Michael Grecco Productions, Inc. v. Soffersapp, LLC et al
Filing
55
ORDER granting in part and denying in part relief requested in 52 Answer to Writ of Garnishment filed by WOW MARKETING CORP. The plaintiff shall issue a $100.00 statutory payment to counsel for WOW Marketing and promptly file a notice of c ompliance with this Order. WOW Marketing Corp. is discharged from any further obligations and liability under the 50 Continuing Writ of Garnishment Against Salary or Wages. Signed by Ch. Magistrate Judge John J. O'Sullivan on 9/13/2021. See attached document for full details. (mkr)
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 1 of 8
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-24966-CIV-COOKE/O'SULLIVAN
MICHAEL GRECCO
PRODUCTIONS, INC.,
Plaintiff,
v.
SOFFERSAPP LLC, and
ROBERT M. SAPP,
Defendants,
and
WOW MARKETING, CORP.,
Garnishee.
________________________________/
ORDER
THIS MATTER is before the Court on the Answer and Demand for Attorneys’
Fees of Garnishee, WOW Marketing, Corp. (DE# 52, 8/10/21).
BACKGROUND
On November 8, 2017, the Court entered a final default judgment in favor of the
plaintiff, Michael Grecco Productions, Inc., and against the defendants, SofferSapp, LLC
and Robert M. Sapp, in the amount of $300,000.00 in statutory damages and
$18,938.74 in fees and costs. See Order Granting Plaintiff’s Motion for Entry of Default
Judgment Against Defendant Soffersapp LLC and Adopting Report and
Recommendations (DE# 41 at 3, 11/8/17).
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 2 of 8
On July 22, 2021, the undersigned issued an Order granting the Plaintiff’s Ex
Parte Motion for Continuing Writ of Garnishment Against Salary or Wages (DE# 46,
4/28/21) and directing the Clerk of the Court to issue a continuing writ of garnishment to
WOW Marketing, Corp. (hereinafter “WOW Marketing”). See Order (DE# 49, 7/22/21).
On the same day, the Clerk of the Court issued a Continuing Writ of Garnishment
Against Salary or Wages (DE# 50, 7/22/21) (hereinafter “Continuing Writ of
Garnishment”) directed to WOW Marketing. On August 2, 2021, the plaintiff provided
Mr. Sapp with a copy of the Continuing Writ of Garnishment, among other documents.
See Certificate of Service of Motion, Writ, and Notice of Garnishment (DE# 51, 8/2/21).
On August 10, 2021, WOW Marketing filed its Answer and Demand for Attorneys’
Fees of Garnishee, WOW Marketing, Corp. (DE# 52, 8/10/21) (hereinafter “Answer”).
The Answer stated that WOW Marketing was served with a copy of the Continuing Writ
of Garnishment on July 29, 2021. Answer at ¶ 1. The Answer also stated that:
2.
At the time of service of the Writ, and at all times between service
of the Writ and the Garnishee’s Answer, Garnishee was not indebted to
Robert M. Sapp nor Soffersapp LLC.
3.
At the time of service of the Writ, and at all times between service
of the Writ and the Garnishee’s Answer, Garnishee was not in
possession and control of tangible and intangible personal property
of Robert M. Sapp nor Soffersapp, LLC.
4.
Robert M. Sapp is neither employed nor receives a regular
salary or wage from Garnishee.
Answer at ¶¶ 2-4 (emphasis added). 1 In paragraph 5 of the Answer, WOW Marketing
With respect to these three allegations, the Plaintiff’s Reply stated that “Plaintiff lacks
knowledge or information sufficient to form a belief about the truth of the allegation . . . .”
See Plaintiff’s Reply to Garnishee’s Answer (DE# 54 at ¶¶ 2-4, 8/29/21).
1
2
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 3 of 8
demanded payment:
Having fully answered the Writ of Garnishment served upon it, Garnishee
demands payment of its costs and expenses in connection with
responding to the Writ of Garnishment, including a reasonable
attorney’s fee and costs for responding to the Writ of Garnishment and
all matter related thereto, pursuant to § 77.28, Florida Statutes.
Answer at ¶ 5 (emphasis added). 2 In the wherefore clause of its Answer, WOW
Marketing stated as follows:
WHEREFORE, Garnishee, WOW Marketing Corp., respectfully requests:
(a) payment of the statutory garnishment fee of $100.00 required to
be deposited by Plaintiff into the registry of the court, in accordance
with § 77.28, Florida Statutes, to be made payable to Bell Rosquete
Reyes Esteban, PLLC, and delivered to 999 Ponce de Leon Blvd., Suite
1120, Coral Gables, FL 33134; (b) entry of a court order discharging
Garnishee from any further obligations and liability in relation to the
Writ of Garnishment, pursuant to § 77.061, Florida Statutes; and (c)
and all other relief this Court deems just and proper in favor of Garnishee.
Answer at 2 (emphasis added).
On August 29, 2021, the plaintiff filed Plaintiff’s Reply to Garnishee’s Answer
(DE# 54, 8/29/21) (hereinafter “Plaintiff’s Reply”). With respect to paragraphs 2 through
4 of the Answer, the plaintiff states that it “lacks knowledge or information sufficient to
form a belief about the truth of the allegation . . . .” Plaintiff’s Reply at ¶¶ 2-4. The
plaintiff admits the remaining allegations of the Answer, paragraphs 1 and 5. Id. at ¶¶ 1,
5.
The certificate of service accompanying the Plaintiff’s Reply states that a copy of
the Plaintiff’s Reply was mailed to judgment debtor Robert M. Sapp. See Plaintiff’s
Reply at 2. Additionally, the plaintiff has filed a separate certificate of service indicating
In its Reply, the plaintiff admitted to paragraph 5 of the Answer. See Plaintiff’s Reply to
Garnishee’s Answer (DE# 54 at ¶ 5, 8/29/21).
2
3
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 4 of 8
that it mailed a copy of WOW Marketing’s Answer (DE# 52) to Mr. Sapp. See Certificate
of Service of Garnishee’s Answer and of Notice of Time to Dissolve (DE# 53, 8/11/21).
The accompanying notice advised Mr. Sapp that he had 20 days from the day he was
served with the Answer to move to dissolve the Continuing Writ of Garnishment. See
Notice to Defendant of Time to Move to Dissolve Writ (DE# 53-2, 8/11/21). To date, Mr.
Sapp has not responded to these filings or moved to dissolve the writ.
ANALYSIS
Rule 69 of the Federal Rules of Civil Procedure states that “[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.” Fed. R. Civ. P. 69(a). Garnishment proceedings
in Florida are governed by Chapter 77 of the Florida Statutes. Branch Banking & Tr. Co.
v. Crystal Ctr., LLC, No. 8:15-CV-1462-T-30AAS, 2018 WL 4829181, at *2 (M.D. Fla.
Oct. 4, 2018).
A.
The $100.00 Statutory Payment
Pursuant to 77.28, Wow Marketing is entitled to $100.00 as payment of its
attorney fee. Fla. Stat. § 77.28. However, to the extent that WOW Marketing is seeking
the $100.00 statutory payment from the registry of the Court, 3 that request is
DENIED. A party seeking a writ of garnishment is no longer required to deposit the
$100.00 statutory payment in the Court’s registry.
As noted above, in the wherefore clause of its Answer, WOW Marketing stated, in part,
that WOW Marketing was requesting “payment of the statutory garnishment fee of
$100.00 required to be deposited by Plaintiff into the registry of the court, in
accordance with § 77.28, Florida Statutes . . . .” Answer at 2 (emphasis added).
3
4
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 5 of 8
The current version of section 77.28 of the garnishment statute states that:
Upon issuance of any writ of garnishment, the party applying for it shall
pay $100 to the garnishee on the garnishee's demand at any time
after the service of the writ for the payment or part payment of his or
her attorney fee which the garnishee expends or agrees to expend in
obtaining representation in response to the writ. On rendering final
judgment, the court shall determine the garnishee's costs and expenses,
including a reasonable attorney fee, and in the event of a judgment in
favor of the plaintiff, the amount is subject to offset by the garnishee
against the defendant whose property or debt owing is being garnished. In
addition, the court shall tax the garnishee’s costs and expenses as costs.
The plaintiff may recover in this manner the sum advanced by him or her,
and, if the amount allowed by the court is greater than the amount paid
together with any offset, judgment for the garnishee shall be entered
against the party against whom the costs are taxed for the deficiency.
Id. at § 77.28 (emphasis added).
On September 26, 2014, then Chief United States District Judge K. Michael
Moore issued Administrative Order 2014-86. 4 The Administrative Order acknowledged
that “[e]ffective July 1, 2014, Florida Statute section 77.28 was amended to require the
party applying for a writ of garnishment to ‘pay $100 to the garnishee’ instead of into the
registry of the Court.” AO 2014-86. Consistent with the amendment to the garnishment
statute, the Administrative Order provided, in part, that “any party applying for a writ of
garnishment should no longer pay $100 into the Court registry and should instead make
that payment to the garnishee, under the newly amended section 77.28, Florida
Statutes.” AO 2014-86.
Local Rule 67.1(c) also states, in part, that “[a] party applying for the issuance of
a writ of garnishment shall pay the amount prescribed by applicable Florida law to the
Administrative Orders are publicly available at
https://web.flsd.uscourts.gov/default_ao.asp?file=adminorders/default_ao.asp.
4
5
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 6 of 8
garnishee. The payment is for the attorneys’ fees of the garnishee.” S.D. Fla. L.R.
67.1(c).
Thus, in accordance with Fla. Stat. § 77.28, AO 2014-86 and S.D. Fla. L.R.
67.1(c), supra, WOW Marketing is entitled to payment of the $100.00 statutory fee from
the plaintiff.
B.
WOW Marketing’s Discharge of Further Obligations and Liability
WOW Marketing also asks that the Court enter an “order discharging Garnishee
from any further obligations and liability in relation to the Writ of Garnishment, pursuant
to § 77.061, Florida Statutes.” Answer at 2.
Section 77.061 states as follows:
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.
Fla. Stat. § 77.061 (emphasis added).
In its Answer, WOW Marketing asserts that:
2.
At the time of service of the Writ, and at all times between service
of the Writ and the Garnishee’s Answer, Garnishee was not indebted to
Robert M. Sapp nor Soffersapp LLC.
3.
At the time of service of the Writ, and at all times between service
of the Writ and the Garnishee’s Answer, Garnishee was not in
possession and control of tangible and intangible personal property
of Robert M. Sapp nor Soffersapp, LLC.
4.
Robert M. Sapp is neither employed nor receives a regular
salary or wage from Garnishee.
Answer at ¶¶ 2-4 (emphasis added). With respect to these three allegations, the
Plaintiff’s Reply states that “Plaintiff lacks knowledge or information sufficient to form a
6
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 7 of 8
belief about the truth of the allegation . . . .” See Plaintiff’s Reply at ¶¶ 2-4. The plaintiff
admits the remaining allegations of the Answer, paragraphs 1 and 5. Id. at ¶¶ 1, 5.
As one Florida appellate court observed: “A judgment creditor who is not satisfied
with the garnishee’s answer may serve a reply denying the allegations of the answer
(Section 77.061) and demanding a jury trial on the issues made (Section 77.08).”
Robert C. Malt & Co. v. Colvin, 419 So. 2d 745, 747 (Fla. 5th DCA 1982) (emphasis
added). That court went on to hold that where “the reply set forth facts which, if true,
would make the garnishee liable for the amount of the . . . judgment, it [would be] error
to dissolve the writ without a jury trial on the issues.” Id.
In the instant case, the plaintiff has not denied any allegations in the Answer, but
rather stated that it “lacks knowledge or information sufficient to form a belief about the
truth of the allegation[s]” in paragraph 2 through 4. Plaintiff’s Reply at ¶¶ 2-4. The
plaintiff has not indicated that it is seeking post-judgment discovery or taking any other
actions to verify the factual assertions made in paragraphs 2 through 4 of the Answer.
The Plaintiff’s Reply contains no demand for trial by jury on the factual allegations
contained in the Answer.
Because there are no assets to dispose of and the plaintiff has not challenged
the veracity of the allegations made in the Answer, the undersigned concludes that
WOW Marketing “is entitled to an order discharging . . . [it] from further liability under the
writ.” Fla. Stat. § 77.061.
CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that WOW Marketing Corp.’s demand for
7
Case 1:16-cv-24966-MGC Document 55 Entered on FLSD Docket 09/13/2021 Page 8 of 8
attorneys’ fees (DE# 52, 8/10/21) is GRANTED in part and DENIED in part. The
plaintiff shall issue a $100.00 statutory payment to Bell Rosquete Reyes Esteban,
PLLC, 999 Ponce de Leon Blvd., Suite 1120, Coral Gables, FL 33134 in accordance
with § 77.28, Florida Statutes. The plaintiff shall promptly file a notice of compliance
with this Order. It is further
ORDERED AND ADJUDGED that WOW Marketing Corp. is discharged from any
further obligations and liability under the Continuing Writ of Garnishment Against Salary
or Wages (DE# 50, 7/22/21).
13th
DONE AND ORDERED in Chambers at Miami, Florida, this _____ day of
September, 2021.
_______________________________________
JOHN J. O’SULLIVAN
CHIEF UNITED STATES MAGISTRATE JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?