Krygger et al v. Palmer et al

Filing 23

OPINION AND ORDER granting 21 Motion to Dismiss or Discharge Liability Under Writ of Garnishment. Signed by Judge Kenneth A. Marra on 12/13/2012. (ar2) Modified document type on 12/14/2012 (ar2).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-62064-CIV-MARRA/BRANNON
PETER KRYGGER et al.,
Creditors,
vs.
F1 INVESTMENTS INC., et al.,
Debtors.
____________________________________/
CARIBBEAN AIRLINES LIMITED,
Garnishee
_____________________________________/

OPINION AND ORDER
This cause is before the Court upon Caribbean Airlines Limited’s Motion to Dismiss or
Discharge Liability Under Writ of Garnishment (DE 21). On November 21, 2012, the Court
issued an order to show cause on Plaintiffs, ordering them to respond to the motion (DE 22).
Plaintiffs did not respond. The Court has carefully considered the motion and is otherwise fully
advised in the premises.
I. Background
On September 20, 2011, Defendants filed a notice of removal of a garnishment
proceeding upon a writ entered by the Broward County Circuit Court. (DE 1.) On December 5,
2011, Plaintiffs filed an ex parte motion for writ of continuing garnishment against Caribbean
Airlines, Inc. (DE 5), which the Court granted (DE 6). On January 13, 2012, Plaintiffs filed an
amended ex parte motion for writ of continuing garnishment (DE 8) to include the correct name

of the intended garnishee, Caribbean Airlines Limited, Co. (“CAL”). The Court granted the writ
(DE 9) and it was issued on February 8, 2012 (DE 10).
On June 6, 2012, the Court issued an order to show cause for failure to prosecute based
on the lack of proceedings. (DE 11.) Plaintiffs responded that the case was still at issue because
they had not yet received a response from CAL. (DE 14.) Accordingly, the Court found good
cause. (DE 15.) Next, on July 31, 2012, CAL served its response to the continuing writ of
garnishment. (DE 17.) In that response, CAL stated that it is owned by the government of
Trinidad and Tobago and is an agency or instrumentality of a foreign sovereign (Id., General
Objections, ¶ 2.) CAL is not indebted to Plaintiff within the state of Florida, is not in control of
any tangible or intangible property of judgment debtor within the state of Florida, does not know
of any other person indebted to the judgment debtor within the state of Florida and Defendant
Kelly is employed by CAL in the country of Jamaica and is paid with a bank account of CAL
located in Jamaica. (Id., Answer ¶ ¶ 1-5.) The instant motion followed. (DE 21.)
II. Discussion
Plaintiffs proceed pursuant to Rules 64 and 69 of the Federal Rules of Civil Procedure,
which provide that civil garnishment procedures in federal court must comply with the law of the
state where the Court is located. Fed. R. Civ. P. 64, 69. Under Florida law, garnishment
proceedings are governed by Chapter 77 of the Florida Statues. Florida Statues § 77.061
provides:
When any garnishee answers and plaintiff is not satisfied with the answer, he or she shall
serve a reply within 20 days thereafter denying the allegations of the answer as he or she
desires. On failure of plaintiff to file a reply, the answer shall be taken as true and on proper
disposition of the assets, if any are disclosed thereby, the garnishee is entitled to an order
discharging him or her from further liability under the writ.
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Florida Statute § 77.061.
Also applicable to this case is the Foreign Sovereign Immunities Act (“FSIA”). 28 U.S.C.
§ 1602 et seq. Section 1604 of that Act provides:
Subject to existing international agreements to which the United States is a party at the time
of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts
of the United States and of the States except as provided in sections 1605 to 1607 of this
chapter.
28 U.S.C. §1604.
Similarly, the FSIA provides that “the property in the United States of a foreign state shall
be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of
this chapter.” 28 U.S.C. § 1609. A foreign state includes “an agency or instrumentality of a foreign
state.” 28 U.S.C. § 1603. Here, the undisputed facts establish that CAL is owned by the government
of Trinidad and Tobago and is therefore an agency or instrumentality of a foreign sovereign and thus
entitled to the immunities set forth in the FSIA. Furthermore, Plaintiffs have not alleged any
exceptions to the FSIA or any facts which constitute exceptions. See Saudi Arabian Airlines Corp.
v. Tamimi, 176 F.3d 274, 277 (4th Cir. 1999) (“Under the FSIA, a foreign state is entitled to
sovereign immunity unless the plaintiff demonstrates that one of the exceptions to sovereign
immunity applies.”). As such, the writ of garnishment is dismissed because the Court lacks subject
matter jurisdiction.1
Because the Court lacks subject matter jurisdiction, and because the Court previously found
1

Because the Court does not have jurisdiction, further analysis is unnecessary. However,
for the purpose of a complete record, the Court notes that there is authority to support a discharge
of liability for the garnishee for Defendant’s wages earned and paid in Jamaica. See Ellis v.
Barclays Bank PLC–Miami Agency, 594 So.2d 826 (Fla. Dist. Ct. App. 1992) (garnishee bank
discharged from further liability when the garnishee reported on all bank accounts in United
States but was silent as to foreign accounts).
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that the case should not be dismissed for lack of prosecution based on Plaintiffs’ claim that it was
awaiting a response from the CAL, the Court hereby requests Plaintiffs to inform it whether this case
is still at issue.
III. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Caribbean Airlines Limited’s
Motion to Dismiss or Discharge Liability Under Writ of Garnishment (DE 21) is GRANTED.
Plaintiffs shall file a status report within 10 days of the date of entry of this Order.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 13th day of December, 2012.
______________________________________
KENNETH A. MARRA
United States District Judge

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