Rule 69 provides the answers
In the latest in what is apparently a series lawsuits against each other brought by these two sets parties, the Ninth Circuit twice disappointed the Carnes parties.
In Carnes v. Zamani, the Ninth Circuit held that a motion for attorney fees incurred to enforce a judgment was untimely. The motion was governed by FRCP 69(a). This rule, in turn, requires state law to be applied to determine proceedings “supplementary to and in support of a judgment.” The relevant California statute required a motion for fees incurred to enforce a judgment to be mad4e prior to satisfaction of that judgment. Here, the motion was brought after the judgment had been satisfied.
In Zamani v. Carnes, the Court affirmed the denial of the Carnes parties’ motion to dismiss. The Zamanis had sued the Carnes for failing to provide a properly formatted satisfaction of judgment once the Zamanis paid the judgment won against them in the initial litigation. The Carnes parties moved to dismiss under California’s Anti-Slapp law, protecting against frivolous suits brought to discourage exercise of 1st amendment rights. To prevail on their motion, the Carnes had to establish the lawsuit affected their first amendment rights, a matter conceded by both sides; and also, that the Zamanis had little likelihood of success. Once again, FRCP 69(a) governed the issue, making the likelihood of success an issue to be determined under California law. Under California law, the Zamanis’ claims were cognizable.
