United States Court of Appeals
For the First Circuit
No. 03-1529
NOEL RODRÍGUEZ-VÁZQUEZ, ET AL.,
Plaintiffs, Appellees,
v.
ABRAHAM LÓPEZ-MARTÍNEZ, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
G. Ismalia Gutiérrez Galang and Law Offices of Pedro E. Ortiz
Álvarez, P.S.C., on Urgent Motion Seeking Stay Pending Appeal for
appellants.
Pablo Landrau Pirazzi and Aldarondo & López Bras, on
Opposition to Urgent Motion Seeking Stay Pending Appeal for
appellees.
September 29, 2003
Per Curiam. Before us we have defendant-appellants'
request for a stay pursuant to Fed. R. Civ. P. 62(f) of the
monetary judgments against them. We issued a temporary stay and
requested further briefing on quite difficult issues of Puerto Rico
law, but only plaintiff-appellees have filed a brief in compliance
with our request. We have concluded that, on the basis of the
present record and the information presented to us, the stay
request should be denied.
Our earlier decision in Acevedo-Garcia v. Vera-Monroig,
296 F.3d 13 (1st Cir. 2002)(per curiam), would, standing alone, bar
the stay, but we are satisfied that decision rested on a mistaken
premise; specifically, it relied on P.R. Civ. P. 51.3 which, on
further examination, does not deal with the process of converting
a judgment into a lien. Plaintiff-appellees so concede. Although
we would customarily confer with the other active judges before
departing from a published circuit precedent, see Trailer Marine
Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n. 5 (1st Cir.
1992), we would unhesitantly confer in this case if a stay under
Rule 62(f) were otherwise appropriate.
The case law as to Rule 62(f) itself is fragmentary, and
the principal district court cases are at odds. Compare Smith v.
Village of Maywood, No. 84-2269, 1991 WL 277629 (N.D. Ill. Dec. 20,
1991) and McDonald v. McCarthy, No. 89-0319, 1990 WL 165940 (E.D.
Pa. Oct. 22, 1990) with Aldasoro v. Kennerson, 915 F. Supp. 188,
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190-91 (S.D. Cal. 1995) and Marandino v. D'Elia, 151 F.R.D. 227,
228 (D. Conn. 1993). Our own inclination is to think that where a
lien can be procured by minor ministerial acts, this minor burden
on the judgment-creditor should not preclude a stay under Rule
62(f). But it is sufficient in this case that plaintiff-appellees
colorably argue that a lien could not be procured absent the
payment of a very large fee for registration of the judgment.
Although this may be mistaken, the defendant-appellants have not
shown us anything to the contrary. If the premise is mistaken, it
can be revisited in some future case, but as far as this one is
concerned, the defendant-appellants have had their opportunity.
Alternatively, a stay could also be denied if we were to
adopt the Second Circuit's interesting approach in FDIC v. Ann-
High Associates, 39 Fed. R. Serv. 3d 684, 1997 WL 1877195 (2d Cir.
Dec. 2, 1997), which suggests that there must be a showing that the
liened property would be sufficient to satisfy the judgment. This
might be a permissible gloss on Rule 62(f), but even if so, it
could be argued to the contrary that a lien on all property,
whatever its value, would give the judgment-creditor everything
that would be available if there were no appeal or supersedeas
bond. Since Ann-High was not previously mentioned in the stay
papers, nor do we know whether the municipality could satisfy that
requirement, it seems best to reserve this issue for a future case.
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The division of authority as to Rule 62(f) is the least
of the problems. Our request for further briefing identified
further issues peculiar to Puerto Rico law that have a bearing on
whether Rule 62(f) would apply. On some of these issues,
plaintiff-appellees supplemental brief has been of assistance, but
on others the arguments are not persuasive or the issue is at least
in doubt. A copy of the order requesting supplemental briefing is
attached.
Although our present decision resolves very little beyond
this stay request, we are publishing this per curiam to alert
future litigants in this circuit to the problem with Acevedo and
also to the division of federal authority and the unresolved or
debatable issues of Puerto Rico law. Past experience suggests that
such lawsuits against municipalities in Puerto Rico based on
political discrimination charges will continue, and the Rule 62(f)
question is likely to be a recurring one. The identification of
issues may at least permit future parties to provide the court with
more assistance.
The motion for stay pending appeal is denied. To provide
time for the posting of a supersedeas bond, the temporary stay
previously granted by this court shall continue for 10 days from
the date of this order and then expire unless renewed by the
district court.
It is so ordered.
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Appendix
United States Court of Appeals
For the First Circuit
No. 03-1529
NOEL RODRIGUEZ-VAZQUEZ, ET AL.,
Plaintiffs, Appellees.
___________
DANIEL OQUENDO-FIGUEROA, ET AL.,
Plaintiffs,
v.
ABRAHAM LOPEZ-MARTINEZ, ET AL.
Defendants, Appellants.
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
_____________________
ORDER OF COURT
Entered: June 13, 2003
Preliminary consideration of the appellants' request for
a stay of execution of the monetary judgments against them pursuant
to Fed. R. Civ. P. 62(f) suggests the need for further briefing
with respect to the underlying issues of Puerto Rican law.
Appellants seek to distinguish this case from Acevedo-
Garcia v. Vera-Monroig, 296 F.3d 13 (1st Cir. 2002) (per curiam).
Further examination of Acevedo suggests substantial doubt as to
whether the pivotal rule on which the court relied in that case
(P.R. R. Civ. P. 51.3) does in fact govern judgment liens under
Puerto Rican law. Rule 51.3 can be plausibly read as governing
only the enforcement of judgment in the case of disobedience by the
losing party; and it has been argued to us that instead 30 L.P.R.A.
§§ 1801-1806 govern judgment liens.
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Although the parties do not appear to dispute that the
judgment debtors would be entitled to a stay in the courts of
Puerto Rico had the action been filed there, the only authority
cited in this regard is Rule 69.6 of the Puerto Rico Rules of Civil
Procedure, which exempts municipal corporations from bond-posting
requirements. However, Rule 69.6 does not appear to extend to
municipal officials, nor does it expressly provide for a stay of
execution of judgment.
Further, we note that appellees have asserted that Puerto
Rican law exempts property of municipal corporations from execution
of judgment. However, the authorities on which appellees rely do
not provide clear support for the stated proposition, nor do they
suggest that such a rule would apply to a municipal official held
liable in his individual capacity.
Accordingly, we invite the parties to submit briefs
addressing the following issues and any others the parties wish to
raise:
(1) whether judgment liens under Puerto Rican law are
governed by P.R. R. Civ. P. 51.3, or 30 L.P.R.A. §§ 1801-1806, or
by other statutes, rules or case law that have not yet been drawn
to this court's attention, and whether under any of these
provisions the conversion of a monetary judgment into a lien
involves more than ministerial acts by the judgment creditor;
(2) whether P.R. R. Civ. P. 69.6 can be, or is in
practice, read as granting municipalities or municipal officials an
automatic stay of execution of judgment;
(3) whether appellants would be entitled to a stay of
execution under any other provisions of Puerto Rico law;
(4) whether the property of municipal corporations or
municipal officials is exempt from execution of judgment in the
courts of Puerto Rico.
Supplemental briefs, limited to 15 pages each side,
shall be filed on or before twenty-one (21) days from the date of
this order. The temporary stay, as provided in this court's order
of June 6, 2003, shall remain in effect until further ordered.
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It is so ordered.
By the Court:
By: ______________________________
Richard Cushing Donovan, Clerk.
[CC: Pablo Landrau Pirazzi, Esq., Ivan M. Castro-Ruiz, Eliezer
Aldarondo-Ortiz, Esq., Claudio Aliff-Ortiz, Johanna M.
Emmanuelli-Huertas, Esq., Gina Ismalia Gutierrez-Galang, Marie
Ceferina Javier Villegas, Esq., Heriberto Guivas-Lorenzo, Esq.]
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