CARL W. HOFFMAN, Magistrate Judge.
Plaintiffs/Judgment Creditors, Trustees of the Operating Engineers Pension Trust, Trustees of the Operating Engineers Health and Welfare Fund, Trustees of the Operating Engineers Vacation-Holiday Savings Trust and Trustees of the Operating Engineers Training Trust, hereby request an Order directing the appearance of Defendant/Judgment Debtor Donald Martinez, an individual, doing business as "Alpha 1 Construction" (hereinafter "Mr. Martinez"), and an Order directing the production of certain documents subject to the ownership and control of Mr. Martinez.
This application is supported by the attached Memorandum of Points and Authorities; Declaration of Nathan R. Ring, attached hereto as
Rule 69 of the Federal Rules of Civil Procedure provides that "[i]n aid of the judgment or execution, the judgment creditor . . . may obtain discovery from any person—including the judgment debtor." Fed. R. Civ. P. 69(a)(2). As this Court has noted, Rule 69 "permits discovery from the judgment debtor and/or third persons." Montgomery v. Etreppid Technologies, LLC, 2009 WL 465941, *1 (D. Nev. Feb. 25, 2009) (citing Danning v. Lavine, 572 F.2d 1386, 1389-90 (9th Cir. 1978)); 1st Technology, LLC v. Rational Enterprises LTDA, 2007 WL 5596692, *4 (D. Nev. 2007)).
Pursuant to Rule 62 of the Federal Rules of Civil Procedure, proceedings to enforce a money judgment may be initiated once 14 days have passed since the entry of judgment, unless the judgment debtor has obtained a stay by posting a supersedeas bond. Fed R. Civ. P. 62(d). More than 14 days have passed since judgment was entered, no supersedeas bond is on file, and no one has sought a stay of execution. Ring Decl. ¶ 2. Accordingly, the Judgment Creditors may proceed.
Rule 69(a)(2) provides that a judgment creditor "may obtain discovery from any person—including the judgment debtor— as provided in these rules or by the procedure of the state where the court is located." Fed. R. Civ. P. 69(a)(2); see also El Salto S.A. v. PSG Co., 444 F.2d 477, 484 n.3 (9th Cir.), cert. denied, 404 U.S. 940 (1971) ("a judgment creditor proceeding under Rule 69(a) may utilize either State practice or the federal rules for taking depositions").
Under Nevada procedure, the Judgment Creditors are entitled to a debtor examination. Nev. Rev. Stat. § 21.270 states that a judgment creditor, at any time after the judgment is entered, is "entitled to an order from the judge of the court requiring the judgment debtor to appear and answer upon oath or affirmation concerning his or her property" at an examination either before (1) the judge or master appointed by the judge or (2) an attorney representing the judgment creditor. Nev. Rev. Stat. § 21.270(1). The statute further states that no judgment debtor may be required to appear outside the county in which the judgment debtor resides. Id. This requirement is met since the Judgment Debtor's address is in Clark County, which is the same county wherein this Court is located. Ring Decl. ¶ 3.
A Judgment Debtor Examination is necessary to enable Judgment Creditors to discover any and all real and personal property, vehicles, assets, accounts, etc., of Judgment Debtor and facts relating thereto, which may assist in potential executions to satisfy the Judgment. Nev. Rev. Stat. § 21.270 entitles Judgment Creditors to an examination before either the Court or an attorney. Local Rule IB 1-9(k) "authorizes this court to conduct judgment debtor examinations and to preside over proceedings to enforce civil judgments." Montgomery at *1. Additionally, Local Rule IB 1-9(n) gives a magistrate judge the authorization to preside over proceedings to enforce civil judgments.
Because Nev. Rev. Stat. § 21.270 allows two options in proceeding for a judgment debtor examination, Judgment Creditors will take this opportunity to explain its proposed order attached hereto. If the Judgment Debtor is required to appear before any person other than a judge or master, the proceedings must be transcribed by a court reporter or recorded electronically. Nev. Rev. Stat. § 21.270(2). For this reason, Judgment Creditors desired to allow the Court the option to require the appearance of the Judgment Debtor to be sworn in before the Court, thus obviating the need and expense to transcribe or record the testimony. Additionally, it is counsel's collective experience that each Magistrate Judge in this Court handles the administration of judgment debtor examinations differently, some Magistrates will allow debtors to be sworn in court and allow the parties to retire to another location to actually take the examination, and other Magistrates who will not swear in debtors before the Court. Ring Decl. ¶ 5. For this reason alone, the proposed order contains two blanks for the Judgment Debtor's appearance to allow the Court to exercise its discretion in deciding how best to conduct the debtor examination. The first blank would be to require the appearance in Court to be sworn, and the second blank would be to require appearance at Judgment Creditors' counsel's law office to submit for examination.
Accordingly, Judgment Creditors respectfully request that the swearing in for the examination take place before a Magistrate Judge, with the parties allowed to retire to Judgment Creditors' counsel's law office to conduct the examination.
Judgment Creditors additionally request an order requiring production of relevant documents to enable them to pursue execution of the judgment. "The scope of post-judgment discovery is broad, `the judgment creditor must be given the freedom to make a broad inquiry to discover hidden or concealed assets of the judgment debtor.'" British Intern. Ins. Co., Ltd. v. Seguros La Republica, S.A. 200 F.R.D. 586, 589 (W.D. Tex. 2000) (quoting Caisson Corp. v. County West Building Corp., 62 F.R.D. 331, 334 (E.D. Pa. 1974)). Accordingly, an order for the production of documents in aid of execution is appropriate.
For the reasons stated above, pursuant to Rule 69 of the Federal Rules of Civil Procedure, Nev. Rev. Stat. § 21.270, and Local Rules IB 1-9(k), (n), Judgment Creditors respectfully request that this Court issue its Order for Judgment Debtor Examination to take place before a magistrate judge of this Court to be sworn in, and thereafter allow the parties to retire to another location to actually take the examination, as well as an order requiring the Judgment Debtor to produce the documents listed in the proposed order.
I, Nathan R. Ring, declare and state as follows:
1. I am a member of the Bar of this Court and attorney of record for the Judgment Creditors in the above-captioned action.
2. Judgment was originally entered in the United States District Court, Central District of California, Case Number CV 14-02348 on July 17, 2014, in the amount of Sixty-Three Thousand Four Hundred Thirty-Three Dollars and Thirteen Cents ($63,433.13) plus post-judgment interest, in favor of Plaintiffs and against Defendant, Donald Martinez, an individual doing business as "Alpha 1 Construction" ("Judgment"). On August 6, 2014, the Judgment was registered with this Court and entered in United States District Court, District of Nevada. The Judgment has not been vacated, set aside or reversed and the amount of Sixty-Three Thousand Four Hundred Thirty-Three Dollars and Thirteen Cents ($63,433.13), exclusive of post-judgment interest and costs, remains owing and unpaid. There is no stay of execution and execution may properly be issued.
3. On February 3, 2015, a Notice of Filing Application of Foreign Judgment and Affidavit of Judgment Creditor was served upon Donald Martinez. See Affidavit of Service Notice of Filing Application of Foreign Judgment and Affidavit of Judgment Creditor (Dkt. 10).
4. Mr. Donald Martinez is believed to reside at 5006 Bond Street in Las Vegas, Nevada.
5. An Order scheduling an examination of Mr. Martinez, as an individual doing business as "Alpha 1 Construction" and requiring production of documents by Mr. Martinez is necessary to pursue collection of the judgment. No prior examination has been conducted.
6. I estimate the time for the examination in this matter will be approximately three hours. The subject of this examination will be the location and identification of all assets of Donald Martinez and all debts and obligations owed to Donald Martinez. In addition to the appearance of Mr. Martinez, the current financial statements and records and recent past financial statements and records of Mr. Martinez and Alpha 1 Construction are necessary for a complete examination to be conducted.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration was executed on May 8, 2015, in Las Vegas, Nevada.
Having considered Plaintiffs' Application for Judgment Debtor Examination of Donald Martinez, an individual doing business as "Alpha 1 Construction", and the Declaration of Nathan R. Ring, and good cause appearing,
1. All financial statements, including supporting schedules, compiled, reviewed, or audited for, on behalf of, or in connection with Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
2. All original monthly bank statements of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
3. All original monthly bank statements of the spouse of Donald Martinez, if any, from January 1, 2013, to the present.
4. All original savings accounts pass books, certificates of deposit, and trust certificates in the name of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
5. All original savings accounts pass books, certificates of deposit, and trust certificates in the name of the spouse of Donald Martinez, if any, from January 1, 2013, to the present.
6. All original negotiable instruments and negotiable securities in the name of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
7. All evidence or other memoranda of any ownership interest of Donald Martinez, individually and/or doing business as Alpha 1 Construction, in any other corporation, partnership, unincorporated association or any business organized or conducted for the production of income from January 1, 2013, to the present.
8. All evidence or other memoranda of any income received by Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present, to include but not limited to tax returns, insurance proceeds, or repayment of loans.
9. All evidence or other memoranda of any income received by the spouse of Martinez, if any, from January 1, 2013, to the present, to include but not limited to tax returns, insurance proceeds, or repayment of loans.
10. All evidence or other memoranda of any employer, or place of work or employment of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present, including but not limited to contracts, invoices, billings, vouchers or payments.
11. All evidence of any ownership interest of Donald Martinez, individually and/or doing business as Alpha 1 Construction, to include but not limited to, bills of sale, pink slips or any other record or title, in any motor vehicle, airplane, boat, equipment or machinery, from January 1, 2013, to the present.
12. All evidence of any debts or payments owed to Donald Martinez, individually and/or doing business as Alpha 1 Construction, to include, but not limited to, those arising from loans or judgments.
13. All evidence of any debts or repayments owed by Donald Martinez, individually and/or doing business as Alpha 1 Construction, to include, but not limited to, those arising from loans or judgments from January 1, 2013, to the present.
14. Any and all evidence or other memoranda indicating that Donald Martinez, individually and/or doing business as Alpha 1 Construction, was either a plaintiff or a defendant in any lawsuit from January 1, 2013, to the present.
15. Any and all evidence or memoranda indicating that Donald Martinez, individually and/or doing business as Alpha 1 Construction, received any judgment, award, bequest or devise in any lawsuit or other court action from January 1, 2013, to the present.
16. Any and all evidence or memoranda indicating any ownership interest of Donald Martinez, individually and/or doing business as Alpha 1 Construction, in any patent, invention, trade name, or copyright.
17. Any and all evidence or memoranda indicating an ownership interest of Donald Martinez, individually and/or doing business as Alpha 1 Construction, in any real property or developments on real property.
18. Any and all evidence of the sale(s) of any real or personal property of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
19. Any and all loan applications filled out by Donald Martinez, individually and/or doing business as Alpha 1 Construction, since January 1, 2013.
20. Copies of all documents evidencing the sale or transfer of any assets of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
21. Any and all documents evidencing any Federal or State tax liability of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013 to the present.
22. Original cash disbursement journals and check registers maintained in connection with Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
23. All Federal income tax returns, including all supporting schedules prepared or filed for, or on behalf of, Donald Martinez, individually and/or doing business as Alpha 1 Construction, for the years 2012 to the present.
24. All daily job logs, diaries or foreman reports of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
25. All daily job tickets or invoices of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
26. All subcontracts entered into by Donald Martinez, individually and/or doing business as Alpha 1 Construction, to perform construction projects for the time period of January 1, 2013, to the present.
27. All accounts receivable reports for Donald Martinez, individually and/or doing business as Alpha 1 Construction, for the period of January 1, 2013, to the present.
28. All canceled checks drawn on any account established in the name of Donald Martinez, individually and/or doing business as Alpha 1 Construction, from January 1, 2013, to the present.
29. All evidence of any license to include, but not limited to, any business or professional license, issued by any city, county, state or any federal government agency or department in the name of Donald Martinez, individually and/or doing business as Alpha 1 Construction.
30. Copies of all certified payroll records submitted by Donald Martinez, individually and/or doing business as Alpha 1 Construction, to any general contractor or public contracting agency for public works projects for work performed during the time period from January 1, 2013, to the present.
31. Copies of all certified payroll records submitted by Donald Martinez, individually and/or doing business as Alpha 1 Construction, to any general contractor or public contracting agency for public works projects for work performed during the time period from January 1, 2013, to the present.
32. Evidence of all payments made by Donald Martinez, individually and/or doing business as Alpha 1 Construction, to his creditors from the date of service of this Order through the date of the hearing.
