Ericsson Inc. on 19 February 3 and July 27, 2006, pending the appeals that CPG filed from those Judgments on 20 July 25 and August 4, 2006. Based upon the following Memorandum of Points and 21 Authorities, and all other matters of record, CPG further requests that in lieu of a 22 supersedeas bond, the Court approve the attached Letter of Credit as substitute security for 23 the stay, both the form and amount of which have been agreed to by Ericsson. 24 25 26 27 28
Case 2:03-cv-00375-JAT Document 135

RESPECTFULLY SUBMITTED this 18th day of August, 2006. SACKS TIERNEY P.A.

By:

s/ James W. Armstrong Attorneys for Defendant

Filed 08/18/2006

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MEMORANDUM OF POINTS AND AUTHORITIES On February 3, 2006, the Court entered separate Judgments in this breach of

3 contract action in favor of Ericsson (on its Complaint) and CPG (on its Counterclaim). 4 After offsetting the principal amount of CPG's Judgment, Ericsson received a net judgment 5 in the principal amount of $1,032,400.63. After this Court's June 28, 2006 denial of CPG's 6 Motion for New Trial and/or to Alter or Amend Judgment, CPG filed a timely Notice of 7 Appeal from the February 3 Judgment in favor of Ericsson on July 25, 2006. Subsequently, 8 on July 27, 2006, the Court granted Ericsson's Motion for Attorneys' Fees and entered 9 Judgment thereon in the amount of $250,000.00. On August 4, 2006, CPG filed a timely 10 Notice of Appeal from that Judgment as well. CPG intends to move for the consolidation 11 of these appeals, once both are docketed in the Ninth Circuit.
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

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As explained by Professor Moore, "[a]n appealing party is entitled to a stay of

13 enforcement as a matter of right under Rule 62(d) if a supersedeas bond is filed with the 14 court." 12 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 62.03[1], at 62-9 (3d ed. 15 2006). Moreover, "[t]he stay becomes effective once the court has approved the bond." Id. 16 "As for the proper amount of the bond, this is generally within the court's discretion, 17 although in the absence of a specific local rule on the topic, the court will generally require 18 that a supersedeas bond be at least for the full amount of the judgment." Id. at 62-10 to 6219 11. 20 Furthermore, "courts in their discretion have allowed alternative forms of security

SACKS TIERNEY

21 other than a bond, when adequate equivalent security is provided and the appealing party 22 can show that the judgment creditor's recovery is not in jeopardy." Id. at 62-11. Such 23 alternatives "include cash, bank certificates of deposit, letters of credit, and negotiable 24 securities." Jefferson Lankford, Supersedeas in Arizona Appeals, Vol. 20, No. 5 ARIZ. BAR 25 J. 29, 31 (Feb./Mar. 1985).1 As also explained by Judge Lankford, "[s]ubstitute security 26 27 See, e.g., International Telemeter Corp. v. Hamlin Int'l Corp., 754 F.2d 1492, 1495 (9th Cir. 1985) (escrow account); Trans World Airlines, Inc. v. Hughes, 515 F.2d 173, 177 28 (2nd Cir. 1975) (letter of credit), cert. denied, 424 U.S. 934 (1976); Gaus v. Conair Corp.,
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1 presents one notable advantage:

it avoids the bond premium * * * [and] results in

2 substantial savings because bond premiums are proportional to the bond amount." Id. 3 Here, the parties have agreed, through their respective counsel, that the amount of

4 $1.85 million is adequate to secure the stay pending appeal requested by CPG. Ericsson 5 has further agreed that, in lieu of a supersedeas bond, CPG may substitute a letter of credit 6 to secure the payment of that amount if CPG's appeal is unsuccessful. Finally, Ericsson 7 and its counsel have reviewed the proposed Letter of Credit attached hereto as Exhibit A, 8 and Ericsson has no objections to its form or use as the security instrument for CPG's 9 requested stay under Rule 62(d). 10
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

Accordingly, CPG respectfully asks that the Court immediately enter the

11 accompanying proposed form of Order, staying all proceedings to enforce or execute upon 12 the two Judgments at issue pending the final outcome of CPG's appeal, and approving the 13 attached Letter of Credit as adequate substitute security for the purposes of Rule 62(d). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2003 U.S. Dist. LEXIS 2631 at *4 (S.D.N.Y. Feb. 14, 2003) (letter of credit); Prosser v. 28 Prossser, 907 F.Supp. 906, 907 (D.V.I. 1995) (cash plus stock).
Case 2:03-cv-00375-JAT Document 135 Filed 08/18/2006 Page 3 of 4

SACKS TIERNEY

RESPECTFULLY SUBMITTED this 18th day of August, 2006. SACKS TIERNEY P.A.

By:

s/ James W. Armstrong Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on August 18, 2006, a complete, duplicate copy of this 3 document was forwarded directly to Judge Tielborg by U.S. mail, postage prepaid, at the following address: 4 Judge James A. Teilborg 5 United States District Court 401 W. Washington 6 Phoenix, Arizona 85003 7 8 9 I hereby certify that on August 18, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a 11 Notice of Electronic Filing to the following CM/ECF registrants: 10
P.A., ATTORNEYS 4250 NORTH DRINKWATER BOULEVARD FOURTH FLOOR SCOTTSDALE, ARIZONA 85251-3693

s/ James W. Armstrong

12 13 14 15 16 17 18

SACKS TIERNEY

Christopher L. Callahan, Esq. FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 E-Mail: [email protected] Attorneys for Plaintiff s/ James W. Armstrong

I hereby further certify that on August 18, 2006, I served the attached document by U.S. mail, postage prepaid, on the following, who are not registered participants of the 20 CM/ECF System: 19 21 22 23 24 25 26 27 28
620763.01

Jonathan D. Sasser, Esq. ELLIS & WINTERS LLP Post Office Box 33550 Raleigh, North Carolina 27636 Attorneys for Plaintiff

s/ James W. Armstrong

Case 2:03-cv-00375-JAT

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