                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      February 20, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JOSEPH R. FOX,

             Plaintiff - Appellant,

v.                                                        No. 14-4082
                                               (D.C. No. 2:13-CV-00819-TC-EJF)
NATIONAL OILWELL VARCO,                                     (D. Utah)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, BALDOCK, and MORITZ, Circuit Judges.


      Joseph R. Fox appeals the denial of his post-judgment motion to compel

discovery under Federal Rule of Civil Procedure 69(a)(2). Rule 69(a)(2) permits

discovery in aid of a money judgment. A magistrate judge denied Mr. Fox’s motion,

ruling that there was no money judgment to provide a basis for discovery. The

district court adopted the magistrate judge’s decision, and we now affirm.



*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           I

      The following background is helpful to understand the nature of this appeal.

Mr. Fox and several other individuals (claimants) founded a company named

IntelliServ, which developed technology for use in oil and gas drilling operations.

Another company, Grant Prideco, purchased a fifty percent interest in IntelliServ and

later acquired the remaining fifty percent pursuant to a stock purchase agreement.

Under the terms of the purchase contract, Grant Prideco agreed to pay part of the

purchase price up front, plus $5 million in contingent payments and additional

amounts up to a cap of $80 million as set forth in an Earnout Agreement. The

Earnout Agreement, in turn, provided that the contingent payments would be based

on revenue generated by certain IntelliServ products. These contractual payment

obligations were all assumed by National Oilwell Varco, Inc. (NOV), which acquired

Grant Prideco and became the sole shareholder of IntelliServ.

      Following NOV’s acquisition of Grant Prideco, a dispute arose between the

claimants and NOV regarding what products should be included in the Earnout

Agreement’s payment calculus. Claimants asserted the acquisition triggered an

expanded revenue base that obligated NOV to make additional payments under the

Earnout Agreement. NOV, however, claimed that the contested products did not

contribute to IntelliServ revenue, and thus no additional payments were due. The

dispute went to arbitration, and an arbitration panel ruled in favor of NOV, directing

that Mr. Fox and the other claimants “take nothing.” R. at 27. NOV was ordered to


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and did pay arbitration expenses totaling $80,192.46. Mr. Fox then initiated this

action in the district court to confirm the arbitration panel’s decision, and the district

court entered a stipulated judgment and order confirming the arbitration order.

       Afterwards, however, Mr. Fox filed a post-judgment motion under Rule

69(a)(2) seeking to compel discovery in aid of a money judgment. According to

Mr. Fox, he was entitled to discovery of NOV’s revenue information to verify the

accuracy of NOV’s contractual payment obligations. See R. at 811. The matter was

referred to a magistrate judge, who denied the motion, explaining that Rule 69(a)(2)

was inapplicable because Mr. Fox did not have a money judgment. Mr. Fox

objected, but the district court adopted the magistrate judge’s decision and denied the

motion to compel. This appeal followed.1

                                            II

       On appeal, Mr. Fox advances two arguments. He first contends the magistrate

judge lacked the authority to decide that there was no money judgment for purposes

of Rule 69(a)(2). We decline to consider this argument because Mr. Fox waived it by

failing to timely object to the district court’s referral. See Clark v. Poulton, 963 F.2d

1361, 1367 (10th Cir. 1992) (applying waiver rule where appellant failed to object to

district court’s referral); Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir. 1981)

(“Ordinarily a party who objects to a reference to a magistrate must make his
1
      Because Mr. Fox is proceeding pro se, we afford his materials a liberal
construction but do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008).


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objections known either at the time of reference or soon thereafter.”). The district

court referred the motion to compel to the magistrate judge on December 27, 2013,

but Mr. Fox waited more than five months before he challenged the referral in his

June 9, 2014, objections to the magistrate judge’s adverse decision. In the interim,

Mr. Fox requested that his motion be submitted for a decision and hearing before the

“court, or designated magistrate,” R. at 1090, and he also sent an e-mail to the

magistrate judge inquiring as to the status of his motion, id. at 1117. But he

expressed no concern with magistrate judge’s authority until after the magistrate

judge ruled against him. See Hill, 656 F.2d at 1213 (“Parties who did not prevail

before the magistrate would routinely seek to have the reference set aside for reasons

that either could have been corrected or would have stopped the proceedings if

promptly brought to the referring court’s attention.”). Consequently, Mr. Fox waived

the issue.

       Mr. Fox’s second argument also is unavailing. He contends the magistrate

judge incorrectly concluded that there was no money judgment for purposes of Rule

69(a)(2). According to Mr. Fox, the arbitration order constitutes a money judgment

that entitles him to discovery. We disagree.

       Rule 69(a) establishes the procedure by which a judgment creditor executes on

a money judgment. Rule 69(a)(1) states that “[a] money judgment is enforced by a

writ of execution, unless the court directs otherwise.” Rule 69(a)(2) provides that a

judgment creditor, “[i]n aid of the judgment or execution, . . . may obtain discovery


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from any person—including the judgment debtor . . . .” These provisions clearly

contemplate the existence of a money judgment, without which there is no right to

discovery. See Sanderson v. Winner, 507 F.2d 477, 480 (10th Cir. 1974) (observing

that discovery under Rule 69 is contingent on obtaining a judgment); United States v.

Varnado, 447 F. App’x 48, 50 (11th Cir. 2011) (per curiam) (unpublished) (holding

that for Rule 69 “to apply a ‘money judgment’ must exist” (citing Ziino v. Baker,

613 F.3d 1326, 1328 (11th Cir. 2010)).

       The issue then becomes whether Mr. Fox has a money judgment. Generally

speaking, a money judgment is an order adjudging the payment of a sum of money.

See U.S. Fid. & Guar. Co. v. Ft. Misery Highway Dist., 22 F.2d 369, 372 (9th Cir.

1927). The Ninth Circuit has elaborated, defining a money judgment as consisting of

“two elements: (1) an identification of the parties for and against whom judgment is

being entered, and (2) a definite and certain designation of the amount which plaintiff

is owed by defendant.” Ministry of Def. & Support for the Armed Forces of the

Islamic Republic of Iran v. Cubic Def. Sys., Inc., 665 F.3d 1091, 1101 (9th Cir. 2011)

(emphasis and internal quotation marks omitted). Assuming, as Mr. Fox does, that

the arbitration order here could represent a money judgment confirmed by the district

court, his argument fails because the arbitration panel did not award him a money

judgment. Instead, the arbitration panel ruled against him and in favor of NOV,

specifically directing that Mr. Fox and the other “Claimants take nothing on their

claims to share revenues from NOV’s sales . . . .” R. at 27. Although the panel


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directed NOV to pay administrative fees for the arbitration, NOV paid those fees in

full. Moreover, the arbitration panel ruled that “[a]ll claims and counterclaims not

expressly granted herein are hereby denied.” Id. at 30.

      Mr. Fox insists that the arbitration order “confirms the obligation of [NOV] to

pay money to [him].” Aplt. Br. at 18. He says the order “designates the total amount

owing and sets forth with particularity the method for determining the amount of

future payments.” Id. But the payments to which Mr. Fox refers do not represent a

money judgment; rather, the payments he references were the contractual payment

obligations that NOV assumed in acquiring Grant Prideco. This is not a money

judgment; it is simply the price that Grant Prideco agreed to pay for IntelliServ.

Because Mr. Fox has no money judgment, he is not entitled to discovery under

Rule 69(a).

      Accordingly, the judgment of the district court is affirmed.


                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge




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