IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-30089
Summary Calendar
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C. H. FAULKENBERRY, JR.,
Plaintiff,
DAVID L. SMITH, as assignee
of the interest of Plaintiff,
C. H. Faulkenberry, Jr.,
Movant-Appellant,
versus
JOHN ELKINS, BENEFITS SYSTEMS INC.,
and MICROBE MASTER, INC.,
Defendants-Appellees.
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Appeal from the United States District Court for
the Middle District of Louisiana
(85-CV-146)
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December 20, 1996
Before REAVLEY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
David Smith complains of the denial of his motion to revive
a 1986 judgment. We affirm.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
On January 3, 1986, the United States District Court, Middle
District of Louisiana entered a consent judgment (civil action
number 85-146-B-1) in the amount of $30,000 in favor of plaintiff
C.H. Faulkenberry, Jr. and against defendants John W. Elkins,
Benefit Systems, Inc. and Microbe Masters, Inc.
David Smith claims an interest in the judgment as assignee
from the sole heir of C.H. Faulkenberry, Jr. and now seeks
revival of the January 1986 judgment against International
Biochemicals Group (IBG), as corporate successor to Microbe
Masters.
Appellant Smith moved the court below to be substituted as
party plaintiff for the purpose of reviving the January 3, 1986
judgment, and to revive judgment. The District Court denied both
motions. Smith then requested that IBG be served and ordered to
appear and show cause as to why a writ of execution/fieri facias
should not issue in its name. The District Court denied this
motion, instructing appellant that he could file a separate
action in the proper court, but refusing to reopen civil action
85-146-B-1.
Our only issue is whether the district court erred in
denying the Motion to Revive Judgment filed by David Smith, and
in denying the Motion to Substitute David L. Smith for original
plaintiff Faulkenberry for the purpose of reviving the 1986
judgment. In its orders, the court questioned its jurisdiction
to grant the revival and the substitution of parties.
2
Revival of a federal court judgment follows the procedural
law of the forum state. Fed.R.Civ.P. 69(a). Urban Resorts Group
v. Wheeler, No. 82-2470, 1996 WL 28507, 1 (E.D.La.1/22/96).
Under Louisiana law, a money judgment may be revived by an
“ordinary proceeding” brought in the court which rendered the
original judgment. La. Code of Civ. Proc. Art. 2031.
Smith contends his motion to revive civil action number 85-
146-B-1 qualifies as an ordinary proceeding, and that
Fed.R.Civ.P. 81(b), abolishing the writ of scire facias, but not
the relief available under such a writ, allows for revival of
judgments by motion where the district court has already acquired
jurisdiction. Louisiana courts have held that revival of
judgment under Article 2031 requires the filing of a suit in
ordinary proceedings. Mouton v. Watson, 500 So.2d 792 (La.App.1
Cir. 1986), Master Credit Plan, Inc. v. Angelo, 437 So.2d 1201
(La.App.5 Cir. 1983), Bahan v. Youngstown Sheet and Tube Company,
191 So.2d 668,671 (La.App.2nd Cir. 1966) citing Cassiere v. Cuban
Coffee Mills, 74 So.2d 193 (La. 1954),
The district court could not look to the original record of
civil action number 85-146-B-1, to determine jurisdiction over
Smith or IBG. The court correctly questioned its jurisdiction to
grant the order in the manner presented, and dismissed the motion
to revive, reserving to the movant the right to refile.
Affirmed.
3