Zurich American Insurance Company v. Staffing Concepts National, Inc. et al

Filing 250

ORDER denying without prejudice 221 Motion for Writ of Garnishment. Signed by Magistrate Judge Amanda Arnold Sansone on 12/20/2017. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ZURICH AMERICAN INSURANCE
COMPANY,
Plaintiff,
v.

Case No.: 8:14-cv-775-T-23AAS

STAFFING CONCEPTS NATIONAL, INC.,
et al.,
Defendants.
______________________________________/
ORDER
Zurich American Insurance Company (“Zurich”) moves for issuance of a writ of
garnishment on a judgment obtained against G&S Leasing Group, VI, Inc. (Doc. 221). That
judgment (Doc. 178) is on appeal. (Doc. 248).
Pursuant to Fed. R. Civ. P. 69(a), “[t]he 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.” Under Florida
law, garnishment is governed by Fla. Stat. § 77.01, et. seq. The statute provides:
Every person or entity who has sued to recover a debt or has recovered judgment
in any court against any person or entity has a right to a writ of garnishment, in the
manner hereinafter provided, to subject any debt due to defendant by a third person
or any debt not evidenced by a negotiable instrument that will become due
absolutely through the passage of time only to the defendant by a third person, and
any tangible or intangible personal property of defendant in the possession or
control of a third person.
Fla. Stat. § 77.01.
“After judgment has been obtained against defendant but before the writ of garnishment is
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issued, the plaintiff, the plaintiff’s agent or attorney, shall file a motion (which shall not be verified
or negative defendant’s exemptions) stating the amount of the judgment.” Fla. Stat. § 77.03., “[A]
debt, to be subject to garnishment, must be due absolute and without contingency.” Tomlin v.
Anderson, 413 So. 2d 79, 82 (Fla. 5th Dist. Ct. App. 1982) (citing Cobb v. Walker, 198 So. 324
(1940)). “If there is anything contingent or to be done by a person before the liability of another
becomes fixed, there is not such an ‘indebtedness due’ as contemplated by the statute to which a
writ of garnishment can apply.” Id. (citing West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 77 So.
209 (1917)). Thus, the Court will not proceed with enforcing a judgment that remains subject to
appellate review. See Rossi v. Billmyre, No. 215-CV-180-FTM-29MRM, 2017 WL 3131103, at
*2 (M.D. Fla. July 24, 2017); Florida Steel Corp. v. A. G. Spanos Enters, Inc., 332 So. 2d 663,
664 (Fla. 2d Dist. Ct. App. 1976).
Accordingly, it is ORDERED that Zurich’s Fourth Motion for Writ of Garnishment After
Judgment (Doc. 221) is DENIED without prejudice.
ORDERED in Tampa, Florida this 20th day of December, 2017.

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