Opinion
CIVIL ACTION NO.: 4:21-cv-105
2022-02-22
Kai HANSJURGENS, Appellant, v. Donald H. BAILEY, Appellee.
Michael A. Horn, Des Moines, IA, for Joint Debtor Ricky Ray Bradley, Debtor Vicki Jean Bradley.
Michael A. Horn, Des Moines, IA, for Joint Debtor Ricky Ray Bradley, Debtor Vicki Jean Bradley.
ORDER
R. STAN BAKER, UNITED STATES DISTRICT JUDGE
Appellant Kai Hansjurgens, proceeding pro se , appeals the United States Bankruptcy Court for the Southern District of Georgia's decision to grant Appellee Donald Bailey's Emergency Motion to Revive Dormant Judgment. (Doc. 1-2.) The main issue before the Court is whether the Bankruptcy Court erred by reviving a dormant monetary judgment Appellee obtained against Appellant on April 7, 2011. Appellant filed a Brief enumerating the alleged errors committed by the Bankruptcy Court. (Doc. 4.) Appellee then filed a Response, (doc. 6), and Appellant filed a Reply, (doc. 7). For the reasons set forth below, the Court AFFIRMS the Bankruptcy Court's decision. (Doc. 1-2.)
BACKGROUND
In 2007, Appellee filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Southern District of Georgia. (Doc. 1-2, p. 1.) In 2009, Appellee filed an adversarial proceeding against Appellant and Hako-Med USA, Inc. ("Hako-Med USA") in the Bankruptcy Court. (Id. at pp. 1–2); see (doc. 2-1, pp. 1–21.) In that adversarial proceeding, Appellee, a medical doctor who leased medical equipment to practicing physicians, alleged that Appellant and Hako-Med USA tortiously interfered with contractual relations concerning the leasing of his medical equipment. (Doc. 2-1, pp. 26–32.) On April 7, 2011, the Bankruptcy Court entered a final judgment against Appellant and Hako-Med USA for $893,973.64 (the "Judgment"). (Id. at pp. 46–57.) Appellant and Hako-Med USA failed to pay the Judgment, and therefore, Georgia law rendered the Judgment dormant on April 7, 2018, pursuant to O.C.G.A. § 9-12-60(a)(1). (See doc. 1-2, pp. 4–6) (citing O.C.G.A. § 9-12-60(a)(1) ("A judgment shall become dormant and shall not be enforced ... [w]hen seven years shall elapse after the rendition of the judgment before execution is issued thereon and is entered on the general execution docket of the county in which the judgment was rendered.").)
The parties agree that the Judgment became dormant on April 7, 2018. (See doc. 4, p. 4 ("The [J]udgment ... became dormant on April 7, 2018."); doc. 6, p. 6 ("The [J]udgment became dormant on April 7, 2018, pursuant to O.C.G.A. § 9-12-60.").)
In November 2020, Appellee requested a status conference with the Bankruptcy Court, which the Bankruptcy Court set for March 18, 2021. (Doc. 2-1, pp. 19–20; see also doc. 6, p. 7.) Appellee sent Notice of the status conference to Appellant on March 4, 2021. (Doc. 2-1, p. 19; see also doc. 6, p. 7.) This status conference was to be conducted via telephone. (Doc. 2-1, p. 19.) On March 12, 2021, Appellee filed the at-issue Emergency Motion to Revive Dormant Judgment (hereinafter, the "Motion") in the Bankruptcy Court, asking the Bankruptcy Court to revive the Judgment so that it would not become permanently time-barred on April 7, 2021, pursuant to O.C.G.A. § 9-12-61. (Id. at pp. 58–64.) Notably, Appellee filed the Motion to Revive within the same adversarial proceeding in which the Bankruptcy Court had entered the Judgment against Appellant. (Id. at pp. 13, 19.) Appellee also filed a Certificate of Service, certifying that he served four individuals or groups of individuals "by depositing a copy of [the Emergency Motion to Revive Dormant Judgment] in the United States mail with proper postage affixed or by electronic service." (Id. at p. 93.) Specifically, the Certificate of Service listed as recipients: (1) Appellant and Hako-Med USA, Inc. at a Nevada address; (2) Appellant at a second Nevada address; (3) a "registered agent of Hako-Med" at a third Nevada address; and (4) Craig Marc Rappel, a Florida attorney who had previously represented Appellant, at a Florida address. (Id. at pp. 93–94; see also doc. 6, p. 17 (referring to Mr. Rappel as Appellant's "former attorney"); doc. 4, p. 6 (same); doc. 7, p. 4 (same).)
The adversarial proceeding docket appears to indicate that, on March 6, 2021, the Bankruptcy Noticing Center sent three Notices of the status conference. (Doc. 2-1, p. 19.) The Court points out, however, that on March 16, 2021, the postal service returned at least one of these Notices as undeliverable. (Id. at pp. 103–04.) Thus, it is unclear from the record whether Appellant ever received this Notice.
O.C.G.A. § 9-12-61 provides that "[w]hen any judgment obtained in any court becomes dormant, the same may be renewed or revived by an action or by scire facias, at the option of the holder of the judgment, within three years from the time it becomes dormant."
Appellee mailed a copy of the Emergency Motion to Revive Dormant Judgment to three different Las Vegas, Nevada, addresses: 4262 Blue Diamond Rd., Unit 122-355, Las Vegas, Nevada 89139-7789; 7811 S. Decatur Blvd., Las Vegas, Nevada 89739-0105; and 5348 Vegas Dr., Las Vegas, Nevada 89108 (hereinafter, the "Nevada Addresses"). (Doc. 2-1, p. 93.)
Also on March 12, 2021, the Bankruptcy Court scheduled a second telephonic hearing regarding the Emergency Motion to Revive Dormant Judgment for March 30, 2021. (Doc. 1-2, p. 3; see also doc. 2-1, pp. 23, 95–96.) The Bankruptcy Noticing Center sent Notice of the hearing via first class mail to Appellant, Hako-Med USA, and a registered agent of Hako-Med USA at the Nevada Addresses. (Doc. 2-1, p. 97.) On March 18, 2021, the Bankruptcy Court conducted the first scheduled status conference and determined that service by mail should be made on Appellant, Hako-Med USA, EastBiz.com, Inc., Alive, Inc., and Attorney Rappel. (Doc. 6, p. 7.) Appellee then filed an Amended Certificate of Service, certifying that his counsel mailed copies of the Emergency Motion to Revive Dormant Judgment and Notice of Hearing to Appellant, Hako-Med USA, EastBiz.com, Inc., Alive, Inc., and Mr. Rappel at additional addresses. (Doc. 2-1, pp. 101–02.) Appellee's counsel also contacted Mr. Rappel by phone the day before the telephonic hearing on the Motion in an effort to inform Appellant of the hearing. (Doc. 6, p. 7; see also doc. 4, p. 6 n.1.)
The Amended Certificate of Service indicates that EastBiz.com, Inc., and Alive, Inc., are registered agents for "Hako-Med." (Doc. 2-1, p. 101.) However, Appellant asserts that Eastbiz.com, Inc., is "solely the registered agent for Hako-Med Holdings , Inc. and not for any party to these proceedings." (Doc. 7, p. 4 (emphasis added).)
The Amended Certificate of Service indicates that Appellee served (1) Eastbiz.com, Inc., at 5348 Vegas Dr., Las Vegas, Nevada 89108; (2) Appellant at 4678 Kahala Ave., Honolulu, Hawaii 96816; (3) Alive, Inc., and Appellant at 537 Cummins St., Honolulu, Hawaii 96814; (4) Appellant and Hako-Med USA at 4262 Blue Diamond Rd., Unit 122-355, Las Vegas, Nevada 89139-7789; (5) Appellant at 7811 S. Decatur Blvd., Las Vegas, Nevada 89739-0105; and (6) Mr. Rappel at 601 21st Street, Suite 300, Vero Beach, Florida 32960. (Doc. 2-1, pp. 101–02.)
Despite receiving no response to the Motion from Appellant, the Bankruptcy Court conducted the telephonic hearing on March 30, 2021. (Doc. 1-2, p. 3.) Appellant failed to appear. (Id. ) After taking the matter under advisement, the Bankruptcy Court, finding that Appellee satisfied the relevant requirements under federal and Georgia law to revive the Judgment, granted Appellee's Emergency Motion to Revive Dormant Judgment. (Id. at pp. 3, 7.) According to Appellant, he had "no advanced notice" of the hearing and was informed by Mr. Rappel of the proceeding only after the Bankruptcy Court revived the Judgment. (Doc. 4, p. 6.) Appellant then appealed to this Court, asking that it reverse the Bankruptcy Court's decision to revive the dormant Judgment. (Doc. 1.)
STANDARD OF REVIEW
The Court functions as an appellate court in reviewing the Bankruptcy Court's determinations. 28 U.S.C. § 158(a) ; In re Williams, 216 F.3d 1295, 1296 (11th Cir. 2000). As such, the Court reviews the Bankruptcy Court's findings of fact under a "clearly erroneous" standard of review and its legal conclusions de novo. In re Globe Mfg. Corp., 567 F.3d 1291, 1296 (11th Cir. 2009). Mixed questions of law and fact are reviewed de novo. In re Cox, 493 F.3d 1336, 1340 n.9 (11th Cir. 2007). Furthermore, a district court is not "authorized to make independent factual findings; that is the function of the bankruptcy court." In re Sublett, 895 F.2d 1381, 1384 (11th Cir. 1990). Also, "[i]n general, [courts] show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education." Christiansen v. McRay, 380 F. App'x 862, 863 (11th Cir. 2010) (internal quotations omitted).
DISCUSSION
Appellant claims that the Bankruptcy Court erred in granting the Emergency Motion to Revive Dormant Judgment because: (1) the Bankruptcy Court lacked personal jurisdiction over him, (doc. 4, pp. 25–27); (2) Appellee failed to comply with the requirements to revive a judgment under Georgia law, (id. at pp. 6–24); (3) Appellee failed to state a sufficient reason or good cause to warrant the Court's issuance of an "emergency" order, (id. at pp. 24–25); and (4) Appellee failed to properly notify Appellant of the proceedings and serve him with summons, violating his due process rights, (id. at pp. 27–28).
I. The Bankruptcy Court Possessed Personal Jurisdiction Over Appellant
Appellant argues that the Bankruptcy Court erred in reviving the Judgment because the Bankruptcy Court lacked personal jurisdiction over him and failed to "re-establish" personal jurisdiction over him prior to issuing its Order reviving the Judgment. (Id. at pp. 25–27.) Notably, Appellant does not argue that the Bankruptcy Court lacked personal jurisdiction at the time the Judgment was entered against him in 2011. (See id. ) Instead, Appellant appears to argue that the Bankruptcy Court lost personal jurisdiction over him when Appellee's bankruptcy plan was confirmed, and it failed to "re-establish" personal jurisdiction for Appellee's revival action because Appellee failed to properly serve him with the Emergency Motion to Revive Dormant Judgment under Georgia law. (Doc. 7, pp. 14–15.) Appellee responds that the Bankruptcy Court had personal jurisdiction over Appellant when it revived the Judgment because the Bankruptcy Court entered the Judgment in the first place. (Doc. 6, pp. 17–18.)
Generally, to determine if a defendant is subject to personal jurisdiction, a court must determine (1) "whether the applicable statute potentially confers jurisdiction over the defendant" and (2) "whether the exercise of jurisdiction comports with due process." Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir. 1997). Regarding the first question, Rule 7004 of the Federal Rules of Bankruptcy Procedure governs "when a bankruptcy court has personal jurisdiction over a defendant." In re Charming Castle, LLC, Bankr. No. 06-71420-CMS-7, Adv. No. 08-70007 CMS, 2008 WL 5391988, at *4 (Bankr. N.D. Ala. Dec. 12, 2008). "Bankruptcy Rule 7004 [(d)] allows for nationwide service of process in adversary proceedings by providing: ‘The summons and complaint and all other process except a subpoena may be served anywhere in the United States.’ " Id. (quoting Fed. R. Bankr. P. 7004(d) ). Furthermore, "[w]hen a federal statute provides for nationwide service of process, it becomes the statutory basis for personal jurisdiction." BCCI Holdings (Luxembourg) S.A., 119 F.3d at 942.
Regarding the second question, "[i]t is well established that when ... a federal statute provides the basis for jurisdiction, the constitutional limits of due process derive from the Fifth, rather than the Fourteenth, Amendment." Id.; see also Reynolds v. Behrman Cap. IV L.P., 988 F.3d 1314, 1325 (11th Cir. 2021) ("When the district court applies Bankruptcy Rule 7004(d) on remand, it will need to ensure that the exercise of jurisdiction over the defendant is not unconstitutionally burdensome under the Fifth Amendment.") (internal quotations omitted). Courts consider the same factors in the Fifth Amendment analysis as the Fourteenth Amendment analysis. See Cont'l Cas. Co. v. Cura Grp. Inc., No. 03-61846-CIV-ALTONAGA/Turnoff, 2005 WL 8155321, at *32 (S.D. Fla. Apr. 6, 2005) ("In determining whether the defendant has met burden of establishing constitutionally significant inconvenience [under the due process clause of the Fifth Amendment], courts consider the factors used in determining fairness under the Fourteenth Amendment.") (citing BCCI Holdings (Luxembourg) S.A., 119 F.3d at 946 ). However, the Eleventh Circuit Court of Appeals has instructed courts to not "apply these factors mechanically in cases involving federal statutes." BCCI Holdings (Luxembourg) S.A., 119 F.3d at 946. Indeed, when conducting a Fifth Amendment analysis, courts "must examine a defendant's aggregate contacts with the nation as a whole rather than [its] contacts with [just] the forum state." Reynolds, 988 F.3d at 1325 (emphasis added) (internal quotations omitted); see also In re McCallan, 599 B.R. 361, 368 (Bankr. M.D. Ala. 2019) ("Bankruptcy Courts routinely exercise in personam jurisdiction over out-of-state parties so long as they have minimum contacts with the United States ...."). While a defendant's contacts with the United States do not "automatically satisfy" the Fifth Amendment's due process requirements, the defendant bears the burden to "demonstrate that the assertion of jurisdiction in the forum will make litigation so gravely difficult and inconvenient that [he] unfairly is at a severe disadvantage [compared] to his opponent." BCCI Holdings (Luxembourg) S.A., 119 F.3d at 947–48 (internal quotations omitted). If the defendant carries that burden, jurisdiction may still "comport with due process ... if the federal interest in litigating the dispute in the chosen forum outweighs the burden imposed on the defendant." Reynolds, 988 F.3d at 1325.
Based on the parties' briefings and the Court's own independent research, there is little binding case law regarding the issue presently before the Court: whether a bankruptcy court retains personal jurisdiction over a party to revive a judgment that the bankruptcy court entered against the party in an adversarial proceeding. While not a bankruptcy case, the Court finds the Eleventh Circuit's decision in Huff v. Pharr, 748 F.2d 1553 (11th Cir. 1984), instructive. In Huff, the plaintiff, a California resident, obtained a final judgment against the defendant, a Florida resident, in a California state court. 748 F.2d at 1554. Seven years later, the plaintiff sought to renew the judgment in the California state court, an action in which the defendant did not appear or contest. Id. After obtaining a new final judgment against the defendant, the plaintiff sought to domesticate the judgment in the United States District Court for the Middle District of Florida, an action the defendant did contest. Id. The district court entered summary judgment against the defendant, and the defendant appealed, arguing that the California court lacked personal jurisdiction over him during the renewal action. Id. For purposes of the appeal, the Eleventh Circuit "assume[d] ... that, in a suit to renew a prior judgment, the due process requirement of minimum contacts between the defendant, the forum state, and the cause of action must be met." Id. at 1554–55. Thus, the Eleventh Circuit addressed the question of whether the defendant's participation in the original California state litigation and his connection to California prior to that litigation satisfied the minimum contacts requirement. Id. at 1555. The Eleventh Circuit ultimately held that the defendant had the requisite minimum contacts with the state of California for the state court to properly exercise jurisdiction in the renewal action. Id. The Eleventh Circuit stated:
Such contacts were present when the original suit was filed in 1972. Over the next five years, the defendant made full use of the procedures available to him under California law by litigating a counterclaim and appealing an adverse judgment to a higher state court. The [renewal action] involved a claim uniquely connected with the defendant's previous forum-related activities. Under these circumstances, we do not consider it unfair to require the defendant, when properly served, to submit again to the jurisdiction of the California courts in a suit based upon a judgment previously entered in an action involving the same claim.
Id.; see also Kaylor v. Turner, 210 Ga.App. 2, 435 S.E.2d 233, 235 (1993) ("[W]hen a defendant had the requisite minimum contacts with the forum state for that state to exercise personal jurisdiction over the defendant during the original litigation, those same contacts are sufficient to provide personal jurisdiction to the trial court for any revival action concerning the judgment entered in the course of the original litigation."), disapproved on other grounds by Okekpe v. Com. Funding Corp., 218 Ga.App. 705, 463 S.E.2d 23, 25 (1995).
Assuming, as the Eleventh Circuit did in Huff, that the due process requirement of minimum contacts applies in an action to renew a dormant monetary judgment, the Court finds that the Bankruptcy Court had personal jurisdiction over Appellant when it revived the Judgment. First, Appellant does not dispute that the Bankruptcy Court had personal jurisdiction over him in the adversarial proceeding when it entered the Judgment. (See docs. 4, 7.) Furthermore, as stated above, the Fifth Amendment due process analysis—which the Court applies here—requires the Court to look to Appellant's contacts with the United States and not just the forum state of Georgia. See Reynolds, 988 F.3d at 1325. Here, the Judgment stems from a failed business relationship between Appellant and Appellee, who was a Georgia physician practicing in Savannah. (Doc. 2-1, p. 26.) After the business relationship soured, Appellee filed an adversarial proceeding against Appellant in the United States Bankruptcy Court for the Southern District of Georgia. (See id. at pp. 1–21.) Moreover, Appellant fully litigated and defended himself in that case and "made full use of the procedures available to him," including attempting to appeal the Judgment to this Court and subsequently the Eleventh Circuit. (See id. at pp. 17–18; see also id. at p. 6 (filing a motion for summary judgment and a motion to extend time for discovery).) In addition, the Judgment is "uniquely connected" with Appellant's contacts in the United States as the Judgment stems from Appellant's tortious interference with Appellee's contractual relations as a Georgia physician. (See id. at pp. 25–45.) Finally, Appellant made no effort to "demonstrate that the assertion of jurisdiction in the [Bankruptcy Court] ... [made the renewal action] so gravely difficult and inconvenient that [he] unfairly is at a severe disadvantage" compared to Appellee. BCCI Holdings (Luxembourg) S.A., 119 F.3d at 947–48 (internal quotations omitted). Thus, the Court finds that it was not unfair to require Appellant to submit again to the jurisdiction of the Bankruptcy Court "based upon a judgment previously entered [by that Court] in an action involving the same claim." Huff, 748 F.2d at 1555.
The Court dismissed Appellant's appeal of the Judgment in the adversarial proceeding on "jurisdictional grounds," finding that Appellant's failure to file a timely appeal of the Judgment was not due to excusable neglect. Hansjurgens v. Bailey, No. 4:11-cv-202, 2012 WL 3289001, at *3 (S.D. Ga. Aug. 10, 2012), aff'd by In re Bailey, 521 F. App'x 920 (11th Cir. 2013).
The Court's conclusion is further bolstered by the fact that Georgia's writ of scire facias, in the context of reviving a dormant judgment, is a continuation of the original action. See O.C.G.A. § 9-12-62. Thus, the Bankruptcy Court's basis for personal jurisdiction in the adversarial proceeding, the existence of which Appellant does not contest, is equally sufficient for the Bankruptcy Court to exercise personal jurisdiction over Appellant in an action to revive the Judgment. See In re RR Valve, Inc., Nos. 09-33345, 09-33377, 2020 WL 2858679, at *2 (Bankr. S.D. Tex. June 2, 2020) ("The Court retains personal jurisdiction over parties during the scire facias action.") (citing Berly v. Sias, 152 Tex. 176, 255 S.W.2d 505, 508 (1953) ); F.D.I.C v. Bauman, No. 3-90-CV-0614-H, 2004 WL 1732933, at *1 (N.D. Tex. July 30, 2004) ("The Court ... agrees with Plaintiff that the Court retains personal jurisdiction over Defendant during this scire facias action.") (citing Berly, 255 S.W.2d at 508 ); In re Fiorenza, Bankr. No. 08-11670-t7, Adv. No. 09-1012-t, 2019 WL 262196, at *6 (Bankr. D.N.M. Jan. 17, 2019) ("Defendants argue that the Court lacks jurisdiction to revive the Judgment, and/or that the Court should abstain from reviving it. The argument must be overruled. The Court clearly has jurisdiction to revive the Judgment; indeed, it is the only proper court to do so.").
As discussed in Discussion Section II.A, infra, Federal Rule of Civil Procedure 81 abolished the writ of scire facias in federal court and replaced it with an "appropriate action or motion under" the Federal Rules of Civil Procedure. Because a motion to revive or renew a dormant judgment is filed within the same proceeding in which the dormant judgment was originally obtained, the Court finds that the motion to revive is a continuation of the original action just like the writ of scire facias in Georgia. See J&J Sports Prods. Inc. v. Salas, No. 1:11-cv-03781-SDG, 2021 WL 2581430, at *1 (N.D. Ga. May 14, 2021) ("[T]o revive a judgment in federal court in Georgia, a party must either file a new action or obtain relief in the action in which the judgment was obtained. ") (emphasis added).
Accordingly, the Bankruptcy Court possessed personal jurisdiction over Appellant when it revived the Judgment.
II. The Bankruptcy Court Correctly Determined that Appellee Properly Followed the Procedural Requirements for Reviving a Judgment
Appellant argues that the Bankruptcy Court erred in granting the Motion to Revive Dormant Judgment because Appellee failed to comply with all the requirements under Georgia law. (Doc. 4, pp. 6–24.)
A. Applicable Legal Authority
"Authority to revive a federal court judgment is provided by" Federal Rules of Civil Procedure 69(a) and 81(b). Young v. Cinnamon, No. 00-MC-209-KHV, 2006 WL 3026739, at *1 (D. Kan. Oct. 24, 2006). Federal Rule of Civil Procedure 69, which governs the execution of money judgments, provides that federal courts should apply the procedure "of the state where the court is located, but a federal statute governs to the extent it applies." Fed. R. Civ. P. 69(a) ; see also Tibbs v. Vaughn, No. 2:08-cv-787-TC, 2019 WL 528232, at *1 (D. Utah Feb. 11, 2019) ("A judgment may be renewed or revived in federal court by complying with the state law governing such relief."); In re Fiorenza, 2019 WL 262196, at *4 ("[I]n actions to revive judgments entered by this Court, New Mexico's judgment revival rules apply."). Thus, the Court looks to Georgia's procedure for reviving dormant judgments but applies federal law to the extent it applies.
While revival of judgments is not mentioned in Rule 69, the Eleventh Circuit has cited Rule 69 as the basis for applying state law in a judgment revival case. See United States v. Fiorella, 869 F.2d 1425, 1426 n.5 (11th Cir. 1989). Furthermore, other federal courts—also relying on Rule 69—have applied state law in judgment revival cases. See, e.g., McCarthy v. Johnson, 35 F. Supp. 2d 846, 847 (D. Utah 1997) ; J&J Sports Prods., Inc. v. Salas, 2021 WL 2581430, at *1–2 ; Tibbs, 2019 WL 528232, at *1.
Georgia law provides a judgment holder with two options to renew or revive a dormant judgment: institute an "action" or seek a writ of scire facias. See O.C.G.A. § 9-12-61. Concerning a judgment holder's second option, a writ of scire facias "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 ; see also Popham v. Jordan, 278 Ga.App. 254, 628 S.E.2d 660, 661 (2006). Georgia law imposes somewhat complex and exact requirements for seeking a writ of scire facias. See O.C.G.A. § 9-12-60 et seq. Pertinent to this case, O.C.G.A. § 9-12-63 provides the specific requirements for the issuance, return, direction, and service of scire facias. See O.C.G.A. § 9-12-63. That provision requires, among other things, that a writ of scire facias be "issue[d] from and be returnable to the court of the county in which the judgment was obtained" and "be served by the sheriff of the county in which the party to be notified resides." Id.; see also Popham, 628 S.E.2d at 661–62. Furthermore, O.C.G.A. § 9-12-67 sets out additional requirements for the revival of judgments against non-Georgia residents. See O.C.G.A. § 9-12-67. That provision provides that a dormant judgment may be revived against a non-resident if the non-resident is "served with scire facias by publication in the newspaper in which the official advertisements of the county are published." Id.
A writ of scire facias is a "writ requiring the person against whom it is issued to appear and show cause ... why a dormant judgment against that person should not be revived." Bauman, 2004 WL 1732933, at *1 n.2 (citing Black's Law Dictionary (8th ed. 2004)).
In federal court, however, the writ of scire facias has been abolished. See Fed. R. Civ. P. 81(a). Instead, Rule 81(b) provides that "[r]elief previously available through [a writ of scire facias] may be obtained by appropriate action or motion under these rules." Fed. R. Civ. P. 81(b). Such relief includes the "revival of judgments." Sec. Prot. Corp. v. Institutional Secs. of Colo., Inc., 37 F. App'x 423, 425 (10th Cir. 2002) (citing Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 12 Federal Practice & Procedure § 3134 (2d ed. 1997) ). In other words, "in federal court[,] the motion to revive judgment entirely replaces the writ of scire facias." Old St. Paul Missionary Baptist Church v. First Nation Ins. Grp., No. 3:07-cv-00043-LPR, 2020 WL 5579555, at *2 (E.D. Ark. Sept. 17, 2020) ; see also J&J Sports Prods., Inc. v. Salas, 2021 WL 2581430, at *1 ("[T]he interplay between Federal Rules of Civil Procedure 69 and 81(b) and O.C.G.A. §§ 9-12-61 and 9-12-62, permits relief in federal court in the nature of scire facias."). Accordingly, "to revive a judgment in federal court in Georgia, a party must either file a new action or obtain relief in the action in which the judgment was obtained." Id.
B. Appellee Properly Sought Relief in the Nature of Scire Facias
The Bankruptcy Court revived the Judgment, holding that Appellee satisfied O.C.G.A. § 9-12-61. (Doc. 1-2, pp. 6–7.) Specifically, the Bankruptcy Court determined that "the motion to revive judgment entirely replaces the writ of scire facias" in federal court and, because Appellee filed the Emergency Motion to Revive Dormant Judgment prior to the expiration of Georgia's ten-year limitation period, Appellee satisfied Georgia law. (Id. ) Notably, however, the Bankruptcy Court did not address O.C.G.A. §§ 9-12-63 and 9-12-67. (See id. at pp. 1–7.) Appellant generally argues that the Bankruptcy Court erred in granting the Emergency Motion to Revive Dormant Judgment because Appellee failed to comply with the exact requirements set out in O.C.G.A. §§ 9-12-63 and 9-12-67. (Doc. 4, pp. 6–24.)
The Court finds that the Bankruptcy Court did not err on this ground as Appellee properly sought relief in the nature of a writ of scire facias. Contrary to Appellant's argument that Appellee needed to have complied with every specific requirement of O.C.G.A. §§ 9-12-63 and 9-12-67, other courts in the Eleventh Circuit have found that "strict compliance with ... Georgia's scire facias statute [is] unnecessary" to properly revive a dormant judgment. J&J Sports Prods., Inc. v. Salas, 2021 WL 2581430, at *1 (quoting Blue Lake Recovery Co. v. Pugliese, No. 1:10-cv-469-AT, ECF No. 49, at p. 4 (N.D. Ga. Oct. 13, 2020)). Indeed, "[a]t least two courts in [the Northern District of Georgia] have found that a party can revive a judgment in federal court by filing a motion in the nature of scire facias and serving that motion on the defaulting party." Id. (citing Blue Lake Recovery Co., No. 1:10-cv-469-AT, ECF No. 49, at p. 4; J&J Sports Prods., Inc. v. Los Ranchos Latinos, Inc., No. 1:10-cv-2809-SCJ, ECF No. 38, at p. 3 (N.D. Ga. Nov. 6, 2020)). As explained by the Tenth Circuit Court of Appeals, "because supplementary proceedings [are] meant to be swift, cheap, [and] informal, [s]ubstantial compliance with the procedural provisions of [any controlling state] statutes [or case law] is sufficient." McCarthy v. Johnson, 172 F.3d 63, 1999 WL 46703, at *1 (10th Cir. 1999) (internal quotations and citations omitted). Thus, the Court examines whether Appellant was offered "the same opportunity to be heard on whether the Judgment is eligible for revival" as he "would have receive[d] in state court." J&J Sports Prods., Inc. v. Salas, 2021 WL 2581430, at *2 ; see also Resol. Trust Corp. v. Ruggiero, 994 F.2d 1221, 1226–27 (7th Cir. 1993) (holding that a court in supplementary proceedings to execute a federal court's judgment "could proceed in any way that satisfied the requirements of due process").
The Court is satisfied that Appellant received such an opportunity in this case. Appellee served Appellant and Hako-Med USA with a copy of the Emergency Motion to Revive Dormant Judgment by mail at the Nevada Addresses. (Doc. 2-1, p. 93.) The Bankruptcy Noticing Center then sent notice of the March 30, 2021, hearing to Appellant and Hako-Med USA via first class mail to the Nevada Addresses. (Id. at pp. 97–100.) Appellee then served Appellant and Hako-Med USA a second time by mailing, via first class mail, copies of the Motion and Notice of Hearing to Appellant, Hako-Med USA, and at least one registered agent of Hako-Med USA at the Nevada Addresses and two Hawaii addresses. (Id. at pp. 101–02.) The Court finds that such efforts afforded Appellant a sufficient opportunity to be heard at the telephonic hearing and to voice any objections to revival of the Judgment. Thus, the Bankruptcy Court did not err as Appellee properly sought relief in the nature of a writ of scire facias by timely filing the Emergency Motion to Revive Dormant Judgment and serving Appellant and Hako-Med USA by mail on two separate occasions.
The Court recognizes that some district courts are "not convinced that serving [a] motion by mail is sufficient to substantially comply" with state revival statutes and have thus required personal service of motions to revive judgments. J&J Sports Prods, Inc. v. Salas, 2021 WL 2581430, at *2 ; see also Fed. Deposit Ins. Corp. v. Davis, No. H-92-3759, 2006 WL 8445383, at *2 (S.D. Tex. July 28, 2006) (construing Texas scire facias statute to require that motions to revive judgment be personally served and accompanied by a summons). However, the Court finds these cases unpersuasive as Rule 81 abolished the writ of scire facias entirely and replaced it with an "appropriate action or motion under [the Federal Rules of Civil Procedure]." Fed. R. Civ. P. 81(b) (emphasis added). Federal Rule of Civil Procedure 5 provides that "a written motion" and "a pleading filed after the original complaint" may be served by mail. Fed. R. Civ. P. 5(a)(1)(B), (a)(1)(D), (b)(2)(C). The Bankruptcy Court determined that Appellant and Hako-Med USA were properly served, and the record amply supports that conclusion. (Doc. 1-2, p. 3.) Thus, the Court finds that service by mail in this case sufficiently provided Appellant an opportunity to object to revival of the Judgment. See Resol. Trust Corp., 994 F.2d at 1226 ("We do not think that the draftsmen of Rule 69 meant to put the judge into a procedural straightjacket, whether of state or federal origin."); Blue Lake Recovery Co., No. 1:10-cv-469-AT, ECF No. 49, at p. 4 n.3 (noting that serving motion for revival of dormant judgment by mail is sufficient under Georgia's scire facias statute). Furthermore, as discussed in Discussion Section IV, infra, Appellant's due process rights were not violated by service by mail in this case.
III. The Bankruptcy Court Did Not Err by Granting an "Emergency" Motion
Appellant next argues that the Bankruptcy Court erred in granting the Emergency Motion to Revive Dormant Judgment because no emergency existed and Appellee failed to provide good cause in violation of Southern District of Georgia Local Rule 7.7. (Doc. 4, pp. 24–25.) The Court finds these arguments unpersuasive. Local Rule 7.7 provides, "Upon written motion and for good cause shown, the Court may waive the time requirements" for filing and responding to civil motions and grant "an immediate hearing on any matter requiring expedited procedure." L.R. 7.7. Even assuming the Bankruptcy Court waived applicable time requirements, good cause existed to waive those requirements. The Emergency Motion, which was filed on March 12, 2021, states, "The judgment at issue in this case will extinguish and become forever time-barred on April 7, 2021, if ... this motion is not granted by that deadline ." (Doc. 2-1, p. 60 (citing O.C.G.A. § 9-12-61 ).) The Bankruptcy Court then noted the urgency of the matter in its Order, stating that Appellee filed the Emergency Motion on March 12, 2021, and that the Judgment would become "forever time-barred on April 7, 2021." (Doc. 1-2, pp. 2–3.) Thus, the urgency of the revival issue is clearly stated in the Emergency Motion and noted in the Bankruptcy Court's Order. To the extent Appellant argues no emergency existed or that Appellee created the emergency by waiting until "the eleventh hour" to seek revival of the Judgment, the Court notes that Appellant timely sought revival of the Judgment within the three-year period permitted by Georgia law. See O.C.G.A. § 9-12-61. Moreover, Appellant has failed to cite to any authority suggesting that when a motion is filed within the time period permitted by Georgia law, good cause does not exist if the motion could have been filed earlier. (See docs. 4, 7.) Accordingly, the Court finds that the Bankruptcy Court did not err on this ground in issuing the Emergency Order to Revive Dormant Judgment.
The Court doubts that the Bankruptcy Court "waived" any time requirements under Local Rule 7 in the first place. For example, one of the time requirements the Court may waive under Local Rule 7.7 is the 14-day period in which parties must respond to civil motions. See L.R. 7.5, 7.7. Appellee first served Appellant with the Emergency Motion on March 12, 2021. (Doc. 1-2, p. 2; doc. 2-1, p. 23.) The Bankruptcy Court scheduled a telephonic conference for March 30, 2021, and, following that conference, published its Order on April 1, 2021. (Doc. 2-1, pp. 23, 93–94; doc. 1-2, p. 7.) Thus, Appellant had more than fourteen days to respond to the Emergency Motion prior to the hearing and the Bankruptcy Court's ruling on the Emergency Motion.
IV. Appellant's Due Process Rights Were Not Violated by the Efforts to Serve Appellant with the Emergency Motion to Revive Dormant Judgment and the Notice of Hearing
Appellant next argues that the Bankruptcy Court violated his due process rights by granting the Emergency Motion to Revive Dormant Judgment without requiring personal service of a "summons or equivalent." (Doc. 4, pp. 27–28.) To provide sufficient due process, "notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ " Arrington v. Helms, 438 F.3d 1336, 1349–50 (11th Cir. 2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ). "Due process is a flexible concept that varies with the particular circumstances of each case, and myriad forms of notice may satisfy the Mullane standard." Arrington, 438 F.3d at 1350 ; see also, e.g., Save Our Dunes v. Ala. Dep't of Env't Mgmt., 834 F.2d 984, 989 (11th Cir. 1987) ("What due process requires varies and depends upon all the circumstances.").
Contrary to Appellant's assertion and as discussed above, personal service of a summons is not required for motions to revive judgments. See Discussion Section II.B n.8, supra. Federal Rule of Civil Procedure 5 expressly provides for service by mail of written motions and pleadings filed after the original complaint, in which case service is "complete upon mailing." Fed. R. Civ. P. 5 ; see also In re Le Centre on Fourth, LLC, No. 19-cv-62199-SINGHAL, 2020 WL 12604348, at *3 (S.D. Fla. June 30, 2020) ("[S]ervice by mail is complete upon mailing ...."). Furthermore, Appellee's repeated attempts to notify Appellant of the hearing and serve him with a copy of the Emergency Motion were reasonably calculated to notify him of the proceedings to revive the Judgment. Appellee served Appellant and Hako-Med USA with a copy of the Emergency Motion at the Nevada Addresses by mail. (Doc. 2-1, pp. 93–94.) The Bankruptcy Noticing Center then sent notice of the March 30, 2021, hearing to Appellant and Hako-Med USA via first class mail to the same addresses. (Id. at pp. 95–98.) Appellee then served Appellant and Hako-Med USA a second time by mailing, via first class mail, a copy of the Emergency Motion and notice of the hearing to Appellant, Hako-Med USA, and at least one registered agent of Hako-Med USA at the Nevada Addresses and two Hawaii addresses. (Id. at pp. 101–02.) These efforts are enough to satisfy due process. See Guarino v. Productos Roche S.A., 839 F. App'x 334, 340 (11th Cir. 2020) ("Roche and the ACCC sent mail notifications to the business address listed on the purchase agreement and the emails were sent to the email addresses Roche had on file. These repeated attempts to notify Guarino of the arbitration do not violate due process because they were reasonably calculated to notify Guarino of the arbitration proceedings."); In re Bagwell, 741 F. App'x 755, 757–59 (11th Cir. 2018) (rejecting debtor's argument that the bankruptcy court violated due process by failing to give sufficient notice where creditor filed a certificate of service indicating that a motion for relief from automatic stay and a notice of hearing were mailed to debtor's address).
Finally, to the extent Appellant asserts his due process rights were violated because he did not receive notice of the Emergency Motion to Revive Dormant Judgment until after the Bankruptcy Court had revived the Judgment, (doc. 4, pp. 6, 27–28), the Court notes that "[t]he Constitution ... judges the adequacy of notice from the perspective of the sender [and] not the recipient." Lampe v. Kash, 735 F.3d 942, 944 (6th Cir. 2013). Indeed, "proof of actual receipt of a mailed notice is not required to satisfy due process requirements." In re TLFO, LLC, 572 B.R. 391, 432 (Bankr. S.D. Fla. 2016) (citing Dusenbery v. United States, 534 U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) ; Sanders v. Henry County, 484 F. App'x 395, 397 (11th Cir. 2012) ); see also Guarino, 839 F. App'x at 340 ("Actual notice is not required; the adverse party need only prove an attempt to provide actual notice."). Thus, "a court may find that notice and due process requirements were met even when the notice mailed was not actually received by the aggrieved party." In re TLFO, LLC, 572 B.R. at 432. Here, the Court finds that Appellee's and the Bankruptcy Court's numerous attempts to notify Appellant of the Emergency Motion to Revive and Notice of Hearing satisfied due process requirements.
Notably, Appellant does not argue that Appellee or the Bankruptcy Court mailed copies of the Emergency Motion and Notice of Hearing to the wrong addresses. Rather, Appellant simply argues that he heard of the proceeding from his former attorney after the Bankruptcy Court revived the Judgment and that the Bankruptcy Court should have required personal service of a summons. (See docs. 4, 7.)
CONCLUSION
Based on the foregoing, the Court AFFIRMS the Bankruptcy Court's Order granting Appellee Donald Bailey's Emergency Motion to Revive Dormant Judgment. (Doc. 1-2.)
SO ORDERED , this 22nd day of February, 2022.