Lumber Liquidators, Inc. v. Sullivan

Filing 17

ORDER DENYING WITHOUT PREJUDICE MOTION TO QUASH AND VACATING HEARING by Hon. William Alsup denying 12 Motion to Quash.(whalc1, COURT STAFF) (Filed on 8/21/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LUMBER LIQUIDATORS, INC.,

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For the Northern District of California

United States District Court

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No. C 12-80101 WHA

Plaintiff,
v.

ORDER DENYING WITHOUT
PREJUDICE MOTION TO QUASH
AND VACATING HEARING

KEVIN SULLIVAN,
Defendant.
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Defendant Kevin Sullivan moves to quash this Court’s writ of execution of judgment.
For the reasons stated below, Sullivan’s request is DENIED WITHOUT PREJUDICE.

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In 2010, an arbitrator awarded plaintiff Lumber Liquidators, Inc. approximately 360,000

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dollars in damages against Sullivan for violation of his employment agreement. This arbitration

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award was confirmed by Judge Nathaniel Gorton of the U.S. District Court for the District of

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Massachusetts. Judgement was entered by Judge Gorton in January 2012. Sullivan did not

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appeal the judgment nor seek a stay of execution under FRCP 62. In May 2012, Lumber

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Liquidators registered the judgment in this District pursuant to 28 U.S.C. 1963. Subsequently,

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Lumber Liquidators moved for the clerk of this Court to issue a writ of execution. This request

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for a writ of execution was served on Sullivan, who did not file any objections. The clerk issued

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writs of execution for all four federal California districts a month later in July.

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Lumber Liquidators proceeded to enforce the judgment by levying Sullivan’s bank

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accounts held by TD Ameritrade. These levies were effectuated, and proofs of service were filed

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with the United States Marshal in this District. To date, however, the record does not show that

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the U.S. Marshals have collected the levied funds.

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A month after the writs were issued, Sullivan appeared and filed this instant motion to

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quash or stay the writs of execution. Sullivan’s sole basis for quashing the writ is that he hopes

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he will prevail in a wholly-separate, currently pending arbitration action against Lumber

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Liquidators, and that the 12 million dollars he is seeking in that arbitration action can then be

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used to offset the current 360,000 dollar judgment against him. This highly speculative basis for
quashing the writs is unpersuasive.

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For the Northern District of California

United States District Court

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Therefore, Sullivan’s motion to quash or stay the writ of execution is DENIED WITHOUT

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PREJUDICE. Sullivan may bring a fresh motion if, and only after, the arbitrator awards Sullivan

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enough damages to offset the earlier judgment awarded Lumber Liquidators. This order does not

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address whether a fresh motion by Sullivan would be futile if the U.S. Marshals collect on the

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levied funds. See Gencorp. Inc. v. Olin Corp., 477 F.3d 368, 376 (6th Cir. 2007); Del Riccio v.

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Superior Court of California, 115 Cal. App. 2d 29, 31 (1952). The hearing scheduled for

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September 6 is VACATED.

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IT IS SO ORDERED.

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Dated: August 21, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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