Dillon v. City of Chicago
| Decision Date | 13 June 1988 |
| Docket Number | 88-1640,87-1149,87-3086,88-1865 and 88-1935,Nos. 87-3008,s. 87-3008 |
| Citation | 866 F.2d 902 |
| Parties | 49 Fair Empl.Prac.Cas. 63, 49 Empl. Prac. Dec. P 38,801, 12 Fed.R.Serv.3d 905 Joseph DILLON, Plaintiff-Appellee, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Judson H. Miner, Corp. Counsel, Macy L. Mikva, Asst. Corp. Counsel, Chicago, Ill., for defendant-appellant.
Edward R. Theobald, Chicago, Ill., for plaintiff-appellee.
Before POSNER, COFFEY and FLAUM, Circuit Judges.
This matter comes before the court for its consideration of the following documents in this matter:
(1) MOTION TO STAY filed herein on April 4, 1988;
(2) APPELLEE'S MOTION TO DISMISS APPEAL (88-1640) and APPELLEE'S RESPONSE TO APPELLANT'S MOTION TO STAY filed herein on April 12, 1988;
(3) MOTION TO STAY WITHOUT POSTING SECURITY filed herein on April 20, 1988;
(4) PLAINTIFF-APPELLEE'S RESPONSE TO MOTION TO STAY WITHOUT POSTING SECURITY filed herein on May 2, 1988.
Plaintiff-appellee Joseph Dillon won a sizable jury verdict in his employment discrimination case against the defendant-appellant City of Chicago ("the City"), and also was awarded attorneys' fees and costs as the prevailing party. The City has filed two motions asking this court to stay the execution of both the judgment and the attorneys' fees. Because the district court erred in refusing to waive the requirement of bond or to otherwise stay the execution of the judgment and award of fees and costs, we reverse.
The procedural history of the matter is somewhat lengthy and tortuous. District Judge Frank J. McGarr presided over this case until he retired from the bench and returned to private practice. On December 29, 1987, he entered an order awarding attorneys' fees and costs in the amount of $51,882.53. At that time, the City had not filed a motion in the district court requesting a stay of that award pending appeal, so, therefore, the order made no mention of a stay. Judge McGarr's order did state that, "Defendant is ordered to pay plaintiff's counsel these sums within 60 days of the date of this order." District Court Order dated Dec. 29, 1987 at 4.
On January 27, 1988, the City filed a motion in the district court seeking a stay and waiver of posting a supersedeas bond for both the judgment and the attorneys' fees and costs. Because Judge McGarr had retired from the federal bench by that time, the City's motion was heard by District Judge Charles P. Kocoras, sitting as emergency judge. Judge Kocoras effectively denied the City's motion. He ruled that the judgment award of $115,359.59 would be stayed, but only if the City transferred the funds in the amount of the judgment to an account controlled by the Clerk of the District Court for the Northern District of Illinois. As the City points out in its motion before this court, "Although the City need not purchase a bond, it must go through the administrative burden of transferring funds, and will be denied the use of City funds, pending appeal." Motion to Stay without Posting Security at 3. Judge Kocoras denied the City's motion to stay payment of the fees and costs award because of the language of Judge McGarr's fee award. "Judge McGarr's specific order to pay within 60 days, entered after the filing of the notice of appeal, implies that he did not think that the payment of fees should be stayed pending appeal." District Court Order of March 9, 1988, 684 F.Supp. 177, 179. Although there was no motion to stay pending at the time of the earlier order, Judge Kocoras believed that Judge McGarr's order foreclosed the possibility of issuing a stay pending appeal for the fees and costs. The City has therefore applied to this court for a stay of the execution of both the judgment and the payment of fees and costs pending appeal.
The law in this area is clear, having been the subject of three opinions in this court over the last two years. See Northern Indiana Public Service v. Carbon County Coal, 799 F.2d 265 (7th Cir.1986) (); Lightfoot v. Walker, 797 F.2d 505 (7th Cir.1986) (); and Olympia Equipment v. Western Union Telegraph Co., 786 F.2d 794 (7th Cir.1986) (). The applicable standard of review in this area is an abuse of discretion. "Responsibility for deciding whether to require a bond as a condition of staying execution of the judgment pending appeal is vested initially in the district judge, and we shall reverse his decision only if convinced that he has acted unreasonably." Lightfoot, 797 F.2d at 507.
Rule 62(d) of the Federal Rules of Civil Procedure allows an appellant to obtain an automatic stay of execution of judgment pending appeal by posting a bond. In the alternative, the appellant may move that the district court employ its discretion to waive the bond requirement. Carbon County Coal, 799 F.2d at 281. When determining whether to waive the posting of bond, the district court may look to several criteria enumerated by this court: (1) the complexity of the collection process; (2) the amount of time required to obtain a judgment after it is affirmed on appeal; (3) the degree of confidence that the district court has in the availability of funds to pay the judgment (see Lightfoot, 797 F.2d at 506 (...
To continue reading
Request your trial
-
In re Sindesmos Hellinikes-Kinotitos of Chicago
...a stay." Id.The case law regarding exercise of that discretion is not helpful in the matter at bar, see, e.g. , Dillon v. City of Chi. , 866 F.2d 902, 904 (7th Cir. 1988) (stating criteria for staying a money judgment), as the criteria discussed by the courts do not lend themselves well to ......
-
U.S. v. Boyce
...that the requirement to post a bond would place other creditors of the defendant in an insecure position." Dillon v. City of Chicago, 866 F.2d 902, 904-05 (7th Cir.1988) (internal citations and quotations omitted). The Court can also approve the posting of alternate security. Townsend v. Ho......
-
C.B. v. Sonora Sch. Dist.
...position that the requirement to post a bond would place other creditors of the defendant in an insecure position.Dillon v. City of Chicago, 866 F.2d 902, 904–05 (7th Cir.1988); 12–62 James Wm. Moore et al., Moore's Federal Practice § 62.03 (Matthew Bender 3d ed.); United States v. Boyce, 1......
-
John Wiley & Sons, Inc. v. Book Dog Books, LLC
...to post a bond would place other creditors of the defendant in an insecure position. 783 F.3d at 417–18 (citing Dillon v. Chicago, 866 F.2d 902, 904–05 (7th Cir. 1988) ). These factors are meant to "ensure recovery for a party who ultimately prevails on appeal, and to protect the judgment d......
-
Attorney's Fees and Costs
...does not contend that it is in such a position, this case does not support its position, either. 5. Next, Dillon v. City of Chicago, 866 F.2d 902, presented a vastly different situation from the one at issue here. The defendant in Dillon submitted affidavits outlining the mode of payment of......
-
Utah Appellate Law Update Staying Enforcement of a Judgment During Post-trial and Appellate Proceedings
...These factors are substantially similar to the so-called Dillon factors used under the analogous federal rule. Dillon v. City of Chicago, 866 F.2d 902,904-05 (7th Cir. 1988). Waiver or reduction is particularly appropriate in two circumstances. The first is "where the defendant's ability to......