IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION HITACHI CONSTRUCTION MACHINERY AMERICAS INC., Plaintiff, v. 2:25-CV-155-Z AMARILLO MACHINERY COMPANY, et al., Defendant. MEMORANDUM ORDER AND OPINION Before the Court is Plaintiff Hitachi Construction Machinery Americas Inc.’s (“Hitachi”) Application for a Writ of Sequestration (“Application”), filed on July 8, 2025 in the same document as the Complaint. ECF No. 1. Because Hitachi combined its pleading with the Application, the Court did not initially expedite its review. Now, having considered the Application and the applicable law, the Court GRANTS the Application. “Sequestration ...is the modern counterpart of an ancient civil law device to resolve conflicting claims to property.” Mitchell v. W. T. Grant Co., 416 U.S. 600, 605 (1974) (holding Louisiana’s sequestration procedure did not violate due process requirements). It “is an extraordinary pre-judgment writ whereby property in dispute... may be seized and held” by designated law enforcement officers “until it is sold, replevied|[,] or turned over as ordered by the court.” Baragas v. Coupland State Bank, No. 03-01-00098-CV, 2001 WL 1509972, at *1 n.3 (Tex. App.—Austin Nov. 29, 2001, no pet.) (not designated for publication). A writ of sequestration typically seeks to prevent concealment, destruction, waste, or disposal of property in which another party has a secured interest while litigation proceeds. See id. As such, it is “a conservatory writ” that “does not effect a transfer of title to property,” but merely
preserves the property in lieu of a resolution. Atl. Mar. Servs., LLC v. Ecopetrol Am., LLC, 2025 WL 3520344, at *1 (E.D. La. Dec. 9, 2025). Federal Rule of Civil Procedure 64 provides for “sequestration” when that “remedy is available ... under the law of the state where the court is located.” See J. C. Trahan Drilling Contractor, Inc. v. Sterling, 335 F.2d 65, 66-67 (5th Cir. 1964) (dismissing appeal from a district court’s grant of sequestration because state law deemed the order “an exercise of a sound judicial discretion”). Thus, this Court applies Texas law on sequestration. Texas law provides for writs of sequestration in a few circumstances. Relevant here, a court may issue a writ of sequestration if: the suit is for title or possession of personal property or fixtures or for foreclosure or enforcement of a mortgage, lien, or security interest on personal property or fixtures and a reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will conceal, dispose of, ill-treat, waste, or destroy the property or remove it from the county during the suit. TEX. CIV. PRAC. & REM. § 62.001. Texas law also describes the permissible timing for a writ of sequestration. In a qualifying case, “[a] writ of sequestration may be issued at the initiation of a suit or at any time before final judgment.” TEX. CIV. PRAC. & REM. § 62.002 (emphasis added). In order to obtain such a writ, the plaintiff must simply file an “application” that is “made under oath” which sets forth “(1) the specific facts stating the nature of the plaintiffs claim; (2) the amount in controversy, if any; and (3) the facts justifying issuance of the writ.” TEX. CIv. PRAC. & REM. § 62.022. A plaintiff sufficiently describes the claim when the affidavit “states that it is suing for title and possession of the described property and for foreclosure of security interest therein.” Marrs v. S. Tex. Nat. Bank, 686 S.W.2d 675, 677 (Tex. App.—San Antonio 1985, writ refd n.r.e.). A plaintiff may then justify the writ by “describing the property, the value of the property, that the property is in the possession of the defendant, and that the plaintiff
fears there is an immediate danger” of disposal, ill-treatment, waste, or destruction of the property. Id. Here, Hitachi has met its preliminary burden under Texas law. Hitachi filed its Application and attached the sworn affidavit of Eric Winkler, Hitachi's “Director of Regional Business for the North American and Latin American Regions.” ECF No. 1-1 at 1. That affidavit refers to numerous attached exhibits. These include a document purporting to be an “Authorized Retail Dealer Agreement”; a schedule for “Sales & Service Area”; a schedule for “Minimum Sales Responsibility”; a document listing “Standard Sales Order Terms”; a purported “Purchase-Money Security Agreement’; financing statements; an invoice; emails between the parties discussing an unpaid amount on that invoice; Hitachi's letters purporting to terminate the Dealer Agreement and enforce an acceleration clause under the Security Agreement; and Defendant's website advertising Hitachi products identical to those comprising the collateral. See id. at 1-62. Collectively, these documents allege the following: Hitachi is suing to recover an outstanding debt of $3,011,581.87, secured by collateral in AMC’s possession. Because of AMC’s default on the Security Agreement, which went uncured after notice, that debt is now due in full. The Dealer Agreement incorporated the Security Agreement. Hitachi attempted to terminate the Dealer Agreement partly on account of AMC’s default on the Security Agreement, but AMC has resisted such termination. Specifically, the agreement called for AMC to either fully purchase the collateral or return it to Hitachi upon termination. But AMC has neither paid for nor returned the property. The property is currently in AMC’s possession and some is even advertised for sale on AMC’s website. If AMC successfully sells the collateral, it may become unreachable. In the interim, the property may depreciate. Eric Winkler has alleged personal knowledge of facts supporting the Application and the Application provides supporting evidence in its various exhibits. The attached
agreements show a substantial likelihood that a dealer agreement and a security agreement existed between the parties. The standard sales terms, invoices, and emails support the allegation that AMC breached the Dealer Agreement and defaulted on the Security Agreement. The letters corroborate Hitachi's claim that it successfully terminated the Dealer Agreement and caused the secured debt to become due. The Security Agreement and the attached property descriptions show the collateral (see ECF No. 1-1 at 45-46) secures that debt. The photographs of AMC’s website support the conclusion that AMC’s continued possession of the collateral may result in removal, waste, or disposal of the collateral to the detriment of Hitachi’s interest in that property. Finally, the Court notes that writs of sequestration are often issued in ex parte proceedings. See Mitchell, 416 U.S. at 605. But here Defendants have received notice and an opportunity to respond through the pleadings. See ECF No. 7 at 5—6 (responding to Plaintiff's Application for a Writ of Sequestration). The Court considered Defendants’ response before granting the writ. The Court also considered the amount of time that has elapsed since the Application’s filing. But sequestration may occur at “any time before final judgment.” TEX. CIV. PRAC. & REM. § 62.002. Ultimately, the parties’ disagreement persists. See ECF No. 28 (reporting the parties’ inability to reach settlement through alternative dispute resolution). So too, then, does the need for sequestration. For the reasons stated, the Court GRANTS the Application. ECF No. 1.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION HITACHI CONSTRUCTION MACHINERY AMERICAS INC., Plaintiff, v. 2:25-CV-155-Z AMARILLO MACHINERY COMPANY, et al., Defendant. MEMORANDUM ORDER AND OPINION Before the Court is Plaintiff Hitachi Construction Machinery Americas Inc.’s (“Hitachi”) Application for a Writ of Sequestration (“Application”), filed on July 8, 2025 in the same document as the Complaint. ECF No. 1. Because Hitachi combined its pleading with the Application, the Court did not initially expedite its review. Now, having considered the Application and the applicable law, the Court GRANTS the Application. “Sequestration ...is the modern counterpart of an ancient civil law device to resolve conflicting claims to property.” Mitchell v. W. T. Grant Co., 416 U.S. 600, 605 (1974) (holding Louisiana’s sequestration procedure did not violate due process requirements). It “is an extraordinary pre-judgment writ whereby property in dispute... may be seized and held” by designated law enforcement officers “until it is sold, replevied|[,] or turned over as ordered by the court.” Baragas v. Coupland State Bank, No. 03-01-00098-CV, 2001 WL 1509972, at *1 n.3 (Tex. App.—Austin Nov. 29, 2001, no pet.) (not designated for publication). A writ of sequestration typically seeks to prevent concealment, destruction, waste, or disposal of property in which another party has a secured interest while litigation proceeds. See id. As such, it is “a conservatory writ” that “does not effect a transfer of title to property,” but merely
preserves the property in lieu of a resolution. Atl. Mar. Servs., LLC v. Ecopetrol Am., LLC, 2025 WL 3520344, at *1 (E.D. La. Dec. 9, 2025). Federal Rule of Civil Procedure 64 provides for “sequestration” when that “remedy is available ... under the law of the state where the court is located.” See J. C. Trahan Drilling Contractor, Inc. v. Sterling, 335 F.2d 65, 66-67 (5th Cir. 1964) (dismissing appeal from a district court’s grant of sequestration because state law deemed the order “an exercise of a sound judicial discretion”). Thus, this Court applies Texas law on sequestration. Texas law provides for writs of sequestration in a few circumstances. Relevant here, a court may issue a writ of sequestration if: the suit is for title or possession of personal property or fixtures or for foreclosure or enforcement of a mortgage, lien, or security interest on personal property or fixtures and a reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will conceal, dispose of, ill-treat, waste, or destroy the property or remove it from the county during the suit. TEX. CIV. PRAC. & REM. § 62.001. Texas law also describes the permissible timing for a writ of sequestration. In a qualifying case, “[a] writ of sequestration may be issued at the initiation of a suit or at any time before final judgment.” TEX. CIV. PRAC. & REM. § 62.002 (emphasis added). In order to obtain such a writ, the plaintiff must simply file an “application” that is “made under oath” which sets forth “(1) the specific facts stating the nature of the plaintiffs claim; (2) the amount in controversy, if any; and (3) the facts justifying issuance of the writ.” TEX. CIv. PRAC. & REM. § 62.022. A plaintiff sufficiently describes the claim when the affidavit “states that it is suing for title and possession of the described property and for foreclosure of security interest therein.” Marrs v. S. Tex. Nat. Bank, 686 S.W.2d 675, 677 (Tex. App.—San Antonio 1985, writ refd n.r.e.). A plaintiff may then justify the writ by “describing the property, the value of the property, that the property is in the possession of the defendant, and that the plaintiff
fears there is an immediate danger” of disposal, ill-treatment, waste, or destruction of the property. Id. Here, Hitachi has met its preliminary burden under Texas law. Hitachi filed its Application and attached the sworn affidavit of Eric Winkler, Hitachi's “Director of Regional Business for the North American and Latin American Regions.” ECF No. 1-1 at 1. That affidavit refers to numerous attached exhibits. These include a document purporting to be an “Authorized Retail Dealer Agreement”; a schedule for “Sales & Service Area”; a schedule for “Minimum Sales Responsibility”; a document listing “Standard Sales Order Terms”; a purported “Purchase-Money Security Agreement’; financing statements; an invoice; emails between the parties discussing an unpaid amount on that invoice; Hitachi's letters purporting to terminate the Dealer Agreement and enforce an acceleration clause under the Security Agreement; and Defendant's website advertising Hitachi products identical to those comprising the collateral. See id. at 1-62. Collectively, these documents allege the following: Hitachi is suing to recover an outstanding debt of $3,011,581.87, secured by collateral in AMC’s possession. Because of AMC’s default on the Security Agreement, which went uncured after notice, that debt is now due in full. The Dealer Agreement incorporated the Security Agreement. Hitachi attempted to terminate the Dealer Agreement partly on account of AMC’s default on the Security Agreement, but AMC has resisted such termination. Specifically, the agreement called for AMC to either fully purchase the collateral or return it to Hitachi upon termination. But AMC has neither paid for nor returned the property. The property is currently in AMC’s possession and some is even advertised for sale on AMC’s website. If AMC successfully sells the collateral, it may become unreachable. In the interim, the property may depreciate. Eric Winkler has alleged personal knowledge of facts supporting the Application and the Application provides supporting evidence in its various exhibits. The attached
agreements show a substantial likelihood that a dealer agreement and a security agreement existed between the parties. The standard sales terms, invoices, and emails support the allegation that AMC breached the Dealer Agreement and defaulted on the Security Agreement. The letters corroborate Hitachi's claim that it successfully terminated the Dealer Agreement and caused the secured debt to become due. The Security Agreement and the attached property descriptions show the collateral (see ECF No. 1-1 at 45-46) secures that debt. The photographs of AMC’s website support the conclusion that AMC’s continued possession of the collateral may result in removal, waste, or disposal of the collateral to the detriment of Hitachi’s interest in that property. Finally, the Court notes that writs of sequestration are often issued in ex parte proceedings. See Mitchell, 416 U.S. at 605. But here Defendants have received notice and an opportunity to respond through the pleadings. See ECF No. 7 at 5—6 (responding to Plaintiff's Application for a Writ of Sequestration). The Court considered Defendants’ response before granting the writ. The Court also considered the amount of time that has elapsed since the Application’s filing. But sequestration may occur at “any time before final judgment.” TEX. CIV. PRAC. & REM. § 62.002. Ultimately, the parties’ disagreement persists. See ECF No. 28 (reporting the parties’ inability to reach settlement through alternative dispute resolution). So too, then, does the need for sequestration. For the reasons stated, the Court GRANTS the Application. ECF No. 1. The Court ORDERS the Clerk of Court to file a Writ of Sequestration in accordance with Section 62.023 of the Texas Civil Practice and Remedies Code, and pursuant to Sections 62.001, 62.002, and 62.022 of the same, as well as Federal Rule of Civil Procedure 64(a). The Court further ORDERS that Defendants deliver the following described property in Defendants’ possession or control to the United States Marshal:
ZW310-6, Cab, SL, no aux. ATT: DE121596; Config No. ZW310-6-C-SLA-HD1- Randall $320,513.57 BANNFB60C90C66246 EB011905004AA000 INV0481330 Tl eneral Purpose, 5.5 Cu Yd Bucket w/ BOCE. 71W7310-6: Serial No. 237017 Randall $23,731.20 BANNFB60C90C66246 38311-61430 INV0481960 Fire Extinguisher Randall $256.80 BANNFB60C90C66246 7326110 INV0483132 Rear View Camera Monitor (ugh mount separated typed) FO; ATT DE111098; Randall $1,96240 BANNFB60C90C66246 EBOII90S004AA000ATT INV0483132 onfig No $00002606502 ZW160-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE126402; Config. No.: ZW160-7-C-SLA- Randall $160,347.86 HCMNTL60K00010246 §EB013901005AA000 INV0491832 HD3-T1-B: Hydraulic Quick Coupler, 416 Type. ZW160-7 , : : 906. ICMNTL60K000102 Senal No: AKR76179 Randall $4.90640 Hi 10246 ZW160QC_416_HYD INV049183 eneral Purpose, 2.8 CuYd Bucket w/ BOCE, 416. □ 7W150/150PL: Serial No.- SO404.BS4 Randall $7,084.80 HCMNTL60K00010246 3831161450 INV0491832 Fire Extinguisher - WL Randall $287.23 HCMNTL60K00010246 BS500-OTH INV0492141 Radiator removable dust screens ZW180-7/ZW180PL-7; ATT: DE127384 Randall $510.77 HCMNTL60K00010246 EBOI2408006AA000ATT INV0492141 Config No.- $00004618100 ZW180-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE126451; Randall $178,820.00 HCMNTK60C00010401 EB012408006AA000 INV0497924 Config. No.: ZW180-7-C-SLA-HD3-T1-B eneral Purpose, 3.4 CuYd Bucket w/ BOCE, 416 7 □ Type, ZW180-6. Serial No. 239215 Randall $10,001.60 HCMNTK60C00010401 3831161390 INV0497924 prensa Corgis. 416 Tape. Randall $5,675.20 HCMNTK60C00010401 92F0898.0913 INV0497924 Senal No: 243469 ZW180-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE128017 Randall $178,820.00 HCMNTK60A00010425 EB012408006AA000 INV0497925 Config. No.: ZW180-7-C-SLA-HD3-T1-B Hydraulic Quick Coupler, 416 Type OF 56 Serial No: 243471 Randall $5,675.20 HCMNTK60A00010425 92F0898-0913 INV0497925 ZW180-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE128022 Randall $178,820.00 HCMNTK60H00010430 EB012408006AA000 INV0497927 Config. No.: ZW180-7-C-SLA-HD3-T1-B ZW180-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE128027 Randall $178,820.00 HCMNTK60V00010438 EB012408006AA000 INV0497928 Config. No.: ZW180-7-C-SLA-HD3-T1-B 60" Construction Unlity Fork on 60” Carnage. 416 Type ‘ Serial No: J000168127-3 Randall $6.14080 HCMNTK60V00010438 JRB90K2001-0913 INV0497928 ZW180-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE128028 Randall $178,820.00 HCMNTK60A00010439 EBO012408006AA000 INV0497929 Config. No.: ZW180-7-C-SLA-HD3-T1-B Ges Coupler, 58 Taye Randall $5,675.20 HCMNTK60A00010439 _92F 0898-0913 INV0497929 Senal No.: 243472 Radiator removable dust screens - ZW180-7/ZW180PL-7. ATT: DE127387 Randall $510.77 HCMNTK60C00010401 EBO12408006AAO00ATT INV0506964 onfig No. $00004618100 EXTINGUISHER- WL Randall $287.23 HCMNTK60C00010401 BS500-OTH INV0506964 FIRE EXTINGUISHER- WL Randall $287.23 HCMNTK60H00010430 BS500-OTH INV0506965 IRE EXTINGUISHER- WL Randall $287.23 HCMNTK60V00010438 B500-OTH INV0506966 Radiator removable dust screens ZW180-7/ZW180PL-7; ATT: DE127388 Randall $510.77 HCMNTK60A00010425 EBO12408006AA000ATT INV0510292 Config No. $00004618100 FIRE EXTINGUISHER- WL Randall $287 23 HCMNTK60A00010425 BS500-OTH INV0510292 ZW220-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE131200 Randall $233,433.88 HCMNUD60J00010252 EBO011709010AA000 INV0519433 Config. No.: ZW220-7-C-SLA-HD3-T1-B ZW220-7: General Purpose. 3.7 CuYd Bucket w/ BOCE 418 Type: Serial No: J000165800-3 Randall $10,203.20 HCMNUD60J00010252 90D4125-0578 INV0519433
ZW220-7: Hydrauhe Quick Coupler, 418 Type 7 7 770519433 Coane Randall $7,768.00 | HCMNUD60J00010252 92F 0899-0971 INVOS ZW220-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE131201 Randall $233,433.88 HCMNUD60C00010253 EB011709010AA000 INV0S19436 Config. No.: ZW220-7-C-SLA-HD3-T1-B ZW220-7: General Purpose, 3.7 CuYd Bucket w/ BOCE ari ‘i ‘a 18 Type: Senal No. 30001658004 Randall $10,203.20 HCMNUD60C00010253 90D4125-0578 INV0S19436 ZW220-7: Hydraule Quick Coupler, 418 Type 24 jy is + Sin. AERTOST: Randall $7,768.00 | HCMNUD60C00010253 92F0899-0971 INV0519436 ZW250-6, Cab, SL, Aux ready.; ATT: DE131207 ieee 5 □ Config. No ZW280-6-C SLA-HD6.TI Randall $283,872.52 BANNEM60H85C66289 EB011805006AA000 INV0S1943 ZW250-6, Cab, SL, Aux ready. ATT: DE129898 ames seinen Config. No. ZW280.6.C.SLA-HD.TI Randall $253,872.82 BANNEM60T85C66281 EB011805006AA000 INV0S520715 Purpose, 4.2 CuYd Bucket w/ BOCE. 418 Type ss 43.057 705207 Maiea □□ neice Randall $13,006.40 BANNEM6OTSSC66281 90D4143-0578 INV0S20715 Purpose. 4.2 CuYd Bucket w/ BOCE. 418 Type = 7 73305 isastid decal tea ONIN’ Randall $13,006.40 BANNEM6OH85C66289 90D4143-0578 INV0523395 72” Construction Unhty Fork on 106” Camage, 418 □ 37 mer Type Serial No. 3000167552-1 Randall $11.342.40 BANNEM60H85C66289 QC600CUF10672M INV0523395 72” Construction Unhty Fork on 106" Camage. 418 x 7 Type Senal No. J000167371-4 Randall $11,342.40 | BANNEMGOT8SC66281 QC600CUF10672M INV0S24600 ZW220-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE132473 Randall $233,277.88 | HCMNUD60T00010280 EB011709010AA000 INV0S31959 Config. No.: ZW220-7-C-SLA-HD3-T1-B Hydrauhe Quick Coupler. 418 Type, ZW220-6 MENT Saito: RENTON Randall $7,768.00 | HCMNUD60T00010280 92F0899-0971 INV0531959 FIRE EXTINGUISHER- WL Randall $287.23 += HCMNUD60T00010280 B500-OTH INV0531959 Purpose. 3.7 CuYd Bucket w/ BOCE, 418 TypeZRandall $10.20320 HCMNUD60T00010280 90D4125.0578 INV0531959 emovable dust screens (hood mounted) TT DE131594 Randall —$1.744.29 HCMNUD60T00010280 EBO11709010AAQ00ATT INV0531959 Config. EB01170999ZY000U ZW220-7, Cab, SL, 1 aux, QC circuit, Base ATT: DE132472 Randall $233,277.88 HCMNUD60K00010279 EB011709010AA000 INV0532318 Config. No.: ZW220-7-C-SLA-HD3-T1-B Purpose, 3.7 CuYd Bucket w/ BOCE. 418 Type . 10837 te rman Randall $10,203 □□ HCMNUD60K00010279 90D4125-0578 INV0532318 Hydrauhc Quick Coupler, 418 Type, ZW220-6 as ' 7 10537 Sieeeme elena, Randall $7,768.00 | HCMNUD60K00010279 92F0899.0971 INV0532318 EXTINGUISHER- WL Randall _$28723_ __ HCMNUD60K00010279 _BS00-OTH INV0S41246 See ECF No. 1-1 at 45—46. The Court ORDERS that the Writ of Sequestration shall command a United States Marshal of any district or county in the State of Texas to sequester and hold the above- described property that is found in his or her district or county after Defendants surrender it. If Defendants do not voluntarily deliver the above-described property to the United States Marshal, that Marshal shall be permitted to break open, enter, and search for the above-described property at the disclosed location, or at such other location that Defendants
might possess such property as may be uncovered by Plaintiff or the Marshal with whatever reasonable force is necessary. This Order shall not be effective unless and until Plaintiff executes and files with the clerk a bond, in conformity with the law, in the amount of $2,500,000. See TEX. R. CIV. P. 698. Plaintiff, as the applicant, is also ORDERED to pay the reasonable costs of sequestration, as calculated or recorded by the United States Marshal. The Writ shall include on its face a prominently displayed notice with the following language in ten-point type font: To Amarillo Machinery Company, Defendant: You are hereby notified that certain properties alleged to be claimed by you have been sequestered. If you claim any rights in such property, you are advised: YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT. TEX. R. CIv. P. 700a. AMC, in order to replevy property sequestered pursuant to the Writ, shall file with the officer who levied the Writ a bond, in conformity with the law, in the amount of $2,500,000. See TEX. R. CIV. P. 701. Upon such replevy, Defendant shall abide by the requirements of Teas Rule of Civil Procedure 702 and shall not “waste, ill-treat, injure, destroy, or dispose of the same.” Neither may AMC remove the property out of the county. TEX. R. Civ. P. 702. Having provided a bond conditioned pursuant to Rules 698 and 708 of the Texas Rules of Civil Procedure, Plaintiff shall not be required to post any additional bond for the property in question to replevy the property sequestered if AMC does not replevy within ten days after levy of the [W]rit and service on” AMC. TEX. R. CIv. P. 708.
Plaintiff is further ORDERED to render personal service of this Order and the ensuing Writ of Sequestration on AMC as soon as practicable. SO ORDERED. May /& 2026
MATVHEW J. KACSMARYK UNITED STATES DISTRICT JUDGE