Dichter v. Disco Corp.

• Decision Date: 03 February 1984
• Docket Number: No. F J 153.,F J 153.
• Citation: 606 F. Supp. 721
• Parties: Paul D. DICHTER, Plaintiff, v. DISCO CORPORATION, James R. Cash and B.W. Morris, Defendants.
• Court: U.S. District Court — Southern District of Ohio

606 F. Supp. 721

Paul D. DICHTER, Plaintiff, v. DISCO CORPORATION, James R. Cash and B.W. Morris, Defendants.

No. F J 153.

United States District Court, S.D. Ohio, W.D.

February 3, 1984.

Dennis J. Buckley, Cincinnati, Ohio, for plaintiff.

Michael G. Kohn, Cincinnati, Ohio, for B.W. Morris.

MEMORANDUM AND ORDER

DAVID S. PORTER, Senior District Judge:

I. Introduction

This case is before the Court on plaintiff's motion for a conditional order of revivor (doc. 12), defendant B.W. Morris's response (doc. 15) and plaintiff's reply memorandum (doc. 17). Because of the novelty of the issues presented, some of which appear to be of first impression, we heard argument on the motion on November 21, 1983.

We determine that plaintiff's motion for a conditional order of revivor should be granted. Our reasons will be set out in detail, but first it is in order to review the unusual history of this case.

On August 5, 1964, United States District Judge Sarah Hughes of the Northern District of Texas, Dallas Division, entered judgment on behalf of plaintiff and against defendants, including B.W. Morris, in the amount of $377,500.00. That judgment was based upon defendants "having appeared in open court to confess judgment and by written stipulation ... having confessed judgment." Dichter v. Disco, et al., Civil No. CA-3-63-392 (N.D.Texas, August 5, 1964).

On August 19, 1964 — two weeks after the entry of judgment in Texas — plaintiff filed a certified copy of that judgment in the Eastern Division of this Court, at Columbus, Ohio. Dichter v. Disco, Misc. No. 217 (S.D.Ohio, filed August 19, 1964). Plaintiff's filing of the judgment entry in Columbus was done pursuant to 28 U.S.C. § 1963, which provides:

A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.

The record does not reflect what transpired in this case between 1964 and 1983. However, the judgment was never collected, nor does it appear that any enforcement proceedings were attempted against this defendant.

In recent months, plaintiff determined that defendant Morris resided in the Cincinnati area. Unaware of the registration of judgment in this District, plaintiff filed a motion for a judgment debtor examination in an attempt to enforce the Texas judgment (doc. 1). The propriety of permitting plaintiff to proceed as he wished was heavily litigated (docs. 2-10), and in that process, plaintiff discovered the registered judgment and changed the focus of his case to an attempt to revive the Ohio judgment pursuant to Ohio law. At argument, plaintiff indicated his wish to proceed only on the motion for a conditional order of revivor.

Defendant responded to the motion to revive, raising a number of arguments including failure of jurisdiction, failure to comply with the correct Ohio procedures, the statute of limitations, improper registration, and presumption of payment.

II. 28 U.S.C. § 1963

The statute is clearly a novel one, and has not been extensively construed in the reported cases. However, it is clear from the cases and the legislative history¹ that the statute is a streamlining device which provides "rapid-track enforcement for judgments most amenable to that treatment." In Re Professional Air Traffic Controllers Organization, 699 F.2d 539, 545 (D.C. Cir.1983). As noted by the Sixth Circuit,

this statute has been held to have been adopted to protect both judgment creditors and judgment debtors from the additional cost and harassment of further litigation which otherwise would be incident to an action on the judgment in a foreign district.

Ohio Hoist Manufacturing Co. v. LiRocchi, 490 F.2d 105, 107 (6th Cir.), cert. dismissed, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974) (citations omitted). Stated another way,

The purposes of § 1963 were to simplify and facilitate the enforcement of federal judgments, at least those for money, to eliminate the necessity and expense of a second lawsuit, and to avoid the impediments, such as diversity of citizenship, which new and distinct federal litigation might otherwise encounter.

Stanford v. Utley, 341 F.2d 265, 270 (8th Cir.1965) (citations omitted).

It is, we believe, clear that the statute was enacted with an eye toward providing as much assistance to judgment creditors as is consistent with the demands of the Constitution; that is, Congress intended to provide as much steamlining of inter-district enforcement proceedings as its authority permitted. We are thus called upon to determine not only whether plaintiff's motion is within the purview of the statute, but whether reading the statute to permit revival of the Ohio judgment would, in this case, violate the due process clause of the Constitution. We are, however, disposed by the strong policy of enforcing the judgments of our sister courts to read the statute as broadly as the Constitution permits.

With that background, we turn to the issues raised by defendant in seeking to avoid revival of the judgment.

III. The "expiration of time for appeal" clause

Defendant asserts that the plain language of § 1963 requires us to hold that the judgment was prematurely registered in this District; that no valid judgment of this District was created because of that prematurity; and that, therefore, there is nothing to revive.

It is, of course, true that the language of the statute prevents the filing of a judgment in another district until it "has become final by appeal or by expiration of time for appeal." 28 U.S.C. § 1963. However, the cases have uniformly held that where judgment was entered by consent, there was, viewing the matter practically, no right to appeal, and that the purpose of the statute would be frustrated by permitting judgment debtors by consent to avoid liability under a registered judgment by seeking shelter behind the clause. Air Traffic Controllers, 699 F.2d at 544 n. 19; Stanford v. Utley, 341 F.2d at 271; Hadden v. Rumsey Products, Inc., 196 F.2d 92, 94-96 (2d Cir.1952). In the Air Traffic Controllers case, the court concluded that, while the "time for appeal" clause was to be given full effect in a case where an appeal had been filed unsupported by a supersedeas bond, permitting immediate registration of a judgment by consent was a "common sense alignment of a judgment never amenable to appeal with a judgment no longer amenable to appeal." 699 F.2d at 544 n. 19.

Defendant tries to overcome the weight of this authority by arguing that he might have had a right to appeal from the consent judgment in this case, because he entered into the consent decree based upon representations by plaintiff's then-counsel to the effect that no attempt would be made to enforce the judgment as against him. This allegation is supported to some extent by an affidavit from Morris's attorney in the Texas case.

It is not necessary to decide defendant's claim that he consented to the Texas judgment on the strength of oral promises of plaintiff's Texas counsel that there would be no attempt to enforce the judgment as to him. We discuss infra the relief that may be available to the defendant in the event he can prove his claim. However, we conclude that the facts alleged do not constitute a defense to a motion for a revivor.

Defendant asserts that, if there had been an attempt to collect the judgment immediately after its rendition, he would have had a right to appeal because of the alleged oral promise that the consent judgment would not be enforced against him. We disagree and conclude there is no reason not to revive the judgment because, like the one in Stanford, it was "never amenable to appeal." Hence, the statute is fully applicable here.

IV. Due Process

Defendant agrees that § 1963 is constitutional on its face, but claims that it is unconstitutional as the plaintiff seeks to apply it here. First, he asserts that where, as here, the statute of limitations on revival of actions in the court of registration is arguably more favorable to plaintiff than the parallel state statute which would apply in the court of rendition, he is, in effect, being denied the "benefit of the bargain" he struck with plaintiff in consenting to entry of judgment in Texas.² This argument fails, again on the basis of Stanford v. Utley. There, Judge (now Justice) Blackmun was faced with the following situation. A consent judgment had been rendered in federal district court in Mississippi; on the day after rendition, the judgment was registered, pursuant to § 1963, in federal district court in Missouri. Seven and one-half years later, plaintiff sought enforcement of the Missouri judgment. The judgment was void in Mississippi pursuant to that state's law, which provided a seven year period for enforcement of judgments. However, Missouri provided a 10-year period for enforcement. In resolving the situation before him, which is quite similar on this issue to the case at bar, Judge Blackmun wrote that

For the present fact situation and for enforcement purposes, the Missouri federal registration equated with a new Missouri federal judgment on the original Mississippi federal judgment, that is, it is no different than a judgment timely obtained by action in Missouri federal court on that Mississippi judgment. It follows from this that the Missouri ten year period of limitations ... and not the Mississippi seven year period, applied so far as enforcement is concerned, and that execution proceedings by the plaintiff within the Missouri period, and otherwise proper, are not subject to dismissal.

Stanford, 341 F.2d at 268. Defendant properly points out that Stanford v. Utley, being an Eighth Circuit case, is not binding...