Cline et al v. Sunoco, Inc. (R&M) et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PERRY CLINE, on behalf of 	)
himself and all others 	)
similarly situated, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-17-313-JAG
)
SUNOCO, INC. (R&M) and 	)
SUNOCO PARTNERS MARKETING & 	)
TERMINALS, L.P., 	)
)
Defendants. 	)
FINDINGS AND RECOMMENDATION
This matter comes before the Court for the entry of Findings
and 	Recommendation 	in 	accordance 	with 	presiding 	United 	States
District 	Judge 	John 	A 	Gibney, 	Jr.’s 	directive 	on 	referral 	to 	the
undersigned. 	Judge 	Gibney 	referred 	this 	case 	for 	the 	conducting
of an asset hearing pursuant to Fed. R. Civ. P. 69 and Okla. Stat.
tit. 	12 	§ 	842 	and 	to 	“make 	findings 	and 	recommendations 	for 	this
Court as to the 12 O.S. § 842 and Fed. R. Civ. P. 69 proceedings.”
On August 9, 2022, this Court entered an Order directing that
certain 	financial 	information 	be 	produced 	by 	Defendants 	in
anticipation of an asset hearing which was set to be conducted on
September 	12, 	2022. 	The 	asset 	hearing 	was 	conducted 	before 	this
Court 	as 	scheduled. 	Defendantss 	produced 	witnesses 	and
documentation for Plaintiff’s examination.
At the conclusion of the asset hearing, counsel informed this
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Court that the asset hearing would be held open to permit further
examination 	but 	that 	the 	further 	intervention 	or 	supervision 	by
this 	Court 	would 	not 	be 	required. 	Additionally, 	Plaintiff’s
counsel proposed a draft Report and Recommendation which concluded
with 	a 	recommendation 	that 	(1) 	Defendants 	be 	required 	to 	deposit
the 	full 	value 	of 	the 	outstanding 	judgment 	with 	the 	Court 	Clerk;
(2) Plaintiff would be entitled to garnish any accounts, accounts
receivable, 	or 	other 	similar 	assets 	identified 	during 	the 	asset
hearing 	“by 	whatever 	means 	are 	legally 	available”; 	and 	(3) 	the
Court 	Clerk 	be 	directed 	to 	enter 	a 	writ 	of 	execution 	against
Defendants’ non-exempt property.
Because 	the 	draft 	Report 	and 	Recommendation 	had 	only 	been
produced to Defendants late in the day of the asset hearing, this
Court 	permitted 	Defendants 	to 	review 	the 	proposed 	document 	and
file 	an 	objection 	to 	its 	entry. 	The 	parties 	briefed 	the 	issue
extensively. 	In 	the 	interim, 	Plaintiff 	began 	issuing 	numerous
garnishment 	summons 	upon 	the 	various 	entities 	holding 	assets
belonging 	to 	Defendants 	which 	he 	discovered 	during 	the 	course 	of
the asset hearing.
On October 11, 2022, Defendants filed an Emergency Motion for
Leave 	to 	Deposit 	Funds 	in 	Court’s 	Registry 	(Docket 	Entry 	#503).
Defendants 	requested 	authority 	to 	deposit 	the 	funds 	necessary 	to
satisfy the judgment entered in this case into the Court registry
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fund. 	Defendants’ request was intended, in part, to stave off the
garnishment activity initiated by Plaintiff.
On October 25, 2022, this Court conducted a telephonic hearing
on Defendants’ motion.1 	Defendants maintained that they should be
permitted 	to 	deposit 	the 	judgment 	amount 	with 	interest 	into 	the
Court 	registry 	fund 	pending 	a 	determination 	of 	its 	appellate
rights. 	Defendants 	also 	requested 	that 	the 	garnishment
proceedings 	against 	them 	be 	halted. 	Plaintiff 	originally 	stated
that 	an 	amount 	sufficient 	to 	satisfy 	the 	judgment 	as 	well 	as
attorneys’ 	fees 	should 	be 	deposited 	with 	the 	Judgment
Administrator 	for 	distribution 	to 	the 	class 	upon 	approval 	of 	the
Court to do so. 	Based upon the arguments his counsel made at the
telephonic hearing, Plaintiff no longer supports the depositing of
the funds and prefers to continue his efforts at collection on the
judgment through garnishment.
During 	the 	course 	of 	this 	action, 	Defendants 	have 	filed 	a
litany 	of 	appeals 	with 	the 	Tenth 	Circuit 	Court 	of 	Appeals 	and
requests for certiorari with the United States Supreme Court. 	The
only method available to forestall execution of a judgment pending
appeal is the posting of a supersedeas bond in the full amount of
1 	The 	undersigned’s 	staff 	consulted 	with 	Judge 	Gibney’s 	office 	prior 	to
conducting the hearing to confirm that the same was within the intended referral
by Judge Gibney.
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the 	judgment. 	Fed.R.Civ.P. 	62(b). 	“A 	judgment 	debtor 	who 	is
unable or is unwilling to post a supersedeas bond retains the right
to 	appeal 	even 	if 	the 	judgment 	is 	executed.” 	Strong 	v. 	Laubach,
443 	F.3d 	1297, 	1299 	(10th 	Cir. 	2006) 	citing 	Koster 	& 	Wythe 	v.
Massey, 262 F.2d 60, 62 (9th Cir. 1958). 	“Should the judgment be
reversed on appeal, a district court may, on motion or sua sponte,
order the judgment creditor to restore the benefits obtained.”
Id. 	citing 	Baltimore 	& 	Ohio 	R.R. 	Co. 	v. 	United 	States, 	279 	U.S.
781, 786, 49 S.Ct. 492, 73 L.Ed. 954 (1929).
Defendants 	failed 	to 	post 	such 	a 	bond 	in 	this 	case. 	By
requesting 	that 	Plaintiff’s 	garnishment 	efforts 	be 	stayed 	with 	a
deposit 	into 	either 	the 	Court 	registry 	fund 	or 	with 	the 	Judgment
Administrator, Defendants are attempting to do that which it failed
to 	do 	under 	Rule 	62(b) 	– 	stay 	execution 	on 	the 	judgment. 	This
Court 	is 	unwilling 	and, 	frankly, 	not 	authorized 	to 	take 	such
actions 	simply 	because 	Defendants 	are 	now 	concerned 	about 	the
garnishment 	actions 	taken 	against 	others 	who 	possess 	assets 	to
which it is entitled. 	To be clear, Defendants are not requesting
to deposit the funds to satisfy the judgment; rather, the deposit
is 	only 	intended 	to 	forestall 	garnishment. 	The 	supersedeas 	bond
would have permitted a stay. 	The deposit of the funds does not.
IT IS THEREFORE THE RECOMMENDATION OF THIS COURT that (1) the
asset 	hearing 	be 	deemed 	concluded; 	(2) 	Defendants’ 	Emergency
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Motion to Deposit Funds in the Court’s Registry (Docket Entry #503)
be DENIED; and (3) Defendants’ attendant request that Plaintiff’s
garnishment efforts be stayed be DENIED.
The 	parties 	are 	given 	fourteen 	(14) 	days 	from 	the 	date 	of
service of these Findings and Recommendation to file any objections
with the Clerk of the Court together with a supporting brief. 	The
failure to object will preclude appellate review of these Findings
and Recommendation.
IT IS SO ORDERED this _____ day of November, 2022.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
4th
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