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National Surety Corporation v. Mehlville School District

United States District Court, E.D. Missouri, Eastern Division

April 3, 2015

NATIONAL SURETY CORPORATION, Plaintiff,
v.
MEHLVILLE SCHOOL DISTRICT, Defendant. MEHLVILLE SCHOOL DISTRICT, Counterclaim Plaintiff,
v.
NATIONAL SURETY CORPORATION, Counterclaim Defendant and Third Party Plaintiff,
v.
PRAIRIELAND CONSTRUCTION, INC., PETER LIBBRA, JR., LINDA LIBBRA, GERALD DUNNE, CARRIE DUNNE, CHESTER VOGT, and JOANNE VOGT, Third Party Defendants.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, District Judge.

The two captioned cases above come before me on several motions by the parties. In addressing these motions, several issues have come to the court's attention with respect to the docketing and filings in the cases.

Background

On December 12, 2014, National Surety Corporation filed two motions in the above-captioned cases to enforce settlement agreements entered into between it and several other parties. ECF Nos. 250, 32. On January 26, 2015, it filed motions to revive two Judgments (ECF Nos. 269, 47) that were entered by this court on January 27, 2005.

On February 2, 2015, this court ordered that Peter Libbra, Jr., Linda Libbra, Gerald Dunne, Carrie Dunne, Chester Vogt, and Joanne Vogt show cause why the judgments entered against them should not be revived. See Order dated Feb. 2, 2015, ECF Nos. 275, 52.

On February 26, 2015, this court entered an order granting a motion filed by National Surety Corporation on February 23, 2015, that requested leave to issue service personally upon Peter Libbra, Jr., Linda Libbra, Gerald Dunne, Carrie Dunne, Chester Vogt, and Joanne Vogt. Those parties had already received notice of both of National Surety's motions as well as this court's order through the federal Electronic Case Filing service upon their attorneys. Nonetheless, the court determined that the Missouri Rules of Civil Procedure required actual service of the Show Cause Order upon the motion-defendants. See Order Dated Feb. 26, 2015, ECF Nos. 292, 63.

Motions for Reconsideration

Peter Libbra, Jr., Linda Libbra, Chester Vogt, and Joanne Vogt filed motions asking the court to reconsider the February 26, 2015 Order, which granted leave to issue service of the Show Cause Order. They contend that they were not offered sufficient time to oppose National Surety's motion.

The Federal Rules of Civil Procedure "do not mention motions for reconsideration." Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999). The Eighth Circuit has determined that motions for reconsideration are "nothing more than Rule 60(b) motions when directed at non-final orders." Anderson v. Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003). Under Rule 60(b), the court may relieve a party from an order or judgment when the party demonstrates, for example, "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1).

The Vogts and Libbras correctly note that the court's Order allowing personal service on February 26, 2015, cut short their time for response to National Surety's motion. However, they have not provided any basis for reconsidering that order. Instead, they argue that National Surety unnecessarily delayed in bringing its motions to enforce settlement and to revive judgment, and no revival of the judgment is possible because National Surety failed to sue out a scire facias [1] before the statutory ten-year period elapsed.

Section 516.350.1 of the Revised Statutes of Missouri sets forth a conclusive presumption that all judgments are paid within ten years of (a) the date of the original rendition, or (b) if revived, upon personal service, or (c) after the date of the last payment on the judgment made "duly entered upon the record thereof." R.S. Mo. § 516.350.1 (West) (2014); see also § 511.370 (setting 10-year limitation in which to sue out a scire facias ).

The Missouri Court of Appeals has twice ruled on the very issue presented here, and each time have held that there is no longer any need to sue out a scrie facias in order to revive a judgment; the only obligation placed upon a party seeking the revival of a judgment is to "file a motion to revive the judgment within ten years of either date the judgment was rendered or the date of the last revival." See, e.g., Abbott v. Abbott, 415 S.W.3d 770, 774 (Mo.Ct.App. 2013) (citing Mo. S.Ct. R. 74.09); see also Young Elec. Sign Co. v. Duschell Furniture of Ariz., Inc., 9 S.W.3d 685 (Mo.Ct.App. 1999) (placing duty on circuit court to issue Order to Show Cause on same day as motion for revival but also holding that Order to Show Cause issued on later date is considered retroactively issued on same day motion filed). The Vogts and Libbras argue that the Supreme Court of Missouri, and not the Court of Appeals, binds this court. However, they have not shown that the Abbott or Duschell Furniture cases were wrongfully decided.

The Libbras argue that Abbott was wrongfully decided, because it relied on an amendment to Missouri Supreme Court 74.09, which governs revival of a judgment. The Libbras contend that Rule 74.09 cannot override § 516.350.1. This argument relies on a faulty premise; Rule 74.09 merely establishes the procedure for reviving a judgment, it does not alter the substance of § 516.350.

The Vogts contend the ten year period expired on January 27, 2015. See Case No. 4:03CV73 ECF No. 301 at 3. National Surety filed its motion for revival of the judgment on January 26, 2015. That motion was timely, and the parties have not shown that they were harmed by this court's allowance of personal service of the Show Cause Order to occur at a later date. Contrary to their arguments, the Order that allowed issuance of service was ministerial. Strunk v. Commercial Plastics Co., Inc., 800 S.W.2d 779, 784 (Mo.Ct.App. 1990) (allowing a ...


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