United States District Court, D. Kansas
MILO A. JONES, Plaintiff,
v.
JUSTIN COURTNEY, Defendant,
ORDER
JAMES
P. O'HARA, U.S. MAGISTRATE JUDGE
Pro se
plaintiff Milo A. Jones has filed a motion for hearing in aid
of execution of a judgment he obtained against defendant
Justin Courtney (ECF No. 290). Because the judgment is
currently dormant, the motion is denied without prejudice to
refiling.
The
lengthy procedural history of this case was set forth in a
January 9, 2013 order[1]and will not be repeated here. Suffice it
to say, Jones obtained a judgment against Courtney in
September 2007 (later amended), [2] which he has been attempting
to fully recover for the past twelve years. In matters of
aiding execution of judgments, the Federal Rules of Civil
Procedure defer to the laws of the state in which the federal
district court sits.[3]Consequently, the court looks to Kansas law
for guidance on this issue.[4]
Under
K.S.A. § 60-2403(a)(1), a judgment becomes dormant
“five years from the date of the entry of any judgment
in any court” unless the judgment creditor files a
renewal affidavit or undertakes execution proceedings, in
which case it becomes dormant five years after “the
date of the last renewal affidavit or execution proceedings
undertaken.” If a judgment becomes dormant, K.S.A.
§ 60-2404 provides that it may nevertheless “be
revived and have the same force and effect as if it had not
become dormant if the holder thereof files a motion for
revivor and files a request for the immediate issuance of an
execution thereon . . . within two years after the date on
which the judgment became dormant.”[5]
In June
2013, presumably because he believed the judgment had become
dormant, [6]Jones filed a motion to revive the judgment
under K.S.A. § 60-2404.[7] The court granted the motion as
unopposed and revived the judgment on July 15,
2013.[8] Plaintiff then filed a motion for hearing
in aid of execution of the revived judgment on July 31,
2013.[9] The court reinstated a writ of continuing
garnishment on August 23, 2013.[10] The court's last
order requiring garnishment of Courtney's wages by his
employer was issued on September 19, 2013.[11]
On
November 29, 2018, Jones filed a renewal affidavit under
K.S.A. § 60-2403(a)(1).[12] The problem for Jones is that
because the renewal affidavit was not filed “within
five years of the date of [the] order reviving the
judgment” (i.e., July 15, 2013) and “five years
have intervened between the date of the last . . . execution
proceedings undertaken on the judgment [(i.e., September 19,
2013)[13] and the time of filing another renewal
affidavit” (i.e., November 29, 2018), the judgment has
become dormant.[14] Thus, the judgment must be revived under
K.S.A. § 60-2404 before the court may grant Jones a
hearing in aid of execution of the judgment. As noted above,
under K.S.A. § 60-2404, Jones has two years from the
date the judgment became dormant to file a “motion for
revivor and . . . a request for the immediate issuance of an
execution thereon.”
IT IS
THEREFORE ORDERD that Jones's motion for hearing in aid
of execution of judgment is denied. Jones should file a
motion to revive the judgment no later than September 19,
2020, should he wish to continue seeking recovery of the
judgment.
Jones
is hereby informed that, within 14 days after he is served
with a copy of this order, he may, pursuant to Fed.R.Civ.P.
72 and D. Kan. Rule 72.1.4(a), file written objections to
this order by filing a motion for review of this order. Jones
must file any objections within the 14-day period if he wants
to have appellate review of this order.
IT IS
SO ORDERED.
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Notes:
[1] ECF No. 272.
[2] ECF Nos. 137, 140, and 147.