Avery v. Extradition Transport of America

Filing 34

ORDER denying 33 Motion for Writ of Garnishment. Signed by Magistrate Judge Jeremiah C. Lynch on 5/14/2014. Mailed to Avery. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
RUSSELL SCOTT AVERY,

MAy 14 2014
Clerk. U S O,'stn

District' 0
ct Court
' fMontana
M'SSoula

Cause No. CV 1l-00153-M-DWM-JCL

Plaintiff,

vs.

ORDER

EXTRADITION TRANSPORT OF

AMERICA,

Defendant.
Pending is Plaintiff Scott Avery's Motion for Order for Writ of Garnishment
or Execution. (Doc. 33.) By way of background, default judgment in the amount
of $75,000.00 was issued in favor of Avery on February 7,2013 and this matter
was closed. (Doc. 29.) Avery is incarcerated at the Montana State Prison in Deer
Lodge, Montana. He obtained the default judgment proceeding pro se. Counsel
filed a Notice of Appearance on June 6, 2013 but the current motion was filed by
Avery, pro se.
Federal Rule of Civil Procedure 69(a)(l) provides:

A money judgment is enforced by a writ of execution, unless the

court directs otherwise. The procedure on execution-and in

proceedings supplementary to and in aid ofjudgment 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.

1

Thus, the procedure to execute a federal court judgment "shall be in accordance
with the practice and procedure of the state in which the district court is held,
existing at the time the remedy is sought, except that any statute of the United
States governs to the extent that it is applicable." Paul Revere Ins. Group v.

United States, 500 F.3d 957, 960 (9th Cir. 2007) (citation and quotation marks
omitted). Therefore, the procedure to execute Avery's judgment in Montana is
governed by Montana state law.
Mont. Code Ann. § 27-18-301 provides that a writ of execution "must be
directed to the sheriff of any county in which property of the defendant may be
located ..." Thus, Montana law clearly contemplates execution only against
property within the state. "A party seeking to enforce a Federal judgment does
not have unbridled discretion in choosing the forum. An action to enforce a
Federal judgment can be pursued successfully only in a State in which the property
or other assets are located or where the person against whom the judgment has
been entered can be located." In re McAllister, 216 B.R. 957 (N.D. Ala.

1998)(quoting Budish v.Daniel, 417 Mass. 574,631 N.E.2d 1009, 1012 (1994).
Defendant Extradition Transport of America is a company located in
California. There has been no indication in any of the filings in this case that
Defendant has any property located in the State of Montana. In addition, Avery

2

has provided no description of the property he seeks to levy. To the extent Avery
believes Defendant has property in Montana upon which he can levy, he may refile
his motion specifically designating the property to be levied.
As Avery is aware, he may pursue enforcement of his judgment iri the state
of California where Defendant Extradition Transport is located. 28 U.S.C. § 1963
provides,
A judgment in an action for the recovery of money or property
entered in any court of appeals, district court, bankruptcy court, or in
the Court of International Trade may be registered by filing a certified
copy of the judgment in any other district or, with respect to the Court
of International Trade, in any judicial district, when the judgment has
become final by appeal or expiration of the time for appeal or when
ordered by the court that entered the judgment for good cause shown.
Such a judgment entered in favor of the United States may be so
registered any time after judgment is entered. A judgment so
registered shall have the same effect as a judgment of the district
court of the district where registered and may be enforced in like
manner.
This section is used when a judgment cannot be satisfied in the district
where the judgment was originally entered because the defendant does not have
property in that district, but the judgment can be enforced in some other district
where the defendant does have property.
Avery registered the judgment entered in this matter in - and obtained a
Writ of Execution from - the United States District Court for the Central District
of California. See Avery v. Extradition Transport ofAmerica, CV-S:13-mc­

3

00012-UA (C.D.Cal.): Doc. 3 filed February 25,2014. Avery's motion asks for
execution on Defendant's wages or property. As these are located in California,
he must pursue satisfaction of the judgment in California and in accordance with
California law.
Avery also asks for assistance on locating the individuals' houses and bank
accounts and to seize those until judgment is paid in full. The Court, however,
will conduct not discovery for Avery. Rule 69(2) of the Federal Rules of Civil
Procedure provides: "In aid of the judgment or execution, the judgment creditor
or a successor in interest whose interest appears of record may obtain discovery
from any person--induding the judgment debtor--as provided in these rules or by
the procedure of the state where the court is located." Therefore, Avery may
obtain discovery under either the Federal Rules of Civil Procedure or the state law
where his judgment is registered.
Based on the foregoing, the Court issues the following:

ORDER
Avery's Motion for an Order for a Writ of Garnishment or Execution (Doc.
33) is DENIED.
DATED this 15 th day of May, 201

c..
iah C. Lynch
lted States Magistrate Judge
4