United States District Court, W.D. Missouri, Western Division
LAJUANA M. COUNTS UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant's Motion for Relief from
Order Setting Examination of Judgment Debtor Pursuant to
Fed.R.Civ.P. 60(b)(1). (Doc. #252.) On October 21, 2019, the
undersigned granted Plaintiff's Motion for Examination of
Judgment Debtor and scheduled the examination of Defendant
Derek Luebbert for December 12, 2019. (Doc. #251.) Defendant
Luebbert argues that this Court “inadvertently failed
to consider state procedure as is required under Fed.R.Civ.P.
69” in setting the judgment debtor examination. (Doc.
#252 at 2-3.) According to Defendant Luebbert, state law
requires both “an execution issued by a court in this
state” and a “return unsatisfied.” (Doc.
#252.) Defendant Luebbert argues that “[a]t no time was
an execution issued by a court in this state against the
property of the Defendant served and been returned
unsatisfied.” (Doc. #252 at 3.)
Luebbert brings this motion under Rule 60(b)(1), of the
Federal Rules of Civil Procedure. Rule 60(b)(1) permits a
court to relieve a party of an order due to “mistake,
inadvertence, surprise, or excusable
neglect[.]” Fed.R.Civ.P. 60(b)(1). The Court declines
to grant relief as Defendant Luebbert has not shown that
there was a legal mistake. Rule 69(a) states:
(a) In General.
(1) Money Judgment; Applicable Procedure. 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
(2) Obtaining Discovery. In aid of the judgment or execution,
the judgment creditor or a successor in interest whose
interest appears of record 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
Fed. R. Civ. P. 69. Defendant Luebbert argues that the first
subsection (subsection (a)(1)) requires this Court to apply
state law in determining whether to order a judgment debtor
examination. In so arguing, Defendant Luebbert cites
States Res. Corp. v. Younger, No.
08-06041-CV-SJ-DGK, 2014 WL 912369, at *1 (W.D. Mo. Mar. 10,
2014), a decision of this Court which Defendant Luebbert
argues supports his argument. Defendant Luebbert is clearly
wrong in his analysis of the case.
Court in Younger thoroughly reviewed Rule 69 and
case law applying Rule 69 and found that the second
subsection of the rule (subsection (a)(2)) controls the rules
relating to obtaining post-judgment discovery.
Younger, 2014 WL 912369, at *2. Rule 69(a)(2)'s
provision that a judgment creditor may utilize federal or
state law in obtaining discovery, is “broad and should
be liberally construed.” Younger, 2014 WL
912369, at *3. Such treatment is recognized by the Eighth
Circuit, which stated that “[t]he rules for depositions
and discovery ‘are to be accorded a broad and liberal
treatment.'” Credit Lyonnais, S.A. v. SGC
Int'l, Inc., 160 F.3d 428, 430 (8th Cir. 1998).
Courts across the county have routinely recognized that
“a judgment debtor examination, a form of post-judgment
discovery, may proceed under the federal rules governing
pre-trial discovery.” United States v. Clinical
Leasing Serv., Inc., No. CIV. A. 90-4364, 1995 WL
334636, at *1 (E.D. La. June 6, 1995); See also Textron
Fin. Corp. v. Gallegos, No. 15CV1678-LAB (DHB), 2016 WL
4077505, at *3 (S.D. Cal. Aug. 1, 2016); Taddeo v. Am.
Invsco Corp., No. 2:12-CV-01110-APG, 2015 WL 751072, at
*1 (D. Nev. Feb. 20, 2015); Martin v. Lee, No.
CIV.A. 06-41-A-M2, 2010 WL 2076746, at *2 (M.D. La. May 24,
2010); Fuddruckers, Inc. v. KCOB I, L.L.C., 31
F.Supp.2d 1274, 1279 (D. Kan. 1998).
Court notes that the procedures set forth in § 513.380,
of the Missouri Revised Statutes (RSMo), are not consistent
with how this Court proceeds in judgment debtor examinations
and are not consistent with the request by Plaintiff's to
conduct a judgment debtor examination. The principal purpose
of a judgment debtor examination under Missouri law
(§§ 513.380- 513.395, RSMo), “is to discover
assets, to compel the defendant in the execution to disclose
under oath all the assets of his estate, and, after this
discovery, to authorize the court to say whether or not the
debtor has assets that may be levied on by execution in favor
of the judgment creditor.” State ex rel.
Rowland Grp., Inc. v. Koehr, 831 S.W.2d 930, 932 (Mo.
1992). Plaintiff has not requested, and this Court does not
issue, an advisory opinion in judgment debtor examinations.
In fact, the undersigned merely opens the proceedings and
then excuses herself while the examination is conducted under
oath and recorded. Therefore, this Court rejects the notion
that Plaintiff has requested to proceed under § 513.380,
on the foregoing, it is
that Defendant's Motion for Relief from Order Setting
Examination of Judgment Debtor Pursuant to Fed.R.Civ.P.
60(b)(1), doc. #252, is denied.
 On October 16, 2019, the district
court referred Plaintiff's Motion for Examination of
Judgment Debtor (doc. #243) to the undersigned magistrate
pursuant to 28 U.S.C. § 636(b)(3) and L.R. 72.1(e)(13)
(which specifically states that magistrate judges may
“conduct examinations ...