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

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Offen Petroleum LLC,
Plaintiff,
v.
L&J Express, LLC, et al.,
Defendants.
No. CV-25-00061-TUC-JCH (EJM)
REPORT AND RECOMMENDATION
Currently pending before the Court is Plaintiff’s Application for Writ of Attachment
With Notice (Doc. 99). Defendant AJMR Distributors LLC filed its objection (Doc. 102)
and Plaintiff replied (Doc. 103). Plaintiff seeks attachment of certain property allegedly
owned by Defendant AJMR Distributors LLC pursuant to A.R.S. § 12-1521. (See Doc.
99.) Defendant AJMR Distributors LLC contends that it does not own the property in its
possession and Plaintiff Offen is not entitled to a writ of attachment. (See Doc. 102.)
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter
was referred to Magistrate Judge Markovich for Report and Recommendation. On August
22, 2025, the Court held a probable validity hearing and heard witness testimony. Minute
Entry 8/22/2025 (Doc. 106). Having received the official transcript, the motion is ripe for
review. The Magistrate Judge recommends that the District Court deny the Plaintiff’s
application (Doc. 99).
. . .
. . .
. . .
Case 4:25-cv-00061-JCH Document 116 Filed 10/24/25 Page 1 of 14

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I. BACKGROUND
On February 12, 2025, Plaintiff Offen Petroleum, LLC, filed its Complaint against
various Defendants, including Defendant AJMR Distributors, LLC. See Compl. (Doc. 1).
Plaintiff identifies itself as a wholesale fuel distributor. Compl. (Doc. 1) at ¶ 30; Hr’g Tr.
8/22/2025 (Doc. 113) at 10:12–16. Plaintiff’s Complaint (Doc. 1) contends that during the
months of October, November, and December 2024, seventy-four loads of fuel were taken
from Offen. See id. at ¶¶ 43–65. On July 9, 2025, Plaintiff filed its Application for Writ
of Attachment with Notice (Doc. 99) for fuel being stored by Defendant AJMR in Rio
Rico, Arizona.
A. Aaron Hackerott
Plaintiff’s President and Chief Operating Officer, Aaron Hackerott testified at the
probable validity hearing. See Pl.’s Witness List (Doc. 108); see also Hr’g Tr. 8/22/2025
(Doc. 113) at 9–52. Mr. Hackerott described his job responsibilities to include ensuring
the organization has a vision, has the appropriate people on staff, and generates cash on a
daily basis for its shareholders. Hr’g Tr. 8/22/2025 (Doc. 113) at 10:6–11.
1. Offen’s Business
Mr. Hackerott described Offen as a wholesale fuel distributor, which buys and sells
gasoline and diesel, as well as propane, lubricants, and diesel exhaust fluid. Hr’g Tr.
8/22/2025 (Doc. 113) at 10:12–22. He identified Offen’s customers to include
neighborhood gas stations, big box retailers, and municipalities, as well as other
distributors. Id. Mr. Hackerott explained that upon establishing a relationship with a
potential fuel customer, that customer will submit a credit application to Offen. Id. at
10:23–11:6. Upon credit approval, Offen will begin sending pricing information to the
customer, and if the price is acceptable, Offen will sell them fuel. Id.
Mr. Hackerott described the two methods that Offen sells fuel to its customers. Id.
at 11:7–20. The first method involves transportation or delivery of the fuel with Offen’s
truck or third party carrier. Hr’g Tr. 8/22/2025 (Doc. 113) at 11:7–20. The second method
involves direct sales to the customer—Offen provides access to its loading number at the
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fuel terminal, and customers send their own carrier to the terminal to load. Id. Offen will
receive a bill of lading from the terminal and invoice the customer for the load. Id. Offen
will then draft the customer’s account electronically; Mr. Hackerott estimated that this
occurs in eight (8) to ten (10) business days. Id.
Mr. Hackerott testified his understanding is the United States-Mexico border
remains closed to cross-border fuel trucking. Id. at 31:5–12, 38:5–7. He is unaware of a
definitive date when the border will reopen. Hr’g Tr. 8/22/2025 (Doc. 113) at 31:13–16,
38:1–4.
2. Global Companies
Mr. Hackerott testified that of the Defendants named in the Complaint, Global
Companies was the only direct customer of Offen. Hr’g Tr. 8/22/2025 (Doc. 113) at 11:25–
12:5. Mr. Hackerott further testified that Global Companies contacted Offen and asked if
it could supply them fuel in Tucson, Arizona. Id. at 12:18–13:13, 49:14–21. Global
expressed an intention to transport the fuel into Mexico. Id. at 37:18–25, 49:14–21. Mr.
Hackerott explained Offen and Global Companies buy and sell fuel from one another
throughout the United States. Id. at 12:18–13:13. Offen provided its loading number for
Marathon Oil or Marathon Petroleum to Global Companies. Id. at 12:18–13:13, 51:11–13.
Mr. Hackerott testified that Offen set up a specific group of third-party carriers per Global
Companies’ request. Hr’g Tr. 8/22/2025 (Doc. 113) at 12:18–13:13, 51:11–13. These
carriers then proceeded to load on Offen’s account. Id. Offen then sent the bills of ladings
to Global Companies, who would confirm their loads. Id. at 12:18–13:13. Mr. Hackerott
observed that Global Companies would typically take approximately two (2) weeks to
follow-up regarding the bills of lading. Id.
3. Missing Fuel
Mr. Hackerott testified that sometime in November, Offen was sending information
to Global Companies, and Global began reporting that the loads were not theirs. Hr’g Tr.
8/22/2025 (Doc. 113) at 13:14–23. Mr. Hackerott further testified that by the time Offen
stopped what was happening, Global Companies had denied purchasing more than seventy
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(70) loads. Id. at 13:14–14:6. Mr. Hackerott described these loads as unaccounted for with
regard to customer information. Id.
Mr. Hackerott testified that he investigated which parties loaded the fuel loads at
issue. Id. at 14:16–22. Mr. Hackerott further testified that he spoke with the third-party
carriers that had loaded the fuel. Id. at 15:9–11. Mr. Hackerott estimated the value of the
approximately seventy (70) loads of fuel at 1.4 million USD. Hr’g Tr. 8/22/2025 (Doc.
113) at 18:4–8, 31:17–23. Mr. Hackerott testified that this valuation is based upon a trailer
holding approximately 8,000 gallons of fuel, and which he estimated is $20,000.00 per load
of fuel.1 Id. at 35:6–17.
Mr. Hackerott testified that of the 74 loads which Offen alleges are unaccounted
for, one (1) load has since been found. Id. at 25:2–8. Mr. Hackerott estimated the load
which was accounted for was valued at approximately $18,000.00. Id. at 25:9–10. Mr.
Hackerott further testified his understanding was the carrier EZ Fuel and customer West
Plains Propane took responsibility for that load. Id. at 25:11–13. Mr. Hackerott indicated
that West Plains Propane ultimately paid for that load. Hr’g Tr. 8/22/2025 (Doc. 113) at
25:14–16. Mr. Hackerott reported that Offen has paid its fuel supplier for the remaining
loads at issue. Id. at 25:17–22.
4. Bills of Lading
Mr. Hackerott described the bills of lading (BOLs) included in Plaintiff’s Exhibit 1.
Hr’g Tr. 8/22/2025 (Doc. 113) at 19:9:–20:6. Mr. Hackerott testified that BOLs are
typically generated at the fuel terminal. Id. Mr. Hackerott explained that a driver would
go into the terminal; enter the loading number giving them authorization to load; and once
they were finished loading the trailer, a BOL would be printed. Id. The BOL typically has
the date and time of the loading; the fuel supplier’s name; the customer name; the loading
number; the fuel volume; and sometimes the chemical properties of the product. Id.
1 Mr. Hackerott did not provide a specific price per gallon for gasoline and/or diesel fuel,
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.
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Mr. Hackerott clarified that a BOL such as that found on page 34 of 132 of Exhibit
1 represents a bill of lading generated at the terminal and signed by the carrier. Id. at 21:8–
23. Whereas, page 33 of 132 depicts an electronic bill of lading generated from a data
service. Hr’g Tr. 8/22/2025 (Doc. 113) at 21:20–22:5. Mr. Hackerott described the
electronic BOL as a “regenerated bill of lading.” Id. He observed that this occurs when a
third-party carrier did not provide Offen the BOL itself from an original format. Id. Mr.
Hackerott further testified regarding the information contained within each BOL. Id. at
44:1–48:3.
Mr. Hackerott explained that Exhibit 2 reflects the outstanding BOL numbers,
which correlate with the BOLs that were attached to the Complaint and submitted as part
of Exhibit 1. Id. at 23:23–24:10.
5. Relationship to Defendant AJMR Distributors
Mr. Hackerott denied that AJMR was an Offen customer, and indicated they were
not authorized to load fuel with Offen’s loading number. Hr’g Tr. 8/22/2025 (Doc. 113)
at 17:22–18:3, 36:15–22. Mr. Hackerott admitted that he does not possess any firsthand
knowledge or other concrete evidence that AJMR failed to pay their direct suppliers for
any loads that allegedly came from Offen. Id. at 38:21–39:6. Mr. Hackerott acknowledged
that his information regarding AJMR allegedly owning fuel in the storage yard came from
three (3) individuals that contacted him.2 Id. at 39:8–12. Mr. Hackerott’s only knowledge
regarding AJMR allegedly delivering fuel into Mexico came from “conversations [he] had
with some of Offen’s customers’ third-party carriers.” Id. at 39:13–17.
Mr. Hackerott confirmed that he spoke with Mr. Valencia of AJMR on January 6,
2025, and asked for payment. Id. at 39:25–40:7. Mr. Hackerott did not have any firsthand
evidence that AJMR owes Offen the $1.4 million sought in this lawsuit. Hr’g Tr. 8/22/2025
(Doc. 113) at 40:18–22. Mr. Hackerott confirmed that AJMR does not appear anywhere
on the bills of lading contained in Exhibit 1. Id. at 40:23–41:1. Mr. Hackerott
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).
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acknowledged that he did not ask any of the carriers or third-party carriers identified by
the SCAC on the BOLs whether or not they delivered fuel to third-party recipients other
than AJMR. Id. at 41:22–42:3.
B. Alvaro J. Valencia
Defendant AJMR Distributors’ fuel division owner, Alvaro Valencia, testified at the
probable validity hearing. See Def. AJMR Distributor LLC’s Witness List (Doc. 110); see
also Hr’g Tr. 8/22/2025 (Doc. 113) at 53–89. Mr. Valencia described AJMR’s business as
selling fuel to customers that import their product into Mexico. Id. at 53:12–20.
1. AJMR’s Business—Overview
Mr. Valencia explained that with regard to this case particularly, AJMR bought fuel,
specifically diesel and gasoline, from Judean Group from Texas. Hr’g Tr. 8/22/2025 (Doc.
113) at 53:21–54:14. Mr. Valencia further detailed that AJMR ordered a certain number
of gallons of either diesel or gasoline from Judaean Group, who then provided codes for
loading the fuel at the Kinder Morgan facilities in either Tucson or Phoenix, Arizona. Id.
at 53:21–54:14, 57:24–58:5. Sometimes AJMR hires transportation companies, and
sometimes the company that is selling to AJMR provides transportation. Id. at 53:21–
54:14. Mr. Valencia testified that AJMR’s business ends when the fuel is brought to their
yard in Nogales, Arizona. Id. at 53:21–54:14, 55:1–5. At that point, their client comes
into the United States and takes the fuel into Mexico. Id. at 53:21–54:14, 55:1–5, 82:19–
21. Mr. Valencia further testified that AJMR’s customers in Mexico, such as Gas Azul,
are responsible for obtaining permits to bring the fuel into Mexico. Hr’g Tr. 8/22/2025
(Doc. 113) at 54:20–23.
Mr. Valencia explained the procurement process began with a call to AJMR’s
supplier. Id. at 55:13–56:4. AJMR would enquire as to the availability of diesel or gasoline
for purchase in the Tucson or Phoenix area. Id. Once AJMR ordered the fuel, the supplier
would provide the code for loading the fuel. Id. AJMR’s transportation business partners
would go and pick up the fuel and bring it to AJMR’s yard. Id. The fuel would then be set
for export. Hr’g Tr. 8/22/2025 (Doc. 113) at 55:13–56:4. Mr. Valencia testified that AJMR
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hired various carriers, including but not limited to, KWW, L&J, Shannon Transport,
DRPT, and Villegas Tanks. Id. at 56:8–57:6.
2. Judaean Group
AJMR purchased fuel from Judaean Group. Hr’g Tr. 8/22/2025 (Doc. 113) at
53:21–54:14, 57:7–11. Judaean Group provided codes to AJMR for loading the fuel at the
Kinder Morgan facilities in either Tucson or Phoenix, Arizona. Id. at 53:21–54:14, 57:24–
58:5. Mr. Valencia explained that in this case, Judaean Group had different suppliers. Id.
at 58:6–18. Mr. Valencia testified that each supplier has X number of gallons on the tanks,
which is called an allocation. Id. The Judaean Group representative would instruct AJMR
as to how many loads to pick-up, which indicated how much fuel they had on specific
codes. Id.
Mr. Valencia further testified that AJMR was receiving invoices from Judaean
Group for the billed amount. Hr’g Tr. 8/22/2025 (Doc. 113) at 58:19–59:2, 62:7–15. Mr.
Valencia also testified that AJMR was billed by Judaean Group almost every business
day—Monday through Friday. Id. at 55:6–12. Those invoices requested a specific amount
be deposited, and AJMR was paying the invoice on the same day. Id. at 55:6–12, 59:4–6,
61:14–62:4, 62:24–63:10. Mr. Valencia testified that of the fifty-three (53) invoices from
Judaean Group attached to AJMR’s objection (Doc. 102), all were paid within twenty-four
(24) hours of receipt. Id. at 62:16–63:10, 82:22–25, 87:8–20, 88:13–18. Mr. Valencia
observed that some of the BOLs received from Judaean Group did not match what they
had, so it is unclear what money AJMR could owe to Judaean Group at this time. Id. at
87:21–88:12.
3. The Supply Chain
Mr. Valencia testified that although the Bills of Lading named the supplier at the
top left corner, there is nothing to identify who Judaean’s supplier was—Offen was not
identified on the BOL from Judaean and Mr. Valencia did not know that Offen was
Judaean’s supplier in this case. Hr’g Tr. 8/22/2025 (Doc. 113) at 59:16–60:4, 83:5–10.
Mr. Valencia further described Judaean Group as a broker and testified that he did not how
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many brokers or sellers there were between Judaean Group and Offen. Id. at 60:20–61:13.
Mr. Valencia also observed that because Judaean Group was a broker, it could purchase
fuel from any number of suppliers. Id. at 64:25–65:6. Mr. Valencia explained that he
would have liked to have known who was selling to Judaean, because it would have
allowed him to try and cut out the middleman (Judaean Group) and get a better price. Id.
Mr. Valencia also testified that AJMR purchased fuel from brokers other than
Judaean Group during the relevant time period. Id. at 64:25–65:15, 83:23–84:4. Mr.
Valencia testified that at some point, approximately toward the end of November 2024, he
was unable to get in contact with the owner of Judaean Group. Hr’g Tr. 8/22/2025 (Doc.
113) at 66:16–67:3. Shortly after, Mr. Valencia learned that the Judaean Group owner had
been arrested. Id. at 68:6–9. During this time, AJMR continued to make payments to
Judaean Group. Id. at 68:10–11. Mr. Valencia was then contacted by Tracy Johnson, the
owner of Midnight Sun, the supplier one step up the chain from Judaean Group. Id. at
68:10–69:20. Mr. Valencia indicated that someone had given Ms. Johnson his phone
number and she called and explained that Midnight Sun was a fuel supplier for Judaean
Group, who had not paid her. Id. at 69:21–70:9.
Eventually, Mr. Valencia spoke with the Judaean Group owner, who approved of
AJMR paying Midnight Sun, the supplier, directly. Hr’g Tr. 8/22/2025 (Doc. 113) at 71:5–
16; see Def. AJMR’s Hr’g Exhs. 1–3 (Doc. 109). Mr. Valencia further testified that
Midnight Sun then invoiced AJMR and he immediately wire transferred the money to Ms.
Johnson. Id. at 71:21–75:3.
4. Fuel at Storage Yard
Mr. Valencia testified that AJMR rents space at the storage yard in Rio Rico. Hr’g
Tr. 8/22/2025 (Doc. 113) at 76:16–19. Mr. Valencia indicated that AJMR has been renting
there for approximately one (1) year and occupies approximately five (5) acres of the six
(6) to seven (7) acre yard. Id. at 76:20–77:3. Mr. Valencia confirmed that there are storage
tanks or trailers of fuel currently on the property. Id. at 77:4–6. Mr. Valencia explained
that fuel loads arrive at the storage yard on a daily basis, but clarified this was prior to the
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border closure in March and confirmed AJMR is not currently receiving fuel there. Id. at
77:23–25, 79:21–80:9, 86:10–14. Mr. Valencia further testified that AJMR currently has
gasoline and diesel at the storage yard and estimated that there are approximately sixty (60)
loads total, but did not know the quantity of each fuel type. Id. at 77:11–22.
Mr. Valencia testified that any fuel sitting at the storage yard has already been
invoiced to Gas Azul. Hr’g Tr. 8/22/2025 (Doc. 113) at 63:11–25, 79:12–20, 80:25–81:21.
Mr. Valencia reiterated that once he purchases fuel and transports it to his yard, the buyer
is responsible for picking it up. Id. at 63:11–25, 77:7–10. Mr. Valencia estimated that
there were approximately fifty (50) trailers at the storage yard owned by Gas Azul. Id. at
78:1–7. Mr. Valencia reported that AJMR owns five (5) storage tanks in the storage yard.
Id. at 78:8–14. Mr. Valencia further explained that when AJMR purchases fuel which goes
to the storage yard, it will go to Mexico in either the same tank that it arrived in or will be
transferred to a different tank. Id. at 78:15–23. The fuel currently stored by AJMR is there
due to the border shutdown into Mexico. Hr’g Tr. 8/22/2025 (Doc. 113) at 63:11–25,
78:24–79:3. Mr. Valencia further testified that the fuel currently stored at the yard was
purchased from Brad Hall and is waiting for pick up by Gas Azul. Id. at 64:1–7, 15–24.
Mr. Valencia also testified regarding the devastating effect that a fuel seizure would
have on his business. Id. at 75:4–20. This effect would only be compounded by the length
of the litigation. Id. at 75:21–76:2.
II. ANALYSIS
Plaintiff Offen Petroleum, LLC seeks a writ of attachment pursuant to A.R.S. § 12-
1521(2) on “all of the fuel owned by AJMR and located at 799 E Frontage Road, Rio Rico,
Arizona 85648.” Pl.’s Appl. for Writ of Attachment With Notice (Doc. 99) at 3.
A. Legal Standards
Section 12-1521, Arizona Revised Statutes, provides:
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
security for satisfaction of any judgment which may be recovered, unless the
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defendant gives security to pay such judgment.
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
so secured, the value of such security has without any act of the
plaintiff or the person to whom the security was given, substantially
diminished below the balance owed.
2. When an action is pending for damages and the defendant is about to
dispose or remove his property beyond the jurisdiction of the court in
which the action is pending.
3. In an action for damages or upon contract, express or implied, against
a defendant not residing in this state or a foreign corporation doing
business in this state.
4. In an action upon a judgment of any state.
A.R.S. § 12-1521. The procedures for provisional remedies referenced in Section 12-1521
are codified at A.R.S. § 12-2401 et seq. Section 12-2410(C) directs, in relevant part, that
“[a]ny hearing on an application for any provisional remedy shall be limited to . . . [t]he
probable validity of the applicant’s claim or claims and any defenses and claims of personal
property exemptions of the party against whom such provisional remedy will operate.”
A.R.S. § 12-2410(C). “If after hearing the court finds probable cause to believe the claim
of the applicant is valid and that the statutory requirements for any provisional remedy
have been met, such remedy shall be issued forthwith.” A.R.S. § 12-2410(D).
“Section 12-1522 requires that a writ of attachment be supported by an affidavit that
‘show[s] any one or more of the requirements for a writ of attachment as set forth in section
12-1521.’” Yauck v. West Town Bank & Trust, 568 P.3d 386, 393 (Ariz. Ct. App. 2025).
“Because conclusory affidavits are without evidentiary value, the factual showing required
by § 12-1522 cannot be made by an affidavit consisting of conclusory assertions by an
affiant who fails to establish personal knowledge of the matters set forth therein.” Id.
(citations omitted).
B. Plaintiff’s Affidavit is Insufficient
As noted in the previous section, an affidavit supporting an application for writ of
attachment must be based upon “personal knowledge of the matters set forth therein.”
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Yauck v. West Town Bank & Trust, 568 P.3d 386, 393 (Ariz. Ct. App. 2025).
Here, Mr. Hackerott’s affidavit indicated that he spoke with unnamed individuals at
various companies “to determine who ultimately received them.” Pl.’s Appl. for Writ
(Doc. 99), Hackerott Aff. (Exh. “1”) at ¶ 4. Mr. Hackerott then spoke with Aaron Fox from
Shannon Transport, LLC; Mark Luitwieler from Total Energy Solutions; and Andy Sauffer
from West Plains Propane. Id. at ¶¶ 9–11. Mr. Hackerott relied on information from these
individuals regarding fuel being stored at AJMR. Id. Rule 602, Federal Rules of Evidence,
requires a witness to have personal knowledge of the matter regarding which he is
testifying. Fed. R. Evid. 602. Although Rules 801 and 805, Federal Rules of Evidence,
apply to hearsay statements a witness testifies about, Rule 602 does “prevent him from
testifying to the subject matter of the hearsay statement, as he has no personal knowledge
of it.” Fed. R. Evid. 602 advisory committee’s note to 1972 amendment. Moreover, the
Offen employees sent to investigate AJMR’s fuel storage site did not provide any
information regarding what fuel, if any, was actually present. See Pl.’s Appl. for Writ
(Doc. 99), Exh. “1” at ¶ 15 (“The investigation performed by said employees concluded
that a number of commercial trailers and tanks (which presumably are still loaded with
fuel) are still being held[.]”).
Plaintiff had an opportunity to have any individuals with personal knowledge testify
at the probable validity hearing. Mr. Hackerott was their sole witness and his information
remained second or third-hand. An affidavit that does not give cause to believe that the
declarant has any knowledge of the property owned by defendant lacks evidentiary value.
Yauck, 568 P.3d at 393. As such, the Court finds that Plaintiff’s Application “fail[ed] to
meet basic statutory requirements necessary to secure the [requested] prejudgment
remedies[.]” Id.
C. AJMR Does Not Own the Fuel In Its Storage Yard
Mr. Valencia testified that any fuel sitting at the storage yard has already been
invoiced to Gas Azul. Hr’g Tr. 8/22/2025 (Doc. 113) at 63:11–25, 79:12–20, 80:25–81:21.
He was unequivocal that any fuel at the storage yard was owned by Gas Azul. See id.
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“In construing a statute, we begin with the plain words of the statute, employing the
familiar canons of statutory construction.” In re Saldana, 122 F.4th 333, 341 (9th Cir.
2024) (quotations and citations omitted); see also American Tobacco Co. v. Patterson, 456
U.S. 63, 68 (1982). “If the plain language is clear, our inquiry is complete.” In re Saldana,
122 F.4th at 341 (citations omitted); American Tobacco Co., 456 U.S. at 68 (recognizing
“the legislative purpose is expressed by the ordinary meaning of the words used.”). Section
12-1521(2) provides for a writ of attachment “[w]hen an action is pending for damages and
the defendant is about to dispose or remove his property beyond the jurisdiction of the
court in which the action is pending.” A.R.S. § 12-1521(2) (emphasis added). The
possessive “his” indicates the property relates to defendant. See His, Merriam-
Webster.com, https://www.merriam-webster.com/dictionary/his (last visited Oct. 22,
2025).
Here, the fuel in question is not owned by Defendant AJMR.3 Therefore, it is not
“his property” as required by the attachment statute. As such, probable cause does not exist
to believe that the statutory requirements have been met for a writ of attachment.4 See
A.R.S. § 12-2410(D).
D. Writ of Garnishment
Plaintiff asserts “[l]ike attachment, garnishment of non-exempt monies is a
permitted provisional remedy under A.R.S. §§ 12-2401 et seq. and 12-1570 et seq. and may
be appropriate here if the Court finds that AJMR does not hold an ownership interest in the
fuel located at its storage yard in Rio Rico, Arizona.” Pl.’s Reply (Doc. 103) at 6. Plaintiff
further requests that “the Court permit Offen to garnish WaFd Bank, the financial
institution from which AJMR allegedly sent payments to Defendants Judaean Group and
3 At oral argument Plaintiff seemed to imply that the Court should do more than rely on
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.
The Court declines the invitation to take on that burden.
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.
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Midnight Sun . . . and that is likely holding the amounts AJMR received for the fuel it sold
to the third party in Mexico.” Id. at 6–7.
As an initial matter, “district court[s] need not consider arguments raised for the first
time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Plaintiff avers
that garnishment was not raised initially, because it did not know that AJMR “allegedly
did not own this fuel at the storage yard it leases.” Hr’g Tr. 8/22/2025 (Doc. 113) at 106:4–
12. This lack of awareness underscores the insufficiency of the affidavit submitted with
its Application.
Plaintiff relies on Rule 64, Federal Rules of Civil Procedure, for its right to seek
garnishment. Rule 64 provides, in relevant part:
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
a person or property to secure satisfaction of the potential judgment. But a
federal statute governs to the extent it applies.
Fed. R. Civ. P. 64(a). In reply, Plaintiff cited to A.R.S. § 12-1570 et seq. as the garnishment
statute. Pl.’s Reply (Doc. 103) at 6. Section 12-1570.01, Arizona Revised Statutes,
governs the Scope of Article regarding garnishment. Section 12-1570.01 states that “[t]he
provisions of this article are applicable to garnishments of any of the following” and
includes a list of situations, all of which refer to “a judgment debtor.” A.R.S. § 12-
1570.01(A). The plain language of the statute indicates that being a judgment debtor is a
prerequisite to garnishment. Plaintiff, however, has failed to explain in what circumstance
Defendant AJMR could be considered a judgment debtor or how it is otherwise entitled to
garnishment under the statute. Accordingly, the Court denies Plaintiff’s request for
garnishment.
III. CONCLUSION
Based on the foregoing, the Court finds that Plaintiff has not met its burden to
establish entitlement to a writ of attachment. The Court further finds there is no probable
cause to believe “the statutory requirements for any provisional remedy has been met[,]”
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including any right to garnishment. A.R.S. § 12-2410(D).
IV. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge RECOMMENDS that the
District Judge enter an order DENYING Plaintiff’s Application for Writ of Attachment
With Notice (Doc. 99).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure,
any party may serve and file written objections within fourteen (14) days after being served
with a copy of this Report and Recommendation. A party may respond to another party’s
objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P.
72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If
objections are filed, the parties should use the following case number: CV-25-00061-
TUC-JCH.
Failure to file timely objections to any factual or legal determination of the
Magistrate Judge may result in waiver of the right of review.
Dated this 23rd day of October, 2025.
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