Offen Petroleum LLC v. L&J Express, LLC, et al.

• Court: District Court, D. Arizona
• Decided: October 24, 2025
• Docket: 4:25-cv-00061
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Offen Petroleum LLC, No. CV-25-00061-TUC-JCH (EJM) 10 Plaintiff, 11 v. REPORT AND RECOMMENDATION

12 L&J Express, LLC, et al., 13 Defendants. 14 Currently pending before the Court is Plaintiff’s Application for Writ of Attachment 15 With Notice (Doc. 99). Defendant AJMR Distributors LLC filed its objection (Doc. 102) 16 and Plaintiff replied (Doc. 103). Plaintiff seeks attachment of certain property allegedly 17 owned by Defendant AJMR Distributors LLC pursuant to A.R.S. § 12-1521. (See Doc. 18 99.) Defendant AJMR Distributors LLC contends that it does not own the property in its 19 possession and Plaintiff Offen is not entitled to a writ of attachment. (See Doc. 102.) 20 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter 21 was referred to Magistrate Judge Markovich for Report and Recommendation. On August 22 22, 2025, the Court held a probable validity hearing and heard witness testimony. Minute 23 Entry 8/22/2025 (Doc. 106). Having received the official transcript, the motion is ripe for 24 review. The Magistrate Judge recommends that the District Court deny the Plaintiff’s 25 application (Doc. 99). 26 . . . 27 . . . 28 . . . 1 I. BACKGROUND 2 On February 12, 2025, Plaintiff Offen Petroleum, LLC, filed its Complaint against 3 various Defendants, including Defendant AJMR Distributors, LLC. See Compl. (Doc. 1). 4 Plaintiff identifies itself as a wholesale fuel distributor. Compl. (Doc. 1) at ¶ 30; Hr’g Tr. 5 8/22/2025 (Doc. 113) at 10:12–16. Plaintiff’s Complaint (Doc. 1) contends that during the 6 months of October, November, and December 2024, seventy-four loads of fuel were taken 7 from Offen. See id. at ¶¶ 43–65. On July 9, 2025, Plaintiff filed its Application for Writ 8 of Attachment with Notice (Doc. 99) for fuel being stored by Defendant AJMR in Rio 9 Rico, Arizona. 10 A. Aaron Hackerott 11 Plaintiff’s President and Chief Operating Officer, Aaron Hackerott testified at the 12 probable validity hearing. See Pl.’s Witness List (Doc. 108); see also Hr’g Tr. 8/22/2025 13 (Doc. 113) at 9–52. Mr. Hackerott described his job responsibilities to include ensuring 14 the organization has a vision, has the appropriate people on staff, and generates cash on a 15 daily basis for its shareholders. Hr’g Tr. 8/22/2025 (Doc. 113) at 10:6–11. 16 1. Offen’s Business 17 Mr. Hackerott described Offen as a wholesale fuel distributor, which buys and sells 18 gasoline and diesel, as well as propane, lubricants, and diesel exhaust fluid. Hr’g Tr. 19 8/22/2025 (Doc. 113) at 10:12–22. He identified Offen’s customers to include 20 neighborhood gas stations, big box retailers, and municipalities, as well as other 21 distributors. Id. Mr. Hackerott explained that upon establishing a relationship with a 22 potential fuel customer, that customer will submit a credit application to Offen. Id. at 23 10:23–11:6. Upon credit approval, Offen will begin sending pricing information to the 24 customer, and if the price is acceptable, Offen will sell them fuel. Id. 25 Mr. Hackerott described the two methods that Offen sells fuel to its customers. Id. 26 at 11:7–20. The first method involves transportation or delivery of the fuel with Offen’s 27 truck or third party carrier. Hr’g Tr. 8/22/2025 (Doc. 113) at 11:7–20. The second method 28 involves direct sales to the customer—Offen provides access to its loading number at the 1 fuel terminal, and customers send their own carrier to the terminal to load. Id. Offen will 2 receive a bill of lading from the terminal and invoice the customer for the load. Id. Offen 3 will then draft the customer’s account electronically; Mr. Hackerott estimated that this 4 occurs in eight (8) to ten (10) business days. Id. 5 Mr. Hackerott testified his understanding is the United States-Mexico border 6 remains closed to cross-border fuel trucking. Id. at 31:5–12, 38:5–7. He is unaware of a 7 definitive date when the border will reopen. Hr’g Tr. 8/22/2025 (Doc. 113) at 31:13–16, 8 38:1–4. 9 2. Global Companies 10 Mr. Hackerott testified that of the Defendants named in the Complaint, Global 11 Companies was the only direct customer of Offen. Hr’g Tr. 8/22/2025 (Doc. 113) at 11:25– 12 12:5. Mr. Hackerott further testified that Global Companies contacted Offen and asked if 13 it could supply them fuel in Tucson, Arizona. Id. at 12:18–13:13, 49:14–21. Global 14 expressed an intention to transport the fuel into Mexico. Id. at 37:18–25, 49:14–21. Mr. 15 Hackerott explained Offen and Global Companies buy and sell fuel from one another 16 throughout the United States. Id. at 12:18–13:13. Offen provided its loading number for 17 Marathon Oil or Marathon Petroleum to Global Companies. Id. at 12:18–13:13, 51:11–13. 18 Mr. Hackerott testified that Offen set up a specific group of third-party carriers per Global 19 Companies’ request. Hr’g Tr. 8/22/2025 (Doc. 113) at 12:18–13:13, 51:11–13. These 20 carriers then proceeded to load on Offen’s account. Id. Offen then sent the bills of ladings 21 to Global Companies, who would confirm their loads. Id. at 12:18–13:13. Mr. Hackerott 22 observed that Global Companies would typically take approximately two (2) weeks to 23 follow-up regarding the bills of lading. Id. 24 3. Missing Fuel 25 Mr. Hackerott testified that sometime in November, Offen was sending information 26 to Global Companies, and Global began reporting that the loads were not theirs. Hr’g Tr. 27 8/22/2025 (Doc. 113) at 13:14–23. Mr. Hackerott further testified that by the time Offen 28 stopped what was happening, Global Companies had denied purchasing more than seventy 1 (70) loads. Id. at 13:14–14:6. Mr. Hackerott described these loads as unaccounted for with 2 regard to customer information. Id. 3 Mr. Hackerott testified that he investigated which parties loaded the fuel loads at 4 issue. Id. at 14:16–22. Mr. Hackerott further testified that he spoke with the third-party 5 carriers that had loaded the fuel. Id. at 15:9–11. Mr. Hackerott estimated the value of the 6 approximately seventy (70) loads of fuel at 1.4 million USD. Hr’g Tr. 8/22/2025 (Doc. 7 113) at 18:4–8, 31:17–23. Mr. Hackerott testified that this valuation is based upon a trailer 8 holding approximately 8,000 gallons of fuel, and which he estimated is $20,000.00 per load 9 of fuel.1 Id. at 35:6–17. 10 Mr. Hackerott testified that of the 74 loads which Offen alleges are unaccounted 11 for, one (1) load has since been found. Id. at 25:2–8. Mr. Hackerott estimated the load 12 which was accounted for was valued at approximately $18,000.00. Id. at 25:9–10. Mr. 13 Hackerott further testified his understanding was the carrier EZ Fuel and customer West 14 Plains Propane took responsibility for that load. Id. at 25:11–13. Mr. Hackerott indicated 15 that West Plains Propane ultimately paid for that load. Hr’g Tr. 8/22/2025 (Doc. 113) at 16 25:14–16. Mr. Hackerott reported that Offen has paid its fuel supplier for the remaining 17 loads at issue. Id. at 25:17–22. 18 4. Bills of Lading 19 Mr. Hackerott described the bills of lading (BOLs) included in Plaintiff’s Exhibit 1. 20 Hr’g Tr. 8/22/2025 (Doc. 113) at 19:9:–20:6. Mr. Hackerott testified that BOLs are 21 typically generated at the fuel terminal. Id. Mr. Hackerott explained that a driver would 22 go into the terminal; enter the loading number giving them authorization to load; and once 23 they were finished loading the trailer, a BOL would be printed. Id. The BOL typically has 24 the date and time of the loading; the fuel supplier’s name; the customer name; the loading 25 number; the fuel volume; and sometimes the chemical properties of the product. Id. 26

27 1 Mr. Hackerott did not provide a specific price per gallon for gasoline and/or diesel fuel, 28 but based his estimate on his “general knowledge of gasoline and diesel prices across the United States.” Hr’g Tr. 8/22/2025 (Doc. 113) at 35:6–17. 1 Mr. Hackerott clarified that a BOL such as that found on page 34 of 132 of Exhibit 2 1 represents a bill of lading generated at the terminal and signed by the carrier. Id. at 21:8– 3 23. Whereas, page 33 of 132 depicts an electronic bill of lading generated from a data 4 service. Hr’g Tr. 8/22/2025 (Doc. 113) at 21:20–22:5. Mr. Hackerott described the 5 electronic BOL as a “regenerated bill of lading.” Id. He observed that this occurs when a 6 third-party carrier did not provide Offen the BOL itself from an original format. Id. Mr. 7 Hackerott further testified regarding the information contained within each BOL. Id. at 8 44:1–48:3. 9 Mr. Hackerott explained that Exhibit 2 reflects the outstanding BOL numbers, 10 which correlate with the BOLs that were attached to the Complaint and submitted as part 11 of Exhibit 1. Id. at 23:23–24:10. 12 5. Relationship to Defendant AJMR Distributors 13 Mr. Hackerott denied that AJMR was an Offen customer, and indicated they were 14 not authorized to load fuel with Offen’s loading number. Hr’g Tr. 8/22/2025 (Doc. 113) 15 at 17:22–18:3, 36:15–22. Mr. Hackerott admitted that he does not possess any firsthand 16 knowledge or other concrete evidence that AJMR failed to pay their direct suppliers for 17 any loads that allegedly came from Offen. Id. at 38:21–39:6. Mr. Hackerott acknowledged 18 that his information regarding AJMR allegedly owning fuel in the storage yard came from 19 three (3) individuals that contacted him.2 Id. at 39:8–12. Mr. Hackerott’s only knowledge 20 regarding AJMR allegedly delivering fuel into Mexico came from “conversations [he] had 21 with some of Offen’s customers’ third-party carriers.” Id. at 39:13–17. 22 Mr. Hackerott confirmed that he spoke with Mr. Valencia of AJMR on January 6, 23 2025, and asked for payment. Id. at 39:25–40:7. Mr. Hackerott did not have any firsthand 24 evidence that AJMR owes Offen the $1.4 million sought in this lawsuit. Hr’g Tr. 8/22/2025 25 (Doc. 113) at 40:18–22. Mr. Hackerott confirmed that AJMR does not appear anywhere 26 on the bills of lading contained in Exhibit 1. Id. at 40:23–41:1. Mr. Hackerott 27 28 2 Mr. Hackerott did not identify the individuals during his testimony, but their names were included in his Affidavit attached to Plaintiff’s Application for Writ (Doc. 99). 1 acknowledged that he did not ask any of the carriers or third-party carriers identified by 2 the SCAC on the BOLs whether or not they delivered fuel to third-party recipients other 3 than AJMR. Id. at 41:22–42:3. 4 B. Alvaro J. Valencia 5 Defendant AJMR Distributors’ fuel division owner, Alvaro Valencia, testified at the 6 probable validity hearing. See Def. AJMR Distributor LLC’s Witness List (Doc. 110); see 7 also Hr’g Tr. 8/22/2025 (Doc. 113) at 53–89. Mr. Valencia described AJMR’s business as 8 selling fuel to customers that import their product into Mexico. Id. at 53:12–20. 9 1. AJMR’s Business—Overview 10 Mr. Valencia explained that with regard to this case particularly, AJMR bought fuel, 11 specifically diesel and gasoline, from Judean Group from Texas. Hr’g Tr. 8/22/2025 (Doc. 12 113) at 53:21–54:14. Mr. Valencia further detailed that AJMR ordered a certain number 13 of gallons of either diesel or gasoline from Judaean Group, who then provided codes for 14 loading the fuel at the Kinder Morgan facilities in either Tucson or Phoenix, Arizona. Id. 15 at 53:21–54:14, 57:24–58:5. Sometimes AJMR hires transportation companies, and 16 sometimes the company that is selling to AJMR provides transportation. Id. at 53:21– 17 54:14. Mr. Valencia testified that AJMR’s business ends when the fuel is brought to their 18 yard in Nogales, Arizona. Id. at 53:21–54:14, 55:1–5. At that point, their client comes 19 into the United States and takes the fuel into Mexico. Id. at 53:21–54:14, 55:1–5, 82:19– 20 21. Mr. Valencia further testified that AJMR’s customers in Mexico, such as Gas Azul, 21 are responsible for obtaining permits to bring the fuel into Mexico. Hr’g Tr. 8/22/2025 22 (Doc. 113) at 54:20–23. 23 Mr. Valencia explained the procurement process began with a call to AJMR’s 24 supplier. Id. at 55:13–56:4. AJMR would enquire as to the availability of diesel or gasoline 25 for purchase in the Tucson or Phoenix area. Id. Once AJMR ordered the fuel, the supplier 26 would provide the code for loading the fuel. Id. AJMR’s transportation business partners 27 would go and pick up the fuel and bring it to AJMR’s yard. Id. The fuel would then be set 28 for export. Hr’g Tr. 8/22/2025 (Doc. 113) at 55:13–56:4. Mr. Valencia testified that AJMR 1 hired various carriers, including but not limited to, KWW, L&J, Shannon Transport, 2 DRPT, and Villegas Tanks. Id. at 56:8–57:6. 3 2. Judaean Group 4 AJMR purchased fuel from Judaean Group. Hr’g Tr. 8/22/2025 (Doc. 113) at 5 53:21–54:14, 57:7–11. Judaean Group provided codes to AJMR for loading the fuel at the 6 Kinder Morgan facilities in either Tucson or Phoenix, Arizona. Id. at 53:21–54:14, 57:24– 7 58:5. Mr. Valencia explained that in this case, Judaean Group had different suppliers. Id. 8 at 58:6–18. Mr. Valencia testified that each supplier has X number of gallons on the tanks, 9 which is called an allocation. Id. The Judaean Group representative would instruct AJMR 10 as to how many loads to pick-up, which indicated how much fuel they had on specific 11 codes. Id. 12 Mr. Valencia further testified that AJMR was receiving invoices from Judaean 13 Group for the billed amount. Hr’g Tr. 8/22/2025 (Doc. 113) at 58:19–59:2, 62:7–15. Mr. 14 Valencia also testified that AJMR was billed by Judaean Group almost every business 15 day—Monday through Friday. Id. at 55:6–12. Those invoices requested a specific amount 16 be deposited, and AJMR was paying the invoice on the same day. Id. at 55:6–12, 59:4–6, 17 61:14–62:4, 62:24–63:10. Mr. Valencia testified that of the fifty-three (53) invoices from 18 Judaean Group attached to AJMR’s objection (Doc. 102), all were paid within twenty-four 19 (24) hours of receipt. Id. at 62:16–63:10, 82:22–25, 87:8–20, 88:13–18. Mr. Valencia 20 observed that some of the BOLs received from Judaean Group did not match what they 21 had, so it is unclear what money AJMR could owe to Judaean Group at this time. Id. at 22 87:21–88:12. 23 3. The Supply Chain 24 Mr. Valencia testified that although the Bills of Lading named the supplier at the 25 top left corner, there is nothing to identify who Judaean’s supplier was—Offen was not 26 identified on the BOL from Judaean and Mr. Valencia did not know that Offen was 27 Judaean’s supplier in this case. Hr’g Tr. 8/22/2025 (Doc. 113) at 59:16–60:4, 83:5–10. 28 Mr. Valencia further described Judaean Group as a broker and testified that he did not how 1 many brokers or sellers there were between Judaean Group and Offen. Id. at 60:20–61:13. 2 Mr. Valencia also observed that because Judaean Group was a broker, it could purchase 3 fuel from any number of suppliers. Id. at 64:25–65:6. Mr. Valencia explained that he 4 would have liked to have known who was selling to Judaean, because it would have 5 allowed him to try and cut out the middleman (Judaean Group) and get a better price. Id. 6 Mr. Valencia also testified that AJMR purchased fuel from brokers other than 7 Judaean Group during the relevant time period. Id. at 64:25–65:15, 83:23–84:4. Mr. 8 Valencia testified that at some point, approximately toward the end of November 2024, he 9 was unable to get in contact with the owner of Judaean Group. Hr’g Tr. 8/22/2025 (Doc. 10 113) at 66:16–67:3. Shortly after, Mr. Valencia learned that the Judaean Group owner had 11 been arrested. Id. at 68:6–9. During this time, AJMR continued to make payments to 12 Judaean Group. Id. at 68:10–11. Mr. Valencia was then contacted by Tracy Johnson, the 13 owner of Midnight Sun, the supplier one step up the chain from Judaean Group. Id. at 14 68:10–69:20. Mr. Valencia indicated that someone had given Ms. Johnson his phone 15 number and she called and explained that Midnight Sun was a fuel supplier for Judaean 16 Group, who had not paid her. Id. at 69:21–70:9. 17 Eventually, Mr. Valencia spoke with the Judaean Group owner, who approved of 18 AJMR paying Midnight Sun, the supplier, directly. Hr’g Tr. 8/22/2025 (Doc. 113) at 71:5– 19 16; see Def. AJMR’s Hr’g Exhs. 1–3 (Doc. 109). Mr. Valencia further testified that 20 Midnight Sun then invoiced AJMR and he immediately wire transferred the money to Ms. 21 Johnson. Id. at 71:21–75:3. 22 4. Fuel at Storage Yard 23 Mr. Valencia testified that AJMR rents space at the storage yard in Rio Rico. Hr’g 24 Tr. 8/22/2025 (Doc. 113) at 76:16–19. Mr. Valencia indicated that AJMR has been renting 25 there for approximately one (1) year and occupies approximately five (5) acres of the six 26 (6) to seven (7) acre yard. Id. at 76:20–77:3. Mr. Valencia confirmed that there are storage 27 tanks or trailers of fuel currently on the property. Id. at 77:4–6. Mr. Valencia explained 28 that fuel loads arrive at the storage yard on a daily basis, but clarified this was prior to the 1 border closure in March and confirmed AJMR is not currently receiving fuel there. Id. at 2 77:23–25, 79:21–80:9, 86:10–14. Mr. Valencia further testified that AJMR currently has 3 gasoline and diesel at the storage yard and estimated that there are approximately sixty (60) 4 loads total, but did not know the quantity of each fuel type. Id. at 77:11–22. 5 Mr. Valencia testified that any fuel sitting at the storage yard has already been 6 invoiced to Gas Azul. Hr’g Tr. 8/22/2025 (Doc. 113) at 63:11–25, 79:12–20, 80:25–81:21. 7 Mr. Valencia reiterated that once he purchases fuel and transports it to his yard, the buyer 8 is responsible for picking it up. Id. at 63:11–25, 77:7–10. Mr. Valencia estimated that 9 there were approximately fifty (50) trailers at the storage yard owned by Gas Azul. Id. at 10 78:1–7. Mr. Valencia reported that AJMR owns five (5) storage tanks in the storage yard. 11 Id. at 78:8–14. Mr. Valencia further explained that when AJMR purchases fuel which goes 12 to the storage yard, it will go to Mexico in either the same tank that it arrived in or will be 13 transferred to a different tank. Id. at 78:15–23. The fuel currently stored by AJMR is there 14 due to the border shutdown into Mexico. Hr’g Tr. 8/22/2025 (Doc. 113) at 63:11–25, 15 78:24–79:3. Mr. Valencia further testified that the fuel currently stored at the yard was 16 purchased from Brad Hall and is waiting for pick up by Gas Azul. Id. at 64:1–7, 15–24. 17 Mr. Valencia also testified regarding the devastating effect that a fuel seizure would 18 have on his business. Id. at 75:4–20. This effect would only be compounded by the length 19 of the litigation. Id. at 75:21–76:2. 20 21 II. ANALYSIS 22 Plaintiff Offen Petroleum, LLC seeks a writ of attachment pursuant to A.R.S. § 12- 23 1521(2) on “all of the fuel owned by AJMR and located at 799 E Frontage Road, Rio Rico, 24 Arizona 85648.” Pl.’s Appl. for Writ of Attachment With Notice (Doc. 99) at 3. 25 A. Legal Standards 26 Section 12-1521, Arizona Revised Statutes, provides: 27 A plaintiff, after complying with the provisions of chapter 14 of this title,[] may in the following cases have the property of the defendant attached as 28 security for satisfaction of any judgment which may be recovered, unless the 1 defendant gives security to pay such judgment. 2 1. In an action upon contract, express or implied, for payment of money which is not fully secured by real or personal property, or, if originally 3 so secured, the value of such security has without any act of the 4 plaintiff or the person to whom the security was given, substantially diminished below the balance owed. 5 2. When an action is pending for damages and the defendant is about to 6 dispose or remove his property beyond the jurisdiction of the court in 7 which the action is pending. 3. In an action for damages or upon contract, express or implied, against 8 a defendant not residing in this state or a foreign corporation doing 9 business in this state. 10 4. In an action upon a judgment of any state. 11 A.R.S. § 12-1521. The procedures for provisional remedies referenced in Section 12-1521 12 are codified at A.R.S. § 12-2401 et seq. Section 12-2410(C) directs, in relevant part, that 13 “[a]ny hearing on an application for any provisional remedy shall be limited to . . . [t]he 14 probable validity of the applicant’s claim or claims and any defenses and claims of personal 15 property exemptions of the party against whom such provisional remedy will operate.” 16 A.R.S. § 12-2410(C). “If after hearing the court finds probable cause to believe the claim 17 of the applicant is valid and that the statutory requirements for any provisional remedy 18 have been met, such remedy shall be issued forthwith.” A.R.S. § 12-2410(D). 19 “Section 12-1522 requires that a writ of attachment be supported by an affidavit that 20 ‘show[s] any one or more of the requirements for a writ of attachment as set forth in section 21 12-1521.’” Yauck v. West Town Bank & Trust, 568 P.3d 386, 393 (Ariz. Ct. App. 2025). 22 “Because conclusory affidavits are without evidentiary value, the factual showing required 23 by § 12-1522 cannot be made by an affidavit consisting of conclusory assertions by an 24 affiant who fails to establish personal knowledge of the matters set forth therein.” Id. 25 (citations omitted). 26 B. Plaintiff’s Affidavit is Insufficient 27 As noted in the previous section, an affidavit supporting an application for writ of 28 attachment must be based upon “personal knowledge of the matters set forth therein.” 1 Yauck v. West Town Bank & Trust, 568 P.3d 386, 393 (Ariz. Ct. App. 2025). 2 Here, Mr. Hackerott’s affidavit indicated that he spoke with unnamed individuals at 3 various companies “to determine who ultimately received them.” Pl.’s Appl. for Writ 4 (Doc. 99), Hackerott Aff. (Exh. “1”) at ¶ 4. Mr. Hackerott then spoke with Aaron Fox from 5 Shannon Transport, LLC; Mark Luitwieler from Total Energy Solutions; and Andy Sauffer 6 from West Plains Propane. Id. at ¶¶ 9–11. Mr. Hackerott relied on information from these 7 individuals regarding fuel being stored at AJMR. Id. Rule 602, Federal Rules of Evidence, 8 requires a witness to have personal knowledge of the matter regarding which he is 9 testifying. Fed. R. Evid. 602. Although Rules 801 and 805, Federal Rules of Evidence, 10 apply to hearsay statements a witness testifies about, Rule 602 does “prevent him from 11 testifying to the subject matter of the hearsay statement, as he has no personal knowledge 12 of it.” Fed. R. Evid. 602 advisory committee’s note to 1972 amendment. Moreover, the 13 Offen employees sent to investigate AJMR’s fuel storage site did not provide any 14 information regarding what fuel, if any, was actually present. See Pl.’s Appl. for Writ 15 (Doc. 99), Exh. “1” at ¶ 15 (“The investigation performed by said employees concluded 16 that a number of commercial trailers and tanks (which presumably are still loaded with 17 fuel) are still being held[.]”). 18 Plaintiff had an opportunity to have any individuals with personal knowledge testify 19 at the probable validity hearing. Mr. Hackerott was their sole witness and his information 20 remained second or third-hand. An affidavit that does not give cause to believe that the 21 declarant has any knowledge of the property owned by defendant lacks evidentiary value. 22 Yauck, 568 P.3d at 393. As such, the Court finds that Plaintiff’s Application “fail[ed] to 23 meet basic statutory requirements necessary to secure the [requested] prejudgment 24 remedies[.]” Id. 25 C. AJMR Does Not Own the Fuel In Its Storage Yard 26 Mr. Valencia testified that any fuel sitting at the storage yard has already been 27 invoiced to Gas Azul. Hr’g Tr. 8/22/2025 (Doc. 113) at 63:11–25, 79:12–20, 80:25–81:21. 28 He was unequivocal that any fuel at the storage yard was owned by Gas Azul. See id. 1 “In construing a statute, we begin with the plain words of the statute, employing the 2 familiar canons of statutory construction.” In re Saldana, 122 F.4th 333, 341 (9th Cir. 3 2024) (quotations and citations omitted); see also American Tobacco Co. v. Patterson, 456 4 U.S. 63, 68 (1982). “If the plain language is clear, our inquiry is complete.” In re Saldana, 5 122 F.4th at 341 (citations omitted); American Tobacco Co., 456 U.S. at 68 (recognizing 6 “the legislative purpose is expressed by the ordinary meaning of the words used.”). Section 7 12-1521(2) provides for a writ of attachment “[w]hen an action is pending for damages and 8 the defendant is about to dispose or remove his property beyond the jurisdiction of the 9 court in which the action is pending.” A.R.S. § 12-1521(2) (emphasis added). The 10 possessive “his” indicates the property relates to defendant. See His, Merriam- 11 Webster.com, https://www.merriam-webster.com/dictionary/his (last visited Oct. 22, 12 2025). 13 Here, the fuel in question is not owned by Defendant AJMR.3 Therefore, it is not 14 “his property” as required by the attachment statute. As such, probable cause does not exist 15 to believe that the statutory requirements have been met for a writ of attachment.4 See 16 A.R.S. § 12-2410(D). 17 D. Writ of Garnishment 18 Plaintiff asserts “[l]ike attachment, garnishment of non-exempt monies is a 19 permitted provisional remedy under A.R.S. §§ 12-2401 et seq. and 12-1570 et seq. and may 20 be appropriate here if the Court finds that AJMR does not hold an ownership interest in the 21 fuel located at its storage yard in Rio Rico, Arizona.” Pl.’s Reply (Doc. 103) at 6. Plaintiff 22 further requests that “the Court permit Offen to garnish WaFd Bank, the financial 23 institution from which AJMR allegedly sent payments to Defendants Judaean Group and 24

25 3 At oral argument Plaintiff seemed to imply that the Court should do more than rely on 26 Mr. Valencia’s testimony to determine whether or not Defendant AJMR owns the property. Hr’g Tr. 109:2–7. Plaintiff bears the burden to demonstrate that it is entitled to a writ of attachment. 27 The Court declines the invitation to take on that burden. 28 4 Plaintiff’s counsel acknowledged this outcome in requesting prejudgment garnishment in the alternative. Hr’g Tr. 8/22/2025 (Doc. 113) 94:2–9; see also Pl.’s Reply (Doc. 103) at 6. 1 Midnight Sun . . . and that is likely holding the amounts AJMR received for the fuel it sold 2 to the third party in Mexico.” Id. at 6–7. 3 As an initial matter, “district court[s] need not consider arguments raised for the first 4 time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Plaintiff avers 5 that garnishment was not raised initially, because it did not know that AJMR “allegedly 6 did not own this fuel at the storage yard it leases.” Hr’g Tr. 8/22/2025 (Doc. 113) at 106:4– 7 12. This lack of awareness underscores the insufficiency of the affidavit submitted with 8 its Application. 9 Plaintiff relies on Rule 64, Federal Rules of Civil Procedure, for its right to seek 10 garnishment. Rule 64 provides, in relevant part: 11 At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing 12 a person or property to secure satisfaction of the potential judgment. But a 13 federal statute governs to the extent it applies. 14 Fed. R. Civ. P. 64(a). In reply, Plaintiff cited to A.R.S. § 12-1570 et seq. as the garnishment 15 statute. Pl.’s Reply (Doc. 103) at 6. Section 12-1570.01, Arizona Revised Statutes, 16 governs the Scope of Article regarding garnishment. Section 12-1570.01 states that “[t]he 17 provisions of this article are applicable to garnishments of any of the following” and 18 includes a list of situations, all of which refer to “a judgment debtor.” A.R.S. § 12- 19 1570.01(A). The plain language of the statute indicates that being a judgment debtor is a 20 prerequisite to garnishment. Plaintiff, however, has failed to explain in what circumstance 21 Defendant AJMR could be considered a judgment debtor or how it is otherwise entitled to 22 garnishment under the statute. Accordingly, the Court denies Plaintiff’s request for 23 garnishment. 24 25 III. CONCLUSION 26 Based on the foregoing, the Court finds that Plaintiff has not met its burden to 27 establish entitlement to a writ of attachment. The Court further finds there is no probable 28 cause to believe “the statutory requirements for any provisional remedy has been met[,]” including any right to garnishment. A.R.S. § 12-2410(D). 2 IV. RECOMMENDATION 4 For the reasons delineated above, the Magistrate Judge RECOMMENDS that the 5 || District Judge enter an order DENYING Plaintiff's Application for Writ of Attachment 6|| With Notice (Doc. 99). 7 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, 8 || any party may serve and file written objections within fourteen (14) days after being served 9|| with a copy of this Report and Recommendation. A party may respond to another party’s 10 || objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 11 || 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If 12 || objections are filed, the parties should use the following case number: CV-25-00061- 13} TUC-JCH. 14 Failure to file timely objections to any factual or legal determination of the 15 || Magistrate Judge may result in waiver of the right of review. 16 17 Dated this 23rd day of October, 2025.

0 Eric J. Matkovich United States Magistrate Judge 21 22 23 24 25 26 27 28

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