Trustees of the National Asbestos Workers Medical Fund v. Eagle Mechanical Insulation LLC

Filing 16

ORDER AAND JUDGMENT AGAINST GARNISHEE (NON-EARNINGS) - THEREFORE, IT IS ORDERED that Plaintiff has judgment against Garnishee in the amount of $4,516.37. IT IS FURTHER ORDERED that Garnishee has judgment against Defendant in the amount of  6;100.00 for reasonable compensation for answering the Writ, to be paid from the garnished funds pursuant to A.R.S. § 12-1591(b). IT IS ORDERED: 1. Magistrate Judge Steven P. Logan's R & R (Doc. 8) is accepted, and Plaintiff's orig inal Application for Judgment on Garnishment of Non-Earnings (Doc. 6) is denied. 2. Plaintiff's second Application for Judgment on Garnishment of Non- Earnings (Doc. 15) is granted. 3. The Clerk is directed to enter judgment for Plaintiff against Garnishee in the amount of $4,516.37 and judgment for Garnishee against Defendant in the amount of $100.00. The Clerk shall then terminate this action. Signed by Judge David G Campbell on 1/28/13. (LAD)

1

WO

2
3
4
5
UNITED STATES DISTRICT COURT

6

DISTRICT OF ARIZONA

7
8
9

TRUSTEES OF THE NATIONAL ASBESTOS
WORKERS MEDICAL FUND,

10

Plaintiff/Judgment Creditor,

11
12
13
14

No. MC12-0096-PHX-DGC
ORDER AND JUDGMENT AGAINST
GARNISHEE (NON-EARNINGS)

v.
EAGLE MECHANICAL INSULATION LLC,
Defendant/Judgment Debtor.

15
16

WELLS FARGO BANK,

17
18

Garnishee.

19
20

Before the Court is the Application for Judgment on Garnishment of Non-Earnings filed

21

by Plaintiff/Judgment Creditor Trustees of the National Asbestos Workers Medical Fund

22

(“Plaintiff”) (Doc. 6), United States Magistrate Steven P. Logan’s Report and Recommendation

23

(“R & R”) (Doc. 8), and Plaintiff’s second Application for Judgment on Garnishment of Non-

24

Earnings (Doc. 15). The R & R recommends that the Court deny Plaintiff’s original Application

25

(Doc. 6) because the record, at the time, did not establish that Defendant/Judgment Debtor Eagle

26

Mechanical Insulation LLC (“Defendant”) had received “a copy of the summons and writ of

27

garnishment, a copy of the underlying judgment and the notice to judgment debtor and request

28

1

for hearing form,” as required by Arizona’s garnishment statute. See A.R.S. § 12-1574(D).

2

Judge Logan found that “the Writ of Garnishment and Summons (Doc. 3) d[id] not instruct

3

Garnishee to serve Defendant with those documents,” and “[i]n its Answer (Doc. 5),

4

Garnishee . . . does not assert that those documents were mailed to Defendant . . . [and] states

5

only that a copy of the Answer has been delivered to Plaintiff and Defendant (Doc. 5 at 2).”

6

Doc. 8 at 3. Plaintiff’s response to the R & R requested that the Court delay ruling on the

7

original Application until the Garnishee answers a newly issued Writ of Garnishment. Doc. 12.

8

The Court issued a second Writ of Garnishment to Garnishee that specifically instructed

9

Garnishee to serve the statutorily required papers on Defendant. Doc. 11. Garnishee’s Answer

10

certifies that “a copy of the summons and writ of garnishment, a copy of the underlying

11

judgment and the notice to judgment debtor and request for hearing form was delivered to the

12

judgment debtor on 12/7/12 [], via mail.” Doc. 14 at 2. The Answer also shows the following:

13
14

1.
2.

Garnishee owes Judgment Debtor $4,616.37.
Garnishee claims an answering fee of $100.00.

15
16
17

Plaintiff’s Second Application for Judgment on Garnishment of Non-Earnings requests
that the Court enter judgment on its behalf because the record now establishes that the

18

deficiencies found in Judge Logan’s R & R have been cured. Doc. 15. The record does so

19

demonstrate.

20
21

THEREFORE, IT IS ORDERED that Plaintiff has judgment against Garnishee in the
amount of $4,516.37.

22

IT IS FURTHER ORDERED that Garnishee has judgment against Defendant in the

23

amount of $100.00 for reasonable compensation for answering the Writ, to be paid from the

24

garnished funds pursuant to A.R.S. § 12-1591(b).

25

IT IS ORDERED:

26

1.

Magistrate Judge Steven P. Logan’s R & R (Doc. 8) is accepted, and Plaintiff’s

27

original Application for Judgment on Garnishment of Non-Earnings (Doc. 6) is

28

denied.
-2-

1

2.

(Doc. 15) is granted.

2
3

Plaintiff’s second Application for Judgment on Garnishment of Non- Earnings

3.

The Clerk is directed to enter judgment for Plaintiff against Garnishee in the

4

amount of $4,516.37 and judgment for Garnishee against Defendant in the amount

5

of $100.00. The Clerk shall then terminate this action.

6

Dated this 28th day of January, 2013.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-