FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDELITY NATIONAL FINANCIAL INC.,
Plaintiff-Appellee,
FIDELITY EXPRESS NETWORK INC.,
Claimant-Appellee, No. 08-16967
v. D.C. No.
2:03-cv-01222-RCB
COLIN H. FRIEDMAN; HEDY KRAMER District of Arizona,
FRIEDMAN, individually and as
trustee of the Friedman Family Phoenix
Trust UDT, dated July 23, 1987, ORDER
Defendants-Appellants, CERTIFYING
QUESTIONS TO
and THE ARIZONA
ANITA MESHKATAI, individually and SUPREME COURT
as a trustee of the Anita Kramer
Living Trust, dated July 23, 1987,
Defendant.
Filed April 26, 2010
Before: Betty B. Fletcher, Sidney R. Thomas and
N. Randy Smith, Circuit Judges.
ORDER
In this case, an appeal from the United States District Court
for the District of Arizona, we are asked to decide whether
actions taken by Fidelity National Financial Inc. (“Fidelity”)
were sufficient under Arizona law to renew the prior registra-
tion of a judgment against Colin and Hedy Friedman. Pursu-
ant to Arizona Revised Statutes § 12-1861 and Arizona
6085
6086 FIDELITY NATIONAL FINANCIAL v. FRIEDMAN
Supreme Court Rule 27, we ask the Arizona Supreme Court
to address the questions of law described below.
I. Statement of Relevant Facts
A. Procedural Background
Fidelity successfully sued Colin and Hedy Friedman and
Farid and Anita Meshkatai in 2002 to recover the $8 million
that Fidelity paid Defendants to purchase a worthless com-
pany that Defendants fraudulently represented to Fidelity was
worth $8 million. Judgment was entered in U.S. District Court
for the Central District of California. That court certified that
Fidelity had “good cause” under 28 U.S.C. § 1963 to register
this judgment in another federal court even though, because
the appeal was pending, the judgment was not yet final. Fidel-
ity registered the judgment in U.S. District Court for the Dis-
trict of Arizona on November 21, 2002. Fidelity tried,
unsuccessfully, to collect on the judgment in Arizona. In
attempting to collect this judgment, Fidelity, inter alia,
applied for and received orders from the court for debtors’
examinations, inspection of the debtors’ safety deposit box,
and writs of garnishment.
On May 15, 2003, final judgment was rendered in the origi-
nal fraud action, because the appeal of the district court’s
decision was dismissed.
On July 6, 2006, Fidelity filed another action in the Central
District of California. Fidelity alleged the Friedmans and
Meshkatais had violated the RICO statute in using family
trusts and other devices to avoid paying the 2002 judgment.
The U.S. District Court in Arizona took judicial notice of the
RICO action on February 6, 2007.
On April 5, 2007, Fidelity registered the 2003 final judg-
ment in the U.S. District Court in Arizona following the dis-
missal of the appeal of the 2002 judgment. Fidelity did not
FIDELITY NATIONAL FINANCIAL v. FRIEDMAN 6087
include an affidavit of renewal for the original registration.
Noting this lack of an affidavit, the Friedmans filed a motion
in January 2008 to quash Fidelity’s renewal of judgment in
Arizona, arguing that Fidelity had failed to properly renew.
On February 7, 2008, Fidelity filed an additional affidavit of
renewal of the original judgment with the U.S. District Court
in Arizona.
The district court denied the Friedmans’ motion to quash,
finding that the judgment had been renewed by Fidelity’s Ari-
zona collection efforts and the filing of the RICO action in
California. The Friedmans appealed, presenting us with the
question of whether, under Arizona law, Fidelity’s actions
were sufficient to renew the judgment.
B. Legal Analysis
Relevant Statutes
The process for registering the judgment of one federal dis-
trict court in another federal district court is outlined in 28
U.S.C. § 1963. The federal court applies state law, however,
when renewing a judgment that has already been registered in
that state. Thus, this renewal case centers around the construc-
tion of three sections of Arizona law, Arizona Revised Stat-
utes Annotated §§ 12-1551(B), 12-1611, and 1-215.
The first section of Arizona law at issue, § 12-1551(B),
states:
An execution or other process shall not be issued
upon a judgment after the expiration of five years
from the date of its entry unless the judgment is
renewed by affidavit or . . . an action is brought on
it within five years from the date of the entry of the
judgment or of its renewal.
Section 12-1611 is similar though not precisely the same. It
states, “[a] judgment may be renewed by action thereon at any
6088 FIDELITY NATIONAL FINANCIAL v. FRIEDMAN
time within five years after the date of the judgment.” The
question in this case turns on the definition of “action” in
these provisions.
Based on these two sections, the district court found that
Fidelity’s collection activities in Arizona were sufficient to
renew the judgment. In the alternative, the district court deter-
mined that Fidelity’s RICO action, filed in California, would
also be sufficient to renew the judgment. The district court did
not address Arizona Revised Statutes § 1-215, which provides
that “[i]n the statutes and laws of this state, unless the context
otherwise requires . . . ‘Action’ includes any matter or pro-
ceeding in a court, civil or criminal.”
Collection Activities
On a broad reading of “action,” arguably suggested by § 1-
215, this term might include collection activities such as filing
for writs of garnishment or an order to inspect a safety deposit
box, as Fidelity did in this case. See Ariz. Rev. Stat. Ann. § 1-
215(1) (defining action to include “any matter or proceeding”)
(emphasis added). We are uncertain, however, whether so
broad a reading is appropriate, particularly in light of a recent
unpublished case from the Arizona Court of Appeals, Jones
v. Weston, 2009 Ariz. App. LEXIS 700 (Ariz. Ct. App. 2009),
which suggests that Fidelity’s collection activities and filing
of the RICO claim are insufficient to renew the judgment. See
also Kroncke v. Kroncke, 2009 WL 3786782 at *2 n.3 (Ariz.
Ct. App. 2009) (“An ‘action on a judgment’ refers to a spe-
cific cause of action, the main purpose of which is ‘to obtain
a new judgment which will facilitate the ultimate goal of
securing the satisfaction of the original cause of action.’ ”
(quoting Associated Underwriters v. Wood, 98 P.3d 572, 615
(Ariz. Ct. App. 2004))). Although suggesting Fidelity’s
actions were not sufficient under §§ 12-1551 and 12-1611,
Jones does not address § 1-215 and thus leaves us uncertain
as to whether the court considered this statute and determined
it should not apply and that “action” is not so broadly read,
FIDELITY NATIONAL FINANCIAL v. FRIEDMAN 6089
or whether its omission was inadvertent. Moreover, Jones is
unpublished and therefore not precedential, adding further
uncertainty as to its weight.
Out-of-State Lawsuits and Related Lawsuits
We are also uncertain whether, under §§ 12-1551 or 12-
1611 read in light of § 1-215, the renewal action must take
place in the state of Arizona and the extent to which a lawsuit
must be related to the underlying judgment in order to consti-
tute an action brought on the judgment under Arizona law.
Again, a broad reading of “action” under § 1-215 might
include out-of-state lawsuits like Fidelity’s RICO action.
However, renewing a judgment in Arizona through an action
filed in California is potentially problematic with regard to
giving parties in Arizona proper notice of the renewal. Cf.
J.C. Penney v. Lane, 3 P.3d 1033, 1039 (Ariz. Ct. App. 1999)
(“It is not intended that [interested parties] be required to
check the court records in all of the other counties of the state
to ensure that the judgment has not been renewed by the filing
of an affidavit of renewal in any one of these other coun-
ties.”).
Furthermore, Fidelity’s RICO lawsuit, as a separate lawsuit
alleging a different (albeit related) violation, is not an action
on the original judgment in the same way as Fidelity’s Ari-
zona collection activities. The latter are premised on the
authority of the original judgment to enforce that judgment,
while the RICO action alleged a new violation of the law
based on the Friedmans’ attempts to avoid paying the original
judgment. We are thus uncertain as to the degree of relation-
ship required for an action to renew an underlying judgment
and whether Arizona would allow an out-of-state lawsuit to
renew a judgment.
II. Questions for Certification
We therefore certify the following two questions to the Ari-
zona Supreme Court, believing it appropriate to allow it the
6090 FIDELITY NATIONAL FINANCIAL v. FRIEDMAN
first opportunity to address these questions. We note that the
Arizona Supreme Court may reformulate these questions. See
Torres v. Goodyear Tire & Rubber Co., 786 P.2d 939, 941 n.1
(Ariz. 1990). The questions we present are:
(1) Do collection activities (such as filing for a writ of gar-
nishment or applying for orders from the court to inspect a
safety deposit box or require a debtor’s exam) taken within
Arizona, renew a judgment previously registered in Arizona?
(2) Does the filing of a related lawsuit in a state other than
Arizona renew a judgment previously registered in Arizona?
As required by Arizona Supreme Court Rule 27, we also
provide the following information regarding counsel for the
parties.
On behalf of Fidelity National Financial, Inc.:
Orlando F. Cabanday (SBN 168131)
Janice M. Kroll (SBN 189975)
Thomas H. Case (SBN 116660)
HENNELLY & GROSSFELD LLP
4640 Admiralty Way, Suite 850
Marina del Rey, CA 90292
Telephone: (310) 305-2100
On behalf of Colin and Hedy Friedman:
Michael R. Walker (003484)
Mark C. Hudson (020500)
SCHIAN WALKER, P.L.C.
3550 North Central Avenue Suite 1700
Phoenix, Arizona 85012-2115
(602) 277-1501
The Clerk of this court shall transmit a copy of this certifi-
cation order to counsel for the parties. The Clerk shall also
FIDELITY NATIONAL FINANCIAL v. FRIEDMAN 6091
forward, under the Ninth Circuit’s seal, the original and six
copies of this certification order to the Arizona Supreme
Court.
Submission is DEFERRED pending resolution of the certi-
fied questions.
The parties are directed to file simultaneous status reports
indicating the status of this action every 90 days.
__________________________
Honorable Sidney R. Thomas
Ninth Circuit Court of Appeals Judge