CONTINENTAL COIN, et al v. HOLLOWAY, et al
Filing
575
MEMORANDUM OPINION AND ORDER denying 570 Motion to Vacate Warrant for arrest for Civil contempt, etc. Signed by Judge Jerome B. Simandle on 7/2/2018. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN R. ANDREWS, et al.,
HONORABLE JEROME B. SIMANDLE
Plaintiffs,
v.
Civil Action
No. 1:95-1047 (JBS)
GREGORY HOLLOWAY a/k/a GREG
HOLLOWAY, et al.,
MEMORANDUM OPINION & ORDER
Defendants.
SIMANDLE, District Judge:
This matter is before the Court on Defendant Gregory Holloway’s
Motion [Docket Item 570] for an Order vacating the Order for Civil
Arrest of March 12, 2009 and accompanying Arrest Warrant [Docket Items
549 & 550]. After the filing of the Motion, Louis N. Larsen (the
personal representative of the estate of one of the Judgment
Creditor/Plaintiffs, Louis F. Larsen (deceased)), submitted a letter
to the Court requesting an enlargement of time in which to submit a
response in opposition. [Docket Item 572.] The Court subsequently
granted such request [Docket Item 573] and stated that “the time for
all Plaintiffs’ responses will hereby be enlarged to December 22,
2017, for each Plaintiff which has been duly served with notice of
Defendant[’s] motion[.]” Id. The Court hereby finds as follows:
1. The docket does not reflect the filing of any further opposition
papers by Mr. Larsen or any other Plaintiff.
2. Defendant’s motion is premised on the position that the initial
judgment against him: expired on June 21, 2017, having been entered
twenty (20) years before on June 20, 1997 as a result of a settlement
agreement [Docket Item 371]; was not renewed before the expiration of
such judgment by any Judgment-Creditor/Plaintiff; and accordingly can
no longer serve as the basis for any charge of civil contempt based on
the failure to abide by the Court’s order of 2008 regarding
Defendant’s obligation to testify truthfully and non-evasively about
relevant financial information, nor for any arrest warrant for such a
charge (citing Andrews v. Roadway Express, Inc., 473 F.3d 565 (5th
Cir. 2006), in support).
3. “To enforce a judgment, judgment creditors must file a writ of
execution in accordance with the ‘practice and procedure of the state
in which the district court is held.’ Fed. R. Civ. P. 69(a)[(1)]. Time
limits for writs of execution are procedural in nature and are
governed by state law.” Andrews, 473 F.3d at 568 (internal notes and
citations omitted).
4. Whether jurisdiction in this case was premised on diversity of
citizenship or federal question, the time period within which the
Judgment Creditors could have enforced the judgment was twenty years.
See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) and N.J.S.A. Sec
2A:14-5 (“A judgment in any court of record in this state may be
revived by proper proceedings or an action at law may be commenced
thereon within 20 years next after the date thereof, but not
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thereafter.”); 28 U.S.C. Sec 3201(c) (“(1) Except as provided in
paragraph (2), a lien created under subsection (a) is effective,
unless satisfied, for a period of 20 years. (2) Such lien may be
renewed for one additional period of 20 years upon filing a notice of
renewal in the same manner as the judgment is filed and shall relate
back to the date the judgment is filed if-- (A) the notice of renewal
is filed before the expiration of the 20-year period to prevent the
expiration of the lien; and (B) the court approves the renewal of such
lien under this paragraph.”).
5. Mr. Larsen’s letter indicated that he intended to submit
arguments to the effect that the order for civil arrest should remain
in place because the “judgment may have been domesticated in other
jurisdictions” and because “a judgment debtor who has been held in
contempt should not have the ability to avail himself of the judgment
revival statute.” [Docket Item 572.] However, Mr. Larsen, to date, has
not submitted any additional argument as to these or any other points.
It appears that Mr. Larsen is attempting to invoke the doctrine of
equitable tolling arising from Defendant’s continuing violations of
post-judgment discovery obligations before and after entry of the
Court’s Memorandum Opinion and Order of March 12, 2009. [Docket Item
548.]
6. The Court expresses no opinion on the merits of the substance of
Defendant’s motion. However, the Court notes that Defendant has not
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addressed the applicability of N.J.S.A. § 2A:14-22(a), “Nonresidency
of persons liable,” which states in relevant part:
If (1) any person against whom there is any of the causes of
action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8,
or if any surety against whom there is a cause of action
specified in any of the sections of article 2 of this chapter,
is not a resident of this State when such cause of action
accrues, or removes from this State after the accrual thereof
and before the expiration of the times limited in said
sections, . . . and (2) it appears by affidavit of plaintiff’s
attorney or of any person having knowledge of the facts that,
after diligent inquiry and effort, long-arm service cannot be
effectuated, the time or times during which such person or
surety is not residing within this state . . . shall not be
computed as part of the periods of time within which such an
action is required to be commenced by the section. The person
entitled to any such action may commence the same after the
accrual of the cause therefor, within the period of time
limited therefor by said section, exclusive of such time or
times of nonresidence or nonrepresentation.
See also Goglia v. Desa, No. L-1845-90, 2015 WL 3968699, at *2-*4
(N.J. Sup. Ct. App. Div. July 1, 2015)(remanded for trial court to
“make findings and conclusions as to whether the statute of
limitations should be tolled” or whether defendant should “be relieved
of the judgment because it is inequitable for the judgment to remain
considering the fact that it was unenforceable as the statute of
limitations had expired[,]” where plaintiff “submitted an affidavit to
the trial court detailing [defendant’s] movement out of state since
[plaintiff] obtained the judgment” “[t]o satisfy N.J.S.A. 2A:1422(a)[.]”).
7. The Court’s previous order with regard to the instant Motion
stated that “Defendant shall have the burden of proving proper service
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of the motion upon each Plaintiff in due course.” [Docket Item 573 at
2.]
8. The Court notes that no proof of service has been submitted by
Defendant Holloway since the Court’s order; all that has been received
and docketed is an item of returned mail addressed to Defendant Scott
Baker, which was returned as undeliverable with no forwarding address.
[Docket Item 574.]
9. Accordingly, because Defendant has failed to carry his burden of
proving proper service of the motion upon each Judgment
Creditor/Plaintiff, Defendant’s Motion shall be, and hereby is DENIED
without prejudice. If Defendant elects to renew this motion, Defendant
shall (a) describe the efforts undertaken to effect proper service
upon each Plaintiff, and (b) address whether this Court’s contempt
order regarding Defendant’s non-compliance with prior orders for postjudgment discovery equitably tolled the period for effectiveness and
enforcement of the judgment lien which the unsatisfied contempt order
was imposed to enforce.
July 2, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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