Marcus Labertew, et al v. Loral Langemeier

Filing

FILED OPINION (ANDREW J. KLEINFELD, SANDRA S. IKUTA and PAUL J. WATFORD) REVERSED, VACATED AND REMANDED. Judge: AJK Authoring. FILED AND ENTERED JUDGMENT. [10272893]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARCUS LABERTEW,
Judgment Creditor, AKA
Mark Labertew; JANE DOE
LABERTEW, husband and
wife; JOHN MCDERMOTT,
Judgment Creditor, AKA
Jack McDermott; JENNIFER
MCDERMOTT, husband and
wife,
Plaintiffs-Appellants,
v.
LORAL LANGEMEIER,
Defendant,

CHARTIS PROPERTY
CASUALTY COMPANY,
Garnishee, FKA AIG
Casualty Company; 21ST
CENTURY NORTH AMERICA
INSURANCE COMPANY,
Garnishee, FKA American
International Insurance
Company,
Third Parties-Appellees.

No. 14-15879
D.C. No.
2:13-cv-01785-DGC

OPINION

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LABERTEW V. LANGEMEIER
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Filed January 20, 2017
Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Paul J.
Watford, Circuit Judges.
Opinion by Judge Kleinfeld

SUMMARY*

Removal / Garnishment
The panel vacated the district court’s judgment
discharging insurers, and remanded for further proceedings in
a garnishment proceeding arising out of an insurance
settlement and assignment.
In the underlying settlement, the plaintiffs and defendant
stipulated to a judgment against the defendant for $1.5
million, and defendant assigned to the plaintiffs her rights
against her liability insurers. Plaintiffs applied in state court
for writs of garnishment against the insurers. The insurers

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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LABERTEW V. LANGEMEIER

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removed the state garnishment proceedings to federal district
court.
The district court, pursuant to Fed. R. Civ. P. 69, applied
Arizona garnishment law, and held that because the plaintiffs
missed their ten day window for objecting, the garnishment
failed and the garnishees/insurers were discharged.
The panel held that the garnishment proceeding was
removable, and the district court had jurisdiction. The panel
held that under Swanson v. Liberty National Insurance Co.,
353 F.2d 12 (9th Cir. 1965), the garnishment proceeding
against the insurers, for purposes of removal, was a separate
and independent civil action from the suit by the plaintiffs in
the underlying action; and as such, it was removable.
The panel held that there was no federal judgment in this
case upon which to execute. The panel noted that the only
judgment was in the Superior Court of the State of Arizona.
The panel further held that the necessary predicate for
application of Fed. R. Civ. P. 69 was a judgment in the
federal district court in which execution was sought. The
panel also held that there was no state judgment against the
insurance companies that could be registered and enforced in
federal court.
The panel held that the district court had discretion under
Fed. R. Civ. P. 81(c)(2) to order repleading. The panel held
that the Arizona laws for garnishment proceedings, were,
upon removal, supplanted by the federal rules. The panel also
held that the district court may order repleading because this
case was in substance a claim by the insureds’ assignee
against the insurers for breaching their obligations under their

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LABERTEW V. LANGEMEIER

insurance policies, and the claims in the state court pleadings
were no longer at issue.

COUNSEL
Philip J. Nathanson (argued), The Nathanson Law Firm,
Scottsdale, Arizona, for Plaintiffs-Appellants.
Randy Lee Kingery (argued), Steven G. Mesaros, and Kelli
K. Williams, Renaud Cook Drury Mesaros PA, Phoenix,
Arizona, for Third Parties-Appellees.

OPINION
KLEINFELD, Senior Circuit Judge:
We address removability and procedural law for
garnishment.
Facts.
Marcus Labertew, his wife, and John and Jennifer
McDermott sued Fred R. Auzenne and Loral Langemeier in
the Superior Court for the State of Arizona. They claimed
that Auzenne and Langemeier defrauded Marcus Labertew
and John McDermott to get them to work for Auzenne and
Langemeier’s multilevel health-products company, defamed
them regarding their employment at the company, owed them
salary and expense money, and got John McDermott falsely
arrested and imprisoned in Korea while on a business trip for
the company.

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The Labertews, the McDermotts, and Langemeier settled
the case with what in Arizona is called a “Damron
agreement,” after the case accepting the validity of this
procedure.1 Under the agreement, plaintiffs dismissed their
case, they and defendant Langemeier2 stipulated to a
judgment against her for $1.5 million, a covenant not to
execute against her personally and an assignment by her to
plaintiffs of her rights against her liability insurers Chartis
Property Casualty Co. and 21st Century N.A. Insurance Co.
Such cases are often followed by new lawsuits by the
assignees, that is, the injured plaintiffs holding the
assignment, against the insurance company. The Labertews
and the McDermotts, though, did not pursue that course.
Instead, they applied in state court for writs of garnishment
against the insurers. Garnishment is commonly used by
successful plaintiffs such as collection companies, to garnish
wages from judgment debtors’ employers and savings from
judgment debtors’ bank accounts. The Labertews and the
McDermotts’ theory was that because they had a judgment
against Langemeier for $1.5 million, and the insurers owed
Langemeier this much, the insurance companies should pay
them this money as Langemeier’s judgment creditors.
Arizona has a procedure for contesting garnishment, as
when a bank has no funds in an account owned by the
judgment debtor, or a putative employer no longer employs
the judgment debtor and owes no wages to him. The
procedure is that within ten days, the garnishee answers, and

1

Quihuis v. State Farm Mut. Auto. Ins. Co., 334 P.3d 719, 722
(Ariz. 2014); see also Damron v. Sledge, 460 P.2d 997 (Ariz. 1969).
2

Auzenne is not a party to this appeal.

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if the garnishee claims it owes the debtor nothing or less than
the full amount, then the judgment creditor has ten days to
file an objection to the answer.3 If no objection to such an
answer is timely filed, then the garnishee is discharged.4
The insurance companies removed the garnishment
proceedings to federal district court, and answered that they
owed nothing. The Labertews and the McDermotts never
objected to this answer. The district court concluded that it
had jurisdiction, and that pursuant to Federal Rule of Civil
Procedure 69, Arizona garnishment law applied; therefore,
because the Labertews and the McDermotts had missed their
ten day window for objecting, the garnishment failed, and
under Arizona law the garnishees were discharged.5
The Labertews and the McDermotts appeal.
Analysis.
The Labertews and the McDermotts make two arguments:
first, the district court lacked jurisdiction because the
garnishment was not removable; second, if the garnishment
was removable, then their failure to file an objection was
immaterial, because the federal procedural rules did not

3

Ariz. Rev. Stat. §§ 12-1578.01, 12-1580(A).

4

Id. § 12-1581(A).

5

Id. § 12-1581(A) (“If it appears from the answer of the garnishee
that he did not owe nonexempt monies to the judgment debtor when the
writ was served on him or that he did not have in his possession any
nonexempt personal property of the judgment debtor when the writ was
served, and if no written objection to the answer is timely filed, the court
shall enter judgment discharging the garnishee.”).

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import this Arizona requirement. We review both issues de
novo.6
1. Jurisdiction.
Only a “civil action” can be removed from state court to
federal court.7 Garnishment of wages or money in a bank
account is ordinarily a collection device completed within the
same proceeding as the case against the judgment debtor, not
a separate action. This suggests a question of whether the
garnishment in this case is removable.
We answered that question “yes,” in Swanson v. Liberty
National Insurance Co.8 In Swanson, as in this case, a tort
plaintiff obtained judgment, then sought to garnish, in state
court, the amount of the judgment from the defendant’s
liability insurer.9 The insurer removed, federal jurisdiction
was contested, and we held that the federal district court did
indeed have jurisdiction over the garnishment issue: “We
comment that the labels the case had in the state court and the
fact that the whole sequence had only one case number there
are not determinative of the question of whether the
garnishment issue is separable from the [tort liability] issue

6

Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners, 768 F.3d
938, 945 (9th Cir. 2014) (noting review for removal is de novo); Zamani
v. Carnes, 491 F.3d 990, 994 (9th Cir. 2007) (noting review for applying
state or federal law is de novo).
7

28 U.S.C. § 1441(a).

8

353 F.2d 12, 13 (9th Cir. 1965).

9

Id. at 12.

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. . . and thus can be considered an independent action.”10
Following the Eighth Circuit, we held that “separability, so
far as it affects removal, is in the end a federal question.”11
This case is not distinguishable from Swanson. Swanson
arose from Alaska’s garnishment procedures, and this case
arises out of Arizona’s procedures, but the differences
between the state procedural rules are not material to the
analysis.12 Our sister circuits generally agree with the
position taken by Swanson,13 as do the treatises.14 To the
extent that Arizona law may differ from the Alaska
garnishment procedures construed in Swanson, and to the
extent that it might matter, removability is even clearer here.
We noted in Swanson that Alaska had not yet characterized
its garnishment proceedings as to separability,15 but Arizona
holds that “a garnishment proceeding, after its inception, is

10

Id. at 13.

11
Id. (citing Randolph v. Emp’rs Mut. Liab. Ins. Co. of Wis., 260
F.2d 461 (8th Cir. 1958)).
12

Id. (citing Alaska R. Civ. Pro. 89(f) (amended at 89(l))).

13

See e.g., Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d
1127, 1139 (11th Cir. 2013); Travelers Prop. Cas. v. Good, 689 F.3d 714,
725 (7th Cir. 2012); Butler v. Polk, 592 F.2d 1293, 1295–96 (5th Cir.
1979); Adriaenssens v. Allstate Ins. Co., 258 F.2d 888, 890 (10th Cir.
1958).
14
See e.g., 14B Charles Alan Wright, Arthur R. Miller, Edward H.
Cooper, & Joan E. Steinman, Federal Practice and Procedure § 3721, at
28–34 & n. 58 (2009); 16-107 Moore’s Federal Practice § 107.151
(LexisNexis 2016).
15

Swanson, 353 F.2d at 13.

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treated in all respects, except its title, as an original
independent action.”16
Treating the garnishment as a separate civil action for
purposes of removal makes sense. Langemeier, the defendant
in the Arizona action, has no interest in the dispute, being
protected by a covenant not to execute. The insurance
companies were not parties to the Arizona case. Though the
complaint in the Arizona action may affect the coverage and
duty to defend issues in the garnishment, the issues at most
overlap, and are not congruent. The insurers’ duties, which
will control the garnishment, were not relevant to and did not
arise in the Arizona tort case. The insurers may be entitled to
a jury trial—which they have already requested—as well as
discovery, addressing coverage and duty to defend procedures
rarely needed in routine wage and bank account
garnishments. The amount in controversy and complete
diversity requirements between the insurance companies and
the Labertews and McDermotts have not been disputed. The
lack of diversity between the Labertews and McDermotts and
Langemeier is immaterial, because Langemeier is a “nominal
part[y] with nothing at stake.”17
Under Swanson, the garnishment proceeding against the
insurers is, for purposes of removal, a separate and
independent civil action from the suit by the Labertews and
McDermotts against Langemeier. As such, it was removable,
and the district court had jurisdiction.

16

Davis v. Chilson, 62 P.2d 127, 130 (Ariz. 1936); see also Bennet
Blum, M.D., Inc. v. Cowan, 330 P.3d 961, 964 (Ariz. Ct. App. 2014).
17

Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129, 1133
(9th Cir. 2002).

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2. Failure to object.
Now that we have concluded that the federal district court
had jurisdiction, what shall we make of the Labertews and
McDermotts’ failure to object to the answer of the garnishee
insurance companies? Under Arizona law, if the garnishee
answers that it does not owe the money claimed against the
judgment debtor, which Langemeier’s insurers did, then the
judgment creditor has ten days to object to the answer.18 “[I]f
no written objection to the answer is timely filed, the court
shall enter judgment discharging the garnishee.”19 The
Labertews and McDermotts did not make a written objection
to the insurers’ answer (subsequent to removal) that they did
not owe Langemeier any money. The insurers take the
position that they are discharged because Federal Rule of
Civil Procedure 69 adopts state procedure for execution on
judgments, and state procedure discharges a garnishee whose
unobjected to answer denies owing the money.
Much of the argument addresses, in effect, whether Rule
69 means what it says. It does. The rule says that the
procedure for execution on a money judgment, including such
supplementary proceedings as garnishment, “must accord
with the procedure of the state where the court is located,”
subject to federal statutes to the contrary (of which there are
none relevant to this case).20 Thus for execution on “a money
18

Ariz. Rev. Stat. § 12-1580(A).

19

Id. § 12-1581(A).

20

Fed. R. Civ. P. 69(a)(1) (“A money judgment is enforced by a writ
of execution, unless the court directs otherwise. The procedure on
execution—and in proceedings supplementary to and in aid of judgment
or execution—must accord with the procedure of the state where the court

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judgment,” the District Court for the District of Arizona must
turn, subject to federal law to the contrary, to Arizona law.
But that begs the question that controls this case. When
Federal Rule of Civil Procedure 69 says “[a] money
judgment,” does it refer to the judgment of any court? Any
federal district court? Any state court? Or only the particular
district court in which execution is sought? The last is
correct. The only judgment in this case is the one by the
Superior Court of the State of Arizona in favor of the
Labertews and McDermotts for $1.5 million. There has never
been a federal judgment in the District of Arizona to that
effect, nor is there any judgment anywhere in this case
against Langemeier’s liability insurers.
Ordinarily a court enforces its own judgments.
Garnishments from other courts are ordinarily turned into
judgments of a new court by separate actions for debt on a
judgment,21 registration,22 or even mere filing of an

is located, but a federal statute governs to the extent it applies.”).
21
See e.g., Benjamin J. Shipman, Common-Law Pleading 266 (3d
ed. 1923).
22

28 U.S.C. § 1963 (“A judgment in an action for the recovery of
money or property entered in any court of appeals, district court,
bankruptcy court, or in the Court of International Trade may be registered
by filing a certified copy of the judgment in any other district or, with
respect to the Court of International Trade, in any judicial district, when
the judgment has become final by appeal or expiration of the time for
appeal or when ordered by the court that entered the judgment for good
cause shown. Such a judgment entered in favor of the United States may
be so registered any time after judgment is entered. A judgment so
registered shall have the same effect as a judgment of the district court of
the district where registered and may be enforced in like manner.”).

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authenticated copy.23 But the judgments are not executed
upon in courts that did not issue them.
There is no federal judgment in this case upon which to
execute. Federal Rule of Civil Procedure 54 defines the word
to include “a decree and any order from which an appeal
lies.”24 Obviously the Arizona Superior Court judgment
cannot be appealed in federal court.25 Federal Rule 58 says
when and how the clerk of a federal district court enters a
judgment in the civil docket. No judgment was entered in
this case in the federal district court. The necessary predicate
for application of Federal Rule 69 is a judgment in the federal
district court in which execution is sought. “Rule 69 is not
available to enforce state court judgments in federal court.”26
Not only is there no federal judgment in this case upon
which to execute, but there is also no state judgment against
the insurance companies that could be registered and enforced
in federal court. Rather, this is a new civil action in which the

23

See e.g., Ariz. Rev. Stat. § 12-1702.

24

Fed. R. Civ. P. 54(a) (“‘Judgment’ as used in these rules includes
a decree and any order from which an appeal lies. A judgment should not
include recitals of pleadings, a master's report, or a record of prior
proceedings.”).
25

D.C. Ct. App. v. Feldman, 460 U.S. 462, 482 (1983) (“[A] United
States District Court has no authority to review final judgments of a state
court in judicial proceedings.”).
26
Marietti v. Santacana, 111 F. Supp. 3d 129, 134 (D.P.R. 2015); 12
Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal
Practice and Procedure § 3011, at 167–68 & n. 7 (2014) (stating “Rule 69
applies only to money judgments of the federal court” and that “Rule 69
has no application to state-court judgments”) (emphasis added).

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Labertews and McDermotts are seeking to obtain, for the first
time, a judgment establishing the liability of the insurance
companies. This case was removed to federal court before
the insurance companies filed their answer. Removal means
that the case was no longer within the jurisdiction of the
Arizona Superior Court. Once it arrived in federal court, the
case was not yet ripe for application of Federal Rule of Civil
Procedure 69, which would in general have imported Arizona
procedures, because there was neither a judgment of the
federal court upon which Rule 69 could operate, nor a
judgment of the state court against the insurers that might
arguably be registered with the federal court and enforced
under Rule 69. Consequently, the failure to answer the
insurers’ objection did not operate through Rule 69 to
discharge the insurers under Arizona procedural law.
The insurers would also have us import Arizona law
through Federal Rule of Civil Procedure 64, because it
expressly imports state law on garnishment.27 That argument

27

Fed. R. Civ. P. 64. The full rule states:
(a) Remedies Under State Law—In General. At the
commencement of and throughout an action, every
remedy is available that, under the law of the state
where the court is located, provides for seizing a person
or property to secure satisfaction of the potential
judgment. But a federal statute governs to the extent it
applies.
(b) Specific Kinds of Remedies. The remedies available
under this rule include the following—however
designated and regardless of whether state procedure
requires an independent action:

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is mistaken, because Rule 64 provides for these remedies “to
secure satisfaction of the potential judgment.”28 The rule is
a means of protecting plaintiffs against risks such as the
defendant’s money disappearing before the plaintiffs wins
their judgment. In these instances the court may choose to
hold the defendant’s property while the case is litigated. Rule
64 is irrelevant.
The rule that says what to do with a removed action is at
Federal Rule of Civil Procedure 81(c), which says that the
federal rules “apply to a civil action after it is removed from
a state court.”29 This means that the Arizona rules for
garnishment proceedings were, upon removal, supplanted by
the federal rules. The district court has discretion under Rule
81(c)(2) to order repleading.30 It may choose to do so,
because this case now is in substance a claim by the insureds’
assignee against the liability insurers for breaching their
obligations under their insurance policies. The claims in the
state court pleadings are no longer at issue. Nor is
Langemeier an interested party, having stipulated to a
judgment and secured a covenant that no execution would be

• arrest;
• attachment;
• garnishment;
• replevin;
• sequestration; and
• other corresponding or equivalent remedies.
28

Id. (emphasis added).

29

Fed. R. Civ. P. 81(c).

30

Id. (“After removal, repleading is unnecessary unless the court
orders it.”).

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taken against her. The district court may order repleading at
its discretion.31 The claim against the insurers is independent
of the claims in the underlying action against Langemeier,
and there is no federal judgment upon which execution may
be made.
Conclusion.
We reverse. We vacate the judgment discharging the
insurers, and remand for such further proceedings in district
court as may be appropriate.
REVERSED, VACATED AND REMANDED.

31

Id.