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Greer v. T.F. Thompson & Sons, Inc.

United States District Court, Ninth Circuit

August 26, 2013

Dudley Greer, d/b/a Greer Farms, Plaintiff,
v.
T.F. Thompson & Sons, Inc., et al., Defendants. T.F. Thompson & Sons, Inc., et al., Counter-Claimants,
v.
Dudley Greer, d/b/a Greer Farms, Counter-Defendant.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Before the Court are two related motions: (1) Defendant T.F. Thompson & Sons, Inc.'s Motion for Judgment Debtor Exam (Doc. 139); and (2) Intervenor Judy Greer's Motion to Set Aside Judgment as to Community (Doc. 174). The motions are fully briefed. (Docs. 148, 154, 165, 166, 173, 176, 177.) After considering the parties' positions, the Court will deny the motion to set aside the judgment, and deny the motion for judgment debtor exam.

BACKGROUND

This case began when Plaintiff Dudley Greer, d/b/a Greer Farms, filed a complaint against Defendant T.F. Thompson & Sons, Incorporated ("Thompson") on April 12, 2010. (Doc. 1.) In his complaint, Plaintiff alleged that Thompson sold him diseased seed potatoes. (Id.) The Court subsequently granted Thompson's motion for summary judgment against Plaintiff on grounds that Plaintiff's expert did not satisfy the Daubert standard, and entered judgment in favor of Thompson. (Doc. 111; Doc. 112.)

Thompson promptly moved for an award of attorney fees and costs pursuant to A.R.S. § 12-341.01(A). (Doc. 114.) Dudley Greer then moved to Amend the Court's Judgment (Doc. 117), arguing that the Court's ruling granting Thompson's motion for summary judgment had misapprehended the factual record, improperly resolved disputed factual issues, and was manifestly unjust. The Court allowed the issue of reconsideration to be briefed, ordering Thompson to respond. (Doc. 118.) The Court subsequently denied the motion for reconsideration. (Doc. 125.) Greer then appealed the Court's judgment to the Ninth Circuit. (Doc. 127.)

Dudley Greer also filed a response to Thompson's motion for attorney fees, arguing that an award of attorney fees against him would constitute an extreme financial hardship. (Doc. 119.) Greer also filed a motion for leave to file confidential financial information under seal (Doc. 120). In his motion to seal, Greer requested permission to file information from the joint federal income tax returns filed in 2009 and 2010 by Greer and his wife Judy Greer. (Doc. 120 at 1.) Greer also wished to file a "joint statement of financial affairs of Mr. And Mrs. Greer. (Id.) After reviewing the documents Greer wished to have filed under seal, the Court denied the motion. (Doc. 122.) The Court denied the motion pursuant to L.R.Civ. 5.6(b), because Greer failed to set forth any legal justification nor any compelling reasons for the proposed sealing of each document. (Id.) The Court then denied Thompson's motion for attorney fees without prejudice, pending the outcome of Greer's appeal to the Ninth Circuit. (Doc. 130.)

Greer subsequently dismissed his appeal, and Thompson then renewed its motion for attorney fees and costs. (Doc. 132.) In his response to the motion, Dudley Greer again asserted that an award of attorney fees against him would cause an extreme financial hardship. (Doc. 120.) The Court was mindful of Greer's claim of undue hardship, and therefore offered him the opportunity to again file financial statements under seal - noting that Greer's previous attempt to file statements under seal had been deficient because the statements were not in the form of sworn affidavits, nor were they authoritative evidence of Greer's entire financial situation. (Doc. 136 at 2.) Therefore, the Court postponed ruling on Thompson's motion, and gave Greer thirty days in which to submit financial documents for filing under seal. (Id.)

Greer, however, did not submit any financial documents, and the Court therefore issued its ruling on Thompson's motion for attorney fees, on December 11, 2012. (Doc. 137.) The Court granted the motion, finding that Thompson's overall request for fees was reasonable and supported by the record and the attorneys' affidavits, with the exception of Thompson's request for fees incurred when the case was on appeal to the Ninth Circuit. (Id.) The Court thus entered judgment against Defendant in the amount of $221, 534.50 for fees and costs pursuant to Ariz. Rev. Stat. § 12-341.01(A). (Id.)

On April 18, 2013, Thompson applied for a Writ of Garnishment on Arizona Business Bank to satisfy the unpaid judgment for fees and costs. (Doc. 155.) The Writ was issued the following day (Doc. 156), and duly served upon Garnishee Arizona Business Bank on April 22, 2013. (Doc. 157). Garnishee filed its Answer on April 29, 2013, stating that it possessed $93, 777.74 in a bank account belonging to Dudley Greer at the time of service of the Writ. (Doc. 158.)

On May 6, 2013, Dudley Greer filed a Request for Hearing on the Garnishment, objecting to the garnishment on the grounds that the funds are community property and thus exempt from garnishment under Ariz. Rev. Stat. 25-215(D) because his wife Judy Greer was not joined in the original action. (Doc. 163.) That same day, Judy Greer filed a motion to intervene in this action for the purpose of objecting to the garnishment on the same grounds. (Doc. 165.) In her declaration accompanying the motion to intervene, Judy Greer averred that Greer Farms, and all funds generated or acquired by Greer Farms, are community property. (Docs. 165-1, 165-2.) The Court granted Judy Greer's motion to intervene, in order to give her the opportunity to present any argument concerning her independent rights to the community funds, as distinct from those presented by Dudley Greer. Judy Greer thereupon filed her Motion to Set Aside Judgment as to Community (Doc. 174).

LEGAL STANDARD

Rule 60(b), Fed. R. Civ. P., permits reconsideration of a district court order based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly-discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59; (3) fraud, misrepresentation, or misconduct by an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b)(1)-(b)(6).

Rule 60 reconsideration is generally appropriate in three instances: (1) when there has been an intervening change of controlling law; (2) new evidence has come to light; or (3) when necessary to correct a clear error or prevent manifest injustice. School District No. 1J v. ACandS, Inc. , 5 F.3d 1255, 1262 (9th Cir. 1993). A Rule 60(b) motion must be brought within a "reasonable" time, which cannot be more ...


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