UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Cincinnati Development III, LLC, 

Plaintiff, Case No. 1:18-cv-00586

 v. Judge Michael R. Barrett

Cincinnati Terrace Plaza, LLC, et al., 

Defendants.

OPINION AND ORDER

This matter is before the Court on two motions. First, Plaintiff Cincinnati 

Development III, LLC ("First Buyer") filed a Motion to Compel and for Sanctions. 

(Doc. 135). Defendant Cincinnati Terrace Plaza, LLC's ("Seller") filed a Response in 

Opposition (Doc. 138), and First Buyer filed a Reply (Doc. 139). Second, Seller filed a 

Motion for Stay of Execution Pending Appeal. (Doc. 137). First Buyer filed a Response in 

Opposition. (Doc. 140). Seller did not file a Reply and the time to do so has passed. 

See S.D. Ohio Civ. R. 7.2(a)(2). The Court will address these motions out of turn for ease 

of organization. 

I. Background

This case has been the subject of numerous pre- and post-trial Opinions and 

Orders, see, e.g., (Docs. 79, 111, 114, 125), and familiarity with the matter's factual 

background and the Court's prior rulings is presumed. By way of brief background, and 

pertinent to this Opinion and Order though, on December 28, 2021, the Court ordered 

Seller to pay First Buyer damages in the amount of $1,700,000.00. (Doc. 114). Judgment 

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issued on December 30, 2021. (Doc. 115). The Court subsequently denied Seller's 

Motion to Alter or Amend Judgment on March 8, 2022. (Doc. 125). 

Seller filed a timely Notice of Appeal on April 6, 2022. (Doc. 126). Seller has not

posted a supersedeas bond or other security. The appeal is currently pending before the 

U.S. Court of Appeals for the Sixth Circuit ("Sixth Circuit") which held oral argument in the 

appeal on December 6, 2022. Cincinnati Development III v. Cincinnati Terrace Plaza, 

LLC, et al, Case No. 22-3303, Doc. 29 (Dec. 6, 2022). 

First Buyer has been trying to schedule a judgment debtor exam since June 2,

2022 when it served Seller with a Notice of Judgment Debtor Exam Duces Tecum. 

(Doc. 135-1). After back-and-forth emails between First Buyer's counsel and Seller's 

counsel, two discovery telephone conferences with the Court, and Seller's counsel's 

inability to confirm Seller's compliance with First Buyer's request for production of 

documents and corporate representative's appearance at a judgment debtor exam, the 

Court permitted First Buyer to file its Motion to Compel and for Sanctions. See (Doc. 135-

1)-(Doc. 135-5); see also Sept. 22, 2022 Minute Entry; Sept. 7, 2022 Minute Entry; Aug. 5,

2022 Notation Order.

II. Seller's Motion for Stay of Execution Pending Appeal

Federal Rule of Civil Procedure ("Rule") 62(b) provides that, "[a]t any time after 

judgment is entered, a party may obtain a stay by providing a bond or other security. The 

stay takes effect when the court approves the bond or other security and remains in effect 

for the time specified in the bond or other security." Pursuant to this rule, "[a] party who 

files a satisfactory supersedeas bond is entitled to a stay of the money judgment as a 

matter of right." Kidis v. Reid, Case No. 19-1673, slip op. at 1 (6th Cir. Jan. 6, 2020) (citing 

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FED. R. CIV. P. 62(b)). "Although the Rule does not 'precisely define the amount and 

conditions of a supersedeas bond,' it generally equals the entire judgment." Id. (quoting

Poplar Grove Planting & Ref. Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 

(5th Cir. 1979)). "The burden is on the movant to objectively demonstrate that a departure 

from the general rule is warranted." Id.

Rule 62, however, "speaks only to stays [of execution on a judgment] granted as 

a matter of right, it does not speak to stays granted by the court in accordance with its 

discretion." Id. slip op. at 2 (alteration added) (quoting Arban v. W. Pub. Corp., 345 F.3d 

390, 409 (6th Cir. 2003)). "The party requesting a stay bears the burden of showing that 

the circumstances justify an exercise of [our] discretion." Id. (alteration in original) (quoting 

Nken v. Holder, 556 U.S. 418, 433-34, (2009)). The Court balances "four factors to 

determine whether a stay is appropriate: (1) whether the movant 'has made a strong 

showing that he is likely to succeed on the merits'; (2) whether the movant 'will be 

irreparably injured absent a stay'; (3) whether issuance of a stay will 'substantially injure'

other interested parties; and (4) 'where the public interest lies.'" Id. (quoting Nken,

556 U.S. at 434). "The first two factors are 'the most critical.'" Id. (quoting Nken, 556 U.S. 

at 434).

Seller asks the Court to either waive the bond requirement for a stay of 

First Buyer's execution on the $1,700,000.00 judgment because the duration of the stay 

will be brief in light of the Sixth Circuit's average time to decide an appeal, or fix a bond 

amount "at $100,000 which is the amount of the liquated damages at issue underlying 

the Judgment." (Doc. 137 PageID 4854). The Court will deny Seller's Motion to Stay in

light of Seller's failure to post a supersedeas bond or other security; objectively 

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demonstrate that a departure from the general rule, requiring a supersedeas bond to 

equal the entire judgment, is warranted in this case; show that Seller is likely to succeed 

on the merits; or show that Seller will suffer irreparable harm absent a stay. See Kidis,

Case No. 19-1673, slip op. at 4-5; see also Nken, 556 U.S. at 433-34; Poplar Grove 

Planting & Ref. Co., 600 F.2d at 1191; FED. R. CIV. P. 62(b). Additionally, Seller provides 

no citation to authority for its assertion regarding the Sixth Circuit's average time to decide 

an appeal and the Court will not indulge Seller's guesswork as to the timing of the Sixth 

Circuit's decision on appeal. Further, to the extent that Seller suggests that $100,000.00

is a proper bond amount and thus a departure from the general rule is warranted here,

the Court declines Seller's third attempt to succeed on its failed defense on the merits of 

the contract dispute between First Buyer and Seller in this case.

III. First Buyer's Motion to Compel and for Sanctions

Rule 69 provides that, in aid of the judgment or execution, the judgment creditor 

may obtain discovery from any person—including the judgment debtor—as provided in 

the Federal Rules of Civil Procedure. FED. R. CIV. P. 69(a)(2). Rule 30, in turn, permits a 

deposition notice to include a request for production of documents, a party to notice a 

business organization as the deponent, and that party to describe the matters for the 

organization's examination, and then requires the organization to designate one or more 

persons to testify about information known or reasonably available to the organization. 

FED. R. CIV. P. 30(b)(2), (6). 

Additionally, Rule 37 permits a party seeking discovery to move for an order 

compelling production or designation if, inter alia, "a party fails to produce documents" or 

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"a corporation or other entity fails to make a designation under Rule 30(b)(6)." FED. R.

CIV. P. 37(a)(3)(B). Rule 37 also provides that, if the Court grants the requested motion 

to compel, or the disclosure or discovery is provided after the motion's filing, then the 

court generally "must, after giving an opportunity to be heard, require the party or 

deponent whose conduct necessitated the motion, the party or attorney advising that 

conduct, or both to pay the movant's reasonable expenses incurred in making the motion,

including attorney's fees." Fed. R. Civ. P. 37(a)(5)(A).

First Buyer has been trying to obtain documents for and schedule a judgment 

debtor exam since June 2, 2022. See (Doc. 135-1)-(Doc. 135-5); see also Sept. 22, 2022 

Minute Entry; Sept. 7, 2022 Minute Entry; Aug. 5, 2022 Notation Order. Seller concedes 

that it has yet to provide any responsive documents or designate a representative to sit 

for that exam (Doc. 138 PageID 4856), and Seller's counsel's assertions at the postjudgment discovery conferences inspire little confidence in Seller's compliance with the 

Federal Rules of Civil Procedure in this matter. The Court will thus grant First Buyer's 

Motion to Compel unless, within ten (10) days of the date of the issuance of this Order,

Seller files a written explanation as to why Seller has failed to provide responsive 

documents or designate a representative to sit for that exam and the Court finds that 

explanation satisfactory.1

The Court will hold First Buyer's Motion for Sanctions in abeyance until after either 

receipt of Seller's written explanation and the Court's ruling on the adequacy of that 

explanation or Seller's failure to provide a written explanation.

1 Seller is warned that the filing of its Motion to Stay is an insufficient explanation. Additionally, the Court 

will issue a ruling on the adequacy of Seller's written explanation, if Seller files one, as promptly as possible.

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IV. Conclusion

For the foregoing reasons, it is hereby ORDERED that Seller's Motion for Stay of 

Execution Pending Appeal (Doc. 137) is DENIED; First Buyer's Motion to Compel 

(Doc. 135) is GRANTED, pending Seller's submission of a written explanation as 

described above and the Court's subsequent ruling on that explanation; and First Buyer's 

Motion for Sanctions (Doc. 135) is HELD IN ABEYANCE until further order of the Court.

IT IS SO ORDERED.

_/s Michael R. Barrett______

Michael R. Barrett, Judge 

United States District Court

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