United States District Court, S.D. Mississippi, Southern Division
HCB FINANCIAL CORP., et al. PLAINTIFFS
LEE F. KENNEDY, et al. DEFENDANTS
ORDER GRANTING IN PART AND DENYING WITHOUT PREJUDICE
IN PART DEFENDANT LEE F. KENNEDY'S MOTION  FOR LEAVE
TO DEPOSIT FUNDS WITH THE COURT AND FOR AN ORDER DECLARING
THE JUDGMENT SATISFIED
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Lee F. Kennedy's Motion  for
Leave to Deposit Funds with the Court and for an Order
Declaring the Judgment Satisfied. After due consideration of
the record, relevant legal authority, and Defendant Lee F.
Kennedy's Motion , the Court is of the opinion that
the Motion  should be granted in part and denied without
prejudice in part, allowing Kennedy to deposit the funds into
the registry of the Court, but denying any declaratory relief
that the judgment in this case is satisfied. The Court will
allow Plaintiff HCB Financial Corporation to file any motion
to collect on post-judgment attorneys' fees or costs
within thirty (30) days of the date of entry of this Order.
The Court will deny Defendant Lee F. Kennedy's request
for a hearing.
case involves the nonpayment of a Promissory Note, which was
ultimately assigned to Plaintiff HCB Financial Corporation
(“HCB”) and personally guaranteed by Defendant
Lee F. Kennedy (“Defendant” or
“Kennedy”). On March 14, 2013, this Court granted
HCB's Motion for Summary Judgment and entered a Final
Judgment  against Kennedy and in favor of HCB. Order
. The Court then entered an Amended Final Judgment 
against Defendant Kennedy for $2, 019, 495.82, on July 11,
2013. On June 4, 2014, the Fifth Circuit affirmed this
Court's Order  granting summary judgment in favor of
HCB and its Amended Final Judgment awarding $2, 019, 495.82.
USCA Op. . Since entry of the Court's Amended Final
Judgment on July 11, 2013, HCB has sought discovery relating
to, and has engaged in efforts to collect upon, the judgment.
See ECF Docket, No. 1:10cv559-HSO-JCG.
now moves for leave of Court to deposit $2, 036, 293.60 into
the registry of the Court and for an order declaring that she
has satisfied the judgment. Mot. . In her January 25,
2019, Motion , Kennedy argues that she should be
permitted under Federal Rule of Civil Procedure 67 to deposit
the full amount of the Amended Final Judgment, along with
accrued post-judgment interest through the date of her Motion
 in the amount of $16, 797.78. Mot. ; Mem. in
Support . HCB responds that: (1) the money Kennedy
wishes to deposit is not in dispute; (2) Kennedy is not
entitled to a declaratory judgment stating that she has
satisfied the Court's Final Judgment; and (3) Kennedy
cannot use Rule 67 to moot HCB's subpoenas and other
collection efforts. Kennedy replies that she has made two
distinct prayers for relief, one a request to deposit and
another a request for a judicial determination that the
judgment has been satisfied. Reply  at 1. In her Reply,
Kennedy requests a hearing on her Motion . Id.
Rule of Civil Procedure 67 permits a party to seek leave of
court to “deposit with the court all or part of the
money or thing, whether or not that party claims any of
it.” Fed.R.Civ.P. 67. It is within a district
court's sound discretion whether to grant such leave to a
requesting party. Cajun Elec. Power Co-op., Inc. v. Riley
Stoker Corp., 901 F.2d 441, 445 (5th Cir. 1990);
Gulf States Utils. Co. v. Ala. Power Co., 824 F.2d
1465, 1469 (5th Cir.), amended, 831 F.2d 557 (5th Cir. 1987).
invocation of Rule 67 is appropriate under the unique facts
of this case. After HCB's protracted efforts to collect
on this judgment, Kennedy now seeks to tender funds equal to
the full amount of the Amended Final Judgment, plus accrued
interest. See Motion ; Mem. in Support ;
Resp. . HCB, however, now claims that it is also
entitled to an unspecified amount for attorneys' fees
relating to its lengthy post-judgment collection efforts.
See Motion ; Mem. in Support ; Resp.
spends a significant portion of its Response  tracing
its efforts to collect upon the judgment in this case and the
majority of it opposing Kennedy's request for a
declaration that the judgment is satisfied. See
Resp. . HCB also reveals that it has filed a case
against Kennedy in another court alleging civil claims
pursuant to the Racketeer Influence and Corrupt Organizations
Act, 18 U.S.C §§ 1961-68, and indicates that
continued post-judgment discovery throughout this case has
and will provide a supporting basis for at least some of its
claims in that case. Resp.  at 2.
HCB may be entitled to post-judgment attorneys' fees
related to its protracted efforts to collect from Kennedy, it
is not entitled to use this case as a discovery vehicle for
uncovering evidence to use against Kennedy in another case.
See Motion ; Resp. . HCB has, at least in
part, created the present dispute over the funds Kennedy
wishes to deposit. See Cajun Elec. Power, 901 F.2d
at 445 (“If the debt had been undisputed (that is, if
[the plaintiff] had been willing to join with [the defendant]
in a joint motion to confirm the arbitration award when it
was rendered), the controversy that gave rise to this appeal
would never have arisen in the first place.”). While
HCB should be afforded the opportunity to seek recovery of
its attorneys' fees, it would be unfair to Kennedy to
allow HCB to use this case as a means to continue discovery
into other claims when she now seeks to satisfy the judgment.
See Id. (considering fairness in affirming a
district court's order allowing a party to deposit
light of the foregoing, the Court finds that to the extent
Kennedy's Motion  seeks to deposit the tendered
funds into the registry of the Court, it should be granted.
However, because the Court cannot determine whether to award,
nor is there any present motion to seek, attorneys' fees
relating to post-judgment collection efforts, it will deny
without prejudice the portion of Kennedy's Motion 
that seeks a judicial determination that the judgment is
satisfied. The Court will allow HCB to move for any
post-judgment attorneys' fees within thirty (30) days of
the date of entry of this judgment. Once the Court has
adjudicated that request and Kennedy has paid to HCB any
further sums she may owe, if any, the Court can then
entertain a request to deem the judgment satisfied. Finally,
because a hearing is unnecessary in order to resolve this
Motion , Kennedy's request for a hearing will be
THEREFORE, ORDERED AND ADJUDGED that, Defendant Lee F.
Kennedy's Motion  for Leave to Deposit Funds with
the Court and for an Order Declaring the Judgment Satisfied
is GRANTED IN PART AND DENIED WITHOUT PREJUDICE IN PART.
Defendant Lee F. Kennedy shall immediately deposit funds in
the amount of $2, 036, 293.60, representing the amount of the
Amended Final Judgment and post-judgment interest through
January 25, 2019, into the registry of the Court. Pursuant to
Federal Rule of Civil Procedure 67(b), the Clerk of Court is
directed to deposit the funds “in accordance with 28
U.S.C. §§ 2041-42 and any like statute, ” and
“in an interest-bearing account or invested in a
court-approved, interest-bearing instrument.” The Court
DENIES WITHOUT PREJUDICE Defendant Lee F. Kennedy's
request for a determination that the judgment is satisfied,
and will allow Plaintiff HCB Financial Corporation to file
any motion for post-judgment attorneys' fees and costs
within thirty (30) days of the date of entry of this Order.
FURTHER, ORDERED AND ADJUDGED that Defendant Lee F.