UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

The Hill of Portsmouth

Condominium Association,

Plaintiff

v. Civil No. 04-cv-403-SM

Opinion No. 2006 DNH 085

Parade Office, LLC,

Parade Hotel, LLC, and

Parade Residential, LLC,

Defendants

O R D E R

This case presented a focused issue related to the status of

a parking easement burdening defendants’ property. After

considering the uncontested material facts, and construing the

relevant title documents, the court granted summary judgment to

plaintiff and entered a declaratory judgment clarifying the

respective rights and obligations of the parties relative to the

parking easement. No money damages were sought or ordered. 

Defendants promptly appealed that declaratory judgment.

Plaintiff has apparently now filed suit in state court

seeking to enforce its rights under the easement, as described in

this court’s declaratory judgment, and defendants now seek a stay

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of execution of the declaratory judgment pursuant to Fed. R. Civ.

P. 62(f), which provides:

(f) Stay According to State Law. In any state in which

a judgment is a lien upon the property of the judgment

debtor and in which the judgment debtor is entitled to

a stay of execution, a judgment debtor is entitled, in

the district court held therein, to such stay, as would

be accorded the judgment debtor had the action been

maintained in the courts of that state.

The short answer is that defendants are not entitled to a

stay under Fed. R. Civ. P. 62(f) because the declaratory judgment

entered by this court is not, under New Hampshire law, “a lien

upon defendants’ property” (and defendants are not “judgment

debtors”), a necessary prerequisite for a stay under Rule 62(f). 

See Rodriguez-Vazquez v. Lopez-Martinez, 345 F.3d 13 (1st Cir.

2003). As in Massachusetts, and Connecticut, in New Hampshire

additional steps beyond mere ministerial acts are required to

transform a judgment into a lien on real property. See Elias

Bros. Restaurants v. Acorn Enters., 931 F.Supp. 930 (D. Mass.

1996), citing Marandino v. D’Elia, 151 F.R.D. 227, 229 (D. Conn.

1993).

In New Hampshire a judgment and an attachment, or writ of

execution or possession, is necessary to create such a lien. See

N.H. Rev. Stat. Ann. (“RSA”) Ch. 529:29. The judgment itself

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does not create a lien. In addition, the declaratory judgment

neither awards money damages, nor does it by its terms require

the payment of money, which also undermines the need for a stay

of execution. Cf. Yankton Sioux Tribe v. Southern Mo. Waste

Mgmt. Dist., 926 F.Supp. 888 (D.S.D. 1996).

The pleadings suggest that what defendants are actually

concerned about is that an order may issue in the state

proceedings, based upon this court’s declaratory judgment,

requiring them to remove permanent structures already built on

property subject to the parking easement held by plaintiff,

before this court’s judgment can be reviewed on appeal.

That seems a wholly unrealistic concern. This court’s

judgment defined the rights of the parties with respect to the

easement. Those rights are what they are, unless and until the

declaratory judgment is modified or reversed by the court of

appeals. In the meantime, the state court is perfectly capable

of according appropriate weight to the status of that appealed

judgment in determining how to structure the state litigation,

and whether and to what extent equitable relief pending

litigation is or is not warranted.

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But there is no “execution” threatened that requires a stay

in this case. It is doubtful that the state court will give res

judicata effect to the declaratory judgment while it is subject

to appellate review, since New Hampshire law does not recognize

appealed judgments as final. See Grant v. Lathrop, 23 N.H. 67

(1851); Rollins v. Rollins, 122 N.H. 6 (1982); Superior Court

Rule 74. Therefore, no writ of execution or possession is likely

to issue upon that judgment in state court, and, under Fed. R.

Civ. P. 69, none is likely to issue from this court pending

appeal. Whether interim equitable relief is afforded in the

state court, however, is an entirely different matter, governed

by different standards.

Conclusion

The motion to stay (document no. 46) under Fed. R. Civ. P.

62(f) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

July 26, 2006

cc: Timothy A. Gudas, Esq.

Paul McEachern, Esq.

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