`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`HENDRICKS & LEWIS PLLC, a
`Washington professional limited
`liability company,
`
`Plaintiff-Appellee,
`
`v.
`
`No. 13-35010
`
`D.C. No.
`2:12-cv-00841-
`RSL
`
`GEORGE CLINTON, an individual,
`Defendant-Appellant.
`
`OPINION
`
`Appeal from the United States District Court
`for the Western District of Washington
`Robert S. Lasnik, District Judge, Presiding
`
`Argued and Submitted
`February 4, 2014—Seattle, Washington
`
`Filed June 23, 2014
`
`Before: Raymond C. Fisher, Ronald M. Gould,
`and Morgan Christen, Circuit Judges.
`
`Opinion by Judge Christen
`
`
`
`2
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`SUMMARY*
`
`Copyright
`
`The panel affirmed the district court’s order appointing a
`receiver and authorizing the sale of master sound recording
`copyrights in an action between musician George Clinton and
`his former law firm Hendricks & Lewis.
`
`Hendricks & Lewis obtained judgments against Clinton
`for past-due attorneys’ fees, and moved for an order
`authorizing the sale of master recordings made by Clinton to
`satisfy the judgments.
`
`The panel held that under Washington law Clinton’s
`copyrights in the masters were subject to execution to satisfy
`judgments made against him. The panel also held that
`§ 201(e) of the federal Copyright Act did not protect Clinton
`from the involuntary transfer of his copyrighted works. The
`panel further held that under Washington law the district
`court did not abuse its discretion by appointing a receiver to
`manage or sell ownership of the copyrights. The panel held
`that Clinton may raise claims of fraud on the court and
`judicial estoppel for the first time on appeal, but concluded
`that both claims were meritless. Finally, the panel held that
`Clinton failed to raise his preemption, Erie doctrine, and due
`process arguments before the district court, and, therefore,
`they would generally not be considered, and in any event they
`were without merit.
`
` * This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`3
`
`COUNSEL
`
`Eric Michael Fong (argued), Fong Law, Port Orchard,
`Washington, for Plaintiff-Appellee.
`
`Katherine Hendricks (argued), Hendricks & Lewis, Seattle,
`Washington, for Defendant-Appellant.
`
`OPINION
`
`CHRISTEN, Circuit Judge:
`
`George Clinton appeals the district court’s order
`appointing a receiver, assigning four master sound recording
`copyrights to the receiver, and authorizing the receiver to use
`the copyrights to the extent necessary to satisfy monetary
`judgments a law firm obtained against him. Clinton also
`raises several issues for the first time on appeal, including
`fraud on the court and judicial estoppel. We have jurisdiction
`under 28 U.S.C. § 1291 and we affirm.
`
`I. FACTS
`
`A. H&L’s Judgments Against Clinton
`
`George Clinton is a musician, bandleader, and touring
`performance artist. Hendricks & Lewis (H&L) is a law firm
`that represented Clinton in various disputes from March 2005
`to August 2008. H&L billed Clinton $3,341,650.32 for its
`work, received $1,000,578.87 in payment, and wrote off
`approximately $600,000 of the remaining balance. This left
`$1,779,756.29 due. H&L initiated arbitration to secure
`payment of the balance, and an arbitration panel issued an
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`ward in favor of H&L. Clinton did not participate in the
`arbitration proceedings. H&L petitioned the Western District
`of Washington for an order confirming the arbitration award,
`and, in May 2010, the district court entered judgment for
`H&L against Clinton in the amount of $1,675,639.82, plus
`interest. The court entered a second judgment awarding H&L
`an additional $60,786.50 in attorneys’ fees and costs in July
`2010.
`
`4 a
`
`B. H&L’s Judgment Collection Efforts
`
`H&L pursued a variety of judgment collection efforts,
`including garnishments, levies, and liens in several districts
`across the country. Clinton’s attorney declared that these
`actions created a financial “stranglehold” so that Clinton
`“[c]an’t pay his taxes. Can’t pay his lawyers. Now, it is
`going to affect his touring and his ability to make a living at
`72 years old.”
`
`C. Ownership History of the Masters
`
`In July 1975, Clinton, through his production company,
`Thang, Inc., entered into a recording contract with Warner
`Bros. Records in which Clinton agreed to make master
`recordings of his performances with the group Funkadelic
`(“the Masters”). Clinton had previously entered into a valid
`and binding agreement with Thang to render his services as
`a recording artist solely and exclusively for Thang.
`
`The recording contract between Thang and Warner Bros.
`provided that Warner Bros.:
`
`shall own in perpetuity throughout the world
`all right, title and interest in and to all the
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`5
`
`results and proceeds of [Thang’s] and
`[Clinton’s] services and performances
`hereunder, including the sole and exclusive
`ownership of any and all masters . . . , the
`copyrights therein throughout the universe,
`and the right to extend or renew such
`copyrights, and
`[Thang] and
`[Clinton]
`acknowledge that they shall at no time have
`any right, title or interest in the foregoing.
`
`The agreement further provided that Thang:
`
`acknowledges and agrees that [Warner Bros.]
`is and shall be the owner of all rights of
`copyright in records embodying the results
`and proceeds of [Clinton’s] services . . . ,
`including the exclusive right to copyright
`same as “sound recordings” in the name of
`[Warner Bros.] to renew and extend such
`copyrights (it being agreed that for this
`purpose [Thang] and [Clinton] are deemed
`[Warner Bros.’s] employees for hire) and to
`exercise all rights of the copyright/proprietor
`thereunder. To the extent, if any that [Thang]
`or [Clinton] may be deemed an “author” of
`such “sound
`recordings”,
`[Thang] and
`[Clinton] further grant to [Warner Bros.] a
`power of attorney, irrevocable and coupled
`with an interest for [Thang] and [Clinton] and
`in [Thang] and/or [Clinton’s] name, to apply
`for and obtain and on obtaining same, to
`assign to [Warner Bros.], all such renewal
`copyrights.
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`linton signed a substantially similar agreement with Warner
`Bros. in May 1979. Under these agreements, the Masters at
`issue in this appeal—“Hardcore Jollies,” “One Nation Under
`a Groove,” “Uncle Jam Wants You,” and “The Electric
`Spanking of War Babies”—were created, and Warner Bros.
`registered the copyrights in those recordings as “works made
`for hire” in its name as author.
`
`6 C
`
`In August 1982, to resolve a separate dispute involving
`Clinton, Warner Bros., and other parties, Clinton and Warner
`Bros. entered into a settlement agreement under which
`Warner Bros. agreed to “relinquish its ownership of the
`Clinton Masters” at issue in this appeal, if or when Clinton
`entered into an agreement with a third party to distribute and
`sell records produced from the Masters. Clinton’s ownership
`of the Masters was eventually confirmed through litigation in
`2005 when the Central District of California issued an order
`that Clinton “is the sole owner of [the Masters] and has been
`the sole owner of the Masters since 1993.” Clinton
`subsequently sued third parties for copyright infringement of
`the Masters.
`
`II. PROCEDURAL HISTORY
`
`In July 2011, approximately one year after H&L secured
`its judgments for past-due attorneys’ fees against Clinton,
`Clinton sued H&L in the Western District of Washington
`alleging various theories of legal malpractice. H&L asserted
`judgment collection counterclaims and moved for an order
`authorizing the sale of the Masters to satisfy the judgments it
`had secured against Clinton. In April 2012, H&L initiated a
`separate action in the Western District of Washington seeking
`an order for a judgment debtor examination of Clinton. H&L
`subsequently filed a motion in this separate action for the
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`7
`
`appointment of a receiver and for an order directing the
`assignment of the Masters to the receiver. H&L’s
`counterclaims in the malpractice action were severed and
`consolidated with the action initiated by H&L, which is at
`issue here.1
`
`In November 2012, the district court found that “[d]espite
`numerous efforts to enforce [the subject] judgments in this
`and other district[s], plaintiff has recovered less than
`$340,000.” The district court appointed a receiver in an order
`specifying that the receiver:
`
`shall have all of the rights, powers, duties, and
`authority vested in him under [applicable
`Washington law], including but not limited to
`authority and control over the Funkadelic
`master sound recordings “Hardcore Jollies,”
`“One Nation Under a Groove,” “Uncle Jam
`Wants You,” and “The Electric Spanking of
`War Babies,” in order to maximize the value
`of the sound recordings for the benefit of the
`parties and to make whole the judgment
`creditor, [H&L]. Receiver shall, to the
`greatest extent possible, maximize the income
`stream from the Funkadelic master sound
`recordings without selling or otherwise
`permanently disposing of the copyrights.
`Ideally, the Receiver will utilize the copyright
`and sound recordings over a one or two year
`
` 1 The district court subsequently dismissed Clinton’s legal malpractice
`claims, and this court affirmed that ruling. See Clinton v. Hendricks &
`Lewis PLLC, No. 12-35791, 2014 U.S. App. LEXIS 3131 (9th Cir. Feb.
`20, 2014).
`
`
`
`8
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`period to satisfy the judgments and pay the
`expenses of the receivership before returning
`the copyrights and master sound recordings to
` Notwithstanding the Court’s
`[Clinton].
`preference for returning the recordings and
`copyrights to [Clinton] after his debts are
`satisfied, the Receiver has the authority to sell
`or permanently dispose of any or all of the
`master sound recordings.
`
`(Emphasis added). The district court also ordered that it
`would have to pre-approve any sale of the Masters.2
`
`In entering its order, the district court considered the text
`and legislative history of Copyright Act § 201(e), which
`protects individual authors from the involuntary transfer of
`their copyrights. The district court ruled that Clinton was not
`entitled to § 201(e) protection because he “is either an
`assignee of the original author or he has previously
`transferred the copyrights voluntarily.” The district court
`noted that the initial agreements between Warner Bros. and
`Clinton, and between Warner Bros. and Thang, specifically
`granted the copyrights in the sound recordings to Warner
`Bros. The court concluded that Warner Bros. was the original
`“author” of the Masters under both the Copyright Act and the
`parties’ contract, and that Clinton was not eligible for
`protection under § 201(e) of the Copyright Act. The district
`court reasoned that Clinton, who obtained ownership of the
`Masters in 1993, is an assignee, not the author for purposes
`of the Act. In the alternative, the court reasoned that even if
`it found Clinton was the original author, he voluntarily
`
` 2 Neither of the parties challenged the qualifications of the court-
`appointed receiver.
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`9
`
`transferred the copyrights to Warner Bros., thus making
`himself ineligible for protection under § 201(e). Finally, the
`district court concluded
`that
`the Masters recording
`copyrights, like any other species of non-exempt personal
`property, are subject to judicial sale or assignment to satisfy
`a judgment.
`
`Clinton appeals.
`
`III.
`
`DISCUSSION
`
`“We review de novo the district court’s interpretations of
`the Copyright Act.” Rossi v. Motion Picture Ass’n of Am.
`Inc., 391 F.3d 1000, 1002–03 (9th Cir. 2004). The
`appointment of a receiver is reviewed for abuse of discretion.
`See Cameron v. Groveland Improvement Co., 54 P. 1128,
`1128 (Wash. 1898); King Cnty. Dep’t of Cmty. & Human
`Servs. v. Nw. Defenders Ass’n, 75 P.3d 583, 586 (Wash. Ct.
`App. 2003). “Because a court invokes judicial estoppel at its
`discretion, we review the application of judicial estoppel to
`the particular facts of a case for abuse of discretion.”
`Johnson v. Oregon, 141 F.3d 1361, 1364 (9th Cir. 1998).
`
`A. Clinton’s Copyrights in the Masters are Subject to
`Execution to Satisfy Judgments Entered Against
`Him.
`
`Federal Rule of Civil Procedure 69(a) governs execution
`proceedings. It provides:
`
`in
`[t]he procedure on execution—and
`proceedings supplementary to and in aid of a
`judgment or execution—must accord with the
`procedure of the state where the court is
`
`
`
`10
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`located, but a federal statute governs to the
`extent it applies.
`
`Fed. R. Civ. P. 69(a)(1). We therefore look to Washington
`law, which generally allows money judgments to be enforced
`by execution: “All property, real and personal, of the
`judgment debtor that is not exempted by law is liable to
`execution.” Wash. Rev. Code § 6.17.090. Washington law
`does not specifically address whether copyrights, like other
`types of property, are subject to sale or assignment in order to
`satisfy a judgment, but federal law establishes that copyrights
`are alienable. 17 U.S.C. § 201(d)(1) provides that “[t]he
`ownership of a copyright may be transferred in whole or in
`part by any means of conveyance or by operation of law.”
`
`We know of no federal statutory law directly addressing
`whether copyrights are subject to execution to satisfy a
`judgment. Both H&L and the district court relied on federal
`common law, specifically Ager v. Murray, 105 U.S. 126
`(1881). The Ager court ruled that if a patent holder refused
`to assign his patent to satisfy a judgment entered against him,
`the trustee was authorized to execute the assignment on his
`behalf. Id. at 132. Though Ager involved a patent rather than
`a copyright, the district court’s analogy to patent law is rooted
`in our case law. Our court has said that where copyright case
`law is lacking, “it is appropriate to look for guidance to patent
`law ‘because of the historic kinship between patent law and
`copyright law.’” Harris v. Emus Records Corp., 734 F.2d
`1329, 1333 (9th Cir. 1984) (quoting Sony Corp. of Am. v.
`Universal City Studios, Inc., 464 U.S. 417, 439 (1984)).
`Indeed, Ager itself discusses patents and copyrights in
`tandem. See 105 U.S. at 127–28 (“[T]he provisions of the
`patent and copyright acts, securing a sole and exclusive right
`to the patentee, do not exonerate the right and property . . .
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`11
`
`from liability to be subjected by suitable judicial proceedings
`to the payment of his debts.”). The authority cited by the
`district court is helpful, but Rule 69 requires that state law
`controls execution proceedings absent express statutory
`authority, not federal common law. See Fed. R. Civ. P.
`69(a)(1).
`
`Our court confronted an analogous issue in Office Depot,
`Inc. v. Zuccarini, 596 F.3d 696 (9th Cir. 2010), where we
`considered whether internet domain names are subject to
`execution in California. Consistent with Rule 69, in Office
`Depot our court first looked to California law because there
`is no specific federal statute addressing whether domain
`names may be the subject of judgment execution efforts.
`Because California law permits writs of execution against
`intangible assets generally, and because domain names are
`intangible personal property, we held that internet domain
`names are subject to execution in California. Id. at 701–02.
`
`Here, Rule 69 required that the district court look to
`Washington law in the absence of a federal statute addressing
`whether copyrights may be subject to execution procedures,
`and Washington law provides that “all property, real and
`personal,” is subject to execution. Johnson v. Dahlquist,
`225 P. 817, 818 (Wash. 1924). This rule, known as the
`“Johnson rule,” was first articulated when a previous version
`of Wash. Rev. Code § 6.17.090 was in effect, but, subject to
`narrow exceptions that are not applicable here, Washington
`courts continue to follow it. See MP Med. Inc. v. Wegman,
`213 P.3d 931, 935–36 (Wash. Ct. App. 2009). As Ager
`recognizes, copyrights, like patents, are a form of intangible
`personal property. 105 U.S. at 129–30. Therefore, unless an
`exception or exemption applies, Washington law permits
`H&L to execute against Clinton’s copyrights in the Masters.
`
`
`
`12
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`Clinton challenges the district court’s reliance on
`Washington’s admittedly broad and general execution statutes
`and the district court’s analogy to patent law. He argues that
`§ 201(e) of the Copyright Act precludes H&L’s execution
`efforts. For the first time on appeal, he also argues that
`§ 304(c) of the Copyright Act prohibits execution against his
`copyrights because he enjoys the inalienable right to
`terminate the assignment of his copyrights to Warner Bros.3
`As discussed below, both arguments fail.
`
`B. Copyright Act § 201(e) Does Not Protect Clinton
`from the Involuntary Transfer of His Copyrighted
`Works.
`
`Clinton argues that § 201(e) of the Copyright Act protects
`the subject copyrights from H&L’s judgment collection
`efforts. Neither the statute’s plain text nor its legislative
`history supports Clinton’s argument.
`
`We begin with the statutory language. Section 201(e)
`provides:
`
`When an individual author’s ownership of a
`copyright, or of any of the exclusive rights
`under a copyright, has not previously been
`transferred voluntarily by that individual
`author, no action by any governmental body
`or other official or organization purporting to
`seize, expropriate, transfer, or exercise rights
`of ownership with respect to the copyright, or
`any of the exclusive rights under a copyright,
`
` 3 17 U.S.C. § 304(c) sets out the conditions under which transfers and
`licenses to copyrights are subject to termination.
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`13
`
`shall be given effect under this title, except as
`provided under title 11.
`
`17 U.S.C. § 201(e) (emphases added). A leading authority on
`copyright law explains:
`
`The stated purpose of this prohibition was to
`“protect foreign authors against laws and
`decrees purporting to divest them of their
`rights under the United States copyright
`statute, and would protect authors within the
`foreign country who choose to resist such
`covert pressures.” More particularly it was
`feared that the Soviet Union, by its accession
`to the Universal Copyright Convention on
`February 27, 1973, would be enabled to
`enforce censorship in the United States of the
`works of its dissident authors through the
`device of seizing the ownership of such
`works, and then by enforcing the American
`copyright
`therein, enjoin any public
`distribution within the United States.
`
`3 Melville B. Nimmer & David Nimmer, Nimmer on
`Copyright § 10.4 (footnote omitted). The legislative history
`of § 201(e) explains that “[t]he purpose of this subsection is
`to reaffirm the basic principle that the United States copyright
`of an individual author shall be secured to that author, and
`cannot be taken away by any involuntary transfer.” H.R.
`
`
`
`14
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`Rep. 94-1476, at 123 (1976), reprinted in 1976 U.S.C.C.A.N.
`5659, 5739.4
`
`Section 201(e) is of no help to Clinton because he is not
`the “author” of the Masters within the meaning of the
`Copyright Act. Thang specifically agreed in its 1975 contract
`with Warner Bros. that Warner Bros. would be the sole owner
`of the master recordings resulting from the parties’ contract.
`Thang and Clinton were “deemed [Warner Bros.’s]
`employees for hire” in the same contract.5 As noted, the
`parties signed a substantially similar agreement in 1979, and
`it is uncontested that all four Masters were created under
`these agreements. 17 U.S.C. § 201(b) provides: “[i]n the case
`of a work made for hire, the employer or other person for
`
` 4 The statute permits court ordered transfers to pay off creditors in Title
`11 bankruptcy proceedings. Neither party argues that this affects the
`outcome of the appeal, but it is consistent with our general ruling that, at
`least in circumstances where special exemptions or protections do not
`apply, copyrights are intangible property subject to judgment collection
`efforts.
`
` 5 The Copyright Act defines a work made for hire as:
`
`(1) a work prepared by an employee within the scope of
`his or her employment; or
`
`(2) a work specially ordered or commissioned for use as
`a contribution to a collective work, as a part of a motion
`picture or other audiovisual work, as a translation, as a
`supplementary work, as a compilation, as an
`instructional text, as a test, as answer material for a test,
`or as an atlas, if the parties expressly agree in a written
`instrument signed by them that the work shall be
`considered a work made for hire.
`
`17 U.S.C. § 101.
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`15
`
`whom the work was prepared is considered the author for
`purposes of [the Copyright Act], and, unless the parties have
`expressly agreed otherwise in a written instrument signed by
`them, owns all of the rights comprised in the copyright.”
`Warner Bros. registered the Masters as “works made for hire”
`within five years of publication, listing “Warner Bros.
`Records Inc.” as the “author” on the registration form.
`Copyright Act § 410(c) states:
`
`In any judicial proceedings the certificate of a
`registration made before or within five years
`after first publication of the work shall
`constitute prima facie evidence of the validity
`of the copyright and of the facts stated in the
`certificate. The evidentiary weight to be
`accorded the certificate of a registration made
`thereafter shall be within the discretion of the
`court.
`
`17 U.S.C. § 410(c). This language persuasively supports
`H&L’s argument that, on this ground alone, the district court
`could reasonably conclude that Warner Bros. was the initial
`author and owner of the Masters, and the protection afforded
`by § 201(e) is unavailable to Clinton.
`
`But Clinton argues that the Masters were not created as
`“works for hire,” and that Clinton, not Warner Bros., was the
`original author of the Masters. This argument fails because
`even if the Masters were not originally “works for hire,”
`§ 201(e) protection does not apply where a copyright was
`previously “transferred voluntarily by that individual author.”
`There is no question that Clinton transferred any interest that
`he had in the Masters to Warner Bros., and, as part of a
`settlement arising from unrelated litigation, Warner Bros.
`
`
`
`16
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`subsequently agreed to transfer ownership back to Clinton.
`These voluntary transfers provide yet another basis for
`rejecting Clinton’s argument that he enjoys § 201(e)
`protection as the original author of the master sound
`recordings.
`
`Relying on the contention that § 201(e) must be read in
`harmony with the termination provisions of § 304(c) of the
`Copyright Act, Clinton also argues that his voluntary transfer
`of the Masters was an unenforceable legal fiction. We
`understand this argument to be that these provisions enable
`authors to reclaim transferred copyrights, without limitation,
`to protect them from unequal bargaining positions caused by
`the impossibility of determining a work’s value until it has
`been exploited. Clinton implies that the termination
`provisions in § 304 should be applied to void his original
`agreement to transfer his copyrights to Warner Bros.
`
`We decline to consider Clinton’s § 304 argument, which
`he raised for the first time in his motion for reconsideration
`of the district court’s order appointing a receiver. “A party
`does not properly preserve an issue for appeal by raising it for
`the first time in a motion for reconsideration.” Self-
`Realization Fellowship Church v. Ananda Church of Self-
`Realization, 59 F.3d 902, 912 (9th Cir. 1995). The district
`court ruled that the motion for reconsideration was untimely,
`and it never considered the merits of the inalienable
`termination rights argument. Clinton does not argue that the
`district court abused its discretion in so ruling, and he
`identifies no exceptional circumstances that warrant our
`consideration of his argument for the first time on appeal.
`See Gieg v. DDR, Inc., 407 F.3d 1038, 1046 n.10 (9th Cir.
`2005) (“An appellate court will not consider arguments not
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`17
`
`first raised before the district court unless there are
`exceptional circumstances.”).6
`
`C. The District Court Did Not Abuse Its Discretion
`by Appointing a Receiver to Manage or Sell
`Ownership of These Copyrights.
`
`Federal Rule of Civil Procedure 66 governs the
`appointment of receivers in federal court. We acknowledged
`in Office Depot that the federal rules qualify as federal
`statutes for purposes of Rule 69(a). 596 F.3d at 701. While
`Rule 66 prevails over state law to the extent it applies, it does
`not provide a different standard for the appointment of a
`receiver than the one found under Washington law.
`Therefore, we consider Washington law when reviewing the
`district court’s order appointing a receiver.
`
` 6 Clinton did make a related argument that the district court described as
`follows:
`
`At oral argument [in the district court, Clinton] took the
`position that when Warner Bros. conveyed [the
`Masters] back to [him] in settlement of their dispute,
`the original “for hire” agreement was “ripped up.”
`According to [Clinton], the destruction of the document
`effectively erased
`the original agreement from
`existence, retroactively changing the reality of the
`parties’ relationship such that the works were not made
`“for hire” and Clinton became the original “author” of
`the works. [Clinton] offers no support for this
`extraordinary theory. There is no contractual provision,
`case law, or point of logic that would bestow upon
`Clinton the title of “author” more than a decade after he
`contractually acknowledged Warner Bros.’ statutory
`claim of authorship.
`
`We agree with the district court that there is no merit to this argument.
`
`
`
`18
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`The Washington Act Relating to Receiverships conveys
`broad authority to judges to appoint receivers. A receiver
`may be appointed if the court “determines that the
`appointment of a receiver is reasonably necessary and that
`other available remedies either are not available or are
`inadequate.” Wash. Rev. Code § 7.60.025(1). This statute
`provides that a receiver may be appointed, in relevant part:
`“[a]fter judgment, in order to give effect to the judgment,” id.
`§ 7.60.025(1)(c); “[t]o the extent that property is not exempt
`from execution, at the instance of a judgment creditor either
`before or after the issuance of any execution, to preserve or
`protect it, or prevent its transfer,” id. § 7.60.025(1)(e); upon
`attachment of personal property “when the court determines
`that the nature of the property or the exigency of the case
`otherwise provides cause for the appointment of a receiver,”
`id. § 7.60.025(1)(g); and “as may be provided for by law, or
`when, in the discretion of the court, it may be necessary to
`secure ample justice to the parties,” id. § 7.60.025(1)(nn).
`
`Washington appellate courts have acknowledged that trial
`courts have broad discretion to appoint receivers, but this
`discretion “should be exercised with caution in view of all the
`facts and circumstances of the particular case.” Nw.
`Defenders Ass’n, 75 P.3d at 586; see MONY Life Ins. Co. v.
`Cissne Family L.L.C., 148 P.3d 1065, 1067 (Wash. Ct. App.
`2006) (“A trial court abuses its discretion when its decision
`is manifestly unreasonable, or exercised on untenable
`grounds, or for untenable reasons.” (internal quotation marks
`and citation omitted)). The district court cited § 7.60
`generally, and found that “[a] receivership is necessary to
`ensure justice to the parties and to preserve [the Masters] for
`the benefit of the parties and to make whole the judgment
`creditor,” H&L. Without citing authority, Clinton argues that
`the district court’s “generic, conclusory” statement that a
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`19
`
`receivership is necessary was inadequate, and that the court
`was required make specific findings to justify appointing a
`receiver. This argument is not persuasive.
`
`The record shows that the district court heard the parties’
`arguments and was fully aware of Clinton’s claim that the
`sale of the Masters would be a hardship for him. It
`recognized that H&L had valid judgments against Clinton,
`and that H&L had only recovered a portion of Clinton’s total
`debt. The district court was concerned that Clinton would not
`be able to satisfy this debt in a reasonable amount of time. It
`also knew that Clinton needed some income to support
`himself. The court’s clear goal was to have a receiver
`manage these assets so that Clinton could satisfy the
`judgment and have control of the assets returned to him, if
`possible. It was well aware that the parties had discussed
`various proposals allowing them to share the royalties
`generated by the Masters, but that after years of fighting over
`the debt in multiple fora, they had failed to come to such an
`agreement. In short, the district court balanced the equities,
`and did not abuse its discretion in determining that appointing
`a receiver was “necessary to secure ample justice to the
`parties.” Wash. Rev. Code § 7.60.025(1)(nn).7
`
` 7 We express no view as to whether a receiver will remain necessary if
`other income streams, not contemplated at the time the district court
`appointed a receiver, become available to satisfy H&L’s judgment.
`
`
`
`20
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`D. Clinton May Raise Claims of Fraud on the Court
`and Judicial Estoppel for the First Time on
`Appeal, But Both Claims are Meritless.
`
`1. Fraud on the Court
`
`Clinton argues for the first time on appeal that H&L
`perpetrated fraud on the district court. H&L argues that
`because this issue was not raised below, it should not be
`considered on appeal, citing Weisman v. Charles E. Smith
`Mgmt., Inc., 829 F.2d 511, 514 (4th Cir. 1987) (“We believe
`that the district court is the proper forum to determine in the
`first instance whether there is sufficient basis to overturn the
`judgments on the grounds raised. That court is in the best
`position to decide whether any fraud was perpetrated upon it
`or other untoward action occurred . . . .”).
`
`“Courts have inherent equity power to vacate judgments
`obtained by fraud.” United States v. Estate of Stonehill,
`660 F.3d 415, 443 (9th Cir. 2011) (citing Chambers v.
`NASCO, Inc., 501 U.S. 32, 44 (1991)); see also Dixon v.
`Comm’r, 316 F.3d 1041, 1046 (9th Cir. 2003) (“Courts
`possess the inherent power to vacate or amend a judgment
`obtained by fraud on the court.”). We have held that “[w]hen
`we conclude that the integrity of the judicial process has been
`harmed . . . and the fraud rises to the level of ‘an
`unconscionable plan or scheme which is designed to
`improperly influence the court in its decisions,’ we not only
`can act, we should.” Dixon, 316 F.3d at 1046 (quoting
`England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960)).
`
`Though we are free to consider this argument for the first
`time on appeal, Clinton’s claim that H&L perpetrated an
`“unconscionable scheme” is without merit. Clinton first
`
`
`
`HENDRICKS & LEWIS PLLC V. CLINTON
`
`21
`
`alleges that H&L “fabricated an image” that Clinton refused
`to pay his debts. He cites H&L’s statement to the district
`court that “Clinton has not voluntarily paid any amounts
`due,” and attempts to rebut it by noting that “in fact, Mr.
`Clinton voluntarily paid $106,453.” But Clinton fails to
`mention that H&L had to serve separate levies on entities that
`were believed to owe Clinton royalties in order to satisfy this
`much of its judgment. These payments were not “voluntary,”
`and Clinton’s accusation to the contrary is unsupported.
`
`alleged
`that H&L’s
`argues
`also
`Clinton
`misrepresentations were “intentional” and “designed to
`defraud the court by painting an image of hopelessness and
`utter failure in its attempt to get paid.” This argument is
`belied by the record. H&L repeatedly described its judgment
`collection efforts in detail to the district court, including
`successes, failures, and inconclusive outcomes. For instance,
`H&L filed a status report with the district court in which it
`spent eighteen pages detailing its various judgment collection
`efforts and summarizing the amount of money it had
`recovered as of the date of the report. In his reply brief for
`this appeal, Clinton admits that H&L’s “accounting is
`correct.”
`
`Clinton also argues that H&L falsely represented to the
`district court that Clinton refused to negotiate. Clinton seems
`to rely on H&L’s assertion that “Clinton refused to engage in
`such discussions” from 2008 until H&L sought arbitration on
`the debt, and H&L’s representation that Clinton “refus[ed]