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McElree v. City of Cedar Rapids

United States District Court, N.D. Iowa, Cedar Rapids Division

August 13, 2019

TWYLA MCELREE, Administrator of the Estate of Jonathan Tyler Gossman, e al., Plaintiffs,
v.
CITY OF CEDAR RAPIDS, IOWA, et al., Defendants.

          ORDER ON DEFENDANTS' MOTION FOR APPEAL BOND

          Leonard T. Strand, Chief Judge

         I. INTRODUCTION

         This case is before me on defendants' motion (Doc. No. 127) to set an appeal bond. Plaintiffs have filed a resistance (Doc. No. 128). Defendants filed a reply (Doc. No. 129) and a subsequent motion (Doc. No. 130) to supplement their reply.

         II. BACKGROUND

         Plaintiffs commenced this action under 42 U.S.C. § 1983 and Iowa law for alleged constitutional violations committed against Jonathan Gossman. On April 5, 2019, I granted summary judgment in favor of defendants on all nine of plaintiffs' claims. Doc. No. 115. Judgment was entered in favor of defendants and a disputed bill of costs was filed on April 18, 2019. Doc. No. 117. Plaintiffs' also filed a motion to amend judgment on May 3, 2019. Doc. No. 119. On May 23, 2019, I entered an order denying plaintiffs' motion to amend judgment. Doc. No. 121. In the same order, I sustained in part and denied in part plaintiffs' objections to the bill of costs. Id. Costs were taxed in favor of the defendants and against the plaintiffs in the total amount of $8, 767.12. Id. Plaintiffs filed a notice of appeal on June 20, 2019. Doc. No. 122. Defendants' motion for appeal bond was filed on June 28, 2019.

         III. APPLICABLE STANDARDS

         Federal Rule of Appellate Procedure 7 states that “[i]n a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal.” Fed. R. App. P. 7. The Eighth Circuit limits “costs on appeal to costs that a successful appellate litigant can recover pursuant to a specific rule or statute.” In re Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608, 614-15 (8th Cir.) amended, 855 F.3d 913 (8th Cir. 2017) (quoting Tennille v. W. Union Co., 774 F.3d 1249, 1254 (10th Cir. 2014)).

         The case law from the Eighth Circuit on civil appeal bonds is minimal, but other courts have used four factors to determine whether a Rule 7 bond is necessary. These factors are (1) the appellant's financial ability, (2) the risk of nonpayment if the appeal is unsuccessful, (3) the merits of the appeal and (4) bad faith on the part of the appellants. In re Uponor, Inc., F1807 Plumbing Fittings Prod. Liab. Litig., No. 11-MD-2247 ADM/JJK, 2012 WL 3984542, at *2 (D. Minn. Sept. 11, 2012); see also Adsani v. Miller, 139 F.3d 67, 78-79 (2d Cir. 1998) (discussing factors involved such as ability to pay, merits of the appeal and payment risk); Figure Eight Holdings, LLC v. Dr. Jays, Inc., 534 Fed.Appx. 670, 671 (9th Cir. 2013) (listing all factors except for “bad faith”); (Berry v. Deutsche Bank Trust Co. Americas et al., 632 F.Supp.2d 300, 307 (S.D.N.Y. 2009) (listing all factors).

         IV. DISCUSSION

         Defendants request that I set an appeal bond in the amount of $13, 000, which includes $3, 000 for out-of-pocket expenses in defending the appeal and $10, 000 as an estimated attorneys' fees. Doc. No. 127-1 at 8. Plaintiffs argue that defendants are (1) not entitled to an appeal bond and (2) even if they were, the amount requested is unreasonable. Doc. No. 128-1 at 5-6.

         First, I will address defendants' motion to supplement their reply.[1] Defendants provided plaintiffs' designation of appendix filed in the Eighth Circuit and a notice of their election to file a separate appendix. Doc. Nos. 130-1; 130-2. Because these documents were not filed with the Eighth Circuit until after defendants filed their reply, I will grant defendants' motion (Doc. No. 130) to supplement their reply.

         A. Imposing an Appeal Bond

         Defendants argue that they are concerned plaintiffs would not pay the costs of appeal if they are unsuccessful because they have not yet paid the costs already taxed to them. Doc. No. 127-1 at 4. Defendants also argue that the merits of plaintiffs' appeal are questionable, and so it is unlikely the plaintiffs would prevail on appeal. Id. at 5. Plaintiffs respond that an appeal bond is unreasonable because none of the plaintiffs have the assets to post a bond and requiring a bond would effectively eliminate their right to appeal. Doc. No. 128-1 at 5.

         1. ...


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