Lipton v. Schmertz

68 F.R.D. 249, 1974 U.S. Dist. LEXIS 6527

• Court: District Court, S.D. New York
• Decided: September 30, 1974
• Docket: Nos. M 18-302, 74 Civ. 4211
• Status: Published

Opinion

Memorandum Opinion

MOTLEY, District Judge.

The Motion of defendant Robert J. Schmertz to Vacate Registration in this District of a judgment of the United States District Court for the Central District of California is granted. The Motion of plaintiffs Harold A. Lipton and Irving H. Levin For Writ of Attachment is denied for the following reasons:

1) An appeal from the judgment of the United States District Court for the Central District of California is presently pending in the United States Court of Appeals for the 9th Circuit. Therefore, no registration of the judgment is permitted here under 28 U.S. C. § 1963.

2) The 9th Circuit has remanded to the District Court for hearing the question whether other sufficient security in lieu of the previously required $3,000,-000 supersedeas bond should not be posted by defendant.

3) Plaintiffs’ remedy is in the 9th Circuit by way of Motion to Dismiss the Appeal as Frivolous. As long as an appeal of substance is pending, § 1963 bars registration of the judgment in a foreign district.

4) Since no registration is possible while an appeal is pending, plaintiffs cannot secure an attachment in this Court on a theory that they have brought an action in this Court for enforcement of that judgment. Such a writ would manifestly defeat the objective of § 1963.

So ordered.