IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EARNEST E. WARHURST, JR., )

)

Plaintiff, )

)

v. ) Civil Action No. 14-00245-N

)

ONE TWENTY FOOT BERTRAN, 1969 ) IN ADMIRALTY

Model Year, bearing Alabama )

Registration No. AL8238LM, her )

engines, tackle, equipment, )

appurtenances, and attached travel )

trailer, etc., in rem, and DAVID L. )

JONES, in personam, )

)

Defendants. )

ORDER

This action is before the Court1 on several post-judgment motions and 

responses: Plaintiff Earnest Warhurst’s Motion for Bond (Doc. 74); Defendant David 

Jones’s Motion for Writ of Execution (Doc. 78); Plaintiff’s Motion to Stay Execution 

for 30 Days as Provided by State Law (Doc. 79); Plaintiff’s Response in Opposition 

to the Motion for Writ of Execution (Doc. 80); Defendant’s Response in Opposition to 

Motion to Stay Execution for 30 Days as Provided by State Law (Doc. 81); and 

Defendant’s Reply to Response in Opposition to Motion for Writ of Execution (Doc. 

82). Plaintiff’s Motion for Bond (Doc. 74) is construed as a motion to obtain a stay by 

supersedeas bond pursuant to FED. R. CIV. P. 62(d). For the reasons given below, 

Plaintiff’s Motion for Bond (Doc. 74) is DENIED. Plaintiff’s Motion to Stay 

 1 This action is before the undersigned United States Magistrate Judge for all matters, with express 

consent of the parties, pursuant to 28 U.S.C. § 636(c). See Docs. 15, 16.

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Execution for 30 Days as Provided by State Law (Doc. 79) is likewise DENIED. 

Lacking a stay on the Court’s Judgment (Doc. 71), Plaintiff is ORDERED to 

SHOW CAUSE on or before Friday, May 1, 2015, why the Motion for Writ of 

Execution (Doc. 78) should not be granted.

I. Background

After a bench trial, judgment was entered in favor of Defendant and against 

Plaintiff in the amount of $5,505.00. Doc. 71. Plaintiff was given until March 30, 

2015, to satisfy the judgment, but allowed this deadline to lapse without action. See 

id. On April 1, 2014, Defendant made his first attempt to enforce the judgment by 

way of a Motion to Compel (Doc. 72), which was later stricken (Doc. 77). On April 

10, 2015, Plaintiff gave notice that he was appealing the final judgment of this 

Court (Doc. 73) and made a Motion for Bond, asking the Court to stay the 

enforcement of the judgment by setting a supersedeas bond pursuant to FED. R. CIV.

P. 62(d). Also on April 10, 2015, the Defendant made his second attempt to enforce 

the judgment with a Motion for Writ of Execution (Doc. 78). On April 12, 2015, 

Plaintiff made a Motion to Stay Execution for 30 Days Pursuant to State Law (Doc. 

79). Parties entered responsive pleadings to all three motions (Docs. 80, 81, and 82).

II. Motion for Bond

The stay of a money judgment is governed by Fed. R. Civ. P. 62(d), which 

states that “ . . . the appellant may obtain a stay by supersedeas bond,” which “takes 

effect when the court approves the bond.” “The purpose of the supersedeas bond is 

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to preserve the status quo while protecting the non-appealing party's rights pending 

appeal.” Prudential Ins. Co. of Am. v. Boyd, 781 F.2d 1494, 1498 (11th Cir.1986). 

Where an appellant files a motion for stay pending appeal, that Court must 

consider: “(1) whether the stay applicant has made a strong showing that he is 

likely to succeed on the merits; (2) whether the applicant will be irreparably injured 

absent a stay; (3) whether issuance of the stay will substantially injure the other 

parties interested in the proceeding; and (4) where the public interest lies.” Nken v. 

Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. 

Braunskill, 581 U.S. 770, 776 (1987)). As the party seeking a stay, the Plaintiff 

bears heavy burden to show that this extraordinary remedy is warranted. See

McCammon v. United States, 584 F. Supp. 2d 193, 197 (D.D.C. 2008) (“granting a 

stay pending appeal is always an extraordinary remedy, and . . . the moving party 

carries a heavy burden to demonstrate that the stay is warranted.” (citation and 

internal quotation marks omitted); Gay Lesbian Bisexual Alliance v. Sessions, 917 

F. Supp. 1558, 1561 (M.D. Ala. 1996) (stay pending appeal “is considered 

extraordinary relief for which the moving party bears a heavy burden” (citation 

omitted); see generally Nken, 556 U.S. at 427 (noting that stay of a final order 

pending review amounts to “intrusion into the ordinary processes of administration 

and judicial review”) (citation omitted).

It is well established that the likelihood of success on the merits is ordinarily 

the “most important” factor in the analysis and requires, at a minimum, a showing 

of a “substantial case on the merits,” even upon a strong showing of the other three 

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factors. Garcia-Mir v. Meese, 781 F. 2d 1450, 1453 (11th Cir. 1986); see also Nken, 

556 U.S. at 434 (“It is not enough that the chance of success on the merits be better 

than negligible” and “more than a mere possibility of relief is required.”) (citations 

omitted); Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 56 (D.D.C. 2009) (as to the first 

factor, movant must at least raise “serious legal questions going to the merits, so 

serious, substantial difficult as to make them a fair ground of litigation.” (citations 

omitted); Fullmer v. Michigan Dep’t of State Police, 207 F. Supp. 2d 663, 664 (E.D. 

Mich. 2002) (movant seeking a stay of judgment pending appeal “must ordinarily 

demonstrate to a reviewing court that there is a likelihood of reversal” and “is 

always required to demonstrate more than the mere possibility of success on the 

merits”) (citations omitted).

Plaintiff has failed to address any of the factors for granting a supersedeas 

bond. See Doc. 74. Rather, Plaintiff’s motion states, in its entirety, “Plaintiff, Ernest 

E. Warhurst Jr., respectfully requests the Court to set an amount for supersedeas 

bond in order to stay the judgment herein pending appeal.” Id. Plaintiff makes no 

showing that there is likelihood that his appeal will succeed on the merits, and the 

Court must conclude that it will not.

The Court also concludes that the other factors do not heavily tilt in 

Plaintiff’s favor. Plaintiff has failed to demonstrate that they will be irreparably 

injured in the event a stay is not granted. Plaintiff also fails to show why no harm 

will come to Defendant by granting a stay after the deadline for satisfying the 

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judgment has already passed. Finally, Plaintiff does not address whether a stay 

would affect the public interest.

Because the other three factors do not weigh in their favor, Plaintiff is

required to show a more substantial likelihood of success. They have not done so. 

Accordingly, Plaintiff has failed to satisfy his heavy burden of demonstrating 

entitlement to the extraordinary remedy of a stay pending appeal, inasmuch as he 

has failed to make any showing whatsoever of a likelihood of success on the merits 

that is better than “negligible” or a “mere possibility.”

III. Motion for Stay Execution for 30 Days as Provided by State Law

Plaintiff moves the Court to stay the execution of the judgment for 30 days 

pursuant to FED. R. CIV. P. 62(f), which states that “[i]f 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 ALA. R. CIV. P. 62(a), “ . . . no execution shall issue upon a judgment 

nor shall proceedings be taken for its enforcement until the expiration of thirty (30) 

days after its entry.” The judgment in this case is not a “lien . . . under the law of 

the state where the court is located,” but is rather a cash judgment. Doc. 71. Thus, 

FED. R. CIV. P. 62(F) does not apply. Rather, the judgment in this case falls under 

the 14-day automatic stay provided for in FED. R. CIV. P. 62(a). In either case, the 

Judgment of this Court issued on March 13, 2015 (see Doc. 71), meaning that both 

the 14-day and 30-day time periods discussed have expired.

IV. Motion for Writ of Execution

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The Defendant requests that the Court, pursuant to Fed. R. Civ. P. 69(a)(1), 

issue a Writ of Execution to enforce the money judgment made against the Plaintiff.

(Doc. 78). Rule 69(a)(1) states that “[t]he procedure on execution . . . must accord 

with the procedure of the state where the court is located, but a federal statute 

governs to the extent it applies.” The applicable procedures are to be found in Title 

6, Chapter 9 of the Code of Alabama, concerning judgments and execution thereon. 

Plaintiff’s current Response in Opposition to the Motion for Writ of Execution 

(Doc. 80) states only that the Motion for Writ is premature in light of the Plaintiff’s 

motions to stay. The motions to stay being lacking, the Plaintiff is granted an 

opportunity to show good cause why the Motion for Writ should not be granted.

V. Conclusion

Accordingly and upon consideration, it is ORDERED that:

(1) Plaintiff’s Motion for Bond (Doc. 78) is due to be and is hereby DENIED.

(2) Plaintiff’s Motion to Stay Execution for 30 Days as Provided by State Law is 

due to be and is hereby DENIED.

(3) Plaintiff is to SHOW CAUSE on or before Friday, May 1, 2015, why the 

Defendant’s Motion for Writ of Execution should not be granted.

DONE and ORDERED this the 24th day of April 2015.

/s/Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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