Party seeking stay under federal civil procedure rules must first file appropriate motion, despite state rule allowing for automatic stay

Law Reporter, May 2002

Whitehead v. Food Max of Miss., Inc., 277 F.3d 791 (5th Cir. 2002).

The Fifth Circuit Court of Appeals held that a party seeking a stay under Fed. R Civ. P. 62(f)-which provides that a judgment debtor is entitled to a stay as would be accorded in state court-must first file the appropriate motion, despite a state rule allowing for an automatic stay.

Here, a woman and her daughter were abducted from a store's parking lot and later assaulted. They filed a diversity action against the store in federal court. 43 ATIA L. Rep. 274 (Sept. 2000). After a jury awarded plaintiffs damages, defendant moved for a new trial, a remittitur, and a stay pending disposition of its motions. Three days after the trial court denied the motions, plaintiffs' attorney obtained a writ of execution and went to the store accompanied by newspaper and television reporters.

Defendant moved for sanctions, arguing that, under Miss. R Civ. P. 62(a), it was entitled to an automatic 10day stay following the denial of its motion for a new trial. The trial court granted sanctions, holding that defendant was entitled to an automatic stay under the federal rule. Because the state rule provides for an automatic stay for 10 days after the court rules on a motion for a new trial, the court reasoned, defendant is entitled to an automatic 10-day stay.

Reversing, the Fifth Circuit found that the trial court erred in its application of the federal rule. Although the rule provides that a judgment debtor is entitled to whatever stay it would receive in state court, Congress did not intend to afford this protection without requiring parties to first file an appropriate motion with the court. "Entitled" means "to grant a legal right to or qualify for," the court explained. Thus, the rule gives federal litigants a basis for securing or claiming an applicable state-law stay in a trial court, but not without the appropriate motion being filed, the court said.

Moreover, allowing a party to rely on state procedural rules without affirmatively seeking their protection would force federal judges to not only possess a detailed knowledge of the federal rules, but to master the procedural rules of different states. The problems related to this approach increase significantly in diversity cases with complex choiceof-law issues, the court said.

Further, there is no legal authority supporting defendant's argument that a party enjoys protection under state procedural rules, applied through the federal rule, without actively seeking such protection. The federal rules specifically provide that an application for an order must be by motion. The effect of a stay in this case is indistinguishable from obtaining an order because it bars a successful litigant from taking any action on the judgment. Thus, a party must file a motion that puts both the court and any adverse party on notice that a stay is sought, the court concluded.

Plaintiffs' Counsel

Luther T. Munford, Jackson, Miss.

Ross F. Bass Jr., Jackson, Miss.