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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Janet Kennedy-Burdick,

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Plaintiff,

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vs.
Michael Czarnecki,

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Defendant.

No. CIV 01-0898-PHX-RCB
O R D E R

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Introduction

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Currently pending before the court is a matter docketed

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as a “MOTION to Renew Judgment by [plaintiff] Janet Kennedy-

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Burdick.”

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the court seeks “reviv[al]” of the judgment “in the amount of

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$1,644,962.06" previously entered in this court on September

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12, 2003.

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Czarnecki did not file a response, and the time to do so has

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long since passed.

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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

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not comport with convention by including the designations

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“plaintiff” and “defendant” after the parties’ names.

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Additionally, the plaintiff merely requests that “[t]he Clerk

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of Courts . . . revive the judgment entered for Plaintiff

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against Defendant in the amount of $1,644,962.06 on September

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12, 2003 by Robert C. Broomfield U.S.D.J.”

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document is dated January 22, 2013 and signed by plaintiff’s

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counsel.

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Id. at 1.

That

There is no supporting documentation.

Regardless of the nomenclature, i.e., revival or renewal,

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the plaintiff is not entitled to the relief which she is

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seeking.

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procedurally and substantively.

That is because her request is lacking

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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.

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Fed.R.Civ.P. 69(a)(1).

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statute specifically governing renewal of judgments[,]”

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Fidelity Nat. Financial, Inc. v. Friedman, 855 F.Supp.2d 948,

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962 (D.Ariz. 2012), and because this court adjudicated the

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present case, Arizona law governs renewal of plaintiff

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Kennedy-Burdick’s judgment.

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Robbins Group Int’l, 2012 WL 526456, at *1 (N.D. Ala. 2012)

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(“Given that this court adjudicated the case at bar, Alabama

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law governs the renewal of the judgment.”)

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§ 12-1612(A) expressly allows for renewal by affidavit of

Because “[t]here is no federal

See PACCAR Financial Corp. v.

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Indeed, A.R.S.

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judgments, inter alia, entered and docketed in United States

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District Courts.

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Assuming arguendo that plaintiff’s “motion” meets all of

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the criteria for a renewal affidavit set forth in A.R.S.

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§ 12-1612, still, it was not timely filed.

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12–1551(B) specifically provides:

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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.

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A.R.S. § 12–1551(B).

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becomes unenforceable after five years from the date of entry

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unless action is taken to renew it.’” Fidelity, 855 F.Supp.2d

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at 963 (quoting In re Smith, 209 Ariz. 343, 101 P.3d 637);

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and (citing Crye v. Edwards, 178 Ariz. 327, 328, 873 P.2d

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665, 666 (App.1993) (“monetary judgments expire in Arizona if

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not renewed every five years”)). In the present case, that

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means that absent timely renewal -– either by affidavit or by

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an action for judgment on the judgment -— plaintiff Kennedy-

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Burdick’s judgment, entered on September 8, 2008, expired on

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September 12, 2008.

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Hence, “‘[i]n Arizona, a judgment

There is nothing in the record before the court showing

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that plaintiff took any action whatsoever to renew her

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judgment in the five years after its September 12, 2003,

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entry.

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“motion” on January 28, 2013.

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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

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renewal affidavit, it was not timely because it was not filed

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“within ninety days preceding the expiration of five years

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from the date of entry of . . . judgment[,]” as A.R.S. § 12-

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1612(B)(A) requires.

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affidavit may not defeat a renewal of judgment, . . .

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timeliness of the affidavit is a rigid statutory requirement

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and is not subject to modification by the court.’” Id. at 963

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(quoting

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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,

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(citations omitted) (emphasis added by Fidelity court).

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Thus, plaintiff Kennedy-Burdick’s failure to timely file a

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renewal affidavit is fatal to her “motion” to revive or renew

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the $1,644,962.06 judgment entered in this court on September

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12, 2003.

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Not only that, even if plaintiff’s “motion” had been

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timely filed, it is not tantamount to a “renewal affidavit.”

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Section 12-1612(A) permits renewal of a judgment “by filing

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an affidavit for renewal with the clerk of the proper court.”

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A.R.S. § 12-1612(A).

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information to be set forth in renewal affidavits.

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§ 12-1612(B)(1)-(5).

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that ‘strict compliance with the renewal provisions is

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required to effect a renewal.’” Fidelity, 855 F.Supp.2d at

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963 (citing State ex rel. Indus. Comm’n of Ariz. v. Galloway,

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224 Ariz. at 329–330, 230 P.3d at 712–713 (App. 2010) (citing

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cases) (footnote omitted)).

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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
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affidavit which A.R.S. § 12-1612(B) specifies.

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most basic, defect in plaintiff’s submission is that she did

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not file a document explicitly designated as a “renewal

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affidavit.”

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to properly title [plaintiff’s submission] as a ‘renewal

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affidavit’ is not simply a matter of form given the legal

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import of an affidavit[.]” Id. at 958.

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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

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administer an oath or affirmation in which the affiant

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vouches that what is stated is true.’” Id. (quoting In re

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Wetzel, 143 Ariz. 35, 43, 691 P.2d 1063, 1071 (1984); see

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also Black’s Law Dictionary (9th ed. 2009) (an affidavit is

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“[a] voluntary declaration of facts written down and sworn to

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by the declarant before an officer authorized to administer

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oaths [ ]”).

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2013, is signed by plaintiff’s counsel, but does not include

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a notary's jurat. A “‘[j]urat’ means a notarial act in which

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the notary certifies that a signer, . . . , has made in the

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notary’s presence a voluntary signature and has taken an oath

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or affirmation vouching for the truthfulness of the signed

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document.”

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(“oath or affirmation shall be administered” to “best awaken

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the conscience and impress the mind of the person taking the

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oath or affirmation [ ]” and “shall be taken upon the penalty

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of perjury[ ]”).

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recent submission “lacks even the most basic attributes of an

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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.
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Further, plaintiff’s submission does not comport with

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section 12-1612(B) in even some of the most fundamental ways.

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That submission does not, for example, explicitly state in

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the caption, or elsewhere, the names of the parties as

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section 12-1612(B)(1) specifies.

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from that submission, though, that Janet Kennedy-Burdick is

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the plaintiff and Michael Czarnecki is the defendant.

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Plaintiff’s submission also indicates that the judgment was

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entered by “Robert C. Broomfield U.S.D.J.[,]” and that this

It is possible to glean

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matter is “in the United States District Court for the

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Ditrict [sic] of Arizona[.]”

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omitted).

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“the name of the court in which [the judgment] was

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docketed[.]” See A.R.S. § 12-1612(B)(1).

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submission also indicates the entry date of the judgment and

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the amount, as section 12-1612(B)(1) also specifies.

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basic information is not all that a renewal affidavit must

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recite, however.

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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

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renewal affidavit is “[t]hat no execution is anywhere

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outstanding and unreturned upon the judgment, or if any

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execution is outstanding, that fact shall be stated.”

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A.R.S. § 12-1612(B)(2) (emphasis added).

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mandated information is conspicuously absent from plaintiff

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Kennedy-Burdick’s submission.

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information described in section 12-1612(B)(4), that is:

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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
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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.

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A.R.S. § 12-1612(B)(4).

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submission severely undermine the “central purpose” of the

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renewal statutes, which is “to give notice to the judgment

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debtor and other interested parties of the status of the

These shortcomings in plaintiff’s

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judgment.”

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quotation marks and citations omitted).

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See Fidelity, 855 F.Supp.2d at 964 (internal

In short, because plaintiff Kennedy-Burdick did not

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timely file a renewal affidavit which comports with A.R.S.

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§ 12-1612,

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22, 2013, and filed with this court on January 28, 2013, does

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not operate to renew her $1,644,962.06 entered in this court

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on September 12, 2003.

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plaintiff’s “MOTION to Renew Judgment” (Doc. 84).

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the court finds that her submission dated January

Accordingly, the court hereby DENIES

DATED this 14th day of March, 2013.

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Copies to counsel of record and pro se defendant Czarnecki

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