United States District Court, W.D. Washington, Seattle
EXPERIENCE HENDRIX, LLC; and AUTHENTIC HENDRIX, LLC, Plaintiffs,
ELECTRIC HENDRIX, LLC; ELECTRIC HENDRIX APPAREL, LLC; ELECTRIC HENDRIX LICENSING LLC; ELECTRIC HENDRIX SPIRITS, L.L.C.; and CRAIG DIEFFENBACH, Defendants.
S. ZILLY, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on plaintiffs' motion,
docket no. 145, to extend the time during which plaintiffs
may execute on the supplemental judgment and permanent
injunction entered February 12, 2009 (“Supplemental
Judgment”), docket no. 127. Having reviewed all papers
filed in support of the motion, to which no response was
submitted, the Court enters the following order.
Supplemental Judgment, which was entered pursuant to the
stipulation of the parties, prohibits defendants and certain
others from engaging in enumerated activities involving or
affecting plaintiffs' trademarks, service marks, and/or
logos. See Supp. J. (docket no. 127). In addition,
the Supplemental Judgment awarded in favor of plaintiffs and
against defendants the principal sum of three million two
hundred thousand dollars ($3, 200, 000). Id. at
¶ 1. According to plaintiffs' counsel, in the ten
years since the Supplemental Judgment was entered, interest
has accrued at the rate of two and twenty-eight hundredths of
one percent (2.28%) per annum, and payments in the amount of
$4, 074.14 have been made by defendants. See
Sacks' Decl. at ¶¶ 5-6 & Ex. 3 (docket no.
146). Plaintiffs contend that, as of January 24, 2019, the
balance remaining due from defendants was $3, 994, 313.52.
Washington law, a party in whose favor “a judgment of a
court” has been rendered may execute on the judgment at
any time during the ten-year period following its entry.
See RCW 6.17.020(1). This ten-year period may be
extended for another ten years by applying “within
ninety days before the expiration of the original ten-year
period” to “the court that rendered the
judgment.” RCW 6.17.020(3). No Washington court has yet
interpreted the 90-day deadline provision, but one
commentator has understood the language as meaning that
applications made more than 90 days before the expiration
date are premature, while motions submitted after the
ten-year period for execution expires are late. 28 Marjorie
Dick Rombauer, Wash. Prac. (Creditors' Remedies -
Debtors' Relief) § 7.9 (2018) [hereinafter
“Rombauer”]. Under this view, plaintiffs'
motion, which could have been filed as early as November 14,
2018, or as late as February 11, 2019, was timely submitted
on January 24, 2019.
application is, however, still deficient. For purposes of
determining whether an application under RCW 6.17.020(3) is
timely, the Washington Court of Appeals has concluded that
such application is not “filed” until the
requisite fee is paid. See In re M.R.A., 2009 WL
2437238 (Wash.Ct.App. Aug. 11, 2009); see also RCW
6.17.020(3) (“petitioner shall pay to the court a
filing fee equal to the filing fee for filing the first or
initial paper in a civil action in the court”). The
In re M.R.A. decision appears to apply with equal
force to matters before this Court. See RCW
6.17.020(5) (defining “court” as including
“United States district courts”). Plaintiffs have
not tendered the $400 filing fee applicable to civil matters.
question remaining for the Court is whether the lack of
payment can be cured now that the ten-year period for
execution has expired. The commentator mentioned earlier
believes that any order of extension must be entered during
the 90-day period before the ten-year period at issue
expires. Rombauer at § 7.9; see also Am. Discount
Corp. v. Shepherd, 160 Wn.2d 93, 156 P.3d 858 (2007)
(holding that the legislature could not retroactively revive
the period for executing on a judgment after the initial
ten-year period expired). The Court finds this
commentator's position unworkable because it would treat
as timely an application filed just before the close of
business on the day before the ten-year period would expire,
but render ineffective any order subsequently entered.
Court recognizes that, in In re M.R.A., the failure
to perfect an application under RCW 6.17.020(3) by paying the
requisite filing fee was deemed jurisdictional. See
2009 WL 2437238 at *4; see also id. at *2
(“Absent a contrary legislative intent, we construe
statutory language according to its plain and ordinary
meaning ‘even when [the] results may seem unduly
harsh.'” (alteration in original)). In In re
M.R.A., however, the petitioner had been notified by the
staff of the superior court clerk's office that he needed
to pay the filing fee, and he failed to remedy the situation.
Id. at *1. In this matter, plaintiffs have received
no warning from the Court about the lack of payment, and the
Court will permit plaintiffs to cure their deficiency by
remitting the requisite $400 filing fee within seven (7) days
of the date of this Order. In so ruling, the Court recognizes
the important distinction between a judgment and a judgment
lien. A lien exists pursuant to statute only “for a
definite length of time, ” but expiration of the
ten-year (or twenty-year) lien period does not extinguish the
underlying judgment; the judgment continues to exist even
after the related lien has expired. See Krueger v.
Tippett, 155 Wn.App. 216, 225-26, 229 P.3d 866 (2010).
In allowing plaintiffs to perfect their application under RCW
6.17.020, the Court is not resurrecting a judgment that has
lapsed, but rather is deeming the limitation period for
executing on the Supplemental Judgment tolled for the period
while plaintiffs' motion has been pending.
foregoing reasons, the Court ORDERS:
Plaintiffs' motion, docket no. 145, to extend for an
additional ten years the period during which plaintiffs may
execute on the Supplemental Judgment, docket no. 127, is
GRANTED, provided that plaintiffs pay the required $400
filing fee within seven (7) days of the date of this Order.
If plaintiffs fail to timely pay the required $400 filing
fee, the limitation period for executing on the Supplemental
Judgment shall be deemed expired.
Clerk is DIRECTED to enter, upon plaintiffs' payment of
the required $400 filing fee, an updated judgment summary
pursuant to RCW 4.64.030, including the above-mentioned $400
filing fee as a recoverable cost, see RCW