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Bumgardner v. Kupka

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 26, 2010

DONNA BUMGARDNER, ET AL., PLAINTIFFS,
v.
JOHN KUPKA, ET AL., DEFENDANTS.

ORDER

This action was initiated by Susan Vineyard ("Vineyard"), the assignee of record, to register a foreign judgment in this district. The judgment was registered on May 17, 2006, and Vineyard has been proceeding to enforce the judgment through various debtor examinations. On April 22, 2010, counsel filed applications for orders that third parties Cynthia Kupka and Robert Kupka appear for examination in connection with the enforcement proceedings. Dckt. Nos. 57, 58.

As previously explained in this action, pursuant to Federal Rule of Civil Procedure 69(a), "[t]he 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...." In the applications for orders to appear for examination, counsel indicates that pursuant to California Code of Civil Procedure §§ 491.110 or 708.120, affidavits supporting the applications are attached thereto.*fn1 However, no such affidavits are attached. The court therefore has no basis to determine whether or not these third parties should be ordered to appear for the requested examinations. Accordingly, the applications are denied without prejudice to refiling with the required affidavits.*fn2

SO ORDERED.


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