Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02504-REB-CBS

Document 132

Filed 10/25/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-CV-02504-REB-CBS PETER HORNICK, Plaintiff v. GARY BOYCE AND JOANNE BOYCE, Defendants

PLAINTIFF HORNICK'S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Plaintiff, Peter Hornick, by and through his undersigned attorneys, files the following Response to Defendants' Motion For Protective Order:

INTRODUCTION Defendants' Motion for Protective Order is based upon two asserted deficiencies in the Fed. R. Civ. P. 69 interrogatories served by Plaintiff on Defendants: 1) that the interrogatories are premature because the judgment is not final; and 2) that the stay of enforcement proceedings entered by Judge Kuenhold in Saguache County District Court Case No. 06 CV 135, where this Court's judgment was filed pursuant to C.R.S. § 13-53-101, triggers a stay in this Court pursuant to Fed. R. Civ. P. 62(f). For the reasons set forth below, Defendants are incorrect. 1

Case 1:03-cv-02504-REB-CBS

Document 132

Filed 10/25/2006

Page 2 of 7

ARGUMENT 1. THE JUDGMENT IS FINAL Defendants note that Colo. R. Civ. P. 69, which governs the interrogatories at issue in this case pursuant to Fed. R. Civ. P. 69(a), allows for service of interrogatories "at any time after entry of a final money judgment." Colo. R. Civ. P. 69(d)(1). Defendants then argue that because they filed a motion to amend this Court's Findings, which motion is still pending, the judgment is not considered final pursuant to Colo. R. Civ. P. 59(k). That provision, which allows for additional time for filing of an appeal after the filing of a motion for post-trial relief, is limited to Rule 59: "For the purpose of this Rule 59. . ." Colo. R. Civ. P. 59(k). It is patently inapplicable to the finality of judgments for purposes of Rule 69. Rule 69 itself provides for service of interrogatories any time after "entry of a final judgment." A judgment is entered by the court when made, not when the time for appeal has passed. A final judgment is one which ends the particular action in which it is entered, leaving nothing further to be done in determining the rights of the parties. Colo. R. Civ. P. 54; Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo. 1982). The judgment entered by this Court is a final judgment for purposes of Colo. R. Civ. P. 69. Defendants can avoid answering the interrogatories at issue only by posting a sufficient bond and obtaining a stay pursuant to Fed. R. Civ. P. 62.1 Unless and until

Colo. R. Civ. P. 62 provides for the same type of stay as Fed. R. Civ. P. 62. As Defendants note, Plaintiffs are seeking clarification from the Saguache County District Court as to whether that Court's Colo. R. Civ. P. 62 stay applies to answers to interrogatories. The 2

1

Case 1:03-cv-02504-REB-CBS

Document 132

Filed 10/25/2006

Page 3 of 7

such a stay issues, they must answer the interrogatories.

2. NO RULE 62(f) STAY HAS BEEN TRIGGERED The stay provisions of Fed. R. Civ. P. 62(f) are not automatic. Although Defendants cite Whitehead v. Food Max of Mississippi, Inc., 332 F.3d 796, 804-05 (5th Cir. 2003) (Whitehead II) for the proposition that a formal motion for a stay is not required before a stay is effective pursuant to Rule 62(f), that was not the holding of the case. Whitehead, 332 F.3d 796, was an en banc review of an earlier panel decision, Whitehead v. Food Max of Mississippi, Inc., 277 F. 3d 791 (5th Cir. 2002) (Whitehead I). Whitehead I had held that a motion for a Fed. R. Civ. P. 62(f) was necessary before a stay could enter. Whitehead II reversed Whitehead I on other grounds, leaving intact Whitehead I's holding concerning the necessity of a motion. Whitehead I, 277 F.3d at 793-797. Even if a stay pursuant to Fed. R. Civ. P. 62(f) was automatic, requiring no motion, there would be no such stay in this case. By its plain language, Rule 62(f) is applicable to state court stays to which a judgment debtor is entitled. In fact, the Rule provides that "a judgment debtor is entitled. . . to such stay as would be accorded the judgment debtor had the action been maintained in the courts of that state." Thus, state law provides the substantive law as to when the stay will be effective and the terms on

question appears to be one of first impression. However, it is unrelated to the instant question, which applies to interrogatories issued pursuant to this Court's judgment, for which no stay has been issued. 3

Case 1:03-cv-02504-REB-CBS

Document 132

Filed 10/25/2006

Page 4 of 7

which it will be granted. See Hoban v. Washington Metro. Area Transit Auth, 841 F. 2d 1157, 1159 & n.6 (D.C. Cir. 1988)(defendant need not post bond where state court rule provides that appealing party need not post bond to obtain stay). It does not apply to automatically give effect to a stay that has been entered pursuant to the state court's discretion under Colo. R. Civ. P. 62(b) or C.R.S. § 13-53-105. Such a stay is not a matter of substantive law, and is not one to which a judgment debtor is entitled. Defendants attempt to load too much freight onto the stay granted by the Saguache County District Court in 2006 CV 135. Defendants filed their Emergency Motion to Stay Enforcement of Foreign Judgment in that case on Friday, September 22, 2006. At a status conference on other cases involving the same parties held the following Monday morning, September 25, without giving Plaintiff an opportunity to respond to the Motion even orally, Judge Kuenhold orally granted the Motion, then, on September 27, 2006, signed the Proposed Order that Defendants had submitted with their Motion. At the status conference, Judge Kuenhold stated that he was issuing the stay because it appeared (from bald representations contained in an affidavit submitted by Gary Boyce) that Hornick was adequately secured, at least for the short duration of the stay. More importantly, Judge Kuenhold stated that the adequacy of the stay was more properly addressed by this Court, and as Plaintiff's Motion for Stay is currently pending before this Court, he would defer to bond determinations made by this Court,

4

Case 1:03-cv-02504-REB-CBS

Document 132

Filed 10/25/2006

Page 5 of 7

and would entertain modifying his stay accordingly after this Court ruled.2 As argued in Hornick's Response to Defendants pending Motion for a Rule 62(b) stay, Mr. Hornick is not adequately secured by his mere judgment lien on property subject to a senior lien of over one million dollars, and, furthermore, case law holds that a bond is necessary before a stay will issue, absent unusual circumstances not present in this case. See Miami International Realty Co. v. Paynter, 807 F.2d 871, 873 (10th Cir. 1986); International Wood Processors v. Powder Dry, Inc., 102 F.R.D. 212 (D. S. C. 1984). Mr. Hornick is concerned that Defendants are so reluctant to identify what assets they may have to satisfy the judgment. Judgment debtor interrogatories are served by judgment creditors as a matter of course. There has been no showing or even argument by Defendants that the subject interrogatories are unduly burdensome.3 In fact, Defendants would certainly have to answer the interrogatories or reveal the same information under oath if Defendants were to convince this Court that a stay should issue without posting a bond in the full amount, in order to demonstrate both: 1)

These statements concerning Judge Kuenhold's ruling are from counsel's recollection. A transcript of the status conference has been ordered, but the Court Reporter is unable to provide one until sometime after the first of November, at the earliest. Once it is obtained, Plaintiff will file the transcript as a supplement to his Response, if the Court so allows. Defendants appear to take great exception to Mr. Hornick's garden variety attempts to be secure in his judgment. Defendants make an issue of the filing of their Motion for Contempt, which was filed after a heated discussion, but prior to giving undersigned counsel a chance to review the change to Colo. R. Civ. P. 6 which became effective Jan. 2006. The changed Rule 6 provides that weekends and holidays are not counted for time prescriptions under 11 days, rather than the 10 days as had earlier been the rule. As soon as that rule change was verified, Hornick voluntarily withdrew his interrogatories, and re-served them when the automatic stay ran. 5
3

2

Case 1:03-cv-02504-REB-CBS

Document 132

Filed 10/25/2006

Page 6 of 7

that Plaintiff was, indeed, adequately secured, and 2) that this case falls outside the usual circumstance in which the posting of a bond in the full amount would be required. See Miami International, supra. CONCLUSION Because the Fed. R. Civ. P. 69 Interrogatories served on Defendants were properly issued and served, and there is currently no stay in place justifying a failure on Defendants' part to answer them, Plaintiff respectfully requests that this Court deny Defendants' Motion for a Protective Order, and further require Defendants to answer the Interrogatories in full forthwith. Respectfully Submitted this 25th day of October, 2006

s/ Erich Schwiesow Erich Schwiesow Lester, Sigmond, Rooney & Schwiesow P.O. Box 1270 Alamosa, Colorado 81101 Telephone: (719) 589-6626 FAX (719) 589-5555 Email: [email protected] Attorney for Plaintiff, Peter Hornick

CERTIFICATE OF SERVICE I hereby certify that on the, 25th day of October, 2006, I electronically filed the foregoing Plaintiff Hornick's Response to Motion for Protective Order with the Clerk of 6

Case 1:03-cv-02504-REB-CBS

Document 132

Filed 10/25/2006

Page 7 of 7

the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected]

s/ Erich Schwiesow

7