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Keeton v. Hustler Magazine Inc.

decided: April 2, 1987.

KATHY KEETON, PLAINTIFF-APPELLEE,
v.
HUSTLER MAGAZINE, INC., AND LARRY C. FLYNT, DEFENDANTS-APPELLANTS, NLFP, INC., FLYNT DISTRIBUTING COMPANY, INC., AND DAVID L. KAHN, APPELLANTS



Appeal from an order of the United States District Court for the Southern District of New York, Edmund L. Palmieri, Judge, denying appellants' motions for various injunctive relief with respect to a New Hampshire district court judgment registered in New York State Supreme Court. Affirmed.

Author: Pratt

Before: PRATT, MINER and MAHONEY, Circuit Judges.

PRATT, Circuit Judge:

Seeking to avoid the Pyrrhic victory of an unsatisfactory libel judgment, appellee Kathy Keeton has tried to enforce her New Hampshire federal judgment in New York State. New York's judgment enforcement techniques are complemented by procedures designed to facilitate the registration of foreign, or out-of-state, judgments for New York will, with specified exceptions, simply recognize a foreign judgment as its own, rather than require a separate action on the judgment.

Here, appellants challenge Keeton's attempt to register and enforce in New York her judgment for $2,000,000 plus interest rendered in the United States District Court for the District of New Hampshire against Larry Flynt and Hustler Magazine, Inc. (collectively "Hustler"). Hustler removed Keeton's enforcement proceedings from New York Supreme Court, New York County, to the United States District Court for the Southern District of New York, Edmund L. Palmieri, Judge, which denied Hustler's motions to enjoin enforcement of and to set aside the judgment entered by Keeton in state supreme court. We affirm.

BACKGROUND

Alleging that she had been defamed by certain portrayals in Hustler magazine, Keeton sued Hustler for libel. Following her well-publicized victory on jurisdictional grounds in the Supreme Court, see Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 79 L. Ed. 2d 790, 104 S. Ct. 1473 (1984), the case went to trial, and on August 8, 1986, judgment on the jury's verdict of $2,000,000, plus interest, was entered for Keeton in the United States District Court for the District of New Hampshire. After its post-trial motions for judgment notwithstanding the verdict and for a new trial were denied, Hustler appealed to the United States Court of Appeals for the First Circuit. The district court denied Hustler's motion to stay execution of the judgment pending appeal unless Hustler posted a $2,000,000 supersedeas bond, but Hustler did not then, and has not to date, posted such a bond. In addition, Hustler's motion to the first circuit for a stay of execution pending appeal has twice been denied.

On October 3, 1986, Keeton filed her New Hampshire federal judgment in Supreme Court, New York County, pursuant to Article 54 of New York's Civil Practice Law and Rules, which is New York's embodiment of the Uniform Enforcement of Foreign Judgments Act, See N.Y. Civ. Prac. Law §§ 5401-5408 (McKinney 1978). Hustler removed Keeton's Article 54 proceeding from state supreme court to the United States District Court for the Southern District of New York, where its requests to enjoin enforcement of and to set aside the judgment, as well as for an interim stay of execution of the judgment, were denied. Additionally, the district court denied Hustler's motion to quash various subpoenas and restraining notices that had been served on the Hustler defendants. The district court concluded that Hustler's motions culminated a series of dilatory tactics taken to frustrate satisfaction of Keeton's judgment. This appeal followed.

On appeal, Hustler contends that Keeton may not register and enforce her judgment in New York while its appeal is pending in the first circuit, and that the federal registration scheme preempts any application of Article 54 to Keeton's federal judgment. Finding no merit to Hustler's arguments, we affirm.

Discussion

I. The Registration Provisions.

Article 54 defines a foreign judgment as "any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance, or by confession of judgment." N.Y. Civ. Prac. Law § 5401 (McKinney 1978). Article 54 permits a qualifying foreign judgment to be filed in any county clerk's office, and directs that

the clerk shall treat the foreign judgment in the same manner of the supreme court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of the supreme ...


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