NOT RECOMMENDED FOR FULL

- TEXT PUBLICATION File Name: 18a0002n.06

No. 17

- 5529

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PHARMACY CORPORATION OF AMERICA d/b/a PHARMERICA, et al. , Plaintiffs

- Appellees ,

v. CONCORD HEALTHCARE GROUP , LLC, et al. , Defendants

- Appellants

. ) ) ) ) ) ) ) ) ) ) ) O R D E R

Before : BOGGS , CLAY , and DONALD , Circuit Judges.

On November 15 , 2017, Plaintiffs moved this Court to dismiss this appeal on the grounds that Defendants had failed to comply with the district court’s October 5, 2017 Order requiring them to post a bond for co sts, pursuant to Fed. R. A pp. P. 7. The district court’s Order stated that “an appeal bond is proper ” and that “ the bond may include Plaintiffs’ appellate attorneys’ fees.” (R. 76, O rder, PageID # 961.) T he district court further ordered that “Defendant s shall post a bond pursuant to Fed R. App. P. 7 in the amount of $30,000.” ( Id. at PageID # 962.) Over two months later, Defendants have failed to post the bond and have yet to indicate any intention to comply with the court’s order. Once a district court orders a party to post bond, “[a] litigant cannot ignore an order setting an appeal bond without consequences to her appeal.” In re Cardizem CD Antitrust Litig ., 391 F.3d 812, 818 (6th Cir. 2004). The failure to execute an appeal bo nd is grounds for17

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- dismissal. Id. ; Powers v. Citizen s Union Nat’l Bank & Trust Co. , 329 F.2d 507, 508

– 09 (6th Cir. 1964). “When considering whether dismissal is appropriate, we look to factors such as the prejudice to the other parties, the demonstrated j ustification for the failure to post the bond, and the merits of the underlying appeal.” In re Cardizem , 391 F.3d at 818 (citing 5 Am. Jur. 2d Appellate Review § 359 (2004)). In this case, we conclude that Defendants have provided no justification at all for their failure to p ost the bond. We further conclude that Plaintiffs will be significantly prejudiced by Defendants’ failure to pay the bond, given Plaintiffs’ thus far unsuccessful attempts to recover funds owed by Defendants under a settlement agree ment. Accordingly, we find that the applicable factors weigh heavily in favor of granting the motion to

dismiss. Defendants do not dispute that they have failed to comply with the district court’s order to post an appeal bond. Instead, they m ake two arguments, neither availing

. F irst, they assert

th at the district court’s order “did not provide a deadline by which the Defendants should post their bond.” (Brief for Appellants at 2.) A lthough Rule 7 does not provide a tim e period by which a party mus t post a bond, it obviously requires compliance at some point . And in the absence of a specified time period, we presume that an order pursuant to Rule 7 must be complied with in a reasonable amount of time. A n analogous federal rule provides fourteen da ys after entry of t h e order granting permission to appeal to file a cost bond if one is required under

Rule 7. See Fed. R. App. P. 5(d). Moreover , Defendants have not indicated any intention to ever post the appeal bond. Thus, their argument fails

. Defendant’s second argument is that “the appeal is fully briefed with no further steps required prior to this Court’s considered decision.” (Brief for Appellants at 2.) Therefore, they argue, “PharMerica will not incur further costs required by the appea l, unless this Court17

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- determines to hear the matter upon oral argument.” ( Id. ) This argument obviously does nothing to explain Defendants’ noncompliance with the district court’s order

. In addition, it is meritless; not only will Plaintiffs incur additio nal costs for oral argument, but the payment of the bond would protect Plaintiffs with regard to costs that have already been incurred during the pendency of this appeal

. Thus, this argument fails as well. NOW, THEREFORE , for the reasons set forth above , the Court hereby orders that the appeal is dismissed with out prejudice.

IT IS SO ORDERED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk