Kennedy-Burdick, et al v. Czarnecki, et al

Filing 85

ORDER denying 84 Motion to Renew Judgment. (See document for further details). Signed by Senior Judge Robert C Broomfield on 3/14/13. (LAD)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Janet Kennedy-Burdick, 13 Plaintiff, 14 15 ) ) ) ) ) ) ) ) ) ) vs. Michael Czarnecki, 16 Defendant. No. CIV 01-0898-PHX-RCB O R D E R 17 18 Introduction 19 Currently pending before the court is a matter docketed 20 as a “MOTION to Renew Judgment by [plaintiff] Janet Kennedy- 21 Burdick.” 22 the court seeks “reviv[al]” of the judgment “in the amount of 23 $1,644,962.06" previously entered in this court on September 24 12, 2003. 25 Czarnecki did not file a response, and the time to do so has 26 long since passed. 27 28 Doc. Entry 84. The untitled document filed with Mot. (Doc. 84) at 1. Pro se defendant Michael Background Plaintiff’s motion is terse. In fact, her caption does 1 not comport with convention by including the designations 2 “plaintiff” and “defendant” after the parties’ names. 3 Additionally, the plaintiff merely requests that “[t]he Clerk 4 of Courts . . . revive the judgment entered for Plaintiff 5 against Defendant in the amount of $1,644,962.06 on September 6 12, 2003 by Robert C. Broomfield U.S.D.J.” 7 document is dated January 22, 2013 and signed by plaintiff’s 8 counsel. 9 Id. at 1. That There is no supporting documentation. Regardless of the nomenclature, i.e., revival or renewal, 10 the plaintiff is not entitled to the relief which she is 11 seeking. 12 procedurally and substantively. That is because her request is lacking 13 14 15 16 17 - both Discussion Fed.R.Civ.P. 69(a)(1) provides in relevant part: The procedure on execution –- and in proceedings supplementary to and in aid of judgment or execution –- must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies. 18 19 Fed.R.Civ.P. 69(a)(1). 20 statute specifically governing renewal of judgments[,]” 21 Fidelity Nat. Financial, Inc. v. Friedman, 855 F.Supp.2d 948, 22 962 (D.Ariz. 2012), and because this court adjudicated the 23 present case, Arizona law governs renewal of plaintiff 24 Kennedy-Burdick’s judgment. 25 Robbins Group Int’l, 2012 WL 526456, at *1 (N.D. Ala. 2012) 26 (“Given that this court adjudicated the case at bar, Alabama 27 law governs the renewal of the judgment.”) 28 § 12-1612(A) expressly allows for renewal by affidavit of Because “[t]here is no federal See PACCAR Financial Corp. v. -2- Indeed, A.R.S. 1 judgments, inter alia, entered and docketed in United States 2 District Courts. 3 Assuming arguendo that plaintiff’s “motion” meets all of 4 the criteria for a renewal affidavit set forth in A.R.S. 5 § 12-1612, still, it was not timely filed. 6 12–1551(B) specifically provides: 7 Section An execution or other process shall not be issued upon a judgment after the expiration of five years from the date of its entry unless the judgment is renewed by affidavit or process pursuant to § 12–1612 or an action is brought on it within five years from the date of the entry of the judgment or of its renewal. 8 9 10 11 12 A.R.S. § 12–1551(B). 13 becomes unenforceable after five years from the date of entry 14 unless action is taken to renew it.’” Fidelity, 855 F.Supp.2d 15 at 963 (quoting In re Smith, 209 Ariz. 343, 101 P.3d 637); 16 and (citing Crye v. Edwards, 178 Ariz. 327, 328, 873 P.2d 17 665, 666 (App.1993) (“monetary judgments expire in Arizona if 18 not renewed every five years”)). In the present case, that 19 means that absent timely renewal -– either by affidavit or by 20 an action for judgment on the judgment -— plaintiff Kennedy- 21 Burdick’s judgment, entered on September 8, 2008, expired on 22 September 12, 2008. 23 Hence, “‘[i]n Arizona, a judgment There is nothing in the record before the court showing 24 that plaintiff took any action whatsoever to renew her 25 judgment in the five years after its September 12, 2003, 26 entry. 27 “motion” on January 28, 2013. 28 moment that this “motion” somehow could be construed as a The only action plaintiff took was the filing of this Thus, even assuming for the -3- 1 renewal affidavit, it was not timely because it was not filed 2 “within ninety days preceding the expiration of five years 3 from the date of entry of . . . judgment[,]” as A.R.S. § 12- 4 1612(B)(A) requires. 5 affidavit may not defeat a renewal of judgment, . . . 6 timeliness of the affidavit is a rigid statutory requirement 7 and is not subject to modification by the court.’” Id. at 963 8 (quoting 9 224 Ariz. 325, 330 n. 5, 230 P.3d 708, 713 n. 5 (App. 2010) While “‘some defects contained in an State ex rel. Indus. Comm’n of Ariz. v. Galloway, 10 (citations omitted) (emphasis added by Fidelity court). 11 Thus, plaintiff Kennedy-Burdick’s failure to timely file a 12 renewal affidavit is fatal to her “motion” to revive or renew 13 the $1,644,962.06 judgment entered in this court on September 14 12, 2003. 15 Not only that, even if plaintiff’s “motion” had been 16 timely filed, it is not tantamount to a “renewal affidavit.” 17 Section 12-1612(A) permits renewal of a judgment “by filing 18 an affidavit for renewal with the clerk of the proper court.” 19 A.R.S. § 12-1612(A). 20 information to be set forth in renewal affidavits. 21 § 12-1612(B)(1)-(5). 22 that ‘strict compliance with the renewal provisions is 23 required to effect a renewal.’” Fidelity, 855 F.Supp.2d at 24 963 (citing State ex rel. Indus. Comm’n of Ariz. v. Galloway, 25 224 Ariz. at 329–330, 230 P.3d at 712–713 (App. 2010) (citing 26 cases) (footnote omitted)). 27 28 Section 12-1612(B) specifies the A.R.S. “Arizona courts have consistently held Plaintiff Kennedy-Burdick’s untitled, one sentence submission falls far short of the criteria for a renewal -4- 1 affidavit which A.R.S. § 12-1612(B) specifies. 2 most basic, defect in plaintiff’s submission is that she did 3 not file a document explicitly designated as a “renewal 4 affidavit.” 5 to properly title [plaintiff’s submission] as a ‘renewal 6 affidavit’ is not simply a matter of form given the legal 7 import of an affidavit[.]” Id. at 958. 8 9 The first, As this court explained in Fidelity, “[f]ailing “By definition, ‘[a]n ‘affidavit’ is a signed, written statement, made under oath before an officer authorized to 10 administer an oath or affirmation in which the affiant 11 vouches that what is stated is true.’” Id. (quoting In re 12 Wetzel, 143 Ariz. 35, 43, 691 P.2d 1063, 1071 (1984); see 13 also Black’s Law Dictionary (9th ed. 2009) (an affidavit is 14 “[a] voluntary declaration of facts written down and sworn to 15 by the declarant before an officer authorized to administer 16 oaths [ ]”). 17 2013, is signed by plaintiff’s counsel, but does not include 18 a notary's jurat. A “‘[j]urat’ means a notarial act in which 19 the notary certifies that a signer, . . . , has made in the 20 notary’s presence a voluntary signature and has taken an oath 21 or affirmation vouching for the truthfulness of the signed 22 document.” 23 (“oath or affirmation shall be administered” to “best awaken 24 the conscience and impress the mind of the person taking the 25 oath or affirmation [ ]” and “shall be taken upon the penalty 26 of perjury[ ]”). 27 recent submission “lacks even the most basic attributes of an 28 affidavit of any sort.” Plaintiff’s submission filed on January 28, A.R.S. § 41–311(6); see also A.R.S. § 12–2221(A) As in Fidelity, plaintiff Kennedy-Burdick’s See id. at 958. -5- 1 Further, plaintiff’s submission does not comport with 2 section 12-1612(B) in even some of the most fundamental ways. 3 That submission does not, for example, explicitly state in 4 the caption, or elsewhere, the names of the parties as 5 section 12-1612(B)(1) specifies. 6 from that submission, though, that Janet Kennedy-Burdick is 7 the plaintiff and Michael Czarnecki is the defendant. 8 Plaintiff’s submission also indicates that the judgment was 9 entered by “Robert C. Broomfield U.S.D.J.[,]” and that this It is possible to glean 10 matter is “in the United States District Court for the 11 Ditrict [sic] of Arizona[.]” 12 omitted). 13 “the name of the court in which [the judgment] was 14 docketed[.]” See A.R.S. § 12-1612(B)(1). 15 submission also indicates the entry date of the judgment and 16 the amount, as section 12-1612(B)(1) also specifies. 17 basic information is not all that a renewal affidavit must 18 recite, however. 19 Doc. 84 at 1 (emphasis Therefore, it is also possible to glean therefrom Plaintiff’s That Among the information required to be set forth in a 20 renewal affidavit is “[t]hat no execution is anywhere 21 outstanding and unreturned upon the judgment, or if any 22 execution is outstanding, that fact shall be stated.” 23 A.R.S. § 12-1612(B)(2) (emphasis added). 24 mandated information is conspicuously absent from plaintiff 25 Kennedy-Burdick’s submission. 26 information described in section 12-1612(B)(4), that is: 27 28 That statutorily Also missing is any of the That there are no set-offs or counterclaims in favor of the judgment debtor, and if a counterclaim or -6- 1 set-off does exist in favor of the judgment debtor, the amount thereof, if certain, or, if the counterclaim or set-off is unsettled or undetermined, a statement that when it is settled or determined by action or otherwise, it may be allowed as a payment or credit upon the judgment. 2 3 4 5 6 A.R.S. § 12-1612(B)(4). 7 submission severely undermine the “central purpose” of the 8 renewal statutes, which is “to give notice to the judgment 9 debtor and other interested parties of the status of the These shortcomings in plaintiff’s 10 judgment.” 11 quotation marks and citations omitted). 12 See Fidelity, 855 F.Supp.2d at 964 (internal In short, because plaintiff Kennedy-Burdick did not 13 timely file a renewal affidavit which comports with A.R.S. 14 § 12-1612, 15 22, 2013, and filed with this court on January 28, 2013, does 16 not operate to renew her $1,644,962.06 entered in this court 17 on September 12, 2003. 18 plaintiff’s “MOTION to Renew Judgment” (Doc. 84). 19 the court finds that her submission dated January Accordingly, the court hereby DENIES DATED this 14th day of March, 2013. 20 21 22 23 24 25 26 27 Copies to counsel of record and pro se defendant Czarnecki 28 -7-

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