United States District Court, D. Massachusetts
Gail Dein United States Magistrate Judge.
reasons stated below, the Court DENIES WITHOUT PREJUDICE the
plaintiff's motion for assistance in collecting the money
judgment entered in his favor in this action.
action, plaintiff Joseph Jabir Pope (“Pope”)
prosecuted a claim of copyright infringement against John
Lewis (“Lewis”). According to Pope, he was the
sole owner of the copyright to a documentary film. Pope
claimed that Lewis, Pope's former friend and fellow
inmate, infringed upon Pope's copyright by posting the
film on the internet and promoting the work as his own.
Although Lewis responded to Pope's complaint, he
subsequently failed to appear in court, notify the court of
his whereabouts, or demonstrate an intent to engage in the
defense of this action. Default was entered against Lewis. On
September 13, 2017, the Court entered a default judgment
against Lewis for $5, 000 in damages and $350 in costs [ECF
No. 68] and a permanent injunction enjoining Lewis from
infringing on Pope's copyright [ECF No. 67].
January 8, 2018, Pope filed a motion captioned as a
“Motion for Execution of Order (Money Judgment) or
Plaintiff Requests Enforcing a Judgment, as Said defendant
Has Not Paid Judgment or Contacted Plaintiff” [ECF No.
71]. Pope represents that he does not know Lewis's
location and that Lewis has refused mail Pope sent to him at
his mother's address. Invoking Rule 69 of the Federal
Rules of Civil Procedure, Pope asks that the Court intervene
and assist him in obtaining his judgment from Lewis. He
suggests that the United States Marshals Service enforce the
judgment, and he states that Lewis could be easily found by
the government because he is a registered sex offender.
Referring to Rule 70 of the Federal Rules of Civil Procedure,
Pope asks that, in the alternative, the Court place a lien on
Lewis's mother's house, order that she pay the
judgment, or order that someone other than Lewis be held
responsible for the judgment. He also requests that Lewis be
held in contempt and arrested.
the judgment Pope seeks to enforce is for money, Rule 69 of
the Federal Rules of Civil Procedure governs his request.
Under this rule, “[a] money judgment is enforced by a
writ of execution, unless the court directs otherwise. The
procedure on execution-and in proceedings supplementary to
and in aid of judgment or execution-must accord with the
procedure of the state where the court is located, but a
federal statute governs to the extent it applies.”
of execution is “[a] court order directing a sheriff or
other officer to enforce a judgment, usu[ally] by seizing and
selling the judgment debtor's property. Black's Law
Dictionary (10th ed. 2014), execution. Although the United
States Marshals Service is charged with serving and
enforcement writs of execution issued by federal district
courts, see 28 U.S.C. § 1921(a)(1)(A), the
judgment creditor (here, Lewis), has the burden of providing
all relevant information for the writ of execution, including
property to be seized and where the property is located.
See, e.g., Smith v. Hayes, C.A. No.
11-00221, 2013 WL 5438412, at *1 (S.D.Miss. Sept. 27, 2013)
(where plaintiff's motion for a writ of execution
“contemplates a writ of execution listing the amount of
the underlying monetary judgment, but omitting any specific
property that may be seized by the U.S. Marshal to satisfy
the judgment, ” enforcement of the writ would be
“impracticable”); 30 Am. Jur. 2d Executions, Etc.
§ 120 (“It is the responsibility of a judgment
creditor to prepare a writ of execution, have it entered by
the court clerk, see that it is delivered to the sheriff with
instructions as to levying, and conduct discovery to locate
and identify the property to be levied upon. The burden to
identify specific debtor property subject to sale does not
shift from the judgment creditor to the court clerk once the
application for a writ of execution is submitted; rather, the
responsibility to identify specific property for sale remains
with the judgment creditor.” (footnotes omitted)).
judgment creditor does not have adequate information to
prepare a proposed writ of execution, he may, in the aid of
the judgment or execution, “obtain discovery from any
person . . . as provided in these rules or by the procedure
of the state where the court is located.” Fed.R.Civ.P.
69(a)(2). Thus, while it is not the role of the Court or the
United States Marshals Service to perform its own
investigation to locate a judgment debtor and identify his
assets, Pope has at his disposal federal and state law
discovery tools to assist him in locating Lewis and his
assets, including requests for production of documents,
interrogatories, and depositions. Further, if Pope locates
Lewis, he may commence a supplementary process procedure.
Under Massachusetts law, a judgment creditor may file an
application for an action known as “supplementary
process, ” whereby “a summons may issue,
requiring the debtor to appear at a time and place named
therein and submit to an examination relative to his or its
property and ability to pay.” M.G.L. ch. 224, §
14. Pursuant to Rule 69(a)(1) of the Federal Rules of Civil
Procedure, this proceeding may be adjudicated in federal
court. See, e.g., Aetna Cas. & Sur. Co. v.
Rodco Autobody, 965 F.Supp. 104 (D. Mass. 1996) (using
Massachusetts supplementary process in post-judgment
conducting any post-judgment discovery, Pope must limit his
search for assets to those that are owned by Lewis himself.
In this action, the Court cannot order that property owned by
someone other than Lewis be seized or encumbered to satisfy
the judgment against him. Thus, the Court cannot grant
Pope's request that a lien be put on the house of
Lewis's mother or any other request that someone other
than Lewis be required to satisfy his judgment.
Pope's motion for the execution of judgment is DENIED
WITHOUT PREJUDICE. Pope may avail himself of discovery tools
to locate the Lewis and identify assets belonging to Lewis
that can be used to satisfy the money judgment.