Opinion
Civil Action 1:10-cv-00469-AT
10-13-2020
BLUE LAKE RECOVERY COMPANY, LLC, as assignee of U.S. ACQUISITION, LLC, Plaintiff, v. ANTHONY V. PUGLIESE, III, and THADDEUS J. PRYOR, Defendants.
Pursuant to Federal Rule of Civil Procedure 60(a), the Court amends this Order sua sponte solely to correct clerical errors.
Honorable Amy Totenberg United States District Judge
Before the Court is the Petition to Revive Judgment [Doc. 44] filed by Blue Lake Recovery Company, LLC (“Blue Lake”), as assignee of Plaintiff U.S. Acquisition, LLC.
I. Background
This matter was originally removed to this Court by the Federal Deposit Insurance Corporation, acting as receiver for Rockbridge Commercial Bank, on February 18, 2010. (Doc. 1.) U.S. Acquisition, LLC was substituted as Plaintiff on June 22, 2010. (Doc. 10.) A consent judgment was entered in favor of U.S. Acquisition, LLC and against Respondent Anthony V. Pugliese, III, and Respondent Thaddeus J. Pryor, jointly and severally, in the principal amount of $5,229,821.98, with interest through and including August 25, 2010, in the amount of $624,414.58, and attorneys' fees in the amount of $428,135.48, on September 1, 2010. (Doc. 42, the “Judgment.”) The Court entered a writ of execution on the Judgment on September 27, 2010. According to an Assignment Agreement dated June 26, 2013 (Doc. 44-2), Blue Lake was assigned the Judgment. Blue Lake contends that the judgment remains unsatisfied. The Petition to Revive Judgment was filed on August 30, 2020. (Doc. 44.) No response was filed by Defendants.
II. Discussion
Federal Rule of Civil Procedure 69 provides that “[t]he procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located.” See also 28 U.S.C. § 1962 (“Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time.”) (emphasis added). Under Georgia law, a judgment becomes dormant and cannot be enforced seven years after its rendition. O.C.G.A. § 9-12-60. Blue Lake concedes the Judgment became dormant on September 1, 2017. (Doc. 44 at 2.)
Georgia law provides that a dormant judgment may be revived within three years of dormancy in one of two ways: by bringing a new action on the judgment, or by “scire facias.” O.C.G.A. § 9-12-61. “Scire facias to revive a judgment is not an original action but is the continuation of the action in which the judgment was obtained.” O.C.G.A. § 9-12-62.
The procedure to obtain scire facias is somewhat complex, involving the clerk executing a writ which is personally served upon the judgment debtor by the sheriff or by publication. O.C.G.A. §§ 9-12-63, 9-12-67. Service must be made “20 days before the sitting of the court to which the scire facias is made returnable and the original shall be returned to the clerk of the court from which it issued.” O.C.G.A. § 9-12-63. After return of service, the judgment may be revived on motion in the next term of court, unless the judgment debtor files an “issuable defense under oath” which would entitle the judgment debtor to a jury trial. O.C.G.A. § 9-12-62. Such defenses might include that the judgment is satisfied or void or that the judgment creditor failed to comply with applicable law, but the judgment debtor cannot challenge the merits behind the judgment. McRae v. Boykin, 35 S.E.2d 548, 549 (Ga.App. 1945).
Blue Lake did not file a new action on the Judgment, instead filing its Petition to Revive Judgment within the original action. (Doc. 44.) Blue Lake has not explicitly sought a writ of scire facias, and while defendants were served by mail with a copy of the Petition to Revive Judgment, Blue Lake does not contend it has arranged for personal service upon the defendants by sheriff or publication. However, the Court does not think Rule 69 requires Blue Lake to go to these lengths to revive a federal judgment.
Rule 81(b) provides that the “[t]he writ[] of scire facias . . . [is] abolished. Relief previously available through [it] may be obtained by appropriate action or motion under [the Federal Rules of Civil Procedure].” Blue Lake's Petition to Revive Judgment, construed as a motion for relief in the nature of scire facias under Rule 81(b), is therefore sufficient. Blue Lake need not strictly follow the cumbersome procedures set forth under Georgia law to obtain a revival of judgment by scire facias, so long as Defendants are offered the same opportunity to be heard on whether the Judgment is eligible for revival under Georgia law that they would receive in state court. Resolution Tr. Corp. v. Ruggiero, 994 F.2d 1221, 1227 (7th Cir. 1993) (Posner, J.) (holding that a court in proceedings supplementary to judgment “could proceed in any way that satisfied the requirements of due process.”). Defendants were served with a copy of the Petition to Revive Judgment and did not respond; accordingly, it is deemed unopposed. LR 7.1(B). Their failure to respond to the motion means that the Judgment may be summarily revived. Cf. O.C.G.A. § 9-12-64.
Some bankruptcy courts in this district have required judgment creditors to more strictly comply with the Georgia procedure for obtaining writs of scire facias to renew a judgment. See e.g., Sempira v. Clark (In re Clark), No. 09-6267-WLH (Bankr. N.D.Ga. Apr. 3, 2019) (Adv. Proc. Doc. 31); John Deere Company v. Fitzsimonds, No. 91-06888-PWB (Bankr. N.D.Ga. March 08, 2005). Rule 81(b), which abolished the writ of scire facias, apparently does not apply in bankruptcy proceedings. In re Brints, 227 B.R. 94, 96 n.2 (Bankr. N.D. Tex. 1998). This omission was probably an oversight by the rules advisory committee.
See Fed. Rules Civ. P. 5 (providing that pleadings after the original complaint and written motions may be served by mail), 52(a)(3) (provides that unless the rules provide otherwise, a ruling on a motion need not state findings of facts and conclusions of law), 78(b) (providing that motions may be submitted on briefs). But see F.D.I.C. v. Bauman, No. CIV. 3:90-CV-0614-H, 2004 WL 1732933, at *2 (N.D. Tex. July 30, 2004) (construing Texas scire facias statute to require motions to revive judgment be personally served accompanied by a summons); accord Fed. Deposit Ins. Corp. v. Davis, CV H-92-3759, 2006 WL 8445383, at *2 (S.D. Tex. July 28, 2006). The Court disagrees with the decisions requiring personal service of a motion in the nature of scire facias to revive a judgment. Rule 81 abolished the writ of scire facias entirely in favor of relief by motion, and motions need not be served personally under Rule 5. Cf. Ruggiero, 994 F.2d at 1226 (holding that other federal rules applicable to proceedings to enforce judgments govern over state procedural rules applicable under Rule 69 and opining that “[Rule 69 was not] meant to put the judge into a procedural straitjacket” requiring “application of] every jot and tittle of [state] procedural law”).
III. Conclusion
Blue Lake's Petition to Revive Judgment [Doc. 44], construed as a motion for relief in the nature of scire facias to revive a judgment under Federal Rule of Civil Procedure 81(b), is GRANTED. It is hereby ORDERED AND ADJUDGED that Consent Judgment dated September 1, 2010 in favor of U.S. Acquisition, LLC and against Respondent Anthony V. Pugliese, III, and Respondent Thaddeus J. Pryor (Doc. 42) is REVIVED. The Clerk is DIRECTED to issue new Writs of Execution to Blue Lake Recovery Company, LLC, as assignee of U.S. Acquisition, LLC upon request.
IT IS SO ORDERED