Regions Bank v. Kearney et al

Filing 202

ORDER ATTACHED denying 198 Motion for Issuance of Prejudgment Writ of Garnishment. Signed by Judge Richard A. Lazzara on 3/27/2015. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
REGIONS BANK, an Alabama state chartered bank,
as successor-in-interest to AmSouth Bank,
Plaintiff,
v.

CASE NO: 8:13-cv-2627-T-26TBM

BING CHARLES W. KEARNEY, JR., and
TONYA NUHFER KEARNEY,
Defendants.
/

ORDER
Upon due and careful consideration of the procedural history of this case and the related
case of Regions Bank v. Hyman, et al., case number 8:09-cv-1841-T-17-MAP, together with the
Plaintiff’s written submissions, it is ordered and adjudged that the Plaintiff’s Verified Motion for
Issuance of Prejudgment Writ of Garnishment as to USAmeribank (Dkt. 198) is denied for the
following two reasons.
First, the relief sought in the Plaintiff’s latest onslaught of motion practice is nothing more
than a reiteration of the arguments advanced in the Plaintiff’s previous endeavor to have this Court
issue an order on an emergency basis temporarily enjoining the Kearney Defendants from engaging
in a whole host of activities related to the transferred assets at issue in this litigation,1 arguments
which the Court rejected in denying that motion2 and continues to reject in denying this latest
1

See docket 165.

2

See docket 171.

motion. Second, prior to the filing of the motion in this case on March 26, 2015, the Plaintiff
previously commenced a garnishment proceeding in the related case with regard to the same
accounts at USAmeribank which it seeks to garnish prejudgment in this case. Given that fact, the
Court will defer to the assigned judge in the related case, Judge Kovachevich, with respect to
whether the accounts at issue are subject to garnishment. Cf. Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Haydu, 675 F.2d 1169, 1174 (11th Cir. 1982) (stating that “[i]n absence of
compelling circumstances, the court initially seized of a controversy should be the one to decide
the case.”) (citing Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403 (5th Cir. 1971)); In re Georgia
Power Co., 89 F.2d 218, 221 (5th Cir. 1937) (holding that as between federal courts having
concurrent jurisdiction, the court where jurisdiction first attaches holds it to the exclusion of the
other).3 To act otherwise would pose the potential of conflicting rulings between this Court and
Judge Kovachevich with regard to whether the funds in those accounts can in fact and law be
garnished to satisfy the Plaintiff’s judgment obtained in the related case.

DONE AND ORDERED at Tampa, Florida, on March 27, 2015.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:

Counsel of Record

3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit Court of Appeals adopted as binding precedent decisions of the Fifth
Circuit Court of Appeals decided prior to October 1, 1981.
-2-