* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HELEN DIANE McCARTHY,

Plaintiff - Appellee, No. 98-4003

v. D.C. No. 87-CV-944-S MICHAEL HEATH JOHNSON,

Defendant - Appellant, and (D. Utah)

KEITH BROWN; ROLLING STONE (PTY) LTD.; ROLLING STONE (S.A.), Defendants.

ORDER AND JUDGMENT *

Before SEYMOUR , ANDERSON , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. The dispositive issue in this case is whether, unde r Utah law, a judgment can be renewed by way of a motion and notice filed in the original case, or whether it is necessary to file and serve a new complaint. The district court held that a motion and notice in the original case will suffice to renew a judgment. We agree, and affirm.

BACKGROUND In December 1988, Helen Diane McCarthy sued MichaelHeath Johnson in federal district court in Utah, alleging that Johns on had defrauded her out of more than $6 million. Soon thereafter, Johnson answeredMcCarthy’s Complaint. In August 1990, however, apparently as penalty for var ious discovery violations, the district court struck Johnson’s Answer and entered default judgment against Johnson in the amount of $6,243,738. Johnson has n ot paid the judgment. In June 1997, McCarthy filed a motion to renew the judgment, pursuant to Federal Rule of Civil Procedure 69(a). Johnson opp osed the motion, arguing that Rule 69(a) does not provide a basis to renew judgme nts, and that even if it did, Utah law requires a litigant wishing to renew a jud gment to file and serve a new complaint and summons. In December 1997, the distr ict court issued a-3-

memorandum and order rejecting Johnson’s arguments and holding that McCarthy could, under federal procedural rules and state sub stantive law, renew a judgment by filing a motion in the original case and servingnotice of that motion to the opposing party. Johnson appeals, pursuing the same arguments he rai sed in the district
court.

DISCUSSION Johnson first asserts that Rule 69(a) does not prov ide a basis for the renewal of judgments. This formalistic argument do es not help him. Regardless of whether renewal of a judgment may be sought thro ugh Rule 69 or through some other method, it cannot be seriously disputed that the renewal of a judgment is relief that may be appropriately sought in the d istrict court. Some federal courts have allowed litigants to seek such relief through a Rule 69(a) motion. See United States v. Fiorella , 869 F.2d 1425 (11th Cir. 1989); Urban Resorts Group v. Wheeler , No. 82-2470, 1996 WL 28507 (E.D. La. Jan. 22, 199 6). Authority also exists for allowing such motions under Fed. R. Civ. P. 81(b), which provides that “[r]elief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed by these rules.” See 12 Charles A. Wright et al., Federal Practice and Procedure § 3134-4-

(1997) (stating that “[t]he relief formerly availab le by scire facias included the revival of judgments”). In short, however couched, we think it beyond question that renewal of a judgment is a type of relief avai lable to litigants, and that the requirements governing the granting of such relief are governed by state law. See Fed. R. Civ. P. 69(a) (stating that “[t]he procedur e . . . shall be in accordance with the practice and procedure of the state in which th e district court is held, existing at the time the remedy is sought”); see also Donellan Jerome, Inc. v. Trylon Metals, Inc. , 270 F. Supp. 996, 998 (N.D. Ohio 1967) (stating that “[u]nless a federal statute provides otherwise, the practice re lative to the revival of dormant judgments is to be governed by state law”). Howeve r, because supplementary proceedings were “meant to be swift, cheap, [and] informal,” Resolution Trust Corp. v. Ruggiero , 994 F.2d 1221, 1226 (7th Cir. 1993), “[s]ubstanti al compliance with the procedural provisions of [any controlling state] statutes [or case law] is sufficient,” 12 Charles A. Wright et al., Federal Practice and Procedure § 3012, at 154 (1997). Thus, we must look to Utah law to determine how lit igants must proceed to renew a judgment. The dispute in this case is whether Utah law allows a party to renew a judgment by filing a motion and serving not ice in the same case. McCarthy argues that Utah law supports such a concl usion, while Johnson argues that Utah law requires a party to file and serve a new complaint and summons.-5-

Both parties cite Von Hake v. Thomas , 858 P.2d 193 (Utah Ct. App.), cert. granted , 868 P.2d 95 (Utah 1993), opinion after remand , 881 P.2d 895 (Utah Ct. App. 1994), as supporting their respective position s. While there is certainly some ambiguity in the Von Hake opinion, we are satisfied that the opinion, at least implicitly, st ands for the proposition that a renewal action is merely a continuation of the orig inal lawsuit and can be brought by motion in the original action, provided notice i s provided to the opposing party. The court in Von Hake stated that “Utah law treats a renewal action, at least in other contexts, as merely a continuation o f the original proceeding and not as a new and independent action.” 858 P.2d at 196 (citing Barber v. Emporium Partnership , 800 P.2d 795, 797 (Utah 1990), and citing cases f rom other jurisdictions which hold that renewal actions are m erely continuations of the original action). Therefore, we agree with the dis trict court’s reasoning in its opinion, and conclude that it properly allowed McCarthy to renew her judgment by motion and notice to Johnson. AFFIRMED. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge