1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Clutch Solutions LLC, No. CV-25-02226-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Acronis Incorporated,
13 Defendant. 14 15 At issue are Plaintiff Clutch Solutions, LLC’s (“Clutch”) Notice of No Request from 16 Defendant for a Probable Validity Hearing (Doc. 19), to which Defendant Acronis, Inc. 17 (“Acronis”) filed a Response (Doc. 26); and Clutch’s Second Notice of No Request from 18 Defendant for a Probable Validity Hearing (Doc. 37), to which Acronis filed a Response 19 (Doc. 38) and Clutch filed a Reply (Doc. 41). 20 Clutch’s Notices are predicated on Arizona state statutes regarding the pre-judgment 21 seizure of property. As a first principle, “under the Erie doctrine, federal courts sitting in 22 diversity apply state substantive law and federal procedural law.” 757BD LLC v. Nat’l 23 Union Fire Ins. Co. of Pittsburgh, PA, 330 F. Supp. 3d 1153, 1159 (D. Ariz. 2016) (internal 24 quotation omitted) (applying the Federal Declaratory Judgment Act in lieu of the Arizona 25 Uniform Declaratory Judgments Act in a diversity action because they are procedural 26 statutes). While Federal Rule of Civil Procedure 64 provides that “every remedy is 27 available that, under the law of the state where the court is located, provides for seizing a 28 person or property to secure satisfaction of the potential judgment,” nothing in that Rule 1 states that this Court should apply state procedural law in contravention of the Erie doctrine 2 in providing the state law remedy for the pre-judgment seizure of property. 3 Federal Rule of Civil Procedure 81(c)(1) provides that the Federal Rules of Civil 4 Procedure apply in this Court to a matter after its removal from state court, and Rule 83(a) 5 provides that litigants must follow the properly promulgated Local Rules of the district 6 court. Pertinent to Clutch’s presently pending Application for Pre-Judgment Provisional 7 Remedies (After Notice) and Motion for Pre-Judgment Discovery in Aid of Enforcement 8 (Doc. 1-1 at 91–115, Remedies Application and Pre-Judgment Discovery Motion), Local 9 Rule 3.6(d) requires that a motion that is “pending and undecided in the state court at the 10 time of removal” need not be considered by this Court “unless and until a party files and 11 serves a notice of pending motion.” The notice must include, among other things, a 12 statement as to whether briefing on the motion is complete. LRCiv 3.6(d)(3). 13 As procedural background, on June 17, 2025, Clutch filed its Remedies Application 14 and Pre-Judgment Discovery Motion in Maricopa County Superior Court. Nine days later, 15 on June 26, 2025, Acronis properly removed this action, at which time the Rules of this 16 Court began to govern this action. (Doc. 1.) The next day, Acronis filed a Motion to 17 Transfer Venue to the United States District Court for the District of Massachusetts. 18 (Doc. 10.) A week later, on July 3, 2025, Clutch filed its Notice of Pending [Remedies] 19 Application and [Pre-Judgment Discovery] Motion pursuant to Local Rule 3.6(d), stating 20 it filed the Notice “out of an abundance of caution.” (Doc. 20, Rule 3.6(d) Notice.) But as 21 a result, the Remedies Application was only properly before this Court as of July 3, 2025. 22 The same day, Clutch filed its first Notice of No Request from Defendant for a Probable 23 Validity Hearing, arguing that Acronis had not met the requirements of Arizona’s 24 procedural statutes to request a hearing on Clutch’s Remedies Application, including in 25 particular the requirement under A.R.S. § 12-2407 that a request for a probable validity 26 hearing must be filed within ten days of the filing of the Remedies Application. (Doc. 19, 27 First No Request Notice.) Acronis filed a Response to Clutch’s No Request Notice on 28 July 8, 2025, arguing that it had not missed any applicable deadline and requesting the 1 opportunity to file a responsive brief to the Remedies Application and a hearing. (Doc. 26, 2 Resp. to First No Request Notice.) 3 On July 7, 2025, while its Motion to Transfer Venue was before the Court, Acronis 4 filed a Motion to Stay Case Deadlines pending ruling on the Motion to Transfer Venue. 5 (Doc. 23.) Three days later, the Court granted the Motion to Stay (Doc. 28), and the stay 6 on this matter was in place until September 15, 2025, when the Court denied the Motion to 7 Transfer Venue and lifted the stay of deadlines (Doc. 36). 8 Clutch filed a Second No Request Notice on September 26, 2025 (Doc. 37, Second 9 No Request Notice), renewing its request from its former Notice. Acronis again filed a 10 Response on September 29, 2025 (Doc. 38, Resp. to Second No Request Notice), and 11 Clutch file a Reply on October 6, 2025 (Doc. 41, Reply to Second No Request Notice). 12 To begin with, Clutch does not provide any legal support for the proposition that the 13 Arizona procedural statutes regarding the pre-judgment seizure of property apply in federal 14 court, and indeed the Court finds that under Erie, they do not. Even if they did, Acronis at 15 no point missed Arizona’s ten-day deadline for requesting a hearing on Clutch’s Remedies 16 Application. Acronis removed this action from state court on the ninth day after Clutch 17 filed the Remedies Application. Aside from the fact that the Federal Rules of Civil 18 Procedure and Local Rules of this Court governed this case upon removal on June 17, 19 Clutch filed no Notice of the pending Remedies Application, as required by Local Rule 20 3.6(d), until July 3 (Doc. 19). Acronis requested a hearing five days later in its Response 21 to the Notice (Doc. 26), which would have been within the ten-day window, had it been 22 applicable in federal court. 23 To the extent Clutch now argues that its Remedies Application remained pending 24 from state court to this Court and that Clutch did not need to comply with Local Rule 3.6(d) 25 because it had filed an “Application” in state court and the rule refers to “motions,” there 26 is no functional difference between an application and motion in this instance—both 27 request relief from the Court—and such an interpretation would defeat the very purpose of 28 Local Rule 3.6(d), which is to inform the Court of pending requests for relief in state court || and their briefing status. In short, Clutch’s argument needlessly puts form over substance. See W. Employers Ins. Co. v. Jefferies & Co., Inc., 958 F.2d 258, 261 (9th Cir. 1992) || (holding the district court erred in not construing a filed petition as a motion, emphasizing “nomenclature is not controlling” (internal quotation and citation omitted)); Collins v. D.R. 5 || Horton, Inc., 361 F. Supp. 2d 1085, 1092 (D. Ariz. 2005) (finding a “motion” equivalent || to an “application” in the context of seeking confirmation of an arbitration award).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Clutch Solutions LLC, No. CV-25-02226-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Acronis Incorporated,
13 Defendant. 14 15 At issue are Plaintiff Clutch Solutions, LLC’s (“Clutch”) Notice of No Request from 16 Defendant for a Probable Validity Hearing (Doc. 19), to which Defendant Acronis, Inc. 17 (“Acronis”) filed a Response (Doc. 26); and Clutch’s Second Notice of No Request from 18 Defendant for a Probable Validity Hearing (Doc. 37), to which Acronis filed a Response 19 (Doc. 38) and Clutch filed a Reply (Doc. 41). 20 Clutch’s Notices are predicated on Arizona state statutes regarding the pre-judgment 21 seizure of property. As a first principle, “under the Erie doctrine, federal courts sitting in 22 diversity apply state substantive law and federal procedural law.” 757BD LLC v. Nat’l 23 Union Fire Ins. Co. of Pittsburgh, PA, 330 F. Supp. 3d 1153, 1159 (D. Ariz. 2016) (internal 24 quotation omitted) (applying the Federal Declaratory Judgment Act in lieu of the Arizona 25 Uniform Declaratory Judgments Act in a diversity action because they are procedural 26 statutes). While Federal Rule of Civil Procedure 64 provides that “every remedy is 27 available that, under the law of the state where the court is located, provides for seizing a 28 person or property to secure satisfaction of the potential judgment,” nothing in that Rule 1 states that this Court should apply state procedural law in contravention of the Erie doctrine 2 in providing the state law remedy for the pre-judgment seizure of property. 3 Federal Rule of Civil Procedure 81(c)(1) provides that the Federal Rules of Civil 4 Procedure apply in this Court to a matter after its removal from state court, and Rule 83(a) 5 provides that litigants must follow the properly promulgated Local Rules of the district 6 court. Pertinent to Clutch’s presently pending Application for Pre-Judgment Provisional 7 Remedies (After Notice) and Motion for Pre-Judgment Discovery in Aid of Enforcement 8 (Doc. 1-1 at 91–115, Remedies Application and Pre-Judgment Discovery Motion), Local 9 Rule 3.6(d) requires that a motion that is “pending and undecided in the state court at the 10 time of removal” need not be considered by this Court “unless and until a party files and 11 serves a notice of pending motion.” The notice must include, among other things, a 12 statement as to whether briefing on the motion is complete. LRCiv 3.6(d)(3). 13 As procedural background, on June 17, 2025, Clutch filed its Remedies Application 14 and Pre-Judgment Discovery Motion in Maricopa County Superior Court. Nine days later, 15 on June 26, 2025, Acronis properly removed this action, at which time the Rules of this 16 Court began to govern this action. (Doc. 1.) The next day, Acronis filed a Motion to 17 Transfer Venue to the United States District Court for the District of Massachusetts. 18 (Doc. 10.) A week later, on July 3, 2025, Clutch filed its Notice of Pending [Remedies] 19 Application and [Pre-Judgment Discovery] Motion pursuant to Local Rule 3.6(d), stating 20 it filed the Notice “out of an abundance of caution.” (Doc. 20, Rule 3.6(d) Notice.) But as 21 a result, the Remedies Application was only properly before this Court as of July 3, 2025. 22 The same day, Clutch filed its first Notice of No Request from Defendant for a Probable 23 Validity Hearing, arguing that Acronis had not met the requirements of Arizona’s 24 procedural statutes to request a hearing on Clutch’s Remedies Application, including in 25 particular the requirement under A.R.S. § 12-2407 that a request for a probable validity 26 hearing must be filed within ten days of the filing of the Remedies Application. (Doc. 19, 27 First No Request Notice.) Acronis filed a Response to Clutch’s No Request Notice on 28 July 8, 2025, arguing that it had not missed any applicable deadline and requesting the 1 opportunity to file a responsive brief to the Remedies Application and a hearing. (Doc. 26, 2 Resp. to First No Request Notice.) 3 On July 7, 2025, while its Motion to Transfer Venue was before the Court, Acronis 4 filed a Motion to Stay Case Deadlines pending ruling on the Motion to Transfer Venue. 5 (Doc. 23.) Three days later, the Court granted the Motion to Stay (Doc. 28), and the stay 6 on this matter was in place until September 15, 2025, when the Court denied the Motion to 7 Transfer Venue and lifted the stay of deadlines (Doc. 36). 8 Clutch filed a Second No Request Notice on September 26, 2025 (Doc. 37, Second 9 No Request Notice), renewing its request from its former Notice. Acronis again filed a 10 Response on September 29, 2025 (Doc. 38, Resp. to Second No Request Notice), and 11 Clutch file a Reply on October 6, 2025 (Doc. 41, Reply to Second No Request Notice). 12 To begin with, Clutch does not provide any legal support for the proposition that the 13 Arizona procedural statutes regarding the pre-judgment seizure of property apply in federal 14 court, and indeed the Court finds that under Erie, they do not. Even if they did, Acronis at 15 no point missed Arizona’s ten-day deadline for requesting a hearing on Clutch’s Remedies 16 Application. Acronis removed this action from state court on the ninth day after Clutch 17 filed the Remedies Application. Aside from the fact that the Federal Rules of Civil 18 Procedure and Local Rules of this Court governed this case upon removal on June 17, 19 Clutch filed no Notice of the pending Remedies Application, as required by Local Rule 20 3.6(d), until July 3 (Doc. 19). Acronis requested a hearing five days later in its Response 21 to the Notice (Doc. 26), which would have been within the ten-day window, had it been 22 applicable in federal court. 23 To the extent Clutch now argues that its Remedies Application remained pending 24 from state court to this Court and that Clutch did not need to comply with Local Rule 3.6(d) 25 because it had filed an “Application” in state court and the rule refers to “motions,” there 26 is no functional difference between an application and motion in this instance—both 27 request relief from the Court—and such an interpretation would defeat the very purpose of 28 Local Rule 3.6(d), which is to inform the Court of pending requests for relief in state court || and their briefing status. In short, Clutch’s argument needlessly puts form over substance. See W. Employers Ins. Co. v. Jefferies & Co., Inc., 958 F.2d 258, 261 (9th Cir. 1992) || (holding the district court erred in not construing a filed petition as a motion, emphasizing “nomenclature is not controlling” (internal quotation and citation omitted)); Collins v. D.R. 5 || Horton, Inc., 361 F. Supp. 2d 1085, 1092 (D. Ariz. 2005) (finding a “motion” equivalent || to an “application” in the context of seeking confirmation of an arbitration award). 7 It would have been inappropriate for this Court to rule on Clutch’s Remedies 8 || Application before ruling on Acronis’s Motion to Transfer Venue, because Rule 64—under || which this Court can consider a state law seizure remedy at all—provides that the Court || apply “the law of the state where the court is located.” Had the Court transferred this case 11 |} to Massachusetts, that district court would likely not have considered Clutch’s request || under Arizona’s state law seizure remedy scheme. 13 In sum, Acronis did not waive its right to file a response brief to Clutch’s Remedies 14|| Application and Pre-Judgment Discovery Motion or to request a hearing thereon. 15 || Accordingly, the Court will set a briefing and hearing schedule. 16 IT IS THEREFORE ORDERED that Defendant Acronis, Inc. shall file any □□ response to Plaintiff Clutch Solutions, LLC’s Application for Pre-Judgment Provisional 18 |} Remedies (After Notice) and Motion for Pre-Judgment Discovery in Aid of Enforcement (Doc. 1-1 at 91-115) by October 24, 2025. Plaintiff may file a reply by October 31, 2025. 20 IT IS FURTHER ORDERED setting a one-hour hearing on Plaintiff's Application for Pre-Judgment Provisional Remedies (After Notice) and Motion for Pre-Judgment 22 || Discovery in Aid of Enforcement on November 3, 2025 at 3:30 PM (Arizona time) before 23 || District Judge John J. Tuchi in Courtroom 505, Sandra Day O’Connor Federal Courthouse, 24 || 401 West Washington Street, Phoenix, Arizona 85003. 25 Dated this 9th day of October, 2025. CN 26 “wok: 97 Unifga State#District Judge 28
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