REVISED November 14, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20267

MM STEEL, L.P.,

Plaintiff–Appellee

v.

JSW STEEL (USA) INCORPORATED; NUCOR CORPORATION; 

RELIANCE STEEL & ALUMINUM COMPANY; CHAPEL STEEL 

CORPORATION; ARTHUR J. MOORE; AMERICAN ALLOY STEEL, 

INCORPORATED,

Defendants–Appellants

Appeals from the United States District Court

for the Southern District of Texas

Before JONES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:

Before the Court is Defendant–Appellant JSW Steel (USA) Inc.’s (“JSW”) 

Motion for Stay of Execution of Judgment Pending Appeal, filed June 20, 2014. 

JSW also moves to seal the appendix attached to its motion. We deny the 

motion for stay, and grant the motion to seal.

I. BACKGROUND

In this antitrust case, Plaintiff–Appellee MM Steel, L.P. (“MM Steel”), 

obtained a judgment for over $150 million jointly and severally against 

United States Court of Appeals

Fifth Circuit

FILED

October 1, 2014

Lyle W. Cayce

Clerk

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multiple defendants, including JSW. JSW now seeks to stay the judgment 

pending appeal pursuant to Federal Rule of Civil Procedure (“Rule”) 62(f). 

According to JSW, Rule 62(f) limits a supersedeas bond to $25 million under 

Texas law. JSW therefore asks this Court to approve a supersedeas bond in 

the amount of $25 million jointly for all defendants or, alternatively, to approve 

a supersedeas bond in the amount of $25 million for JSW individually.

Resolving JSW’s motion requires this Court to determine whether (1) 

under Rule 62(f), Texas law limits the required amount of the supersedeas 

bond to a maximum of $25 million, and (2) if so, whether the defendants are 

individually or jointly subject to that limit. For the reasons below, we answer 

the first question in the negative and therefore do not reach the second 

question.

II. LEGAL STANDARD

Rule 62 governs the stay of proceedings to enforce a judgment. “Rule 

62(d) establishes a general rule that losing parties in the district court can 

obtain a stay pending appeal only by giving a supersedeas bond.” Enserch 

Corp. v. Shand Morahan & Co., 918 F.2d 462, 463–64 (5th Cir. 1990). Rule 

62(f) provides a separate ground for a stay: “If a judgment is a lien on the 

judgment debtor’s property under the law of the state where the court is 

located, the judgment debtor is entitled to the same stay of execution the state 

court would give.” Under the prevailing view of Rule 62(f), a judgment is a lien 

if a judgment creditor is only required to perform mere “ministerial acts” to 

transform the judgment into a lien.1 

1 See, e.g., Rodriguez–Vazquez v. Lopez–Martinez, 345 F.3d 13, 14 (1st Cir. 2003) (per 

curiam) (“[W]here a lien can be procured by minor ministerial acts, this minor burden on the 

judgment-creditor should not preclude a stay under Rule 62(f).”); FDIC v. Ann–High Assocs., 

129 F.3d 113, 1997 U.S. App. LEXIS 35547, at *9 (2d Cir. 1997) (unpublished) (per curiam) 

(“[I]f a judgment creditor needs to conduct more than ‘ministerial acts’ to make the lien 

effective under the state’s lien law, the state’s lien law fails to provide for a judgment lien 

sufficient to satisfy Rule 62(f).”); United States v. O’Callaghan, 805 F. Supp. 2d 1321, 1329 

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Absent a stay under Rule 62, a prevailing party may seek to enforce a 

judgment pursuant to Rule 69.2

III. DISCUSSION

Although this Court has not previously addressed whether “a judgment 

is a lien on the judgment debtor’s property” under Texas law, this Court has 

addressed the same question under Louisiana law in Castillo v. Montelepre, 

Inc., 999 F.2d 931 (5th Cir. 1993). After Castillo, our district courts have had 

occasion to address the issue under Texas law, but have drawn differing 

conclusions. See EEOC v. Serv. Temps, Inc., 782 F. Supp. 2d 288, 291–93 (N.D. 

Tex. 2011) (noting disagreement among district courts). These decisions guide 

us today.

A. Castillo and the District Court Holdings

In Castillo, this Court affirmed the district court’s decision to stay its 

judgment pursuant to Rule 62(f) and Louisiana law. 999 F.2d at 941–43. We 

noted that Rule 62(f)’s “obvious purpose . . . is to allow appealing judgment 

debtors to receive in the federal forum what they would otherwise receive in 

their state forum.” Id. at 942. Indeed, “great deference must be given to the 

manifest desire of the [state] legislature to allow [a losing party] to appeal 

without bond.” Id. Nevertheless, the purpose of Rule 62(f) “is qualified by the 

(M.D. Fla. 2011); Marandino v. D’Elia, 151 F.R.D. 227, 229 (D. Conn.), aff’d 7 F.3d 221 (2d 

Cir. 1993). 

2 JSW alternatively argues that Texas’s $25 million bond maximum applies by way of 

Rule 69(a)(1), which instructs that “[t]he procedure on execution . . . must accord with the 

procedure of the state where the court is located,” unless a federal statute applies. JSW does 

not brief this argument beyond its conclusory statement that “[b]ecause no federal statute 

applies here . . . Texas post-judgment enforcement procedure controls, including Texas law 

governing supersedeas bonds.” JSW only cites an unpublished district court order that does 

not contain any reasoning on this point. Because of such inadequate briefing, JSW has waived 

this argument. See, e.g., In re Repine, 536 F.3d 512, 518 n.5 (5th Cir. 2008) (finding argument 

waived “due to inadequate briefing” where appellant “fail[ed] to explain” the argument and 

did not “cite any authority to support her position” (citing L & A Contracting Co. v. S. Concrete 

Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994))).

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requirement that the state forum treat judgments as a lien, or encumbrance, 

on the property of judgment debtors.” Id. In that regard, the Court noted that 

in Louisiana, “the filing of a judgment with the recorder of mortgages creates 

a ‘judicial mortgage’” that burdens certain real and immovable property. Id.

at 942 n.10 (quoting La. Civ. Code Ann. art. 3300). Thus, Rule 62(f) operates 

to apply Louisiana law to stays of execution in federal courts located in 

Louisiana. See id. at 942 & n. 2.

Applying Castillo, the district court in Umbrella Bank, FSB v. Jamison, 

341 B.R. 835 (W.D. Tex. 2006), found that Rule 62(f) also operated to apply 

Texas law. It “observe[d] that the Louisiana process for creating a judicial 

mortgage is similar to the Texas process for creating a judgment lien.” Id. at 

842. And, as noted above, this Court in Castillo strongly implied that a 

judgment operated as a lien in Louisiana for Rule 62(f) purposes. 999 F.2d at 

942 & n. 10; see also Jamison, 342 B.R. at 842. “By implication, therefore, the 

ministerial act of recording an abstract of judgment in a Texas county suffices 

to satisfy Rule 62(f)’s requirement that ‘a judgment is a lien upon property of 

the judgment debtor.’” Jamison, 341 B.D. at 842. (quoting Fed. R. Civ. P. 62(f)). 

Further relying upon Castillo, the district court noted that it “must afford great 

deference to the manifest desire of the Texas Legislature, which is to afford 

judgment debtors in Texas the ability to suspend execution of a money 

judgment by posting a supersedeas amount that excludes any punitive or 

exemplary damages.” Id.

However, in El Paso Independent School District v. Richard R., 599 F. 

Supp. 2d 759 (W.D. Tex. 2008), a different judge within the Western District 

of Texas disagreed with the holding in Jamison and instead concluded that “a 

Texas judgment is not a lien such that Texas law determines whether

Defendant is entitled to a stay in federal court.” Id. at 764. The district court 

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reasoned that the process for creating a lien in Louisiana and Texas materially 

differed:

In Louisiana, a lien is created “by filing a judgment . . . .” La. Civ. 

Code art. 3300. Once filed, the judgment itself creates the lien, 

and this Court is aware of no other requirements with which the 

judgment creditor must comply. By contrast, “[u]nder Texas law, 

no lien is created by the mere rendition of a judgment.” White v. 

FDIC, 19 F.3d 249, 251 (5th Cir. 1994). Instead, an abstract of 

judgment is required. Tex. Prop. Code Ann. 52.001 (Vernon 2007). 

This difference is dispositive.

While the filing of a judgment under the Louisiana law is 

indeed a ministerial act, Jamison, 341 B.R. at 842, a Texas 

abstract of judgment must contain seven elements not necessarily 

contained in the judgment. See Tex. Prop. Code Ann. § 52.003 

(Vernon 2007). “Since a judgment lien is statutorily created, 

substantial compliance with the statutory requirements is 

mandatory before a judgment creditor’s lien will attach.” Wilson 

v. Dvorak, 228 S.W.3d 228, 233 (Tex. App. 2007) (quotation 

omitted). Additionally, “it is the judgment creditor’s responsibility 

to ensure that the clerk abstracts the judgment properly.” Olivares 

v. Birdie L. Nix Trust, 126 S.W.3d 242, 248 (Tex. App. 2003).

Id. (alterations in original).

After analyzing Castillo and the conflicting opinions in Jamison and El 

Paso ISD, the district court in Service Temps, Inc. concurred with the 

reasoning and holding in El Paso ISD. Serv. Temps, 782 F. Supp. 2d at 291–

94. The court emphasized that “[u]nlike the Louisiana statute, . . . the Texas 

statutes place greater responsibilities on the creditor to file a technically 

compliant abstract, and Texas courts have refused to recognize liens for failure 

to abide by these requirements, as detailed in § 52.003 of the Texas Property 

Code.” Id. at 292 (collecting Texas appellate court decisions). Not only must 

there be substantial compliance when filing an abstract, but there are 

additional situations where the filing of an abstract does not constitute a lien. 

Id. (citing Tex. Prop. Code § 52.0012(b) for the proposition that a “judgment 

debtor can file a homestead affidavit . . . to obtain a release”); id. at 292–93 

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(citing Tex. Prop. Code § 52.0011(a)(1) for the proposition that the judgment 

debtor can post security in lieu of a judgment lien if the lien would not 

“substantially increase the degree to which a judgment creditor’s recovery 

under the judgment would be secured”). Thus, “[n]ot only do the tasks that a 

judgment creditor must complete to convert a judgment into a lien have 

substantive consequences if done improperly, the creation of a lien after 

judgment is not a matter solely under the judgment creditor’s control.” Id. at 

293. Accordingly, “a judgment is not a lien under Texas law” because, among 

other things, “[r]esolving whether the requirements of § 52.0011(a) are 

satisfied is not merely ministerial.” Id.

B. Creating a Judgment Lien in Texas is not Ministerial

According to JSW, all that is required to create a judgment lien in Texas 

is, “after payment of a nominal fee, . . . the recording and indexing of an 

abstract of judgment” under Tex. Prop. Code § 52.001. From this, JSW 

contends that “[t]he act of recordation is performed by a county employee and 

is purely ministerial.” JSW acknowledges that an abstract must still be 

technically correct, but argues that “the fact that section 52.003 ‘prescribes and 

defines’ the steps to be taken to create a judgment lien is what makes the act 

ministerial,” quoting Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 

425 (Tex. 2004). Moreover, JSW asserts that “there are other states that 

similarly require parties recording a judgment to file an abstract of judgment 

or something other than the judgment itself, yet have been held to be 

judgment-lien states within the meaning of Rule 62(f),” citing DeKalb Cnty. 

Sch. Dist. v. J.W.M., 445 F. Supp. 2d 1371, 1377 (N.D. Ga. 2006); Nester ex rel. 

Estate of Nester v. Poston, No. 3:00-CV-277-H, 2002 WL 32833256, at *11 

(E.D.N.C. Oct. 8, 2002); and Van Huss v. Landsberg, 262 F. Supp. 867, 869 

(W.D. Mo. 1967).

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We disagree and instead find the thorough analyses in El Paso ISD and 

Service Temps persuasive. To be sure, the opinion in Umbrella Bank evinced 

much thought and reasoning. But in applying Castillo, the Umbrella Bank

court did not elaborate upon its “observ[ation] that the Louisiana process for 

creating a judicial mortgage is similar to the Texas process for creating a 

judgment lien.” See 341 B.R. at 842. This is vital. While the Louisiana Code 

requires only the ministerial filing of a judgment, see La. Civ. Code Ann. art. 

3300; La. Rev. Stat. Ann. § 13:4204, the statutory steps and exceptions set out 

in the Texas Property Code require far more, as explained in El Paso ISD and 

Service Temps.

To briefly summarize, the judgment creditor must first obtain an 

abstract of the judgment to create a judgment lien in Texas. Wilson, 228 

S.W.3d at 233. Texas Property Code § 52.003(a) requires that the abstract 

include “seven elements not necessarily contained in the judgment.” El Paso 

ISD, 599 F. Supp. 2d at 764 (citing Tex. Prop. Code Ann. § 52.003). 

Moreover, “‘substantial compliance with the statutory requirements is 

mandatory before a judgment creditor’s lien will attach,’” id. (quoting Wilson, 

228 S.W.3d at 233), and “‘it is the judgment creditor’s responsibility to ensure 

that the clerk abstracts the judgment properly,’” id. (quoting Olivares, 126 

S.W.3d at 248). Indeed, while minor deficiencies may be excusable, Texas 

courts have rejected abstracts that lacked substantial compliance for a variety 

of reasons. See Wilson, 228 S.W.3d at 234–36 (rejecting abstract that listed 

judgment debtor by her maiden name rather than her married name); Citicorp 

Real Estate, Inc. v. Banque Arabe Internationale D’Investissement, 747 S.W.2d 

926, 929–30 (Tex. App. 1988) (finding lack of substantial compliance where 

abstract omitted the debtor’s address or citation information); Midland Cnty. 

v. Tolivar’s Estate, 155 S.W.2d 921, 922 (Tex. Comm’n App. 1941) (finding lack 

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of substantial compliance where abstract included an interest term not found 

in the judgment).

Finally, the court in Service Temps correctly noted that § 52.003 “is not 

the only hurdle that a judgment must overcome before becoming a lien under 

Texas law.” 782 F. Supp. 2d at 292. Instead, “a judgment debtor may defeat 

the creditor’s attempt to create a judgment lien on real property by simply 

posting a security and obtaining a court determination on the relative burdens 

that a judgment lien places on the parties” under § 52.0011. Id. at 292–93. As 

the district court explained, “[r]esolving whether the requirements of 

§ 52.0011(a) are satisfied is not merely ministerial.” Id. at 293.

In light of Texas’s procedure, we reject JSW’s argument based upon Van 

Huss, DeKalb, and Nester because JSW makes no attempt to show that the 

procedure in those states is similar to Texas’s. In Van Huss, the court noted 

that “the filing of the abstract of the judgment is a ministerial act (in the 

[Missouri] court) to be performed by the Clerk of the Court,” 262 F. Supp. at 

869, but JSW does not show us that a judgment creditor in Missouri bears any 

responsibility for the sufficiency of the abstract. Nester is similarly 

unpersuasive—even if North Carolina law requires a “transcript of the original 

docket” to be recorded as JSW contends, JSW does not show us what the 

judgment creditor is required to do.

And JSW’s contention that Georgia Code § 9-12-81 satisfied Rule 62(f) in 

DeKalb is wholly misplaced. DeKalb did not address § 9-12-81. Instead, it 

cited § 9-12-80 when it held that, in Georgia, “a judgment is a lien upon the 

property of a judgment debtor.” DeKalb, 445 F. Supp. 2d at 1377. Section 9-

12-80 states that “[a]ll judgments obtained in the . . . courts of this state . . . 

shall bind all the property of the defendant in judgment.” Ga. Code Ann. § 9-

12-80. JSW does not show us that this places any burden upon the judgment 

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creditor as Texas procedure would. Thus, JSW’s reliance on other states is 

unavailing.

Accordingly, we find the procedures for creating a judgment lien in 

Texas, which JSW does not dispute, to be more than mere ministerial acts. 

Because Texas procedure requires more than mere ministerial acts, a 

judgment in the state of Texas is not a lien within the purview of Rule 62(f). 

See Rodriguez–Vazquez, 345 F.3d at 14.

IV. CONCLUSION

JSW’s Motion for Stay of Execution of Judgment Pending Appeal is 

DENIED. JSW’s unopposed Motion to Seal Volume 2 of Appendix is 

GRANTED.

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JONES, Circuit Judge, dissenting. 

I respectfully disagree with the majority opinion, which runs counter to 

Fifth Circuit precedent and adopts a different test for Federal Rule of Civil 

Procedure 62(f). On its face, the Rule allows for the application of state stay of 

execution laws where “a judgment is a lien ... under the law of the state where 

the court is located.” Fed. R. Civ. P. 62(f). This Court first interpreted the 

“judgment is a lien” language in Castillo v. Montelepre, Inc., 999 F.2d 931 (5th 

Cir. 1993) and held that a judgment debtor could invoke a state stay of 

execution law where the underlying purpose of the rule was met: the judgment 

creditor was otherwise afforded sufficient security under state law. Id. at 942. 

The judgment creditor was afforded sufficient security in this case, given that 

it would receive a $25 million statutory bond in addition to the opportunity to 

create a judgment lien. JSW should therefore be allowed to invoke Rule 62(f). 

The majority opinion, however, uses a ministerial acts test to determine 

if “a judgment is a lien,” but does not explain how it relates to this circuit’s case 

law or why a new test is needed. In my view, Rule 62(f) applies even under the 

majority’s test, since the creation of a judgment lien in Texas cannot be said to 

involve more than a ministerial act. Therefore, under either test, JSW should 

be given the benefit of Texas law to which it is entitled under the Federal Rules 

of Civil Procedure.

A. Fifth Circuit Precedent Calls for the Application of Rule 62(f)

This Court has already determined Rule 62(f) is applicable where a 

judgment creditor is otherwise afforded sufficient security under state law. In 

Castillo, the court determined that the judgment creditors were afforded 

sufficient security even though state stay of execution rules—applied through 

Rule 62(f)—completely exempted the Fund from paying an appeal bond. 

Sufficient security was a statutory obligation to pay judgments from the Fund. 

Id. But sufficient security need not be a source of money equal to the dollar 

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amount of the underlying judgment. Id. The court noted that in the event the 

Fund’s assets were less than the value of the unpaid judgments, each judgment 

creditor would get a pro-rata share of what was left of the Fund. Id. Here, 

MM Steel would benefit from a $25 million dollar bond under the Texas statute 

in addition to whatever value might be derived from creating a judgment lien 

through a judgment abstract. The Texas legislature has considered $25 million 

to be enough security to cap appeal bonds at that amount. Tex. Civ. Prac. & 

Rem. Code Ann. § 52.006(b). The Federal Rules of Civil Procedure allow 

judgment debtors to use state laws that completely exempt them from the need 

to post bond based on a judgment lien alone. Fed. R. Civ. P. 62(f). A 

combination of both is surely sufficient security for MM Steel. 

B. Though Irreconcilable with Fifth Circuit Precedent, the 

Majority’s Ministerial Acts Test Still Entitles JSW to State Law

The First Circuit’s ministerial acts test employed by the majority is 

irreconcilable with Castillo. The majority purports to examine the number of 

steps the judgment creditor must take to secure a lien and the likelihood of the 

creditor’s success in doing so. Castillo, however, renders this line of inquiry 

irrelevant. The judgment creditor in Castillo did not just face a difficult lien 

process, but a complete impossibility. Castillo, 999 F.2d at 942. The type of 

property owned by the judgment debtor was not subject to a judgment lien in 

Louisiana. Id. Yet the court still held Rule 62(f) applicable. Id.

Even if the ministerial act test applies, JSW should be entitled to Texas 

supersedeas law under Rule 62(f). The majority overstates the difficulty of 

filing an abstract of judgment. An abstract of judgment document is not a 

voluminous stack of papers. It is a single page with a few simple fields, like 

names and addresses of the parties. Abstract of Judgment Form, United 

States District Court, Southern District of Texas, available at 

http://www.txs.uscourts.gov/district/formsfees/abstjdmi.pdf. The fact that the 

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process involves opportunities for creditors to make mistakes should not 

automatically mean the process is not “ministerial.” Even a process that 

simply required a government employee to stamp the judgment could be 

mishandled if the creditor submits the wrong judgment. Any competent 

attorney who has just won a judgment ought to be able to complete an abstract 

with ease. The forms for Texas abstracts of judgment are readily available on 

the internet. Correcting a mistake in fact could not take more than a few 

moments. Even if a county employee may reject the filing of an abstract for 

technical omissions—such as minor defects in the names of the parties—this 

only underscores the ministerial nature of the process; there is no room for 

discretion. Curiously, the majority’s final reason that the process is overly 

difficult and uncertain for the judgment creditor posits that the debtor could 

defeat the lien by posting a supersedeas bond. Tex. Prop. Code Ann. § 52.0011. 

In such a situation, however, the debtor that pays for a supersedeas bond will 

not be invoking rule 62(f). Ultimately, the judgment lien process in Texas 

entails filling out a simple form and recording it with a government employee. 

Preparing and recording the lien are therefore mere ministerial acts. JSW 

should be entitled to avail itself of Texas law under Rule 62(f).

I respectfully dissent. 

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