Biton v. Jackson

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ETTI BITON, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-968-SLP
)
JEFFREY JACKSON, )
)
Defendant. )
O R D E R
Before the Court are Plaintiff’s post-judgment Motion for Contempt of Court [Doc.
No. 27] and her Motion to Expedite Hearing on Contempt [Doc. No. 30].1 Plaintiff asks
the Court to hold Defendant in civil contempt for failure to comply with the Court’s Order
[Doc. No. 24] and Default Judgment [Doc. No. 25] entered on January 7, 2025, and further
requests an expedited hearing on the matter. Plaintiff also filed a Motion to Compel
Discovery [Doc. No. 31] seeking an order requiring Defendant to provide information
related to execution of the Judgment. The Court addresses each Motion in turn.
I. Background
As fully set forth in the Court’s Order [Doc. No. 24], this action involves claims for
immigration spousal support pursuant to 8 U.S.C. § 1183a and an I-864 Affidavit of
Spousal Support. Plaintiff sought unpaid spousal support from 2020 through 2024, in
addition to an order of specific performance requiring Defendant to pay spousal support in
1 Between the filing of those two Motions, Plaintiff also filed a Supplement [Doc. No. 28] to the
original motion and a Notice of Service [Doc. No. 29]. Plaintiff filed another Supplement on
February 13, 2025. [Doc. No. 32].
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an amount equal to 125 percent of the applicable Federal Poverty Guidelines, less her
qualifying income, until occurrence of an event that terminated Defendant’s spousal
support obligation. After service, Defendant failed to answer or otherwise respond, and
the Clerk of Court filed an Entry of Default [Doc. No. 12].
On January 7, 2025, the Court entered Default Judgment in favor of Plaintiff, which
included monetary damages of $54,375.50. [Doc. No. 25]. The Order and Judgment also
required Defendant to pay Plaintiff an amount equal to 125 percent of the Federal Poverty
Guidelines for a household of one, less any income earned by Plaintiff, every month until
occurrence of a listed terminating event. Id. The Order and Judgment stated that Defendant
must transmit the monthly payments to Plaintiff on or before the fifth business day of each
month. Id.; see also [Doc. No. 24].
Plaintiff filed the initial Motion [Doc. No. 27] on January 15, 2025, and the Motion
for Expedited Hearing [Doc. No. 30] February 5, 2025. Plaintiff represents she served
Defendant with the Order and Default Judgment both by email and through the Oklahoma
County Sheriff’s Office on January 14, 2025. See Mot. [Doc. No. 27]; see also Sheriff’s
Return [Doc. No. 27-1]. Plaintiff states that Defendant has failed to pay the monetary
damages and the monthly payments required in the Order and Judgment. [Doc. Nos. 27,
28, 30]. She attaches various emails she exchanged with Defendant regarding the Order
and Judgment. See [Doc. No. 27-2 through 27-7]; [Doc. No. 28].
Plaintiff requests an order finding Defendant in civil contempt. See [Doc. No. 27]
at 2; [Doc. No. 30] at 4. Plaintiff also requests “garnishment” of Defendant’s “VA
retirement” and “Bank Accounts” or a “Contempt Fine and Jail Time.” [Doc. No. 27] at
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2. In her Motion for Expedited Hearing, Plaintiff again requests “incarceration” and for
the court to “[f]reeze Defendant’s financial accounts or require a lump sum payment to
prevent asset concealment.” [Doc. No. 30] at 4.
II. Discussion
A. Motions for Contempt [Doc. Nos. 27, 30]
Plaintiff principally seeks to enforce the Court’s Order and Judgment, which include
$54,375.50 in monetary damages, in addition to the order of specific performance requiring
Defendant to pay monthly immigration spousal support currently in the amount of
$1,368.75. Federal Rule of Civil Procedure 69 governs execution of a “money judgment”
like the one at issue.2 Rule 69(a)(1) provides: “[a] money judgment is enforced by a writ
of execution, unless the court directs otherwise. The procedure on execution--and in
proceedings supplementary to and in aid of judgment or execution--must accord with the
procedure of the state where the court is located, but a federal statute governs to the extent
it applies.”3
2 This is true even though the latter part of the Judgment requires monthly installment payments
pursuant to the I-864 Affidavit of Spousal Support because it fundamentally requires payment of
a sum certain. See Olson v. Desserts on the Boulevard, LLC, No. 4:12-CV-1629 CAS, 2014 WL
307144, at *3 (E.D. Mo. Jan. 28, 2014) (summarizing cases from other Circuits providing that
Rule 69 governs in the context of “a consent judgment calling for installment payments or payment
of a sum certain.”); see also Combs v. Ryan’s Coal Co., Inc., 785 F.2d 970, 980–81 (11th Cir.
1986) (consent decree calling for installment payments by particular dates was properly
characterized as a money judgment)); Fox v. Nat’l Oilwell Varco, 602 F. App’x 449, 452 (10th
Cir. 2015) (“Generally speaking, a money judgment [for purposes of Rule 69(a)] is an order
adjudging the payment of a sum of money.”).
3 Plaintiff cites 18 U.S.C. § 401, see [Doc. No. 27] at 2, but that statute is the authority for criminal
contempt, and the remedy Plaintiff seeks here is civil contempt to compel compliance with the
Judgment. See Ecopetrol S.A. v. Offshore Expl. & Prod. LLC, 172 F. Supp. 3d 691, 695 n. 1
(S.D.N.Y. 2016).
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Based on the first sentence of Rule 69(a)(1), courts generally hold: “when a party
fails to satisfy a court-imposed money judgment the appropriate remedy is a writ of
execution, not a finding of contempt.’” Abbasid, Inc. v. First Nat’l Bank of Santa Fe, No.
CV-09-00354 JP/LFG, 2010 WL 11493333, at *2 (D.N.M. Sept. 9, 2010) (quoting Combs,
785 F.2d at 980); Aetna Cas. & Sur. Co. v. Markarian, 114 F.3d 346, 349 (1st Cir. 1997)
(same); Shuffler v. Heritage Bank, 720 F.2d 1141, 1147-48 (9th Cir. 1983) (same); In re
Valentine, 2014 WL 1347229, at *5 (Bankr. D. Idaho Apr. 3, 2014) (“[C]ontempt [is] an
improper means to collect a previously ordered money judgment. The proper remedy is to
execute on the Judgment.”).4
Moreover,
[a] person shall not be imprisoned for debt on a writ of execution or other process
issued from a court of the United States in any State wherein imprisonment for debt
has been abolished. All modifications, conditions, and restrictions upon such
imprisonment provided by State law shall apply to any writ of execution or process
issued from a court of the United States in accordance with the procedure applicable
in such State.
28 U.S.C. § 2007(a). Under Oklahoma law, “[i]mprisonment for debt is prohibited, except
for the non-payment of fines and penalties imposed for the violation of law.” Okla. Const.
art. II, § 13. Accordingly, because the Judgment at issue in this case does not fall within
the exception provided under Oklahoma law, the Court may not imprison Defendant solely
4 The language “unless the court directs otherwise” in Rule 69(a)(1) is interpreted narrowly and
does not warrant deviation from the general rule in this case. See Abbasid, Inc., 2010 WL
11493333, at *2.
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for failure to pay the Judgment. See United States ex rel. Shaw v. AAA Eng’g & Drafting,
Inc., No. CIV-95-950-M, 2005 WL 8157918, at *2 (W.D. Okla. Apr. 14, 2005).5
Civil contempt is unavailable at this juncture, and Plaintiff has not properly sought
a writ of execution. See Fed. R. Civ. P. 69(a)(1); see also 12 Okla. Stat. §§ 731 et seq.
Moreover, to the extent Plaintiff seeks garnishment, see [Doc. No. 27] at 2, nothing in her
Motion suggests she has attempted to follow the procedure for that under Oklahoma law.
See Fed. R. Civ. P. 69(a)(1); see also Pflueger v. Effective Secretarial Servs., Inc., 161 F.3d
18 (Table), 1998 WL 670205 at *1 (10th Cir. 1998) (noting “Oklahoma garnishment law
applies” in an action in this judicial district where the plaintiff sought to collect on a money
judgment). For all these reasons, Plaintiff’s first two Motions [Doc. Nos. 27, 30] are
DENIED.
B. Motion to Compel Discovery [Doc. No. 31]
As noted, Plaintiff also filed a Motion to Compel seeking discovery of Defendant’s
current residential address and information related to his financial accounts. See [Doc. No.
31]. Federal Rule of Civil Procedure 69(a)(2) provides: “[i]n aid of the judgment or
5 To be clear, this does not mean Defendant cannot be found in civil contempt for failure to comply
with a subsequent order of the Court or for wrongful conduct obstructing collection pursuant to a
writ of execution. As explained in Abbasid, Inc., the Tenth Circuit has found contempt an
appropriate remedy where a judgment debtor “engages in wrongful conduct by hiding assets that
a judgment creditor attempts to collect under a writ of execution and where a judgment debtor fails
to turnover specific assets that the debtor has been ordered to pay in execution proceedings.” 2010
WL 11493333, at *2-3 (discussing Atlas Corp. v. DeVilliers, 447 F.2d 799, 803 (10th Cir. 1971)).
But contempt was found appropriate “after a judgment creditor has already initiated other lawful
processes to collect the money judgment.” Id. (emphasis in original). “The contempt is thus not
for refusing to pay a money judgment, but for refusing to comply with court orders designed to
satisfy the money judgment.” Id.; see also Freeman v. Heiman, 426 F.2d 1050, 1052 (10th Cir.
1970) (“To compel the judgment debtor to obey the order of the court is not imprisonment for debt,
but only imprisonment for disobedience of an order with which he is able to comply.”).
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execution, the judgment creditor . . . may obtain discovery from any person--including the
judgment debtor--as provided in these rules or by the procedure of the state where the court
is located.”6 Under Rules 26, 33, and 34, a party may propound interrogatories or requests
for the production of documents and electronically stored information on any non-
privileged matter that is relevant to any party’s claim or defense, and proportional to the
needs of the case. Fed. R. Civ. P. 26(b)(1), 33(a)(2), 34(a). If a party fails to appropriately
respond to discovery requests, the party seeking discovery “may move for an order
compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1).
In her Motion, Plaintiff does not state or show that she served Defendant any
interrogatories, requests for production, or other requests for discovery. Nor does she state
that she served a subpoena to any non-party pursuant to Federal Rule of Civil Procedure
45. As such, it does not appear Plaintiff sought discovery prior to filing her Motion, so
there is no discovery request for the Court to compel any party or nonparty to comply with.
Accordingly, Plaintiff’s Motion is DENIED.
III. Conclusion
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Contempt of Court
[Doc. No. 27], Motion to Expedite Hearing on Contempt [Doc. No. 30] are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Discovery [Doc.
No. 31] is DENIED.
6 Post-judgment discovery may be used, for example, to “to identify assets that can be used to
satisfy a judgment” or “to discover concealed or fraudulently transferred assets[.]” Gersh v.
Anglin, 341 F.R.D. 55, 59 (D. Mont. 2022) (internal quotation marks and citations omitted)
(discussing post-judgment discovery pursued after default judgment).
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IT IS SO ORDERED this 14th day of February, 2025.
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