United States District Court, N.D. Iowa, Cedar Rapids Division
TWYLA MCELREE, Administrator of the Estate of Jonathan Tyler Gossman, e al., Plaintiffs,
CITY OF CEDAR RAPIDS, IOWA, et al., Defendants.
ORDER ON DEFENDANTS' MOTION FOR APPEAL
Leonard T. Strand, Chief Judge
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.
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,
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)).
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).
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.
I will address defendants' motion to supplement their
reply. 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.
Imposing an Appeal Bond
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.