Patino et al v. Wolfson et al

Filing 70

ORDER denying without prejudice 48 Motion for Judgment. Signed by Magistrate Judge John J. O'Sullivan on 10/15/2013. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-23726-CIV-HUCK/O'SULLIVAN
VANESSA PATINO, et al.,
Plaintiffs,
vs.
EL REY DEL CHIVITO CORP., et al.,
Defendants,
vs.
BANCO POPULAR NORTH AMERICA,
Garnishee.
______________________________/
ORDER
THIS MATTER comes before the Court on the Plaintiffs' Motion for Entry of Final
Judgment in Garnishment Against Garnishee Banco Popular North America (DE# 48,
9/3/13). On August 8, 2013, the Clerk of the Court issued a writ of garnishment to
Banco Popular North America d/b/a “Popular Community Bank” (hereinafter
“garnishee”). See Writ of Garnishment (DE# 47, 8/8/13). The garnishee did not file its
answer within the time allotted by the Florida garnishment statutes1 and the plaintiffs
moved for a default final judgment against the garnishee. See Plaintiff[s’] Reply to
Garnishee “Banco Popular North America” Answer to Writ of Garnishment [DE 49]”
(DE# 51 at 1, 9/6/13) (stating that “Plaintiff[s] ha[ve] moved for Default Judgment”). The
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The garnishee filed its answer to the writ of garnishment on September 4,
2013. See Answer to Writ of Garnishment by Banco Popular North America (DE# 49,
9/4/13).

plaintiffs did not obtain a clerk’s default against the garnishee prior to seeking a default
judgment. The plaintiffs maintain that “the entry of a Clerk’s Default under Rule 55(a),
Fed. R. Civ. P. is not a prerequisite to a motion for default judgment under Rule
55(b)(2).” Plaintiff[s’] Reply to Garnishee’s “Response to Plaintiffs’ Motion for Entry of
Final Judgment in Garnishment Against Garnishee Banco Popular North America . . .”
[DE 55]” (DE# 59, 9/18/13). In Brantley v. DEA, No. 2:12-cv-361FtM-99SPC, 2012 WL
6015591, at *1 (M.D. Fla. Dec. 3, 2012), the court concluded that Rule 55 required the
entry of a clerk’s default before the district court could enter a default final judgment:
Rule 55 sets out a two-step procedure for obtaining a default judgment.
[Bardfield v. Chisholm Prop. Circuit Events, LLC, No. 3:09cv232/MCR/EM,
2010 WL 2278461 *6 (N.D. Fla. May 4, 2010)]. First, when a defendant
fails to plead or otherwise defend the lawsuit, the clerk of court is
authorized to enter a clerk's default. Id. (citing Fed. R. Civ. P. 55(a)).
Second, after entry of the clerk’s default, if the plaintiff's claim is not for a
sum certain and the defendant is not an infant or an incompetent person,
the court may enter a default judgment against the defendant for not
appearing or defending. [Id.] (citing Fed. R. Civ. P. 55(b)(2)). Thus, by its
terms, Rule 55 characterizes an entry of default and a default judgment as
two distinct events. See 10A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2682 (3d ed. 2007) (“Prior to obtaining
a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must
be an entry of default as provided by Rule 55(a)). The Plaintiff here has
never moved for a clerk's default nor has one been entered by the Court.
See also Thompson v. Mosby Legal Group, LLC, No. 3:12-cv-692-J-99TJC-TEM, 2013
WL 2191511, *1 (M.D. Fla. May 21, 2013) (stating that “[i]t is inappropriate to file a
motion for default judgment prior to obtaining an entry of default from the Clerk.”).
Rule 69 of the Federal Rules of Civil Procedure provides, in part, that: “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)(1). In the instant
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motion, the plaintiffs cite to sections 77.081(1) and (2) of the Florida garnishment
statutes which state:
(1) If the garnishee fails to answer as required, a default shall be entered
against him or her.
(2) On the entry of judgment for plaintiff, a final judgment shall be entered
against the garnishee for the amount of plaintiff's claim with interest and
costs. No final judgment against a garnishee shall be entered before the
entry of, or in excess of, the final judgment against the original defendant
with interest and costs. If the claim of the plaintiff is dismissed or judgment
is entered against the plaintiff the default against garnishee shall be
vacated and judgment for the garnishee's costs entered.
Plaintiffs' Motion for Entry of Final Judgment in Garnishment Against Garnishee Banco
Popular North America (DE# 48 at 2, 9/3/13) (quoting Fla. Stat. § 77.081(1)-(2)). The
Florida Supreme Court has stated that “section 77.081(2) applies only to a prejudgment
writ of garnishment and that a writ of garnishment under chapter 77 asserts a claim for
an unliquidated sum.” BellSouth Adver. & Pub. Corp. v. Sec. Bank, N.A., 698 So.2d
254, 256 (Fla. 1997) (per curiam). In the instant case, the Court entered an Agreed
Final Judgment (DE# 42) on April 6, 2011. Thus, the Writ of Garnishment (DE# 47)
issued to the garnishee on August 8, 2013 was a post-judgment writ of garnishment
and section 77.081(2) is inapplicable here. In the underlying district court opinion in
BellSouth, the lower appellate court stated:
We are in general agreement with the analysis of this point in Trawick's
Florida Practice and Procedure. After default, “[n]o judgment can be
entered against the garnishee in excess of the amount remaining unpaid
on the judgment against the garnishment defendant or in excess of the
garnishee's liability to the garnishment defendant.” Henry P. Trawick, Jr.,
Trawick's Florida Practice and Procedure, § 33-6, at 559 (1995 ed.)
(footnote omitted). The plaintiff must propound discovery to the garnishee,
or subpoena the garnishee to give evidence, in order “to ascertain the
correct amount of the garnishee's obligation before entry of final judgment
against the garnishee.” Id. (footnote omitted).
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Sec. Bank, N.A. v. BellSouth Advert. & Pub. Corp., 679 So.2d 795, 800 (Fla. 3d DCA
1996) (emphasis omitted). Because the plaintiffs did not obtain a clerk’s default, they
are not entitled a default final judgment against the garnishee. Accordingly, it is
ORDERED AND ADJUDGED that the Plaintiffs' Motion for Entry of Final
Judgment in Garnishment Against Garnishee Banco Popular North America (DE# 48,
9/3/13) is DENIED without prejudice.
DONE AND ORDERED, in Chambers, in Miami, Florida, this 15th day of
October, 2013.

________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Huck
All counsel of record
Copies mailed by Chambers to:
Jason A. Rosenthal
Counsel for Garnishee
The Rosenthal Law Firm, P.A.
4798 New Broad Street
Suite 310
Orlando, FL 32814

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