     Case: 14-20267    Document: 00512837869     Page: 1   Date Filed: 11/14/2014




                      REVISED November 14, 2014

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                No. 14-20267                            FILED
                                                                  October 1, 2014
                                                                   Lyle W. Cayce
MM STEEL, L.P.,                                                         Clerk

                                          Plaintiff–Appellee
v.

JSW STEEL (USA) INCORPORATED; NUCOR CORPORATION;
RELIANCE STEEL & ALUMINUM COMPANY; CHAPEL STEEL
CORPORATION; ARTHUR J. MOORE; AMERICAN ALLOY STEEL,
INCORPORATED,

                                          Defendants–Appellants




                Appeals from the United States District Court
                     for the Southern District of Texas


Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:
      Before the Court is Defendant–Appellant JSW Steel (USA) Inc.’s (“JSW”)
Motion for Stay of Execution of Judgment Pending Appeal, filed June 20, 2014.
JSW also moves to seal the appendix attached to its motion. We deny the
motion for stay, and grant the motion to seal.
                           I.   BACKGROUND
      In this antitrust case, Plaintiff–Appellee MM Steel, L.P. (“MM Steel”),
obtained a judgment for over $150 million jointly and severally against
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multiple defendants, including JSW. JSW now seeks to stay the judgment
pending appeal pursuant to Federal Rule of Civil Procedure (“Rule”) 62(f).
According to JSW, Rule 62(f) limits a supersedeas bond to $25 million under
Texas law. JSW therefore asks this Court to approve a supersedeas bond in
the amount of $25 million jointly for all defendants or, alternatively, to approve
a supersedeas bond in the amount of $25 million for JSW individually.
       Resolving JSW’s motion requires this Court to determine whether (1)
under Rule 62(f), Texas law limits the required amount of the supersedeas
bond to a maximum of $25 million, and (2) if so, whether the defendants are
individually or jointly subject to that limit. For the reasons below, we answer
the first question in the negative and therefore do not reach the second
question.
                            II.    LEGAL STANDARD
       Rule 62 governs the stay of proceedings to enforce a judgment. “Rule
62(d) establishes a general rule that losing parties in the district court can
obtain a stay pending appeal only by giving a supersedeas bond.” Enserch
Corp. v. Shand Morahan & Co., 918 F.2d 462, 463–64 (5th Cir. 1990). Rule
62(f) provides a separate ground for a stay: “If 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 the prevailing view of Rule 62(f), a judgment is a lien
if a judgment creditor is only required to perform mere “ministerial acts” to
transform the judgment into a lien. 1


       1  See, e.g., Rodriguez–Vazquez v. Lopez–Martinez, 345 F.3d 13, 14 (1st Cir. 2003) (per
curiam) (“[W]here 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).”); FDIC v. Ann–High Assocs.,
129 F.3d 113, 1997 U.S. App. LEXIS 35547, at *9 (2d Cir. 1997) (unpublished) (per curiam)
(“[I]f a judgment creditor needs to conduct more than ‘ministerial acts’ to make the lien
effective under the state’s lien law, the state’s lien law fails to provide for a judgment lien
sufficient to satisfy Rule 62(f).”); United States v. O’Callaghan, 805 F. Supp. 2d 1321, 1329
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       Absent a stay under Rule 62, a prevailing party may seek to enforce a
judgment pursuant to Rule 69. 2
                                III.    DISCUSSION
       Although this Court has not previously addressed whether “a judgment
is a lien on the judgment debtor’s property” under Texas law, this Court has
addressed the same question under Louisiana law in Castillo v. Montelepre,
Inc., 999 F.2d 931 (5th Cir. 1993). After Castillo, our district courts have had
occasion to address the issue under Texas law, but have drawn differing
conclusions. See EEOC v. Serv. Temps, Inc., 782 F. Supp. 2d 288, 291–93 (N.D.
Tex. 2011) (noting disagreement among district courts). These decisions guide
us today.
 A.    Castillo and the District Court Holdings
       In Castillo, this Court affirmed the district court’s decision to stay its
judgment pursuant to Rule 62(f) and Louisiana law. 999 F.2d at 941–43. We
noted that Rule 62(f)’s “obvious purpose . . . is to allow appealing judgment
debtors to receive in the federal forum what they would otherwise receive in
their state forum.” Id. at 942. Indeed, “great deference must be given to the
manifest desire of the [state] legislature to allow [a losing party] to appeal
without bond.” Id. Nevertheless, the purpose of Rule 62(f) “is qualified by the



(M.D. Fla. 2011); Marandino v. D’Elia, 151 F.R.D. 227, 229 (D. Conn.), aff’d 7 F.3d 221 (2d
Cir. 1993).
       2 JSW alternatively argues that Texas’s $25 million bond maximum applies by way of
Rule 69(a)(1), which instructs that “[t]he procedure on execution . . . must accord with the
procedure of the state where the court is located,” unless a federal statute applies. JSW does
not brief this argument beyond its conclusory statement that “[b]ecause no federal statute
applies here . . . Texas post-judgment enforcement procedure controls, including Texas law
governing supersedeas bonds.” JSW only cites an unpublished district court order that does
not contain any reasoning on this point. Because of such inadequate briefing, JSW has waived
this argument. See, e.g., In re Repine, 536 F.3d 512, 518 n.5 (5th Cir. 2008) (finding argument
waived “due to inadequate briefing” where appellant “fail[ed] to explain” the argument and
did not “cite any authority to support her position” (citing L & A Contracting Co. v. S. Concrete
Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994))).
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requirement that the state forum treat judgments as a lien, or encumbrance,
on the property of judgment debtors.” Id. In that regard, the Court noted that
in Louisiana, “the filing of a judgment with the recorder of mortgages creates
a ‘judicial mortgage’” that burdens certain real and immovable property. Id.
at 942 n.10 (quoting La. Civ. Code Ann. art. 3300). Thus, Rule 62(f) operates
to apply Louisiana law to stays of execution in federal courts located in
Louisiana. See id. at 942 & n. 2.
        Applying Castillo, the district court in Umbrella Bank, FSB v. Jamison,
341 B.R. 835 (W.D. Tex. 2006), found that Rule 62(f) also operated to apply
Texas law. It “observe[d] that the Louisiana process for creating a judicial
mortgage is similar to the Texas process for creating a judgment lien.” Id. at
842.     And, as noted above, this Court in Castillo strongly implied that a
judgment operated as a lien in Louisiana for Rule 62(f) purposes. 999 F.2d at
942 & n. 10; see also Jamison, 342 B.R. at 842. “By implication, therefore, the
ministerial act of recording an abstract of judgment in a Texas county suffices
to satisfy Rule 62(f)’s requirement that ‘a judgment is a lien upon property of
the judgment debtor.’” Jamison, 341 B.D. at 842. (quoting Fed. R. Civ. P. 62(f)).
Further relying upon Castillo, the district court noted that it “must afford great
deference to the manifest desire of the Texas Legislature, which is to afford
judgment debtors in Texas the ability to suspend execution of a money
judgment by posting a supersedeas amount that excludes any punitive or
exemplary damages.” Id.
        However, in El Paso Independent School District v. Richard R., 599 F.
Supp. 2d 759 (W.D. Tex. 2008), a different judge within the Western District
of Texas disagreed with the holding in Jamison and instead concluded that “a
Texas judgment is not a lien such that Texas law determines whether
Defendant is entitled to a stay in federal court.” Id. at 764. The district court



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reasoned that the process for creating a lien in Louisiana and Texas materially
differed:
      In Louisiana, a lien is created “by filing a judgment . . . .” La. Civ.
      Code art. 3300. Once filed, the judgment itself creates the lien,
      and this Court is aware of no other requirements with which the
      judgment creditor must comply. By contrast, “[u]nder Texas law,
      no lien is created by the mere rendition of a judgment.” White v.
      FDIC, 19 F.3d 249, 251 (5th Cir. 1994). Instead, an abstract of
      judgment is required. Tex. Prop. Code Ann. 52.001 (Vernon 2007).
      This difference is dispositive.
            While the filing of a judgment under the Louisiana law is
      indeed a ministerial act, Jamison, 341 B.R. at 842, a Texas
      abstract of judgment must contain seven elements not necessarily
      contained in the judgment. See Tex. Prop. Code Ann. § 52.003
      (Vernon 2007). “Since a judgment lien is statutorily created,
      substantial compliance with the statutory requirements is
      mandatory before a judgment creditor’s lien will attach.” Wilson
      v. Dvorak, 228 S.W.3d 228, 233 (Tex. App. 2007) (quotation
      omitted). Additionally, “it is the judgment creditor’s responsibility
      to ensure that the clerk abstracts the judgment properly.” Olivares
      v. Birdie L. Nix Trust, 126 S.W.3d 242, 248 (Tex. App. 2003).
Id. (alterations in original).
      After analyzing Castillo and the conflicting opinions in Jamison and El
Paso ISD, the district court in Service Temps, Inc. concurred with the
reasoning and holding in El Paso ISD. Serv. Temps, 782 F. Supp. 2d at 291–
94. The court emphasized that “[u]nlike the Louisiana statute, . . . the Texas
statutes place greater responsibilities on the creditor to file a technically
compliant abstract, and Texas courts have refused to recognize liens for failure
to abide by these requirements, as detailed in § 52.003 of the Texas Property
Code.” Id. at 292 (collecting Texas appellate court decisions). Not only must
there be substantial compliance when filing an abstract, but there are
additional situations where the filing of an abstract does not constitute a lien.
Id. (citing Tex. Prop. Code § 52.0012(b) for the proposition that a “judgment
debtor can file a homestead affidavit . . . to obtain a release”); id. at 292–93

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(citing Tex. Prop. Code § 52.0011(a)(1) for the proposition that the judgment
debtor can post security in lieu of a judgment lien if the lien would not
“substantially increase the degree to which a judgment creditor’s recovery
under the judgment would be secured”). Thus, “[n]ot only do the tasks that a
judgment creditor must complete to convert a judgment into a lien have
substantive consequences if done improperly, the creation of a lien after
judgment is not a matter solely under the judgment creditor’s control.” Id. at
293. Accordingly, “a judgment is not a lien under Texas law” because, among
other things, “[r]esolving whether the requirements of § 52.0011(a) are
satisfied is not merely ministerial.” Id.
 B.    Creating a Judgment Lien in Texas is not Ministerial
       According to JSW, all that is required to create a judgment lien in Texas
is, “after payment of a nominal fee, . . . the recording and indexing of an
abstract of judgment”     under Tex. Prop. Code § 52.001.       From this, JSW
contends that “[t]he act of recordation is performed by a county employee and
is purely ministerial.”   JSW acknowledges that an abstract must still be
technically correct, but argues that “the fact that section 52.003 ‘prescribes and
defines’ the steps to be taken to create a judgment lien is what makes the act
ministerial,” quoting Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417,
425 (Tex. 2004). Moreover, JSW asserts that “there are other states that
similarly require parties recording a judgment to file an abstract of judgment
or something other than the judgment itself, yet have been held to be
judgment-lien states within the meaning of Rule 62(f),” citing DeKalb Cnty.
Sch. Dist. v. J.W.M., 445 F. Supp. 2d 1371, 1377 (N.D. Ga. 2006); Nester ex rel.
Estate of Nester v. Poston, No. 3:00-CV-277-H, 2002 WL 32833256, at *11
(E.D.N.C. Oct. 8, 2002); and Van Huss v. Landsberg, 262 F. Supp. 867, 869
(W.D. Mo. 1967).



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      We disagree and instead find the thorough analyses in El Paso ISD and
Service Temps persuasive. To be sure, the opinion in Umbrella Bank evinced
much thought and reasoning. But in applying Castillo, the Umbrella Bank
court did not elaborate upon its “observ[ation] that the Louisiana process for
creating a judicial mortgage is similar to the Texas process for creating a
judgment lien.” See 341 B.R. at 842. This is vital. While the Louisiana Code
requires only the ministerial filing of a judgment, see La. Civ. Code Ann. art.
3300; La. Rev. Stat. Ann. § 13:4204, the statutory steps and exceptions set out
in the Texas Property Code require far more, as explained in El Paso ISD and
Service Temps.
      To briefly summarize, the judgment creditor must first obtain an
abstract of the judgment to create a judgment lien in Texas. Wilson, 228
S.W.3d at 233. Texas Property Code § 52.003(a) requires that the abstract
include “seven elements not necessarily contained in the judgment.” El Paso
ISD, 599 F. Supp. 2d at 764 (citing Tex. Prop. Code Ann. § 52.003).
      Moreover, “‘substantial compliance with the statutory requirements is
mandatory before a judgment creditor’s lien will attach,’” id. (quoting Wilson,
228 S.W.3d at 233), and “‘it is the judgment creditor’s responsibility to ensure
that the clerk abstracts the judgment properly,’” id. (quoting Olivares, 126
S.W.3d at 248). Indeed, while minor deficiencies may be excusable, Texas
courts have rejected abstracts that lacked substantial compliance for a variety
of reasons. See Wilson, 228 S.W.3d at 234–36 (rejecting abstract that listed
judgment debtor by her maiden name rather than her married name); Citicorp
Real Estate, Inc. v. Banque Arabe Internationale D’Investissement, 747 S.W.2d
926, 929–30 (Tex. App. 1988) (finding lack of substantial compliance where
abstract omitted the debtor’s address or citation information); Midland Cnty.
v. Tolivar’s Estate, 155 S.W.2d 921, 922 (Tex. Comm’n App. 1941) (finding lack



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of substantial compliance where abstract included an interest term not found
in the judgment).
      Finally, the court in Service Temps correctly noted that § 52.003 “is not
the only hurdle that a judgment must overcome before becoming a lien under
Texas law.” 782 F. Supp. 2d at 292. Instead, “a judgment debtor may defeat
the creditor’s attempt to create a judgment lien on real property by simply
posting a security and obtaining a court determination on the relative burdens
that a judgment lien places on the parties” under § 52.0011. Id. at 292–93. As
the district court explained, “[r]esolving whether the requirements of
§ 52.0011(a) are satisfied is not merely ministerial.” Id. at 293.
      In light of Texas’s procedure, we reject JSW’s argument based upon Van
Huss, DeKalb, and Nester because JSW makes no attempt to show that the
procedure in those states is similar to Texas’s. In Van Huss, the court noted
that “the filing of the abstract of the judgment is a ministerial act (in the
[Missouri] court) to be performed by the Clerk of the Court,” 262 F. Supp. at
869, but JSW does not show us that a judgment creditor in Missouri bears any
responsibility for the sufficiency of the abstract.          Nester is similarly
unpersuasive—even if North Carolina law requires a “transcript of the original
docket” to be recorded as JSW contends, JSW does not show us what the
judgment creditor is required to do.
      And JSW’s contention that Georgia Code § 9-12-81 satisfied Rule 62(f) in
DeKalb is wholly misplaced. DeKalb did not address § 9-12-81. Instead, it
cited § 9-12-80 when it held that, in Georgia, “a judgment is a lien upon the
property of a judgment debtor.” DeKalb, 445 F. Supp. 2d at 1377. Section 9-
12-80 states that “[a]ll judgments obtained in the . . . courts of this state . . .
shall bind all the property of the defendant in judgment.” Ga. Code Ann. § 9-
12-80. JSW does not show us that this places any burden upon the judgment



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creditor as Texas procedure would. Thus, JSW’s reliance on other states is
unavailing.
      Accordingly, we find the procedures for creating a judgment lien in
Texas, which JSW does not dispute, to be more than mere ministerial acts.
Because Texas procedure requires more than mere ministerial acts, a
judgment in the state of Texas is not a lien within the purview of Rule 62(f).
See Rodriguez–Vazquez, 345 F.3d at 14.
                          IV.   CONCLUSION
     JSW’s Motion for Stay of Execution of Judgment Pending Appeal is
DENIED.       JSW’s unopposed Motion to Seal Volume 2 of Appendix is
GRANTED.




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JONES, Circuit Judge, dissenting.
      I respectfully disagree with the majority opinion, which runs counter to
Fifth Circuit precedent and adopts a different test for Federal Rule of Civil
Procedure 62(f). On its face, the Rule allows for the application of state stay of
execution laws where “a judgment is a lien … under the law of the state where
the court is located.” Fed. R. Civ. P. 62(f). This Court first interpreted the
“judgment is a lien” language in Castillo v. Montelepre, Inc., 999 F.2d 931 (5th
Cir. 1993) and held that a judgment debtor could invoke a state stay of
execution law where the underlying purpose of the rule was met: the judgment
creditor was otherwise afforded sufficient security under state law. Id. at 942.
The judgment creditor was afforded sufficient security in this case, given that
it would receive a $25 million statutory bond in addition to the opportunity to
create a judgment lien. JSW should therefore be allowed to invoke Rule 62(f).
      The majority opinion, however, uses a ministerial acts test to determine
if “a judgment is a lien,” but does not explain how it relates to this circuit’s case
law or why a new test is needed. In my view, Rule 62(f) applies even under the
majority’s test, since the creation of a judgment lien in Texas cannot be said to
involve more than a ministerial act. Therefore, under either test, JSW should
be given the benefit of Texas law to which it is entitled under the Federal Rules
of Civil Procedure.
   A. Fifth Circuit Precedent Calls for the Application of Rule 62(f)
      This Court has already determined Rule 62(f) is applicable where a
judgment creditor is otherwise afforded sufficient security under state law. In
Castillo, the court determined that the judgment creditors were afforded
sufficient security even though state stay of execution rules—applied through
Rule 62(f)—completely exempted the Fund from paying an appeal bond.
Sufficient security was a statutory obligation to pay judgments from the Fund.
Id. But sufficient security need not be a source of money equal to the dollar

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amount of the underlying judgment. Id. The court noted that in the event the
Fund’s assets were less than the value of the unpaid judgments, each judgment
creditor would get a pro-rata share of what was left of the Fund. Id. Here,
MM Steel would benefit from a $25 million dollar bond under the Texas statute
in addition to whatever value might be derived from creating a judgment lien
through a judgment abstract. The Texas legislature has considered $25 million
to be enough security to cap appeal bonds at that amount. Tex. Civ. Prac. &
Rem. Code Ann. § 52.006(b).      The Federal Rules of Civil Procedure allow
judgment debtors to use state laws that completely exempt them from the need
to post bond based on a judgment lien alone.             Fed. R. Civ. P. 62(f).     A
combination of both is surely sufficient security for MM Steel.
   B. Though Irreconcilable with Fifth Circuit Precedent, the
      Majority’s Ministerial Acts Test Still Entitles JSW to State Law
      The First Circuit’s ministerial acts test employed by the majority is
irreconcilable with Castillo. The majority purports to examine the number of
steps the judgment creditor must take to secure a lien and the likelihood of the
creditor’s success in doing so. Castillo, however, renders this line of inquiry
irrelevant. The judgment creditor in Castillo did not just face a difficult lien
process, but a complete impossibility. Castillo, 999 F.2d at 942. The type of
property owned by the judgment debtor was not subject to a judgment lien in
Louisiana. Id. Yet the court still held Rule 62(f) applicable. Id.
      Even if the ministerial act test applies, JSW should be entitled to Texas
supersedeas law under Rule 62(f). The majority overstates the difficulty of
filing an abstract of judgment. An abstract of judgment document is not a
voluminous stack of papers. It is a single page with a few simple fields, like
names and addresses of the parties.          Abstract of Judgment Form, United
States   District   Court,   Southern        District   of    Texas,   available    at
http://www.txs.uscourts.gov/district/formsfees/abstjdmi.pdf. The fact that the

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process involves opportunities for creditors to make mistakes should not
automatically mean the process is not “ministerial.”       Even a process that
simply required a government employee to stamp the judgment could be
mishandled if the creditor submits the wrong judgment.              Any competent
attorney who has just won a judgment ought to be able to complete an abstract
with ease. The forms for Texas abstracts of judgment are readily available on
the internet. Correcting a mistake in fact could not take more than a few
moments. Even if a county employee may reject the filing of an abstract for
technical omissions—such as minor defects in the names of the parties—this
only underscores the ministerial nature of the process; there is no room for
discretion. Curiously, the majority’s final reason that the process is overly
difficult and uncertain for the judgment creditor posits that the debtor could
defeat the lien by posting a supersedeas bond. Tex. Prop. Code Ann. § 52.0011.
In such a situation, however, the debtor that pays for a supersedeas bond will
not be invoking rule 62(f). Ultimately, the judgment lien process in Texas
entails filling out a simple form and recording it with a government employee.
Preparing and recording the lien are therefore mere ministerial acts. JSW
should be entitled to avail itself of Texas law under Rule 62(f).
      I respectfully dissent.




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