Phoenix NPL, LLC v. Capital Hotel, Inc. et al

Filing 9

ORDER granting in part and denying in part 8 Motion for Writ of Garnishment. Signed by Magistrate Judge Thomas B. Smith on 6/4/2018. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PHOENIX NPL, LLC,
Plaintiff,
v.

Case No: 6:18-mc-29-Orl-40TBS

CAPITAL HOTEL, INC., CHIRAG
KABRAWALA, ASHOK DHABUWALA,
BRANDON LEVIN, NEW YORK STATE
DEPARTMENT OF TAXATION AND
FINANCE and TASHJIAN & PADIAN,
Defendants.
ORDER
Pending before the Court is Plaintiff’s Second Motion for Continuing Writ of
Garnishment after Judgment (Doc. 8). On August 3, 2017, Plaintiff obtained an Order
Confirming Referee’s Report of Sale and Entering Deficiency Judgment against
Defendant, Chirag Kabrawala, in the Northern District of New York, which has been
registered in this Court. Plaintiff states that it does not believe this Defendant is in
possession of visible property upon which a levy can be made sufficient to satisfy the
Judgment, and moves the Court for a continuing writ of garnishment against Garnishee,
The Kabrawala Law Group, PLLC. In an earlier filing, Plaintiff represented that the wouldbe garnishee is this Defendant’s employer, located at 190 E. Morse Boulevard, Winter
Park, Florida 32789 (Doc. 4). Although the writ was issued previously (Doc. 6), it was
recalled for failure to comply with the directions of the Court to include the required Notice
to Defendant (Doc. 7). Now, on its third try, Plaintiff has tendered a proposed writ and the

required Notice to Defendant (Doc. 8-1). Upon review, the motion is GRANTED, but only
in part.
Plaintiff contends that the writ must be issued by a judge and not the clerk of court,
and has tendered a writ which provides for issuance under my signature. Citing no case
law, Plaintiff argues that, as Florida Statute § 77.0305 provides that “the court shall issue
a continuing writ of garnishment,” the writ must be issued under signature of the Court
and cannot be issued by the clerk. I do not agree. Federal Rule of Civil Procedure 69(a)
states:
[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 is located, but a federal statute governs to the extent
it applies.
FED. R. CIV. P. 69(a) (emphasis added). Even assuming Plaintiff’s interpretation of the
Florida statute is correct (a conclusion I do not share for the reasons cited below), it is
trumped by 28 U.S.C. §1691, which provides: “All writs and process issuing from a court
of the United States shall be under the seal of the court and signed by the clerk thereof.”
(Emphasis added).
Having the Clerk issue the writ upon review and approval by the Court is also
consistent with Federal Rule 77(c)(2)(a):
(2) Orders. Subject to the court's power to suspend, alter, or
rescind the clerk's action for good cause, the clerk may:
(A) issue process;
***
FED. R. CIV. P. 77(c)(2)(a). As another federal court has explained:

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A writ of garnishment is a form of “process.” See, e.g., 28
U.S.C.§ 3004(a) (“a complaint, notice, writ, or other process”)
(emphasis added); id. § 3004(b)(1)(A) (“any writ, order,
judgment, or other process, including a summons and
complaint”) (emphasis added); Mackey v. Lanier Collection
Agency & Serv., Inc., 486 U.S.825, 844 (1988) (Kennedy, J.,
dissenting) (“legal process[ ] includ[es] writs of garnishment”);
United States v. Morton, 467 U.S. 822, 827 (1984); United
States ex rel. Tanos v. St. Paul Mercury Ins. Co., 361 F.2d
838, 839 (5th Cir. 1966); Francois v. Washmonbo, Inc., No.
05–23368–CIV, 2008 WL 2694752, at *2 (S.D.Fla. July 8,
2008); United States ex rel. Corsetti v. Commanding Officer of
Camp Upton, U.S. Army, 3 F.R.D. 360, 361 (E.D.N.Y. 1944) (“
‘Process' is a term sufficiently broad to include all writs.”); 38
C.J.S. Garnishment § 173 (last updated June 2017) (“A
garnishment writ is a form of process, and compliance with
statutory provisions relating to summons or other process
against the garnishee is essential.”); Process, BLACK'S LAW
DICTIONARY (10th ed. 2014) (“ ‘Process' and ‘writ’ or ‘writs' are
synonymous, in the sense that every writ is a process....”). As
process, service of the writ constitutes the mechanism through
which the Court obtains personal jurisdiction over the
garnishee in order to impose the “significant burdens of
complying with the garnishment.” See Mackey, 486 U.S. at
844 (Kennedy, J., dissenting); Ace Inv'rs, LLC v. Rubin, 494
Fed.Appx. 856, 858 (10th Cir. 2012); Millard v. United States,
916 F.2d 1, 3 (Fed. Cir. 1990) (“A garnishment proceeding to
enforce a judgment debt is an ancillary legal proceeding
against the third party garnishee and must be brought where
jurisdiction can be obtained over the third party.”) (citing Harris
v. Balk, 198 U.S. 215, 22 (1905)); U.S. Rubber Co. v. Poage,
297 F.2d 670, 673 (5th Cir.1962) (“[B]y personal service upon
a garnishee found in the state, the court acquires jurisdiction
over him and can garnish the debt due from him to the debtor
of the plaintiff.”); Exp.–Imp. Bank of U.S. v. Asia Pulp & Paper
Co., Civ. Action No. 03–08554, 2009 WL 1055577, at *1–2
(S.D.N.Y. Apr. 17, 2009); 38 C.J.S.Garnishment § 173 (last
updated June 2017) (“The purpose of the writ [of garnishment]
is to notify the garnishee, to bring that person within the
court's jurisdiction and before the court, to determine whether
a suspected debt exists, to gain jurisdiction over the debt, to
warn the garnishee not to pay the money to the judgment
debtor, and to give the garnishee an opportunity to defend.”)
(footnotes omitted). Indeed, like a summons under Rule 4, a
writ of garnishment is only issued after the court has reviewed
the application to ensure it meets the outlined requirements.
Compare FED. R. CIV. P. 4(a)–(b) with 28 U.S.C.§ 3205(c).

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United States ex rel. Bunk v. Gosselin Worldwide Moving, N.V., No. 102CV1168AJTMSN,
2017 WL 4476846, at *7 (E.D. Va. Aug. 22, 2017). “[T]he fact that the clerk of the court
signs the writ of garnishment makes it no less a judicial process.” Juneau Spruce Corp. v.
Int'l Longshoremen's & Warehousemen's Union, 131 F. Supp. 866, 872–73 (D. Haw.
1955).
It is common practice for a federal court to direct the clerk to issue such a writ.
See, e.g. Compass Bank v. Alarcon, No. 8:17-MC-111-T30-MAP, 2017 WL 6733989
(M.D. Fla. Dec. 11, 2017) (note Doc. 7 in that docket); Francois v. Washmonbo, Inc., No.
05-23368-CIV, 2008 WL 2694752 (S.D. Fla. July 8, 2008). This practice is consistent with

the Florida courts’ own interpretation of the statute. Indeed, the pleading forms set forth in
the Florida Rules of Civil Procedure provide for issuance of a continuing writ of
garnishment against salary or wages, under signature of the Clerk of court. See FLA. R.
CIV. P. Form 1.907(b); see also 2 LA COE'S FLA.R.CIV.P. FORMS R 1.630(605) (2017 ed.)
(“This form is to be used to effectuate section 77.0305, Florida Statutes.”); Trawick, FLA.
PRAC. & PROC. FORMS § 10:66 (2017 ed.); and How to Determine Whether Action is by the

Clerk or by the Court—Miscellaneous Writs, 4 FLA. PRAC. CIVIL PROCEDURE § 1.160:10
(“The clerk typically issues writs of garnishment”).
Now, the motion is GRANTED in part. Plaintiff shall have seven days from the date
of this Order in which to tender to the Clerk the Continuing Writ of Garnishment directed
to the garnishee, The Kabrawala Law Group, PLLC, against Defendant Chirag Kabrawala
in the amount of $4,152,712.84, with a signature block for the Clerk’s signature. Upon
receipt, the Clerk is directed to issue the Writ and attach the Notice to Defendant required
by Section 77.041(Doc.8-1, pp. 4-7) to the Writ.

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DONE and ORDERED in Orlando, Florida on June 4, 2018.

Copies furnished to Counsel of Record

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