Case Information
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6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA 8 UNITED STATES O F AM ERICA, 7 L 10 v. 2:10-cv-1337-RCJ-RJJ 1 l ORDER !
KEITH L. M A RIS, et al., Defendants.
Currently before the Court are motions to stay the enforcement of this Coufsjudgment p 1 5 pending appeal (#1 1 1) and to vacate an order of judgment of this Court (#1 12). For the j following reasons, b0th motions are denied. 1 7 BACKGROUND
1 8 ' ' ' ' lordern) granting in part the United 1 On Februaryz, 2012 this Court issued an order (the l 9 ' States government's motion for summary judgment against Defendants Keith and Donna I t Maris (collectively uDefendants'') for unpaid taxes. (Order (#107)). The Court found that the t had satisfied its initial burden in support of its motion for summary judgment by 1 governm en of Assessments and Payments along with other evidence l presenting Form 4340 Certificates x
23 and that Defendants' argum ents that the claim s and collections w ere tim e-barred w ere insufficient to rebut this evidence and show the assessments.were incorrect. (1d. at 5-8). j j Because Defendants failed to satisfy their burden in opposition to the m otion for sum mary judgment, the Court ordered judgment to be entered against Keith and Donna Maris in the 2 7 amount of $565,658.58 plus interest and against Keith Maris d/b/a Keith L. Maris Painting and W allpaper in the amount of $54,541.76 plus interest. (/d. at 12-13). The Coud further ordered *2 i . h r z à
b l '1 1 that the government has valid Iiens in the amount of $565,658.58 plus interest on aII propedy .. 2 of Defendants Keith and Donna M aris and valid Iiens on alI propedy of Keith M aris in the
3 amount of $54,541.76 plus interest. ' çld. at 13). The Court however denied the government's 4 request for an order perm itting foreclosure and sale of Defendants' hom e until evidence was 5 presented showing no reasonable alternative for satisfying the debt is available. (/d.). O n February 29, 2012, Defendants filed two m otions in this Court: a m otion to stay or I 7 set aside enforcement of the Order pending appeal (#111) and a motion to vacate the Order .! :
8 (#112), A hearing was held on these motions on' April 19, 2012, at which Defendants failed : 9 to appear. DISC USSIO N
1 1 1. M otion to Stay Pursuant to Fed R. Civ. P. 62(d), ulilf an appeal is taken, the appellant may obtain a
13 stay by supersedeas bond.'' A district court's authority to issue a stay is generally conditioned 14 upon approval of a bond. Vacation Village, Inc. 1. C/ark Cnly., 497 F.3d 902, 913-14 (9th Cir. 15 2007) (''Federal Rule of Civil Procedure.6ztd) . . . requires only that the appellant post a . 16 supersedeas bond in order to obtain a stay on appeal.''). U he bond should ordinarily include 17 the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and 18 damages for delay.'' Bemo USA Corp. v. Jake's Crane, Rigging & Transp. lntl, Inc., 2010 W L 19 4604496, at *1 (D. Nev. 2010) (citing Poplar Grove Planting & Refining Co. v. Bache Halsey ' 20 Stuart, /nc,l 600 F.2d 1189, 1191 (5th Cir. 1979)). The Ninth Circuit however has held that the 21 district court has discretion to allow otherforms of judgment guarantee in place of a bond. Int'l 22 Telemeter Corp. v'. Hamlin Int'l Corp.. 754 F.2d 1492, 1495 (9th Cir. 1985) (citing Pop/ar The m otion is actually request ing thatthe governm ent be required to show cause as to why Defendants attached motion to vacate should not be granted . (Mot. to Vacate ( yjj jg) at 1). The government however has responded by showing cause as to why the motion should not be granted, and thus the only issue regarding this motion is whether the Order should be vacated. '1.
;.- uIf a court chooses to depart from the usual requirement of a full 1 d
1 Grove, 600 F.2d at 1 191). k 2 security supersedeas bond to suspend the operation of an unconditional money judgment, it 3 should place the burden on the moving party to objectively demonstrate the reasons for such 4 a departure.'' Poplar Grove, 600 F.2d at 1 191 . Defendants here have notoffered a bond to secure theirobligation to paythejudgment, '
6 Defendants have also failed to plesent any argument that would justify the Court s departure ) 7 from the usual supersedeas bond requirem ent. A lthough the governm pnt has valid liens on 8 Defendants' propedy securing the debt, Defendants have not show n that these Iiens are 9 sufficient to guarantee the Iarge moneyjudgment awarded to the government pending appeal. 10 Until Defendants offer an adequate bond guaranteeing the money judgment or offer to post 1 1 some other form of security, they are not entitled to a stay from the money judgment. Although not asserted by Defendants, they are also not entitled to a stay from the liens
13 ordered upon their propedy under Fed. R. Civ. P. 62(f). Rule 62(f) provides that ''if a judgment 14 is a Iien on the judgment debtor's property under the Iaw of tbe state where the coud is 15 Iocated, the judgment debtor is entitled to the same stay of execution the state court would . ' 16 give.'' The purpose of this rule is to give the judgment debtor uthe same stay as would be l 7 granted had the action been m aintained in the couds of that state rather than in the district 18 courtof the United States.'' C.W RIGHT, A. M ILLER, M . KANE, FEDEYALPRACTICEAND PROCEDURE 19 j 2907, p. 527 (2d ed. 1995). Nevada Iaw does not entitle Defendants to a stay from the Iien 20 underthese circumstances. Because Defendants have failed to show that they are willing and 21 able to post a sufficient bond pending appeal pursuant to Fed. R. Civ. P. 62(d), Defendants' 22 motion to stay the execution of the judgment is denied.
23 ll. M otion to Vacate A motion to reconsider and vacate a prior order must set forth ''some valid reason why
25 the court should reconsider its prior decision'' and set ''forth facts or law of a strongly 26 convincing nature to persuade the court to reverse its prior decision,'' Frasure v. United 27 Slates, 256 F.supp.zd 1180, 1 183 (D. Nev. 2003). Reconsideration is appropriate if this Court ! 28 1'(1) is presented with newly discovered evidence, (2) committed clear error or the initial '
Case 2:10-cv-01337-RCJ-NJK Document 123 Filed 05/14/12 Page 4 of 4 D '
1 decision was manifestly unjust, or (3) if there is an intervening change in controlling Iaw,'' Sch. j 2 Dist. No. IJ v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). ''A motion for reconsideration 3 is not an avenue to re-litigate the sam e issues and argum ents upon which the court already ' 4 has ruled.'' Brown ?. Kinross Gold, U.S.A., 378 F.supp.zd 1280, 1288 (D. Nev. 2005). ': Defendantsargue thatthe Court should reconsiderand vacate its earlierorderbecause 6 they filed with the Court a demand forjury trial. (Mot. to Vacate (#1 12) at 2', Demand for Trial 7 by Jury (#59)). The contention that the Court's grant of summary judgment violated 8 Defendants' right to a trial by jury as guaranteed by the Seventh Amendment to the United ,' 9 States Constitution however Iacks m erit, ''As the Supreme Court held, overone hundred years 10 ago, a summary judgment proceeding does not deprive the Iosing party of its Seventh 1 1 Amendment right to a jury trial.'' In re Slatkin, 525 F.3d 805, 81 1 (9th Cir. 2008) (citing Fid. & 12 Deposit Co. of Md. F. United States, 187 U.S. 315, 319-21 (1902)). Defendants also argue that relief from the judgment is warranted because the tax
14 assessm ents w ere not proven, Form 4340 Certificates of Assessm ents and Paym ents were 15 not produced, the claim s and collections w ere tim ed-barred, and the governm ent failed to 16 support its motion for summaryjudgment by expert testimony. (Mot. to Stay (#111) at 5, 24- 17 25). The tax assessments were however proven by Form 4340 Certificates of Assessments 18 and Payments along with other relevant evidence. (See.Exs. (#99)). The Coud has already l 9 rejected the argument that the claims were time-barred for reasons stated in the Order. (Order 20 (#107) at 6-8). Finally, expert testimony is not required for the Court to grant a motion for ' 21 summaryjudgment. See FED. R. CIV. P. 56. The Court therefore denies Defendants motion ' 22 to vacate. CO NCLUSIO N For the foregoing reasons, IT IS ORDERED that Defendants' motion to stay (#111) is
25 DEN I ED. IT IS FURTHER ORDERED that Defendants' motion to vacate (#112) is DENIED. DATED this 11th day of M ay, 2012. United Stat -q: istrict Judge