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Givens v. Oenga

United States District Court, D. Alaska

January 2, 2020

RAYMOND C. GIVENS, Plaintiff,
v.
WALLACE OENGA, Defendant.

          ORDER TO SHOW CAUSE

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         TO: Lynnette Tubbs, Fiduciary Trust Officer Office of the Special Trustee for American Indians, Alaska Region U.S. Department of the Interior 3601 C Street, Room 216 Anchorage, AK 99503

         TO: Joshua Kindred, Attorney-Advisor Office of the Solicitor, Alaska Region U.S. Department of the Interior 420 University Drive, Suite 300 Anchorage, AK 99508

         TO: Bryan Schroder, United States Attorney District of Alaska - Anchorage Office 222 West 7th Avenue, Room 253 Anchorage, AK 99501

         By default judgment entered June 10, 2019, [1] the court entered a declaratory judgment, a judgment for damages in the amount of $136, 116.91, and an order for specific performance of an attorney fee contract between plaintiff and defendant.

         The award of specific performance required that defendant sign a Form OST 01-004 directing OST to pay to plaintiff, out of the rent for calendar year 2020 (to be paid by BP by October 2019) the total amount of the judgment against defendant plus accrued interest.[2] The defendant was required to submit the foregoing form to the OST. The judgment for specific performance further required that defendant sign a second Form OST 01-004 requiring payment to plaintiff from rents received from BP by the OST for calendar years 2021 through the end of the current lease between defendant and BP. The Form OST 01-004 was to be submitted by defendant to OST.

         Defendant failed to execute the Form OST 01-004 forms as required by the court's default judgment.

         By its order enforcing judgment dated July 9, 2019, [3] and pursuant to Rule 70(a), Federal Rules of Civil Procedure, the clerk of court was directed to sign the two Forms OST 01-004, directing the OST of the U.S. Department of the Interior to pay plaintiff in accordance with the court's default judgment. The forms were executed by the clerk of court and delivered to counsel for plaintiff, who in turn delivered the forms to the OST.[4]

         Plaintiff now moves to enforce the court's default judgment and its order enforcing judgment.[5] The motion was served by hand delivery upon: the OST; the regional solicitor, Alaska, for the U.S. Department of the Interior; and the United States Attorney for the District of Alaska.[6] In support of this motion, plaintiff avers that BP has made the 2020 rent payment and that, as of December 6, 2019, he has not received payment from defendant or the OST.

The court has received no response from or on behalf of the OST.

         Rule 69(a)(1), Federal Rules of Civil Procedure, provides in pertinent part that proceedings supplementary to the enforcement of money judgments “must accord with the procedure of the state where the court is located[.]” Rule 90(b), Alaska Rules of Civil Procedure, provides in pertinent part that:

on ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some reasonable time, to be therein specified, why the accused party should not be punished for the alleged contempt[.]

         The Alaska Rule further provides that contempt proceedings:

may be commenced and prosecuted in the same action ... by the aggrieved party whose right or remedy in an action has been defeated or prejudiced or who has suffered a loss or ...

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