opinion: Ruth H. NORDMEYER, Administratrix of the Estate of Joseph A. Nordmeyer, Deceased, Plaintiff-Appellee, v. Charles SANZONE, Defendant-Appellant.
  No. 15020.
  United States Court of Appeals Sixth Circuit.
  April 16, 1963.
  A. J. Jolly, Bassmann, Kaufmann, Root & Jolly, Newport, Ky., for appellant.
  Robert C. Cetrulo, O’Hara & Ruberg, Covington, Ky., for appellee.
  Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges.
  PER CURIAM.
  The plaintiff, as Administratrix of the estate of Joseph A. Nordmeyer, deceased, recovered a judgment in the District Court against the defendant, Charles Sanzone, in the amount of $45,000.00 for damages by reason of the death of her husband arising out of an automobile accident alleged to have been caused by the negligence of the defendant in the operation of his automobile. In taking his appeal, the appellant executed a super-sedeas bond. The judgment was affirmed by this Court. 6 Cir., 314 F.2d 202.
  The plaintiff-appellee has filed a motion in this Court to assess an additional 10% of the amount of the judgment as damages for the delay caused by the appeal, which it is claimed was without merit and was taken merely for delay.
  In support of her motion, appellee relies first upon Rule 25(2), Rules of this Court, which provides:
  “Damages for Delay. In any case where an appeal has delayed proceedings on a judgment appealed from, and shall appear to have been taken merely for delay, damages not exceeding 10 per cent of the amount of the judgment in addition to interest may be awarded and added to the judgment.”
  Under this rule, the award of damages where an appeal has delayed proceedings on a judgment appealed from is discre-' tionary with the Court. The rule provides that damages “may be awarded” and added to the judgment. The amount of any such award is not 10% of the judgment, but damages “not exceeding 10% of the amount of the judgment.” In our opinion, the appeal in this case was not so lacking in merit as to justify an award of damages under this rule.
  In support of the motion, appellee also relies upon Section 21.130 of the Kentucky Revised Statutes, which provides as follows:
  “Damages upon affirmance. Upon the affirmance of an appeal, or the dismissal of an appeal after it has been docketed in the Court of Appeals, where the appeal is from a judgment for the payment of money, the collection of which, in whole or in part, has been superseded, as provided in the Rules of Civil Procedure, ten percent damages on the amount superseded shall be awarded against the appellant.”
  Appellee points out that under the Kentucky statute the award of 10% damages where a judgment for the payment of money has been superseded and affirmed on appeal is fixed in amount, and mandatory. She contends that since jurisdiction in this case is based upon diversity of citizenship, we are required to follow the Kentucky statute under the ruling in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.
  However, the Federal Rules of Civil Procedure have their own provisions providing for a stay upon appeal and the execution of a supersedeas bond. Rules 62(d) and 73(d), Rules of Civil Procedure. It is well settled that the Federal Rules of Civil Procedure have the force and effect of a federal statute. American Federation of Musicians v. Stein, 213 F.2d 679, 686, C.A.6th; Bendix Aviation Corp. v. Glass, 195 F.2d 267, 272, 38 A.L.R.2d 356, C.A.3rd; Win-sor v. Daumit, 179 F.2d 475, 477, C.A.7th. Rule 73(d), Rules of Civil Procedure, differs somewhat from the provisions of the Kentucky statute and insofar as it deals with a question of procedure it is controlling over the provisions of a state statute which is in conflict therewith. Sibbach v. Wilson & Co., 312 U.S. 1, 13, 61 S.Ct. 422, 85 L.Ed. 479; Williams v. Powers, 135 F.2d 153, 156, C.A.6th.
  We are of the opinion that Rule 73(d) providing for the award of damages for delay upon the affirmance of a money judgment is a matter of procedure rather than a question of substantive law. In Kring v. Missouri, 107 U.S. 221, 231-232, 2 S.Ct. 443, 451, 27 L.Ed. 506, the Supreme Court said that the term “procedure” is a broad one and includes in its meaning whatever is embraced by the three technical terms, Pleading, Evidence, and Practice. In defining Practice, the Court said the word “means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in:” This definition was restated in Kellman v. Stoltz, 1 F.R.D. 726, 728, N.D.Iowa, where the District Judge pointed out that the term “procedure” includes more than pleading, in that it includes all rules and forms which govern the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution. The damages which appellee now seeks to recover in addition to the amount of the judgment were not a part of her cause of action and only arise as an incident of certain procedural steps taken by the appellant. Rule 73(d), Rules of Civil Procedure, does not require the imposition of a 10% penalty as does the Kentucky statute.
  Appellee’s motion for an award by this Court of 10% damages upon the affirmance of the judgment herein is overruled.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.