FTC v. NBC, et al

Filing 1614

ORDER denying 1601 Motion to Strike Affidavit. Signed by Judge Lance M Africk on 3/14/2014. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FEDERAL TRADE COMMISSION

CIVIL ACTION

VERSUS

No. 89-1740

NATIONAL BUSINESS
CONSULTANTS ET AL.

SECTION I
ORDER

Before the Court is a motion1 by defendant-debtor, Robert Namer (“Namer”), to strike the
affidavit submitted by plaintiff, the Federal Trade Commission, on the basis that it is inaccurate.2 In
his motion, Namer also argues, in essence, that judicial estoppel bars plaintiff from collecting postjudgment interest.3 Plaintiff has filed an opposition,4 to which Namer has replied.5
Namer first seeks to strike the affidavit on the basis that it is inaccurate.6 He asserts that the
affidavit fails to account for the seizure and sale of certain assets, although he identified only one such
asset, which was sold for $578,100.00 in 2007.7 Plaintiff’s opposition explains why those proceeds
were not included in the affidavit,8 and Namer has not challenged the accuracy of that explanation in
his reply.9
Namer also argues that judicial estoppel bars plaintiff from taking any position inconsistent
with the position taken in its July 12, 2002 motion.10 In that motion, plaintiff noted that it was a

1

R. Doc. No. 1601.
R. Doc. No. 1601-1, at 2.
3
R. Doc. No. 1601-1, at 4.
4
R. Doc. No. 1610.
5
R. Doc. No. 1613.
6
R. Doc. No. 1601.
7
R. Doc. No. 1601-1, at 2.
8
R. Doc. No. 1610, at 2-3.
9
R. Doc. No. 1613.
10
R. Doc. No. 160-1, at 4.
2

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judgment creditor of National Business Consultants, Inc. and Robert Namer, “jointly and severally,
for the sum of $3,019,3770.00, representing the relief/damages awarded for consumer redress, plus
pre-judgment interest from date of judicial demand and attorneys’ fees and costs, as fully set forth in
judgment rendered on November 8, 1991.”11 The sum referenced in that motion reflects the judgment
entered on November 8, 1991, but it does not include the subsequent accrual of interest.12 Similarly,
the Court’s findings of fact and conclusions of law as well as amended judgment relative to the motion
note that plaintiff is a judgment creditor in the sum of $3,019,377.00, by virtue of the November 8,
1991 judgment, but those documents do not address the accrual of interest after that date.13
As plaintiff has previously explained to Namer, “Post-judgment interest on a civil judgment
under 28 U.S.C. § 1961 is mandatory.”14 The fact that plaintiff has not always reiterated the interest
requirement relative to Namer’s judgment does not constitute waiver, and it does not support a judicial
estoppel claim. See Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 173 (5th Cir. 2010) (quoting
Reeves v. Int’l Tel. & Tel. Corp., 705 F.2d 750, 752 (5th Cir. 1983)).
Accordingly,
IT IS ORDERED that the motion is DENIED.

New Orleans, Louisiana, March 14, 2014.

_____________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

11

R. Doc. No. 796, at 1-2.
See R. Doc. No. 548 (entering judgment in the sum of $3,019,377.00).
13
R. Doc. No. 832; R. Doc. No. 851.
14
R. Doc. No. 1579, at 2.
12

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