Broadcast Music Inc, et al v. Rees, et al

Filing 22

ORDER granting 17 Amended Motion for Revival of Judgment.The Order To Show Cause 18 , is discharged.The Judgment 13 , is revived pursuant to Fed. R. Civ. P. 69(a)(1) and C.R.C.P. 54(h), on the terms set forth in the original judgment. By Judge Robert E. Blackburn on 10/23/2015.(mlace, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 02-cv-1625-REB-MJW
BROADCAST MUSIC, INC., et al.,
Plaintiffs,
v.
JOHN HARVEY REES d/b/a RADIO STATION KEJI-FM, and individually,
Defendant.

ORDER GRANTING AMENDED MOTION FOR REVIVAL OF JUDGMENT
Blackburn, J.
The matter is before me on plaintiffs’ Amended Motion for Revival of
Judgment [#17],1 filed August 20, 2015. I grant the motion.
Default judgment in the amount of $85,079, plus attorney fees, costs, and
interest from the date of the judgment, was entered in favor of plaintiffs against
defendant on November 22, 2002. (See Judgment [#13], filed November 22, 2002.)
Plaintiffs represent that the judgment remains wholly unsatisfied and that defendant has
communicated, through counsel, his unwillingness to satisfy the judgment. Plaintiffs
obtained a Certificate of Judgment for Lien Upon Land and Tenements [#14], filed
February 4, 2003, which subsequently was recorded in the real estate records of
Gunnison County, Colorado. Under Colorado law, however, the judgment lien expired
after six years. See §13-52-102(1), C.R.S. Plaintiffs therefore move to revive the
1

“[#17]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

judgment so that they may obtain a new lien on the real property, if any, of defendant in
Gunnison County.
Federal Rule of Civil Procedure 69 provides that proceedings supplemental to
and in aid of judgment or execution must accord with the procedure of the state where
the court is located. See FED. R. CIV. P. 69(a)(1).2 Specifically, Rule 54(h) of the
Colorado Rules of Civil Procedure provides:
A judgment may be revived against any one or more
judgment debtors whether they are jointly or severally liable
under the judgment. To revive a judgment a motion shall be
filed alleging the date of the judgment and the amount
thereof which remains unsatisfied. Thereupon the clerk shall
issue a notice requiring the judgment debtor to show cause
within 14 days after service thereof why the judgment should
not be revived. The notice shall be served on the judgment
debtor in conformity with Rule 4. If the judgment debtor
answer, any issue so presented shall be tried and
determined by the court. A revived judgment must be
entered within twenty years after the entry of the judgment
which it revives, and may be enforced and made a lien in the
same manner and for like period as an original judgment.
C.R.C.P. 54(h). Concluding that plaintiffs’ motion adequately alleged the matters
required by Rule 54(h), I issued an Order To Show Cause [#18], filed October 1, 2015,
directing the defendant/judgment debtor to show cause why the judgment should not be
revived. Defendant/judgment debtor timely filed his response to that show cause order.
(See Defendant’s Response to Order To Show Cause [#20], filed October 14, 2015.)
As contemplated by the Rule, I must determine the merits of the issues presented by
that response.

2

No federal statute applies in this case. See FED. R. CIV. P. 69(a)(1).

2

None of the arguments defendant raises in his response is sufficient to negate
plaintiffs’ right to a revival of their judgment. Defendant’s suggestions that plaintiffs
have been dilatory in attempting to collect the judgment runs contrary to the plain
language of the Rule, which permits a judgment to be revived at any time within twenty
years of the date of the original entry of judgment. While defendant’s unsubstantiated
suggestion that he is not the proper party defendant may provide grounds for setting
aside the default judgment once revived, it is not sufficient to avoid revival of the
judgment in the first instance.3 Likewise, defendant’s argument that the amount of the
judgment is excessive is cognizable (if at all) only if the judgment is set aside postrevival.4 Finally, defendant’s attempts to settle this matter and his alleged inability to
pay the judgment in full are simply not part of the court’s calculus under Rule 54(h).
THEREFORE, IT IS ORDERED as follows:
1. That the Order To Show Cause [#18], filed October 1, 2015, is discharged;
2. That plaintiffs’ Amended Motion for Revival of Judgment [#17], filed August
20, 2015, is granted; and
3. That the Judgment [#13], filed November 22, 2002, is revived pursuant to
Fed. R. Civ. P. 69(a)(1) and C.R.C.P. 54(h), on the terms set forth in the original
judgment.

3

The court expresses no opinion on the validity vel non of any argument that defendant might
advance in support of any such motion, assuming further that such a motion would be considered timely
within the meaning of Rule 60(c)(1). See FED. R. CIV. P. 54(c) & 60(b)-(c).
4

Moreover, defendant’s suggestion that he cannot possibly owe plaintiffs $85,000 based on the
amount he paid in licensing fees to plaintiff Broadcast Music, Inc., in 2001 (Resp. ¶ e at 3) ignores that
the judgment encompassed 27 counts of copyright infringement, each of which carried a statutory penalty
of $3,000 (or $81,000 total), plus attorney fees, costs, and pre- and post-judgment interest.
(See Judgment [#13], filed November 22, 2002.)

3

Dated October 23, 2015, at Denver, Colorado.
BY THE COURT:

4