United States of America v. Walker

Filing 14

ORDER TO SHOW CAUSE RE: EX PARTE MOTION FOR WRIT OF GARNISHMENT. Show Cause Response due by 4/10/2018. Signed by Magistrate Judge Jacqueline Scott Corley on 3/27/2018. (ahm, COURT STAFF) (Filed on 3/27/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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United States District Court
Northern District of California

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Case No.89-cv-01705-SLM (JSC)
ORDER TO SHOW CAUSE RE: EX
PARTE MOTION FOR WRIT OF
GARNISHMENT

v.
LESLIE WALKER,

Re: Dkt. No. 11

Defendant.

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In 1989, Plaintiff the United States of America brought an action to collect a student loan

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debt from Defendant Leslie Walker. Default judgment was entered against Ms. Walker on January

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22, 1990 in the amount of $2,208.92. (Dkt. No. 1.) Nearly 30 years later, the United States filed

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the now pending Ex Parte Motion for Writ of Continuing Garnishment seeking an order

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authorizing garnishment of Ms. Walker’s earnings from the Payroll Department at LF Staffing

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Services, Inc. (Dkt. No. 11.) Because the Court has concerns regarding certain aspects of the

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application, the United States is ordered to file a supplemental memorandum and declaration in

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support of its application as set forth below.

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DISCUSSION
To obtain a writ of garnishment, the United States must (1) file an application for a writ of

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garnishment in accordance with 28 U.S.C. § 3205(b), and (2) prepare and file with the Clerk of the

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Court a notice in the form proscribed in 28 U.S.C. § 3202(b). The notice must include an

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explanation of the judgment debtor’s rights, exemptions that may apply, and the procedures

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applicable if the judgment debtor disputes the issuance of the writ. 28 U.S.C. § 3202(b). These

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procedures include the right to request a hearing before the Court within 20 days of receipt of the

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notice. Id. The Clerk shall issue the notice upon filing and the United States shall serve the notice

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and copy of the application for a writ of garnishment on the judgment debtor and the garnishee. 28

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U.S.C. § 3202(c).

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Upon receipt of an application for a writ of garnishment, the court shall issue the writ of

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garnishment if it is satisfied that the United States has complied with the requirements of Section

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3205(b). In particular, the application must indicate: (1) the judgment debtor’s name, social

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security number, and last known address, (2) the nature and amount of the debt owed, and (3) that

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the garnishee is believed to have possession of property in which the debtor has a substantial

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nonexempt interest. 28 U.S.C. § 3305(b)(1). If the court grants the writ of garnishment, the

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United States must serve the writ on the garnishee and the judgment debtor along with (1)
instructions “explaining the requirement that the garnishee submit a written answer to the writ,”

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United States District Court
Northern District of California

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and (2) “instructions to the judgment debtor for objecting to the answer of the garnishee and for

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obtaining a hearing on the objections.” 28 U.S.C. § 3205(c)(3). The garnishee is then required to

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answer in writing. 28 U.S.C. § 3205(c)(3). Section 3205(c)(5) allows a defendant (judgment

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debtor) to file a request for a hearing within twenty days after receipt of the answer by the

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garnishee. 28 U.S.C. § 3205(c)(5).

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The Court has two concerns regarding the United States’ application for a writ here. First,

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this is the United States’ second request for a writ of garnishment in this action. Judge Kim

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granted a writ of garnishment on April 11, 2017. (Dkt. No. 9.) The docket reflects no further

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activity until near a year later when the United States filed the now pending application for a writ,

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which does not address the prior application and grant of writ. (Dkt. No. 11.) The only difference

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between the two applications is the address for the garnishee: in the original application it was to

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the Payroll Department, Gary D. Nelson Associates, Inc., 19080 Lomita Ave. Sonoma, California

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95476 and now it is to Payroll Department at LF Staffing Services, Inc., 11426 N. Jog Road Palm

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Beach Gardens, FL 33418. Compare Dkt. No. 9 with Dkt. No. 11. The applicable statute, 28

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U.S.C. § 3205(c)(6), provides that upon receipt of a writ of garnishment, the garnishee may either

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“answer the writ of garnishment or [ ] withhold property in accordance with the writ.” Thus, the

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Court cannot simply infer from the fact that there were no intervening filings in this matter that the

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prior garnishee did not and is not in fact withholding payment in accordance with the writ. The
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United States shall supplement its request with an explanation of what happened with the prior

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writ and why a second writ is sought.
Second, the application indicates that Ms. Walker was served with the writ application at

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her last known address of 101 Lakeview Avenue, San Francisco, California, 94112 based on an

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Equifax Consumer Employment & Income Report. However, an internet search reflects that this

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address is a business not residential address, and in fact, an address for a business called Hair Tech

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101 of San Francisco. Further, an internet search of the California Board of Barbering and

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Cosmetology Licenses indicates that while a Leslie P. Walker had a license for Hair Tech 101 of

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San Francisco, that license expired February 28, 2005. See Department of Consumer Affairs

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License Search, Board of Barbering and Cosmetology, https://search.dca.ca.gov/ (last visited

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United States District Court
Northern District of California

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March 19, 2018). Federal Rule of Civil Procedure 4(e)(2) requires service to be made (a)

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personally; (b) “at the individual’s dwelling or usual place of abode with someone of suitable age

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and discretion who resides there;” or (c) by delivering it to an authorized agent.1 Here, however, it

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appears that the United States served Ms. Walker at a business rather than residential address.
Accordingly, within 14 days from the date of this Order the United States shall file a

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supplemental memorandum with supporting declaration regarding: (1) what happened with the

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prior writ and (2) what steps were taken to ascertain Ms. Walker’s last known address and whether

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1001 Lakeside Avenue is a business or residential address.

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IT IS SO ORDERED.

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Dated: March 27, 2018

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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Service may also be made in accordance with state law; under California law, service must be
made personally or on an authorized agent. See Cal. Civ. P. Code 416.90.
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