I. LEGAL STANDARD
Many federal courts have enacted local rules authorizing the imposition of security for costsand fees.
Even in the absence of a local rule, courts have imposed security.
Chambers v. NASCO, Inc.
, 501 U.S. 32, 47-48 (1991);
Hawes v. Club Ecuestre El Comandante
, 535 F.2d 140, 143 (1st Cir.1976) (“Even in the absence of a standing local rule, a federal district court has the inherent power torequire security for costs when warranted by the circumstances of the case.”).Where bonds for costs have been granted, there generally have been circumstances that gavethe court cause to mistrust the party at issue, including a weak case on the merits,
see, e.g., Beverly Hills Design Studio Inc. v. Morris,
126 F.R.D. 33, 39 (S.D.N.Y. 1989)
a demonstrated failure to properly participate in the litigation,
see, e.g., Herbstein v. Bruetman,
141 F.R.D. 246, 247 (S.D.N.Y.1992), facts tending to show an inability to pay,
see, e.g., Selletti v. Carey
F.R.D. 96, 101(S.D.N.Y. 1997);
at 39, extraordinary discovery costs,
see, e.g., Oilex A.G. v. Mitsui & Co. Inc.,
669 F. Supp. 85, 88 (S.D.N.Y. 1987), or the party’s residence not merely ina different United States jurisdiction, but in a foreign country.
See, e.g., id.; Cresswell v. Prudential- Bache Secur., Inc.
, No. 83-cv-2099, 1987 U.S. Dist. LEXIS 3298 (S.D.N.Y. Apr. 24, 1987)
This listis by no means exhaustive, nor is each factor considered in every case. However, most, if not all, of the aforementioned circumstances are present in the matter before this Court.Courts imposing such security have made lengthy determinations regarding the likelihoodthat the plaintiff will fail on the merits of the underlying claim and that, consequently, an adverse judgment of costs or fees will arise.
While bonds as low as a few hundred dollars have beenrequired, the amount can rise dramatically when the party seeking the bond may be entitled toattorney fees as provided by statute.
, 17 U.S.C. § 505. In a copyright case such as this, courts
local rules of the District Courts comprising the First Circuit: D. ME. CIV. R. 54.1 (providing that adefendant may request security for costs from a non-resident plaintiff); D.N.H. L.R. 67.1(a) (“[T]he court, either onits own initiative or on the motion of a party, may order any party except the United States to file an original bondfor costs or additional security for costs.”); D.P.R. L.R. E(7); (“[A] party may move upon notice to all parties for anorder to compel an adverse party to post security for costs.”); and D.R.I. R. 65(a) (“The Court may require any partyto furnish security for costs.”).
See, Anderson v. Steers, Sullivan, McNamara & Rogers,
998 F.2d 495, 496 (7th Cir. 1993) (noting the apparent“frivolous character” of plaintiffs claims);
Beverly Hills Design Studio
at 39 (1989) (noting that “plaintiffs’ federalclaims seemto be of dubious merit”).
Beverly Hills Design Studio
at 37 (“When a defendant is statutorily entitled to attorneys’ fees, it is consistent thatsecurity may be required to cover them.”);
Amjon Publishers, Inc. v. Home Box Office, Inc
., No. 82-cv-4968(S.D.N.Y. Dec. 20, 1982) (granting HBO's motion for a bond “because of the likelihood that HBO will prevail …which under 17 U.S.C. § 505 may include reasonable attorneys’ fees”).
Case 1:12-cv-12105-JLT Document 12 Filed 01/30/13 Page 2 of 20