Duran v. Denver, City and County of et al

Filing 155

ORDER DENYING 136 PLAINTIFF'S TRAVERSE OF ANSWER TO GARNISHMENT AND DISMISSING 133 WRIT OF GARNISHMENT. Plaintiff's 153 Opposed Motion for Expedited Ruling Due to Seasonal Change is DENIED AS MOOT. By Judge Robert E. Blackburn on 10/8/2014.(alowe)

PUBLISH
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 10-cv-01569-REB-KMT
ROBERT DURAN,
Plaintiff,
v.
STEVEN KOEHLER, in his individual capacity,
Defendant.

ORDER DENYING PLAINTIFF’S TRAVERSE OF ANSWER
TO GARNISHMENT AND DISMISSING WRIT OF GARNISHMENT
Blackburn, J.
The matters before me are plaintiff’s (1) Traverse of Answer to
Garnishment [#136],1 filed March 4, 2014; and (2) Opposed Motion for Expedited
Ruling Due to Seasonal Change [Doc. # 153] [#153], filed September 8, 2014.
Because the court lacks ancillary jurisdiction over this proceeding, the traverse is denied
and the writ dismissed. The motion for expedited ruling is denied as moot.
The underlying facts giving rise to this lawsuit are well known to the parties and
need not be repeated here. After plaintiff’s claims against the City and County of
Denver were dismissed, plaintiff proceeded to trial against defendant, who at the time of
the underlying incident was a Denver police officer. The jury returned a verdict for
plaintiff on his claim of excessive force and awarded plaintiff $40,000 in compensatory

1
“[#136]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

damages. Judgment on the verdict entered July 31, 2013 [#108].
0n January 14, 2014, plaintiff filed an application for writ of garnishment against
the City [#132], which the court granted that same day [#133]. By its answer [#135],
filed February 11, 2014, the City denied that any funds were payable under the writ.
The present traverse followed. The court held a hearing on the issues raised by and
inherent to the motion on May 9, 2014, and requested further briefing on the issues as
well as an offer of proof from the City. The City has filed its response and offer of proof,
and plaintiff has filed his reply. Thus, the matter is ripe for determination.
Among the bases advanced by the City in support of its position, it argued that
the court lacked ancillary jurisdiction over plaintiff’s efforts to enforce the judgment by
means of a writ of garnishment. I agree. The resolution of this issue is squarely
controlled by the Supreme Court’s decision in Peacock v. Thomas, 516 U.S. 349, 116
S.Ct. 862, 133 L.Ed.2d 817(1996) which discussed the concept and limitations of
ancillary jurisdiction in depth:
We have recognized that a federal court may exercise
ancillary jurisdiction “(1) to permit disposition by a single
court of claims that are, in varying respects and degrees,
factually interdependent; and (2) to enable a court to function
successfully, that is, to manage its proceedings, vindicate its
authority, and effectuate its decrees.” Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 379-380, 114 S.Ct.
1673, 1676, 128 L.Ed.2d 391 (1994) (citations omitted). . . . .
“[A]ncillary jurisdiction typically involves claims by a
defending party haled into court against his will, or by
another person whose rights might be irretrievably lost
unless he could assert them in an ongoing action in a federal
court.” Owen Equipment & Erection Co. v. Kroger, 437
U.S. 365, 376, 98 S.Ct. 2396, 2404, 57 L.Ed.2d 274 (1978).
Ancillary jurisdiction may extend to claims having a factual
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and logical dependence on “the primary lawsuit,” ibid., but
that primary lawsuit must contain an independent basis for
federal jurisdiction. The court must have jurisdiction over a
case or controversy before it may assert jurisdiction over
ancillary claims. See Mine Workers v. Gibbs, 383 U.S. 715,
725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In a
subsequent lawsuit involving claims with no independent
basis for jurisdiction, a federal court lacks the threshold
jurisdictional power that exists when ancillary claims are
asserted in the same proceeding as the claims conferring
federal jurisdiction. See Kokkonen, supra, at 380–381, 114
S.Ct., at 1677; H.C. Cook Co. v. Beecher, 217 U.S. 497,
498–499, 30 S.Ct. 601, 601–602, 54 L.Ed. 855 (1910).
Consequently, claims alleged to be factually interdependent
with and, hence, ancillary to claims brought in an earlier
federal lawsuit will not support federal jurisdiction over a
subsequent lawsuit. The basis of the doctrine of ancillary
jurisdiction is the practical need “to protect legal rights or
effectively to resolve an entire, logically entwined lawsuit.”
Kroger, 437 U.S., at 377, 98 S.Ct., at 2404. But once
judgment was entered in the original [] suit, the ability to
resolve simultaneously factually intertwined issues vanished.
As in Kroger, “neither the convenience of litigants nor
considerations of judicial economy” can justify the extension
of ancillary jurisdiction over [respondent’s] claims in this
subsequent proceeding. Ibid.
Id., 116 S.Ct. at 867. Thus, the Court noted that its recognition of the supplementary
powers of the federal courts to enforce their judgments by means of, inter alia, writs of
garnishment “has not . . extended beyond attempts to execute, or to guarantee eventual
executability of, a federal judgment. We have never authorized the exercise of ancillary
jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal
judgment on a person not already liable for that judgment.” Id. at 868. See also Ellis
v. All Steel Construction, Inc., 389 F.3d 1031, 1033 (10th Cir. 2004) (“‘[W]hen
postjudgment proceedings seek to hold nonparties liable for a judgment on a theory that
requires proof on facts and theories significantly different from those underlying the
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judgment, an independent basis for federal jurisdiction must exist.’”) (quoting In Sandlin
v. Corporate Interiors Inc., 972 F.2d 1212, 1217 (10th Cir. 1992)); Hudson v.
Coleman, 347 F.3d 138, 141-46 (6th Cir. 2003) (court did not have ancillary jurisdiction
over garnishment proceeding against City of Flint, Michigan, which had previously been
dismissed as party to section 1983 case, by plaintiff who obtained consent judgment
against individual officers).
Such is quintessentially what plaintiff attempts to do here. Judgment in this case
was entered more than five months before plaintiff applied for a writ of garnishment. To
the extent the question whether defendant was acting within the course and scope of
his employment was factually intertwined with the issues actually tried in the case,2 the
court’s ability to consider such issues “vanished” once judgment entered. Peacock,
116 S.Ct. at 867. Consideration of the instant writ requires an independent basis of
federal jurisdiction, but none exists. The plaintiff and the City are not diverse from one
another, and plaintiff’s claims in support of the writ arise under Colorado law.
Therefore, I conclude that the court is without jurisdiction to consider the matter
further. Accordingly, the transverse must be denied and the writ dismissed.
THEREFORE, IT IS ORDERED as follows:
1. That plaintiff’s Traverse of Answer to Garnishment [#136], filed March 4,
2014 is DENIED;
2. That the Writ of Garnishment [#133], filed January 14, 2014, is
DISMISSED; and
2
The City was not a party to – and thus not bound by – plaintiff’s and defendant’s stipulation at
trial that defendant acted within the course and scope of his employment.

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3. That plaintiff’s Opposed Motion for Expedited Ruling Due to Seasonal
Change [Doc. # 153] [#153], filed September 8, 2014, is DENIED AS MOOT.
Dated October 8, 2014, at Denver, Colorado.
BY THE COURT:

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