Barkan et al v. Dunkin' Donuts, Inc. et al

Filing 4

ORDER denying 3 Request for Hearing on Petition to Register Foreign Judgment. Signed by Chief Judge Christina Reiss on 5/10/2011. (pam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Dunkin' Donuts, Inc. and
Baskin-Robbins USA, Co.,
Petitioners,
v.
Irwin J. Barkan and D&D
Barkan, LLC,
Respondents.

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2011 MA '( '0 Pf'1I2: 27

Case No.2: 11-mc-18-cr

ORDER DENYING REQUEST FOR HEARING ON PETITION
TO REGISTER FOREIGN JUDGMENT
(Doc. 3)
This matter comes before the court on a challenge by Respondents Irwin J. Barkan
and D&D Barkan, LLC to the registration of a foreign judgment by Petitioners Dunkin'
Donuts, Inc. and Baskin-Robbins USA, Co. ("Petitioners"). Petitioners are represented
by Holly Kilibarda, Esq. Mr. Barkan is representing himself. As to D&D Barkan, LLC,
Mr. Barkan has signed his name on its behalf, but there is no indication in the record that
he is an attorney. Because a corporation may not appear in federal court pro se, the
submission by D&D Barkan, LLC is not properly before the court at this time. See Jones
v. Niagara Frontier Transp. Auth., 722 F.2d 20,22 (2d Cir. 1983); Thomas and Agnes

Carvel Found. v. Carvel, 736 F. Supp. 2d 730, 740 (S.D.N.Y. 2010).
Under 28 U.S.C. § 1963, a final judgment entered in a district court may be
registered in any other district court. The statute requires that the registering party file a
certified copy of the initial judgment "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." 28 U.S.C. § 1963. Once registered, the judgment "shall have the
same effect as a judgment of the district court of the district where registered and may be
enforced in like manner." Id.

On March 21, 2011, Petitioners filed a petition in this court, seeking to register a
foreign judgment obtained in the United States District Court for the District of Rhode
Island in the amount of$32,501.48 (the "Judgment"). Petitioners also filed a certified
copy of the Judgment (Doc. 1-1 at 2), and a "Clerk's Certification of a Judgment to be
Registered in Another District" certifying that "no motion listed in Fed. R. App. P.
4(a)(4)(A) is pending before [the United States District Court for the District of Rhode
Island] and that no appeal has been filed or, if one was filed, that it is no longer pending."
(Doc. 1-1 at 1.) The Judgment was entered by this court on the day the petition was filed.
(Doc. 1.)
On March 29,2011, Mr. Barkan noticed his pro se appearance, and on Apri14,
2011, filed a response and a request for hearing. In his response, Mr. Barkan asserts that
he intends to pursue certain claims against Petitioners in "the Massachusetts courts," and
to make an ethics claim against Petitioners' law firm "for misrepresentations made" in
the course of the litigation that produced the Judgment. (Doc. 3 at 1.) For relief, he asks
this court to "[d]eny the petition until adjudication of the above matters directly related to
the equity of the judgment" and to hold a hearing "so that Respondent may argue on its
own behalf and present evidence in support of this request." Id. Mr. Barkin does not cite
any law in support of his request. He appears to be challenging the validity of the
Judgment, and to be claiming that its enforcement would be inequitable. For the reasons
set forth below, the District of Vermont is not the proper venue for such challenges.
When a party attacks the validity of a judgment, relief is generally obtained "in the
court in which the judgment originally was rendered." 11 CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2787 (2d
ed. 1995) ("FED. PRAC. & PRO."). "This is so because 'the district court rendering the
judgment' is generally 'more familiar with the facts' and 'perhaps more conversant with
the applicable law' than a district court of registration." Fifth Third Bank v. Mytelka, No.
05-cv-52 (DLI), 2008 WL 3852170, at *2 (E.D.N.Y. Aug. 16,2008) (quoting Covington
Indus. v. Resintex A.G., 629 F.2d 730, 733 (2d Cir. 1980)); see Fuhrman v. Livaditis, 611

F.2d 203,205 (7th Cir. 1979) ("efficient judicial administration is furthered if the
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registering court defers to the original court"). Courts have also found that deference to
the rendering court supports the interests of comity among the federal districts courts.

See, e.g., Indian Head Nat 'I Bank ofNashua v. Brunelle, 689 F.2d 245,249 (lst Cir.
1982) (citing Fuhrman, 611 F.2d at 205).
At least one circuit, the Seventh, has suggested that a challenge to a registered
judgment must be presented to the court that rendered the judgment in question. See

Board ofTrustees, Sheet Metal Workers' Nat 'I Pension Fund v. Elite Erectors, Inc., 212
F.3d 1031, 1034 (7th Cir. 2000). The Second Circuit has not adopted such a bright-line
rule, but has instead made a limited allowance for cases, such as those involving entry of
a default judgment, in which the rendering court is no more familiar with the facts of the
case than the court of registration. See Covington, 629 F.2d at 733-34. Other circuits
have allowed voidness challenges, filed under Fed. R. Civ. P. 60(b)(4), to be considered
by registering courts. See Budget Blinds, Inc. v. White, 536 F.3d 244,252-55 (3d Cir.
2008) (collecting cases).
Neither of those circumstances is present here. Based upon Mr. Barkan's
submissions, the Judgment appears to have been achieved after significant litigation.
Indeed, copies of correspondence he has submitted to the court make reference to
subpoenas, depositions, and an appeal to the United States Court of Appeals for the First
Circuit. (Docs. 3-1, 3-2.) There is thus no evidence that the Judgment was achieved by
default, nor is there any allegation that the Judgment is void. See Grace v. Bank Leumi

Trust Co. ofNY, 443 F.3d 180, 193 (2d Cir. 2006) ("A judgment is void ... only if the
court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it
acted in a manner inconsistent with due process of law.").
Accordingly, the interests of both judicial economy and comity will be best served
if this court declines to review Mr. Barkan's claims, and defers his arguments to a more
appropriate venue. See FED. PRAC. & PRO. § 2865 ("it is appropriate for the court in the
district of registration to decline to pass on the motion for [Rule 60(b)] relief and to
require the moving party to proceed in the court that gave judgment"); United States v.

Fluor Corp., 436 F.2d 383,384-85 (2d Cir. 1970) (affirming registration court's denial of
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Rule 60(b)(5) motion without prejudice). To the extent Mr. Barkan's response to the
petition (Doc. 3) constitutes a motion, the motion is DENIED WITHOUT PREJUDICE.
. Mr. Barkan's request for a hearing is also DENIED.
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SO ORDERED.
Dated at Burlington, in the District of Vermont, this

/0 day of May, 2011.

cm~e

United States District Court

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