Case 2:11-cv-00926-JTM-JCW Document 494-1 Filed 10/31/13 Page 1 of 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP CIVIL ACTION NO. 2:11-00926 JTM - JCW v. TOM SCHEDLER in his official capacity as e Louisiana Secretary of State, SUZY SONNIER, in her official capacity as Secretary of e Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of e Louisiana Department of Heal & Hospitals MEMORANDUM IN SUPPORT OF MOTION FOR STAY OF ENFORCEMENT OF ORDER AND JUDGMENT PENDING APPEALS WITHOUT OBLIGATION OF POSTING SUPERSEDEAS APPEAL BOND MAY IT PLEASE THE COURT: Defendant, Tom Schedler, in his official capacity as Louisiana Secretary of State ( Schedler ), moves is Court, pursuant to FRCP Rule 62(f) and La. R.S. 13:4581, to issue an Order staying execution of is Court s Attorneys Fees Order (Doc 491) and Judgment (Doc 492), each entered October 22, 2013, pending appeals, wiout e obligation of posting a supersedeas appeal bond, for e following reasons: FACTS This Court, considering, inter alia, e Findings and Recommendation of e United States Magistrate Judge (Doc 485), by Order (Doc 491) dated October 22, 2013 granted in part and denied in part Plaintiffs Motion To Set Attorneys Fees and Costs (Doc 446) and entered Judgment October 22, 2013 (Doc 492) ordering Schedler, Bruce Greenstein, in his official capacity as Secretary of e -1-
Case 2:11-cv-00926-JTM-JCW Document 494-1 Filed 10/31/13 Page 2 of 7 Louisiana Department of Heal and Hospitals, and Suzy Sonnier, in her official capacity as Secretary of e Louisiana Department of Children and Family Services, to pay to plaintiffs, Luer Scott, Jr. and e Louisiana State Conference of e NAACP, $355,489.38 in attorney s fees and $34,251.57 in expenses. Schedler appealed e case on e merits (Doc 442), and e appeal is pending before e Fif Circuit Court of Appeals (Docket No. 13-30185). The appeal has been briefed, and e Fif Circuit will hear arguments in e case on December 3, 2013. Out of an abundance of caution and to avoid e waiver of any issues now pending before e appellate court, Schedler also appealed e attorney fees Order (Doc 491) and Judgment (Doc 492). See Doc 493. II. LAW AND ARGUMENT This Court Should Stay Enforcement of Its Attorneys Fees Judgment Pending Appeals Wiout e Obligation of Defendants Posting a Supersedeas Appeal Bond Rule 62 of e Federal Rules of Civil Procedure, in pertinent part, provides: Rule 62. Stay of Proceedings to Enforce a Judgment (f) Stay in Favor of a Judgment Debtor Under State Law. If a judgment is a lien on e judgment debtor s property under e law of e state where e court is located, e judgment debtor is entitled to e same stay of execution e state court would give. In Castillo v. Montelepre, Inc., 999 F.2d 931, 941 (5 Cir. 1993), e Fif Circuit affirmed a judgment of e Eastern District of Louisiana where [t]he district court found at under FRCP 62(f) e [Louisiana Patient s Compensation] Fund was entitled to a stay of judgment wiout having to post a bond. Id., at 941. Citing FRCP 62(f) and La. R.S. 13:4581, e Fif Circuit explained -2-
Case 2:11-cv-00926-JTM-JCW Document 494-1 Filed 10/31/13 Page 3 of 7 at [t]he obvious purpose behind is rule is to allow appealing judgment debtors to receive in e federal forum what ey would oerwise receive in eir state forum. Id., at 942. The Fif Circuit recognized in Castillo at FRCP 62(f) aims to treat a judgment debtor as would a state court in e state where e federal district court sits wi respect to a stay of execution of a money judgment during appeal, provided e judgment creditor is not made less secure ereby. See, Castillo, at 942-943. In at regard, La. R.S. 13:4581 provides wi respect to security during an appeal by e State of Louisiana and its agencies: 4581. State, state agencies, political subdivisions and public boards and commissions not required to furnish bond; Louisiana Citizens Property Insurance Corporation The state, state agencies, political subdivisions, parish, and municipal boards or commissions exercising public power and functions, sheriffs, sheriffs departments, and law enforcement districts, e Louisiana Insurance Guaranty Association, e Louisiana Citizens Property Insurance Corporation, and e Patient s Compensation Fund, or any officer or employee ereof, shall not be required to furnish any appeal bond or any oer bond whatsoever in any judicial proceedings instituted by or brought against em, at arises from activities wiin e scope and course of eir duties and employment. The district judge decided, and e Fif Circuit agreed, at e Fund was entitled to a stay of judgment wiout posting a bond under state law and was us exempt from having to post a bond given at e Fund by statute assured e judgment creditor of a source and meod of satisfying e judgment. Castillo, 942-943. See also Harvey v. Baton Rouge Marine Contractors, 2009 WL 166802 (5 Cir. 2009). Here, La. R.S. 13:4581, likewise exempts Schedler, sued in his official capacity as Secretary -3-
Case 2:11-cv-00926-JTM-JCW Document 494-1 Filed 10/31/13 Page 4 of 7 of State, from posting a bond on appeal. It is equally true as in Castillo, at e plaintiffs here are assured of a source and meod of satisfying e attorney s fee judgment in e event Schedler fails on his appeal. This is not a suit against Schedler individually, but raer a suit against e office, e Louisiana Secretary of State, and is no different from a suit against e state itself. Will v. Michigan Dept. of State Police, 491 U.S. 56, 68 (1989). Accordingly, is judgment may be executed by writ under FRCP 69(a) against e property and assets of e state agencies and/or e state itself. A supersedeas bond is designed to protect a judgment creditor against e depletion or wasting of assets and property belonging to a judgment debtor, and a bond would serve no purpose in is case. The source and means of satisfying e judgment are not jeopardized in e absence of a bond, and e judgment creditor is not made less secure if no bond is posted. In State Bank & Trust Co. of Golden Meadow v. D.J. Griffin Boat, 926 F.2d 449 (5 Cir. 1991), e Fif Circuit recognized at in Louisiana a judgment acts as a lien upon e property of e judgment debtor, and Louisiana Const. Art. 12 10, which generally exempts public property from seizure, does not prevent Federal Courts from ordering e State and/or its political subdivisions to pay judgments awarding attorneys fees in Civil Rights cases or from permitting judgment creditors to execute upon e judgment by seizing and selling public property. See Gary W. v. State of La., 622 F.2d 804 (5 Cir. 1980) (fee awards against state governmental entities could be enforced pursuant to Rule 69(a), notwistanding any state law provisions to e contrary); Gates v. Collier, 616 F.2d 1268 (5 Cir. 1980) (holding at 42 USCA 1988 (Civil Rights Attorney s Fee Awards Act of 1976) and F.R.Civ.P. 69 (providing for execution of district court judgments) apply -4-
Case 2:11-cv-00926-JTM-JCW Document 494-1 Filed 10/31/13 Page 5 of 7 to states and eir officials); Williams v. McKeien, 495 F.Supp. 707 (D.C. La. 1980) (same); see also Bowman v. City of New Orleans, 914 F.2d 711 (5 Cir. 1990) (court had auority to enforce consent judgment in Civil Rights action by auorizing seizure of public property). Moreover, at least one oer circuit has held at e bond requirement in FRCP 67 is not absolute and may be dispensed wi in appropriate circumstances. See, Olympia Equipment Leasing Co. v. Western Union Telegraph, 786 F.2d 794, 796 (7 Cir. 1986), per Judge Posner. Schedler submits at e judgment creditors ability to seize public property and execute e judgment by writ under FRCP 69(a) wi e assurance of an asset source effectively securing e judgment satisfies e criteria and fulfills e purpose of 62(f) entitling Schedler to a stay of execution of e attorney fee and expense judgment during e appeals. III. CONCLUSION AND PRAYER For e reasons set for herein above, Defendant, Tom Schedler, in his official capacity as Louisiana Secretary of State, respectfully suggests at, pursuant to F.R.Civ.P. Rule 62(f) and La. R.S. 13:4581, is Court should issue an Order, staying enforcement of is Court s Attorneys Fees Order (Doc 491) and Judgment (Doc 492) each dated October 22, 2013, pending appeals, wiout e necessity of posting a supersedeas appeal bond in is case. Respectfully Submitted: s/celia R. Cangelosi CELIA R. CANGELOSI Bar Roll No. 12140 918 Government Street, Suite 101 P.O. Box 3036 Telephone: (225) 387-0511 Facsimile: (225) 387-1973 Email: celiacan@bellsou.net -5-
Case 2:11-cv-00926-JTM-JCW Document 494-1 Filed 10/31/13 Page 6 of 7 s/carey T. Jones CAREY T. JONES Bar Roll No. 07474 1234 Del Este Avenue, Suite 803 P.O. Box 700 Denham Springs, LA 70727 Telephone: (225) 664-0077 Facsimile: (225) 664-9477 tjones@tomjoneslaw.com Attorneys for Defendant, Tom Schedler in his official capacity as Louisiana Secretary of State -6-
Case 2:11-cv-00926-JTM-JCW Document 494-1 Filed 10/31/13 Page 7 of 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY at a copy of e above and foregoing Defendant Schedler s Memorandum in Support of Motion For Stay of Enforcement of Order and Judgment Pending Appeals Wiout Obligation of Posting Supersedeas Appeal Bond was sent electronically or via U.S. First Class Mail, postage prepaid, to e following: Ronald L. Wilson (cabral2@aol.com) 701 Poydras Street, Suite 4100 New Orleans, LA 70139 Natasha Korgaonkar (nkorgaonkar@naacpldf.org) Ryan P. Haygood (rhaygood@naacpldf.org) 99 Hudson Street, Suite 1600 New York, NY 10013 Niyati Shah (nshah@projectvote.org) Michelle Rupp (mrupp@projectvote.org) Sarah Brannon (sbrannon@projectvote.org) 737 ½ 8 Street SE Washington, DC 20003 Israel David (israel.david@friedfrank.com) Michael B. De Leeuw (michael.deleeuw@friedfrank.com) Jesse Loffler (jesse.loffer@friedfrank.com) One New York Plaza New York, NY 10004 Charles L. Dirks, III (charliedirks@gmail.com) P.O. Box 3233 Stephen R. Russo (stephen.russo@la.gov) David McCay (david.mccay@la.gov) Douglas L. Cade (douglas.cade@la.gov) Kimberly L. Humbles (kim.humbles@la.gov) Rebecca Claire Clement (rebecca.clement@la.gov) Brandon James Babineaux (brandon.babineaux@la.gov) 628 N. 4 Street Baton Rouge, LA 70802 Harry Joseph Philips, Jr. (skip.philips@taylorporter.com) Amy C. Lambert (amy.lambert@taylorporter.com) Katia Desrouleaux (katia.desrouleaux@taylorporter.com) 451 Florida St., 8 Floor P. O. Box 2471 Celia Alexander (celia.alexander@la.gov) Eboni Townsend (eboni.townsend@la.gov) P.O. Box 1887 st Baton Rouge, Louisiana, is 31 day of October, 2013. s/celia R. Cangelosi CELIA R. CANGELOSI -7-