Fid. Nat'l Fin., Inc. v. Friedman

• Citation: 855 F.Supp.2d 948
• Decision Date: 02 March 2012
• Docket Number: No. CIV 03–1222–PHX–RCB.,CIV 03–1222–PHX–RCB.
• Parties: FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation, Fidelity Express Network, Inc., a California corporation, Plaintiffs, v. Colin H. FRIEDMAN, et al., Defendants.
• Court: U.S. District Court — District of Arizona

855 F.Supp.2d 948

FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation, Fidelity Express Network, Inc., a California corporation, Plaintiffs,

v.Colin H. FRIEDMAN, et al., Defendants.

No. CIV 03–1222–PHX–RCB.

United States District Court,

D. Arizona.

March 2, 2012.

Janice Maureen Kroll, Orlando F. Cabanday, Hennelly & Grossfeld LLP, Marina Del Rey, CA, John J. Hennelly, Hennelly & Grossfeld LLP, Pacific Palisades, CA, Michael Joseph Plati, Timothy J. Thomason, Mariscal Weeks McIntyre & Friedlander PA, Phoenix, AZ, for Plaintiffs.

David Mark Bass, Michael J. Gulden, Peter Munki Cho, David M. Bass & Associates, Los Angeles, CA, for Defendants.

Farid Meshkatai, Paradise Valley, AZ, pro se.

Anita Kramer Meshkatai, Paradise Valley, AZ, pro se.

Azura International, Scottsdale, AZ, pro se.

1st National Bank of Arizona, Dallas, TX, pro se.

Allen Hyman, N. Hollywood, CA, pro se.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Introduction

This is the latest permutation of a nearly decade long battle by plaintiffs Fidelity National Financial, Inc. and Fidelity Express Network, Inc. (“Fidelity”) to enforce a roughly $8.5 million dollar judgment, plus interest. Fidelity obtained that judgment against defendants Colin H. Friedman and Hedy Kramer Friedman (“the Friedmans”), among others,¹ following a trial in the United States District Court for the Central District of California (“the California federal court”). Fidelity's judgment was entered in that court on July 12, 2002 (“the California judgment”). Fidelity then registered that California judgment in this Arizona district court by filing, among other things, a certified copy of that judgment on November 14, 2002 (“the Arizona judgment”). Essentially, the Friedmans ² are once again seeking to have this court quash enforcement of that Arizona judgment because in their view it has expired and Fidelity never properly or timely renewed it. ³

Fidelity vigorously disputes that the Arizona judgment has expired. That judgment has not expired, Fidelity counters, because on April 5, 2007, it filed in this court what it deems to be “both a second registration” of that judgment under federal law “and a renewal” of the Arizona judgment under Arizona law. Pls.' Resp. (Doc. 329) at 6:19–20 ⁴ (emphasis added). Then, viewing that April 5th document strictly as a “renewal affidavit,” Fidelity further asserts that any “defect[s]” therein were “de minimis” and were “cured” by the filing of “an additional affidavit ... in 2008.” Id. at 6:24–25. Fidelity thus contends that there is no basis for quashing its Arizona judgment, which by Fidelity's most recent estimation totals $10,685,204.⁵See id. at 8:9 (citation omitted).

Background

I. Procedural

The court assumes familiarity with the prolonged and rather tortuous history of this litigation. This most recent dispute begins with this court's order denying the Friedmans' motion to quash enforcement of Fidelity's Arizona judgment. This court found two grounds for denial. Both derive from A.R.S. §§ 12–1611, which provides that “[a] judgment may be renewed by action thereon at any time within five years after the date of the judgment.” A.R.S. § 12–1611. First, this court found that Fidelity's “collection activities in this case” were tantamount to an “action thereon” within the meaning of section 12–1611. Fidelity Nat'l Fin., Inc. v. Friedman, 2008 WL 3049988, at *10 (D.Ariz. Aug. 8, 2008) (“ Fidelity I ”). Hence, Fidelity “renew[ed] its [Arizona registered] judgment under” that statute. Id. Second, this court held that Fidelity's federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) action also constituted an “action thereon” for purposes of renewing its Arizona judgment in accordance with A.R.S. § 12–1611. The court thus concluded that because Fidelity had properly renewed the Arizona judgment by those activities, there was no basis for quashing it.

Disagreeing, the Friedmans appealed and the Ninth Circuit Court of Appeals certified two questions to the Arizona Supreme Court:

(1) Do collection activities (such as filing for a writ of garnishment or applying for orders from the court to inspect a safety deposit box or require a debtor's exam) taken within Arizona, renew a judgment previously registered in Arizona?

(2) Does the filing of a related lawsuit in a state other than Arizona renew a judgment previously registered in Arizona?

Fidelity Nat'l Fin. Inc. v. Friedman, 602 F.3d 1121 (9th Cir.2010). The Arizona Supreme Court answered both questions in the negative. To renew a judgment pursuant to A.R.S. §§ 12–1551(B) or 12–1611, the Supreme Court explained, a party must bring a “specific form of suit—the common law action on a judgment[,]” ... “not simply an action in some way related to the earlier judgment[.]” Fidelity Nat'l Fin. Inc. v. Friedman, 225 Ariz. 307, 310, 238 P.3d 118, 121 (2010) (“ Fidelity III ”). Fidelity's Arizona collection efforts were not “a common law action on the 2002 judgment[,]” the Supreme Court reasoned, because those “efforts were attempts to collect upon the 2002 judgment, not to renew it.” Id. at 123 (citation omitted). Additionally, that Court held that Fidelity's RICO lawsuit “was not a common law action on the judgment[ ] [in that] it did not simply recite the amount owed and seek a judgment on that debt.” Id. Instead, that RICO “suit sought remedies under federal and California law because of actions allegedly undertaken by the [Friedmans] to frustrate collection of the 2002 judgment.” Id.

Adopting the answers of the Arizona Supreme Court, the Ninth Circuit held that because “Fidelity did not file a common law action for renewal on the 2002 judgment within five years of its entry, the judgment expired by 2008.” Fidelity Nat'l Fin. Inc. v. Friedman, 402 Fed.Appx. 194, 196 (9th Cir.2010) (“ Fidelity IV ”) (citation omitted). In Fidelity IV the Court noted that Fidelity “also question[ed][,]” as it does now, “(1) whether it successfully renewed the judgment by affidavit in 2008, and (2) whether its 2007 registration of the final California judgment also renewed the judgment.” Id. at 196. The Ninth Circuit did not address those issues though because this court did not in Fidelity I. The Ninth Circuit also declined to address those two issues because “the parties did not provide comprehensive briefing to inform [the Ninth Circuit's] review[.]” Id. (citations omitted). Pursuant to the Ninth Circuit's “formal mandate[,]” its judgment took effect November 22, 2010. See Defs.' Request For Judicial Notice (“RJN”), exh. B thereto (Doc. 328–2) at 2.

II. Factual

The federal judgment registration statute provides in relevant part:

A judgment in an action for the recovery of money ... entered in any ..., district court, ... may be registered by filing a certified copy of the judgment in any other district ..., when the judgment has become final by appeal or expiration of the time for appeal or when ordered by the court that entered the judgment for good cause shown.

28 U.S.C. § 1963. Presumably in accordance with that statute, ⁶ on November 14, 2002, Fidelity registered its California judgment by filing, inter alia, a certified copy of its judgment rendered in the California federal court. Doc. 1. That copy of the judgment is attached to a document entitled “Certification of Judgment for Registration in Another District [.]” Id. (emphasis omitted). That 2002 Certification states:

An appeal was taken from this judgment and is currently pending before the U.S. Court of Appeals for the 9th Circuit. The U.S. District Court for the Central District of California, ... has entered an order allowing plaintiff to register its Judgment in Arizona. Certified copies of the Judgment (filed July 10, 2002), and the Order Allowing Plaintiff to Register Its Judgment in Arizona (filed October 22, 2002) are attached.

Id.

After registering its California judgment here in 2002, in the following years Fidelity engaged in numerous, mostly unsuccessful, collection efforts in this district. Eventually, on April 5, 2007, Fidelity filed in this court a document entitled “Certification of Judgment for Registration in Another District (dated January 1,⁷ 2007) and Renewal of Judgment in District of Arizona[.]”Defs.' RJN, exh. I thereto (Doc. 328–9) at 2 (bold emphasis omitted, italicized emphasis and footnote added). This dual designation reflects Fidelity's uncertainty as to the exact nature of this document. For brevity's sake, the court will refer to this document as the “2007 Certification,” but no legal significance shall be accorded to that designation.

Attached to that 2007 Certification is another “Certification of Judgment for Registration in Another District[,]” again emanating from the California federal court. That California Certification indicates that the Ninth Circuit “appeal was dismissed by order entered on May 15, 2003.” Id., exh. I thereto (Doc. 328–9) at 3.

Besides filing those two Certifications, on February 7, 2008, Fidelity filed a document it designated as an “Additional Renewal Affidavit Renewing the Judgment Registered in Arizona on November 15,⁸ 2002” (“additional renewal affidavit”). Id., exh. H thereto (Doc. 382–8) at 2 (emphasis omitted) (footnote added). Fidelity filed that affidavit in response to the Friedmans' original motion to quash the Arizona judgment.

Summary of Arguments

The Friedmans argue that the court should quash the 2002 Arizona judgment because it has expired and Fidelity did not properly or timely renew it. The Friedmans first contend that the 2007 Certification did not renew the Arizona judgment because it was not a “renewal affidavit” within the meaning of A.R.S. § 12–1612(B). Assuming arguendo that the 2007 Certification “was sufficient to operate as a renewal affidavit[,]” nonetheless, the Friedmans contend that it was untimely. Thus, from the Friedmans' standpoint, Fidelity cannot rely upon the 2007 Certification to renew the expired Arizona judgment.

Next, the Friedmans...