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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

IN RE:

SEVEN STARS ON THE HUDSON CASE NO: 20-19106-SMG

CORPORATION, d/b/a ROCKIN’JUMP

Debtor,

_______________________________________/

SEVEN STARS ON THE HUDSON ADVERSARY NO.: 19-01230-SMG

CORPORATION, d/b/a ROCKIN’JUMP

Plaintiff,

v.

MDG POWERLINE HOLDINGS, LLC, 

and XBK MANAGEMENT LLC, d/b/a

XTREME ACTION PARK,

Defendants.

_______________________________________/

DEFENDANT MDG POWERLINE HOLDINGS, LLC’S RESPONSE TO PLAINTIFF’S 

EMERGENCY MOTION FOR STAY OF EXECUTION OF JUDGMENT

Defendant MDG POWERLINE HOLDINGS, LLC (“MDG Powerline”), by and through 

undersigned counsel, hereby submits its Response to Plaintiff’s Emergency Motion for Stay of 

Execution of Judgment [ECF No. 324], and states as follows:

After fundamentally agreeing to the entry of a judgment on MDG Powerline’s fee award 

just a few weeks ago, while its appeal of the underlying Final Judgment on the merits was pending, 

Plaintiff Seven Stars on the Hudson Corporation (“Seven Stars”) now files a so-called 

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“emergency”1 motion for a stay of execution of this judgment. But Seven Stars has not identified 

any “emergency” other than its longstanding financial struggles – an issue with which the Court is

more than familiar after overseeing not one but two Seven Stars bankruptcy actions. Just as it 

claimed that its poor finances were a license to ignore the Court’s Scheduling Order, Seven Stars 

now asserts that it cannot satisfy the fee judgment – and uses this as an excuse to both stay

execution on the judgment and avoid posting a bond to secure the judgment amount. Seven Stars 

fails to articulate any credible argument for this extraordinary relief.

At the outset, it should be noted that Seven Stars only seeks a stay of a judgment awarding 

attorneys’ fees and costs to MDG Powerline, though courts of this district generally decline to stay 

“matters collateral to a final judgment, principally involving fees or costs issues, to avoid 

piecemeal appeals.” King Cole Condo. Ass'n, Inc. v. QBE Ins. Corp., 2010 WL 3212091, at *1 

(S.D. Fla. Aug. 12, 2010). Seven Stars’ serial appeals in this case, see Seven Stars on the Hudson 

Corp. v. MDG Powerline Holdings, LLC, et al., Case No. 22-CV-60299-RAR and Seven Stars on 

the Hudson Corp. v. MDG Powerline Holdings, LLC, et al., Case No. 22-CV-60891-RS, illustrate 

the wisdom of this rule.

Seven Stars’ arguments turn the law on its head. Its Motion should be denied.

ARGUMENT

I. A STAY PENDING APPEAL IS NOT WARRANTED

“A motion for stay pending appeal is an extraordinary remedy and requires a substantial 

showing on the part of the movant.” In re Sanders, 544 B.R. 463, 466-67 (Bankr. S.D. Fla. 2016). 

 1 Seven Stars’ “Emergency” Motion completely disregards Local Bankruptcy Rule 9075-1, which 

requires the moving party to state “the reason for the exigency” and provide a “certification that 

the proponent has made a bona fide effort to resolve the matter without a hearing.” For this reason 

alone, the Motion should be denied.

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“In determining whether to grant a stay pending appeal, courts should determine whether a movant 

has adequately demonstrated four necessary factors: (i) that the movant is likely to prevail on the 

merits of its appeal; (ii) that the movant will suffer irreparable injury if a stay or other injunctive 

relief is not granted; (iii) that other parties will suffer no substantial harm if a stay or other 

injunctive relief is granted; and (iv) in circumstances where the public interest is implicated, that 

the issuance of a stay or other injunctive relief will serve, rather than disserve, such public interest.”

Id. at 467. Significantly, “[t]he moving party must show satisfactory evidence on all four criteria, 

and the failure to satisfy one prong is fatal to the motion.” Id. (emphasis added).

Seven Stars cannot demonstrate any of these factors.

A. Seven Stars Cannot Show a Substantial Likelihood of Success on the Merits or a 

“Serious Legal Question”

“The moving party's likelihood of prevailing on the merits of its appeal is generally the 

most important of the four criteria identified above, and the Court must ordinarily find that the 

appealed decision was clearly erroneous.” Id. at 467-68. Seven Stars’ appeal of the final judgment 

on its claims is facially meritless: The Court’s order granting summary judgment, and its order 

denying Seven Stars’ motion to extend discovery deadlines were not “clearly erroneous.”

Seven Stars principally argues on appeal that this Court abused its discretion in denying its 

motion to extend the expert discovery deadline (for the third time) after Seven Stars failed to 

submit a timely expert report under the Court’s Scheduling Order. However, Seven Stars cited no 

authority before this Court for its argument that a plaintiff’s lack of funds to hire an expert 

constitutes “good cause” to modify a scheduling order – and Seven Stars cites no authority for this 

proposition in its appeal, either. Moreover, the Eleventh Circuit has “often held that a district 

court's decision to hold litigants to the clear terms of its scheduling orders is not an abuse of 

discretion.” St. Louis Condo. Ass'n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235, 1243 (11th Cir. 2021) 

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(quoting Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011)). 

See also Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1349 (11th Cir. 2004) 

(“Given the wide latitude the district court has to exclude untimely submissions, we cannot say 

that it abused its discretion to exclude this [expert] report”). Given this binding precedent, and the 

absence of any legal authority supporting its position, Seven Stars cannot credibly argue that the 

Court’s denial of its untimely motion to extend the discovery deadlines was “clearly erroneous,”

or that it is likely to succeed on its appeal.

Recognizing that its appeal is unlikely to succeed, Seven Stars attempts to travel under an 

exception that allows a court to grant a stay in some circumstances based “upon a lesser showing 

of a substantial case on the merits when the balance of the equities identified in factors 2, 3, and 4 

weighs heavily in favor of granting the stay.” Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th 

Cir. 1986). This rule only applies “when a serious legal question is presented, when little if any 

harm will befall other interested persons or the public and when denial of the stay would inflict 

irreparable injury on the movant.” LabMD, Inc. v. Fed. Trade Comm'n, 678 Fed. Appx. 816, 819 

(11th Cir. 2016) (emphasis added) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981)). In 

its Motion, Seven Stars does not even attempt to show that a “serious legal question” is presented 

by its appeal – because it is not.

As discussed above, there is no authority supporting Seven Stars’ claim that a lack of funds 

or an anticipated litigation funding agreement constitutes good cause to amend a scheduling order, 

and binding Eleventh Circuit precedent confirms that it is not an abuse of discretion for a court to 

enforce its scheduling order. See, e.g., St. Louis Condo. Ass'n, 5 F.4th at 1243. Even if Seven 

Stars’ lack of funds did constitute good cause – which it did not – the court would not have been 

required to extend the expert deadline, as Seven Stars seems to imply; a court’s refusal to modify 

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a scheduling order even after a showing of good cause is not an abuse of discretion. Josendis, 662 

F.3d at 1307. Given this unambiguous and binding precedent, it is clear that Seven Stars’ Hail 

Mary appeal presents no serious legal question, and therefore this exception is not applicable. See 

In re Dale Mabry Props., Ltd., 149 B.R. 209, 211 (M.D. Fla. 1992) (Eleventh Circuit precedent 

addressing issue on appeal “leaves for determination no serious legal question”). See also Vine v.

PLS Fin. Services, Inc., 2019 WL 4257108, at *6 (E.D. Tex. Sept. 9, 2019) (“[a] serious legal 

question is one that could have a broad impact on federal and state relations, or an otherwise farreaching effect of public concern”) (citing Wildmon Berwick Universal Pictures, 983 F.2d 21, 23-

24 (5th Cir. 1992) and United States v. Baylor Univ. Med. Ctr., 711 F.2d 38, 40 (5th Cir. 1983)); 

Confederated Bands & Tribes of Yakama Nation v. West, 74 F.3d 1245 (9th Cir. 1996) (defining 

“serious legal questions” as “serious questions going to the merits”) (emphasis added); Forest

City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 149 (2d Cir. 1999) (as alternative 

to likely success on the merits, moving party must “show sufficiently serious questions going to 

the merits of the case to make them a fair ground for litigation”) (emphasis added). 

Seven Stars’ appeal of an order denying an extension of a scheduling order does not present 

a serious legal question that merits an exception from the general rule that a party seeking a stay 

pending appeal must show a substantial likelihood of success on the merits of its appeal. And 

because Seven Stars cannot establish a likelihood of success on the merits of its appeal, its Motion 

for Stay should be denied. Sanders, 544 B.R. at 467 (“failure to satisfy one prong is fatal to the 

motion”).

B. Seven Stars Cannot Show a Substantial Risk of Irreparable Injury Absent a Stay

Next, Seven Stars makes the conclusory, unsupported assertion that its entire business will 

inevitably be “lost” if MDG Powerline takes any action to collect on its fee judgment. But neither 

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Seven Stars’ Motion nor the bare-bones declaration of its principal, Jens Berding [ECF No. 324-

1], is adequate to satisfy Seven Stars’ “heavy burden” to demonstrate a “substantial risk of 

irreparable injury...unless the injunction is granted.” Rosner v. United States, 2012 WL 13066528, 

at *1 (S.D. Fla. Aug. 28, 2012) (citing Touchstone v. McDermott, 234 F.3d 1130, 1132 (11th Cir. 

2000)).

To establish irreparable harm, the “injury must be neither remote nor speculative, but actual 

and imminent.” Ne. Florida Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville,

Fla., 896 F.2d 1283, 1285 (11th Cir. 1990). See also Nken v. Holder, 556 U.S. 418, 434-35 (2009) 

(“simply showing some possibility of irreparable injury” is insufficient to support a stay). 

Moreover, “[m]ere injuries, however substantial, in terms of money, time, and energy necessarily 

expended in the absence of a stay, are not enough.” In re Lickman, 301 B.R. 739, 748 (Bankr. 

M.D. Fla. 2003) (quoting Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir.1987)).

In its Motion, Seven Stars has not advanced any concrete evidence showing that its demise 

would be “actual and imminent” absent a stay of execution of the judgment, as it claims. See 

Widerman Malek P.L. v. Carranza, 2020 WL 6748053, at *2 (M.D. Fla. May 7, 2020) (“vague” 

affidavits containing “general statements about what may happen at some unspecified time don’t 

show Petitioners will experience immediate and irreparable harm”). In essence, Seven Stars 

asserts that payment of the judgment would be difficult because it has other debts to pay. However, 

“monetary harm that the Debtor would suffer if plaintiff were to enforce its judgment [is] 

insufficient to establish irreparable harm.” Lickman, 301 B.R. at 748.

Seven Stars has not carried its “heavy burden” to demonstrate a “substantial risk of 

irreparable injury.” Rosner, 2012 WL 13066528 at *1. Accordingly, its Motion should be denied.

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C. A Stay Would Harm MDG Powerline

In considering a motion to stay pending appeal, the “court must measure the harm to the 

non-movant...and balance the harm inuring to all parties.” Lickman, 301 B.R. at 748. MDG 

Powerline would plainly be harmed by a stay because it would impede its ability to collect on its 

judgment. Id. (“stay pending appeal would harm the appellee by impeding ongoing collection 

efforts”) (citing In re Bilzerian, 264 B.R. 726, 735 (Bankr. M.D. Fla. 2001)); see also Rubinstein

v. Keshet Inter Vivos Tr., 2021 WL 3141944, at *2 (S.D. Fla. Jan. 29, 2021) (“the court must 

balance the potential harm against the immediate harm identified by Plaintiffs: further delay in 

enforcing the judgment at Plaintiffs’ expense”). This factor does not weigh in favor of a stay.

D. No Harm to the Public Interest

Seven Stars does not even argue in its Motion that the public interest would be served by 

the issuance of a stay – as is its burden. Lickman, 301 B.R. at 749.

Ultimately, Seven Stars has failed to carry its burden to support a stay of the fee judgment 

pending appeal. Seven Stars has not shown (or seriously argued) that it is likely to succeed on its 

appeal. And Seven Stars has failed to present a “substantial case on the merits,” as its appeal 

plainly fails to present a “serious legal question.” In re Dale Mabry, 149 B.R. at 211; Vine, 2019 

WL 4257108 at *6; Forest City, 175 F.3d at 149. Even if Seven Stars had presented a “substantial 

case on the merits,” a stay could only be granted “on lesser showing of a substantial case on the 

merits when the balance of the equities identified in factors 2, 3, and 4 weighs heavily in favor of 

granting the stay.” Garcia-Mir, 781 F.2d at 1453. Seven Stars has not met its “heavy” burden to 

show that it would suffer “irreparable” harm absent a stay, nor has it shown that this alleged harm

to Seven Stars outweighs the real, undisputed harm to MDG Powerline that would result from a 

stay preventing it from collecting on the judgment. 

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For these reasons, the Motion for a stay or injunction pending appeal should be denied.

II. WAIVER OF A SUPERSEDEAS BOND IS INAPPROPRIATE

Seven Stars’ extraordinary request for a stay without posting a supersedeas bond to secure 

the judgment should also be denied.

Contrary to Seven Stars’ assertions in its Motion, “the purpose of a supersedeas bond is to 

protect the appellees” – that is, MDG Powerline – “from a loss resulting from the stay of 

execution.” Marjam Supply Co. of Florida, LLC v. Pliteq, Inc., 2021 WL 1929371, at *1 (S.D. Fla. 

May 3, 2021), report and recommendation adopted, 2021 WL 1923135 (S.D. Fla. May 13, 2021).

Mindful of the interests of the judgment creditor, courts in this district generally require an 

appellant to post a bond pursuant to Fed. R. Civ. P 62(b) in order to obtain a stay of proceedings 

to enforce a judgment. Indeed, “Rule 62, taken in its entirety, indicates a policy against any 

unsecured stay of execution after the expiration of the time for filing a motion for a new trial.” Slip

N' Slide Records, Inc. v. Teevee Toons, Inc., 2007 WL 1489810, at *2 (S.D. Fla. May 18, 2007)

(emphasis added). However, some courts of this district have recognized two “limited exceptions” 

to this general rule requiring a bond: “(a) where the defendant’s ability to pay the judgment is so 

plain that the cost of the bond would be a waste of money, or (b) where the requirement would 

“put defendant’s other creditors in undue jeopardy.” SunTrust Bank v. Ruiz, 2015 WL 11216712, 

at *2 (S.D. Fla. Aug. 16, 2015). It is the moving party’s burden to “objectively demonstrate the 

reasons for departing from the ‘usual circumstances’ of posting a supersedeas bond as a condition 

for a stay.” Id. at *3. See also Slip N' Slide Records, 2007 WL 1489810, at *2 (“if an unsecured 

stay is to be granted, the burden is on the defendants to demonstrate affirmatively that posting a 

bond or otherwise providing adequate security is impossible or impractical”).

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In its Motion, Seven Stars ostensibly argues that a bond requirement would put its other 

creditors in undue jeopardy. But Seven Stars does not provide any specific evidence showing that 

the rights of any other creditors would be jeopardized by a bond. Indeed, Mr. Berding asserts in 

his declaration that Seven Stars’ largest creditor, Wells Fargo, has liens on Seven Stars’ equipment 

and assets. ECF No. 324-1 ¶ 13. Mr. Berding further states that “it is not at all clear that execution 

against the judgment will net anything of value to the Defendant-Landlord.” Id. at ¶ 17. Thus, by 

Mr. Berding’s own reckoning, execution on the judgment will not impair the rights of any other 

creditors – and a stay is wholly unnecessary.

Seven Stars’ real argument is that the posting of a bond would be financially burdensome

to Seven Stars. But this cuts against the waiver of a bond. “[A] prospective inability to pay a 

judgment must defeat the request for a stay without a bond. The court can only dispense with the 

requirement for a bond after the judgment debtor has objectively demonstrated his ability to satisfy 

the judgment and maintain the same degree of solvency through the appellate process.” Avirgan v.

Hull, 125 F.R.D. 185, 187 (S.D. Fla. 1989). See also Max Sound Corp. v. Google LLC, 2019 WL 

480544, at *2 (N.D. Cal. Feb. 7, 2019) (appellant’s “financial insecurity weighs in favor of

requiring a bond or security...[appellant’s] apparent financial hardship is unfortunate, but the 

Court cannot put [the judgment creditor’s] right to obtain its judgment at risk solely on the basis 

of [appellant’s] ability to pay. Indeed, it may be an abuse of discretion to do so”). Seven Stars’ 

Motion should be denied for this reason alone.

Seven Stars’ proposed “alternate security” is also woefully deficient. Seven Stars merely 

proposes to enter into a stipulation under which it agrees during the pendency of the appeal to 

refrain from “selling, transferring or otherwise disposing of any assets subject only to any 

assets/income needed to operate the business.” ECF No. 324 ¶ 23. This is a particularly empty 

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gesture, given Seven Stars’ admission that its assets collateralize its other debts. As Magistrate 

Judge Torres said Slip N’ Slide Records in rejecting a similar proposal from an appellant: “This 

pledge to do what [appellant] is already required to do is not, by itself, enough to provide the type

of security that Rule 62 contemplates.” 2007 WL 1489810 at *3.

To the contrary, a judgment debtor facing an “undue financial burden” may “supply 

alternative security that ‘would furnish equal protection to the judgment creditor.’” Fin. Info.

Techs., LLC v. iControl Sys., USA, LLC, 2020 WL 11423017, at *1 (M.D. Fla. Nov. 13, 2020) 

(emphasis added) (quoting Poplar Grove Planting & Ref. Co. v. Bache Halsey Stuart, Inc., 600 

F.2d 1189, 1191 (5th Cir. 1979)). Not only does Seven Stars’ proposal fail to provide “equal 

protection” – or any protection – to MDG Powerline, it essentially shifts the burden to the judgment 

creditor to determine whether Seven Stars is dissipating or transferring assets to avoid satisfying 

the judgment. This conflicts with the purpose of the supersedeas bond, which is intended “to 

secure the prevailing party against the risk that the judgment debtor will be unable to meet the 

obligations pending appeal and to protect the prevailing party from the costs that it incurs in 

foregoing execution of judgment until the appeal is decided.” Chalfonte Condo. Apartment Ass'n,

Inc. v. QBE Ins. Corp., 695 F.3d 1215, 1232 (11th Cir. 2012).

In the end, Seven Stars offers MDG Powerline no security at all. What Seven Stars really 

seeks in its Motion is complete relief from the fee judgment for the duration of its longshot appeal 

without suffering even the slightest burden or inconvenience. This jaw-dropping request has no 

basis in the law. Seven Stars’ extraordinary Motion for a Stay of Execution of the Judgment should 

be DENIED.

Dated: May 18, 2022. Respectfully submitted,

BILZIN SUMBERG BAENA

PRICE & AXELROD LLP

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1450 Brickell Avenue, 23rd Floor

Miami, Florida 33131

(305) 374-7580

By: /s/ Jeffrey I. Snyder

Jeffrey I. Snyder

Fla. Bar No. 021281

and

COFFEY BURLINGTON, P.L.

2601 South Bayshore Drive, Penthouse One

Miami, Florida 33133

Tel: 305-858-2900

Fax: 305-858-5261

By: ___s/Scott Hiaasen__________

Susan E. Raffanello, Florida Bar No. 676446

sraffanello@coffeyburlington.com

Scott A. Hiaasen, Florida Bar No.: 103318

shiaasen@coffeyburlington.com

lmaltz@coffeyburlington.com

lperez@coffeyburlington.com

service@coffeyburlington.com

Counsel for Defendant MDG Powerline 

Holdings, LLC

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served by Notice of 

Electronic Filing generated by CM/ECF, on May 18, 2022, on all counsel or parties of record on 

the below/attached Service List.

___s/Jeffrey Snyder__________

Service List

Kathleen A. Daly, Esq.

Counsel for Debtor/Plaintiff

Law Office of Kathleen A. Daly, P.A.

515 North Flagler Drive

Suite P300

West Palm Beach, Florida 33401

Tel: 561-293-8514

kdaly@kadalylaw.com

Gary Brookmyer, Esq.

Counsel for Debtor/Plaintiff

Brookmyer, Hochman, Probst

& Jonas, P.A.

800 Village Square Crossing

Suite 201

Palm Beach Gardens, Florida 33410

Tel: 561-624-2110

gary@brookmyerlaw.com

Kai Jacobs, Esq.

Counsel for XBK Management LLC

Kai Jacobs, P.A.

2222 Ponce de Leon Blvd.

Coral Gables, Florida 33134

Tel: 305-768-9846

kj@sflblg.com

assistant@sflblg.com

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