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REC’D & FILED
2014 JAN 2 PM 4:27
ALAN GLOVER CLERK
BY DEPUTY __________
MSTY
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
HAWKINS MELENDREZ, P.C.
Attorneys for Defendant
Reza Zandian aka Gholamreza Zandian aka Gholamreza Zandian Jazi aka Reza Jazi aka J. Reza Jazi aka G. Reza Jazi aka Ghononreza Zandian Jazi
In
The First Judicial District Court Of The State Of
In
and For
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JED MARGOLIN, an individual, Plaintiff, VS.
OPTIMA TECHNOLOGY CORPORATION, a California corporation, OPTIMA TECHNOLOGY CORPORATION, a Nevada corporation, REZA ZANDIAN aka GOLAMREZA ZANDIANJAZI aka GHOLAM REZA ZANDIAN aka REZA JAZI aka J. REZA JAZI aka G. REZA JAZI aka GHONONREZA ZANDIAN JAZI, an individual, DOE Companies 1-10, DOE Corporations 11-20, and DOE Individuals 21-30, Defendants.
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Case No.: 09OC00579 1B Dept. No.: I
DEFENDANT REZA ZANDIAN AKA GOLAMREZA ZANDIANJAZI AKA GHOLAM REZA ZANDIAN AKA REZA JAZI AKA GHONOONREZA ZANDIAN JAZI’s MOTION FOR STAY OF PROCEEDINGS TO ENFORCE JUDGMENT PURSUANT TO NRCP 62(B)
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Defendant REZA ZANDIAN ("Zandian") by and through his attorney Geoffrey W. Hawkins, Esq., of the law firm HAWKINS MELENDREZ P.C., and hereby submits this Motion for Stay of Proceedings to Enforce Judgment Pursuant to NRCP 62(b).
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This motion is made and based upon the provisions of NRCP 62 and the following Memorandum of Points and Authorities, the pleadings and papers on file herein, and any oral argument this Honorable Court may allow.
DATED this 7th day of December, 2013.
HAWKINS MELENDREZ P.C.
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Phone: (702) 318-8800
Attorneys for Defendant
Reza Zandian
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POINTS AND AUTHORITIES
I.
INTRODUCTION
On June 24, 2013 this Court entered a Default Judgment against Zandian. On June 27, 2013, Plaintiff filed a Notice of Entry of Default Judgment against Zandian. On or about December 11, 2013, Plaintiff filed his Motion for Judgment Debtor Examination and to Produce Documents. On December 20, 2013, Zandian timely filed his Motion to Set Aside Default Judgment which is now pending before this Court. Pursuant to NRCP 62 (b), execution of or any proceeding to enforce the default judgment should be stayed pending the outcome of Zandian's Motion to Set Aside Default Judgment. Furthermore, this Court should stay the execution of or any proceeding to enforce the default judgment against Zandian without a requirement that Zandian provide security at this time.
II.
STATEMENT OF LAW
A. Rule 62(b) Allows Stays Without Security Pending Post-Judgment Motions
There
is a special rule in
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b).
Rule 62(b) gives the court extremely broad discretion to enter a stay without security during the pendency of post-judgment motions. Indeed, unlike Rule 62( d)'s provision for stays upon appeal, Rule 62(b) does not even refer to a supersedeas bond.
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B. It is Common and Customary in Nevada To Allow Stays Without Security On Post-Judgment Motions
It is the common practice in
The Nevada Supreme Court has
recognized the need for courts, under appropriate circumstances, to grant a
stay without requiring either a bond or any other additional security. In McCulloch v. Jeakins, 99 Nev. 122, 123, 659
P.2d 302, 303 (1983) the court held that the district court "may provide
for a bond in a lesser amount, or may permit security other than a bond when
unusual circumstances exist and so warrant" (Citing Fed Prescription
Servs., Inc. v. Am. Pharm. Ass'n., 636 F.2d 755 (D.C. Cir. 1980) and 11
Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 2905, at 328 (1973)
(emphasis omitted)). Moreover, in the recent case of Nelson v. Heer, the
Court further liberalized the standards regarding stays with alternative
security. Nelson v. Heer 121
Even Rule 62(d) does not require a bond in all cases for a stay pending appeal. See id. at 1253; Olympia Equip. Leasing Co. v. Western Union Telegraph, 786 F.2d 794 796 (7th Cir. 1986). Such a requirement would conflict with NRAP 8(b), which implicitly recognizes the discretion of courts to issue stays not conditioned on bonds. "[I]f the appellate court has the power to issue an unsecured stay, as Rule 8(b) clearly implies, then the district court must have the power also, if Rule 8(b) is to make any sense." Fed Prescription Servs., Inc. v Am Pharm. Ass'n, 636 F.2d 755, 760
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(D.C. Circuit 1980); see also Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189 (5th Cir. 1979); Intl Telemeter Corp. v. Hamlin int'l Corp., 754 F.2d 1492,1495 (9th Cir. 1985).
C. The Cost Of A Bond Is An Unnecessary Expense That Is Potentially Taxable To Plaintiff
Bonding is expensive, and the costs of bonding should be avoided except where the defendant's ability to pay a judgment is open to serious question. Such caution is especially warranted because the costs of bonding may ultimately be borne by plaintiffs rather than defendants. Under NRAP 39(e), the costs of a supersedeas bond are taxable to plaintiffs if judgment is reversed on appeal.
III.
LEGAL ARGUMENT
On or about June 24, 2013, this Court entered a Default Judgment against Zandian. Then, on or about December 11, 2013, Plaintiff filed his Motion for Judgment Debtor Examination and to Produce Documents. Upon learning of the Default Judgment, Zandian retained counsel to file a motion to set aside the default judgment. On December 20, 2013 Zandian timely filed his Motion to Set Aside Default Judgment which is now pending before this Court. Zandian's Motion to Set Aside Default Judgment was made pursuant to NRCP 55 and 60.
Pursuant to NRCP 62(b), this Court is authorized, in its discretion, to stay execution of, or proceedings to enforce a judgment pending the disposition of post-trial motions brought under NRCP 60. In the instant case, Zandian's Motion to Set Aside Default Judgment must be resolved before any proceedings to enforce the Default Judgment can proceed . Allowing Plaintiff to proceed with enforcement of the Default Judgment in the face of the pending Motion to Set Aside Default Judgment could obviously cause the parties to incur unnecessary expenses, and would be unfair and prejudicial to Zandian in the event that the Default Judgment is set aside by this Court. Indeed, NRCP 62(b) is obviously intended to avoid such untoward consequences.
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IV.
CONCLUSION
Based on the foregoing points and authorities, Defendant Reza Zandian respectfully requests that this Court grant a stay of any proceedings to enforce the Default Judgment, including proceedings such as a debtor's examination, until after the resolution of Zandian's Motion to Set Aside Default Judgment.
AFFIRMATION PURSUANT TO NRS 239B.030
The undersigned does hereby affirm that the preceding document does not contain the social security number of any person.
DECLARATION
The undersigned also declares under penalty of perjury that the foregoing is true and accurate to the best of my knowledge.
Dated this 30th day of December, 2013.
HAWKINS MELENDREZ, P.C.
_________________________________
GEOFFREY W. HAWKINS, ESQ.
Nevada Bar No. 7740
JOHNATHON FAYEGHI, ESQ.
Nevada Bar No. 1273 6
Phone: (702) 318-8890
Attorneys for Defendant
Reza Zandian
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CERTIFICATE OF SERVICE
Pursuant to Nevada Rules of Civil Procedure 5(b) I hereby certify that, on the 30th day of December, 2013, service of DEFENDANT-REZA ZANDIAN AKA GOLAMREZA ZANDIANJAZI AKA GHOLAM REZA ZANDIAN AKA REZA JAZI AKA J. REZA JAZI AKA G. REZA JAZI AKA GHONONREZA ZANDIAN JAZI'S MOTION FOR STAY OF PROCEEDINGS TO ENFORCE JUDGMENT PURSUANT TO NRCP 62(B) was made this date by depositing a true copy of the same for mailing, first class mail, at Las Vegas, Nevada, addressed follows:
Matthew D. Francis
Adam P. McMillen
WATSON ROUNDS
5371 Kietzke, Lane
Attorneys for Plaintiff
Jed Margolin
_________________________________
An employee of Hawkins Melendrez, P.C.
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