BLACH v. DIAZ-VERSON

Filing 13

ORDER denying 5 Motion to Dismiss; denying 6 Motion to Dismiss Ordered by US DISTRICT JUDGE CLAY D LAND on 2-18-16 (nmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
HAROLD BLACH, JR.,

*

Plaintiff,

*

vs.

*

AFLAC, INC.,

*

Garnishee,

CASE NO.4:15-MC-5

*

SAL DIAZ-VERSON,

*

Defendant.
O R D E R
In an attempt to avoid collection of a valid judgment, Sal
Diaz-Verson
action.
to

filed

a

traverse

to

Plaintiff’s

garnishment

In the garnishment action, Plaintiff Harold Blach seeks

garnish

Verson.

has

regular

payments

made

from

AFLAC,

Inc.

to

Diaz-

Diaz-Verson seeks dismissal of the garnishment action

claiming that this Court does not have jurisdiction, that the
Georgia garnishment statute is unconstitutional, and that the
Court should abstain from hearing this matter due to another
related action pending in state court.
payments

that

garnishment.

Blach
All

of

seeks

to

He also argues that the

garnish

Diaz-Verson’s

are

arguments

exempt
lack

from
merit.

Accordingly, Diaz-Verson’s motion to dismiss and traverse (ECF
Nos. 5 & 6) are denied.

FACTUAL BACKGROUND
On March 12, 2012, the Northern District of Alabama issued
a $158,343.40 judgment in favor of Blach against Diaz-Verson.
On October 6, 2015, Blach duly registered the judgment in this
Court

pursuant

present

to

28

§ 1963.1

U.S.C.

garnishment

action

employer, AFLAC, Inc.

Blach

against

then

filed

Diaz-Verson’s

the

former

Diaz-Verson does not dispute the validity

of the Middle District of Alabama judgment against him in favor
of Blach; nor does he deny that his former employer AFLAC sends
bimonthly payments from its office in Columbus, Georgia to him
in

Florida.

Instead,

he

argues

that

Blach’s

unsuccessful

attempts to domesticate his Alabama judgment and garnish the
AFLAC payments in Georgia state courts doom his present action
in

this

Court.

Thus,

an

examination

of

those

state

court

proceedings is necessary.
I.

First State Court Action
Blach first sought to domesticate his Alabama judgment in

Muscogee County Superior Court on March 8, 2013.

Diaz-Verson

received notice of the domestication and, through his attorney
Robert

Frey,

moved

to

personal jurisdiction.

dismiss

the

proceeding

for

lack

of

Diaz-Verson argued that he has been a

full time resident of Florida since 2004 and, therefore, the
1

Section 1963 provides in part that “[a] judgment in an action for the
recovery of money or property entered in any . . . district
court . . . may be registered by filing a certified copy of the
judgment in any other district . . . .” 28 U.S.C. § 1963.

2

Georgia courts do not have personal jurisdiction over him under
Georgia’s long-arm statute.

Blach did not respond to the motion

to dismiss and the state court granted the motion.

Blach filed

a motion for reconsideration which the court denied, holding
that Georgia’s long-arm statute does not provide Georgia courts
with personal jurisdiction over Diaz-Verson.
II.

Second State Court Action
On August 20, 2014, Blach again tried to domesticate his

Alabama judgment in a Georgia state court.

Blach attempted to

send notice of the domestication to Diaz-Verson, but Diaz-Verson
claims that he did not receive the notice because it was sent to
an

incorrect

address.

On

September

24,

2014,

the

Muscogee

County Superior Court entered an order domesticating the Alabama
judgment in Georgia.
In

January

2015,

Blach

filed

garnishment

against AFLAC based on the domesticated judgment.
longer
against

represented
him.

traverses

Diaz-Verson,

After

filed

by

several

filed

months

Diaz-Verson,

the

a

of

proceedings
Frey, who no

third-party

garnishment

Muscogee

County

claim

and

two

Superior

Court held a hearing on Diaz-Verson’s traverses and the thirdparty claim.
At the hearing, Frey took the position that the Georgia
garnishment

statute

was

unconstitutional

third-party garnishment claim.

and

dismissed

his

Regarding Blach’s garnishment,

3

the

court

held

domesticated
notice

of

that

in

the

the

Georgia

Alabama
because

judgment

was

Diaz-Verson

domestication.

The

court

not

did

not

vacated

properly
receive

the

order

domesticating the judgment and returned all garnished funds to
Diaz-Verson.

The court offered Blach the opportunity to file a

motion as to why his failure to send notice to Diaz-Verson could
be cured.

Blach voluntarily dismissed the action.

III. The Present Federal Action
In October 2015, Blach registered his Alabama judgment in
this

Court,

garnishment
December

pursuant
action

21,

to

28

against

2015,

U.S.C.

AFLAC

Diaz-Verson

§ 1963.

on

He

December

received

filed

this

18,

2015.

On

notice

of

the

garnishment action with a list of possible exemptions he could
claim and the procedure for claiming them.

Two days later, this

Court issued a summons of garnishment to AFLAC.

On December 26,

2015, Diaz-Verson received a copy of this summons and another
list

of

possible

exemptions.

Diaz-Verson

filed

the

present

traverse and motion to dismiss and this Court held a hearing on
the

motion

on

January

27,

2016.

At

the

hearing,

AFLAC’s

attorney stated that AFLAC withheld twenty-five percent of DiazVerson’s

January

15

payment

and

would

withhold

percent from his January 31 and February 15 payments.

4

twenty-five

IV.

Robert Frey’s Relationship with Diaz-Verson and Judgment
Frey

is

the

registered

Florida

corporation

member.

Pl.’s

that

Resp.

agent

for

Diaz-Verson
Attach.

a

limited

manages

5,

as

liability

the

Electronic

managing

Articles

of

Organization for Florida Limited Liability Company 2, ECF No. 85.

Additionally, Blach claims that Frey currently represents

Diaz-Verson in Muscogee County Superior Court in an unrelated
dispute.
In 2010, Frey unsuccessfully defended Diaz-Verson against
Porter

Bridge

domesticated

Loan
a

Company.

judgment

In

in

that

Georgia

action,

state

Porter

court

Bridge

and

garnishment proceedings against AFLAC in this Court.

filed
Porter

Bridge sought to garnish the same bimonthly AFLAC payments at
issue here.

Frey represented Diaz-Verson in a traverse to the

garnishment.
are

exempt

benefits.

Diaz-Verson argued that the payments from AFLAC
from
This

garnishment
Court

because

rejected

that

they

argument

are

retirement

and

held

that

twenty-five percent of the payments is subject to garnishment.
AFLAC,

Inc.

v.

Diaz-Verson,

No.

4-11-CV-81

(CDL),

2012

WL

1903904, at *5-7 (M.D. Ga. May 25, 2012).
Frey continued to represent Diaz-Verson in his appeal of
that

order.

On

Bridge

entered

a

Verson

dismissed

September

25,

confidential
his

2012,

Diaz-Verson

settlement

appeal.

A

5

month

agreement
or

two

and

Porter

and
after

Diazthe

settlement and dismissal, Porter Bridge assigned its judgment
against Diaz-Verson to Frey.

Def.’s Mot. to Dismiss Ex. 6,

Assignment of J., ECF No. 5-17.

Frey did not seek to collect

this judgment from Diaz-Verson until January 2015, when he filed
the third-party claim in Blach’s state court garnishment action
which he subsequently dismissed.
On

December

received
Court,

notice

Frey

30,
of

filed

2015,

Blach’s

several

days

garnishment

garnishment

after

proceedings

proceedings

Muscogee County Superior Court.

Diaz-Verson

against

in

this

AFLAC

in

AFLAC received summonses of

garnishment from this Court in the present action and from the
Muscogee

County

holding

the

Superior

garnished

Court

in

payments

Frey’s
and

regarding where to deposit the funds.

action.

awaiting

AFLAC

is

instruction

Blach has filed a third-

party motion to stay the Muscogee County Superior Court action.
V.

Diaz-Verson’s Objections to Garnishment
Diaz-Verson

garnishment: (1)

asserts

the

following

objections

to

the

the Court does not have personal jurisdiction

over Diaz-Verson and is collaterally estopped from determining
that it does not need personal jurisdiction over Diaz-Verson;
(2) res judicata bars this action; (3) Georgia’s garnishment
statute is unconstitutional facially and as-applied; (4)

the

Court should abstain because of Frey’s state court action or
dismiss Blach’s garnishment because Frey’s claim is superior;

6

and (5) the AFLAC payments are retirement benefits, exempt from
garnishment under Georgia law.2
DISCUSSION
I.

Personal Jurisdiction Over Diaz-Verson
Diaz-Verson

jurisdiction

in

argues
this

that

for

garnishment

this

Court

action

to

exercise

consistent

with

process, it must have personal jurisdiction over him.
Verson

further

argues

that

this

Court

cannot

due

Diaz-

decide

the

jurisdiction issue because it has already been decided in DiazVerson’s favor by a state court.

Diaz-Verson mischaracterizes

what happened in state court, misunderstands the principle of
collateral

estoppel,

and

mistakenly

confuses

personal

jurisdiction that is necessary to obtain a judgment against him
with

jurisdiction

previously

in

entered

a

garnishment

judgment

with

action

property

to

satisfy

located

in

a

this

Court’s jurisdiction.
A.

Collateral Estoppel Does Not Apply

Diaz-Verson

argues

that

Blach

is

precluded

from

relitigating whether the Court needs personal jurisdiction over
him because the Muscogee County Superior Court assumed that it
did and held that Georgia courts lack jurisdiction over DiazVerson.

“In considering whether to give preclusive effect to

2

It is not clear that Diaz-Verson used the proper procedure for
raising all of these objections.
But for the sake of judicial
economy, the Court addresses all of the objections in this Order.

7

state-court
federal

judgments

court

preclusion.”
(11th

Cir.

under
apply

must

.

.

.

the

collateral

rendering

estoppel,

state’s

law

the
of

Cmty. State Bank v. Strong, 651 F.3d 1241, 1263
2011).

To

establish

collateral

estoppel

under

Georgia law, Diaz-Verson bears the burden of demonstrating that:
(1) an identical issue, (2) between identical parties,
(3) was actually litigated and (4) necessarily
decided, (5) on the merits, (6) in a final judgment,
(7) by a court of competent jurisdiction.
Id.

at

1264.

Diaz-Verson

has

failed

to

establish

that

an

identical issue was actually litigated and necessarily decided
in the Muscogee County Superior Court.
The Muscogee County Superior Court held that Georgia courts
lack

personal

long-arm

jurisdiction

statute.

The

over
Court

Diaz-Verson
therefore

under

dismissed

complaint to domesticate his Alabama judgment.
offers

no

personal

evidence

that

jurisdiction

the

over

state

Diaz-Verson

court
was

Georgia’s
Blach’s

But Diaz-Verson
analyzed

necessary

whether
for

the

court to exercise jurisdiction in a garnishment action based on
a valid judgment when the property to be garnished is located in
the State of Georgia.

The state court seems to have merely

assumed that it needed personal jurisdiction over Diaz-Verson.
Thus,

whether

“actually
court.

personal

litigated”

or

jurisdiction
“necessarily

is

required

decided”

by

was
the

not
state

See Cleland v. Gwinnett Cty., 226 Ga. App. 636, 638, 487

8

S.E.2d

434,

436-37

(1997)

(holding

that

where

one

party’s

interpretation of an ordinance was accepted by the court without
contest, the issue was not “actually litigated”);
F.3d

at

1268

(noting

that

the

“necessarily

Strong, 651

decided”

prong

requires that the issue was “squarely addressed”).
Here,

the

Court

must

determine

whether

personal

jurisdiction over Diaz-Verson is required to register a foreign
federal

judgment

judgment

through

under

a

federal

garnishment

of

statute

property

and

located

enforce
in

the

Georgia.

The state court in Blach’s first state court action did not
address Georgia garnishment law at all.

And the state court’s

assumption that personal jurisdiction is necessary under Georgia
domestication of judgment law does not control whether it is
necessary to register
whether

it

is

a judgment under a federal statute

necessary

property is located here.

in

a

garnishment

action

when

or
the

Thus, this Court is not collaterally

estopped from deciding these issues.
B.

The Court Does
Diaz-Verson

“In

an

action

to

Not

Need

execute

on

Personal
a

Jurisdiction

judgment,

due

Over

process

concerns are satisfied, assuming proper notice, by the previous
rendering of a judgment by a court of competent jurisdiction.”
Office Depot, Inc. v. Zuccarini, 596 F.3d 696, 700 (9th Cir.
2010); see also Frontera Res. Azerbaijan Corp. v. State Oil Co.

9

of the Azerbaijan Republic, 582 F.3d 393, 398 (2d Cir. 2009)
(holding

that

the

“district

court

did

not

err

by

treating

jurisdiction over either [the defendant] or [the defendant’s]
property

as

a

prerequisite

to

the

enforcement

of

[the

plaintiff’s] petition.”).
State

courts

more

frequently

garnishment than federal courts.
no

jurisdictional

debtor

need

be

basis
shown

for

address

They consistently hold “that

proceeding

before

post-judgment

a

against

foreign

recognized or enforced in a given state.”

the

judgment

judgment
will

be

Lenchyshyn v. Pelko

Elec., Inc., 281 A.D.2d 42, 48, 723 N.Y.S.2d 285, 290 (N.Y. App.
Div. 2001) (citing cases from fifteen states, including Georgia,
that support this claim).

According to the

Georgia Supreme

Court “if it can be shown that [Diaz-Verson] has property in
this

state,

[Alabama]

there

judgment

would

be

no

against

him

difficulty
here.”

in
See

enforcing

the

Williamson

v.

Williamson, 247 Ga. 260, 263, 275 S.E.2d 42, 45 (1981) (per
curiam).

“Personal jurisdiction over [Diaz-Verson] would, of

course, not be required.”
Diaz-Verson’s

Id.

argument

to

the

contrary

and

reliance

on

Shaffer v. Heitner, 433 U.S. 186, 208-12 (1977), ignores the
difference
actions.

between

prejudgment

and

post-judgment

garnishment

See Smith v. Lorillard, Inc., 945 F.2d 745, 746 (4th

Cir. 1991) (holding that Shaffer does not require the district

10

court to “engage in a new personal jurisdiction balancing test
after the underlying judgment is entered in order to proceed
with

and

enforce

original).

garnishment

Shaffer

and

the

orders[.]”)

garnishment

(alteration

case

it

in

overrules,

Harris v. Balk, 198 U.S. 215, 227 (1905), are prejudgment cases,
meaning that the defendant’s liability to the plaintiff had not
been adjudicated when the plaintiff brought an action against
the defendant’s property.3
198 U.S. at 227.

Shaffer, 433 U.S. at 200-01; Harris,

To the contrary, here, the Middle District of

Alabama had personal jurisdiction over Diaz-Verson and held that
Diaz-Verson

is

indebted

to

Blach.

Thus,

this

case

is

distinguishable from Shaffer and its overruling of Harris.
Moreover, Shaffer suggests that the Court does not need
personal
Supreme

jurisdiction
Court

for

explained

post-judgment
that

garnishment.

“[u]nless

The

the

has

plaintiff

obtained a judgment establishing his claim against the principal
defendant, his right to ‘represent’ the principal defendant in
an action against the garnishee is at issue.”
at 201 n.18 (internal citations omitted).

Shaffer, 433 U.S.

But:

Once it has been determined by a court of competent
jurisdiction that the defendant is a debtor of the
plaintiff, there would seem to be no unfairness in
allowing an action to realize on that debt in a State
where the defendant has property, whether or not that
3

The prejudgment posture of Harris is more difficult to recognize than
that of Shaffer.
The Court is clear, however, that the defendant
debtor in Harris never appeared to litigate the question of his
liability to the plaintiff prior to the garnishment. Id. at 227-29.

11

State would have jurisdiction to determine
existence of the debt as an original matter.
Id. at 210 n.36 (emphasis added).

the

Here, a court of competent

jurisdiction determined that Diaz-Verson is a debtor of Blach.
Thus, Blach may enforce that judgment in this Court against
Diaz-Verson’s local property, regardless of whether the Court
has personal jurisdiction over Diaz-Verson.
Shaffer

also

recognized

that

allowing

post-judgment

garnishment based solely on the court’s jurisdiction over the
defendant’s

property

is

necessary

to

prevent

defendants

from

avoiding judgments by keeping their property in states where
they

are

not

subject

to

personal

jurisdiction.

Id.

at

210

(emphasizing that defendants cannot move their property out of
state to avoid judgment because “[t]he Full Faith and Credit
Clause . . . makes the valid in personam judgment of one State
enforceable in all other States”).
In sum, the Court does not need personal jurisdiction over
Diaz-Verson to enforce a judgment against his in-state property.
It is clear that AFLAC holds property here belonging to DiazVerson.

Thus, this Court has jurisdiction over the present

action to garnish that property.

Diaz-Verson’s traverse and

motion to dismiss based on lack of personal jurisdiction over
him are denied.

12

II.

Res Judicata
To

the

extent

that

Diaz-Verson

makes

a

res

judicata

argument based on Blach’s state court filings, the Court finds
those

arguments

judicata

law

unpersuasive.

of

Georgia.

The

Strong,

Court
651

applies

F.3d

at

the

res

1263.

To

establish that this action is barred, Diaz-Verson must show the
“(1)

identity

of

the

cause

of

action;

(2)

identity

of

the

parties or their privies; and (3) previous adjudication on the
merits by a court of competent jurisdiction.”

Starship Enters.

of Atl., Inc. v. Coweta Cty., 708 F.3d 1243, 1253-54 (11th Cir.
2013).

The Court finds that the previous state court actions do

not constitute final adjudications on the merits of the same
cause of action asserted in this federal action.
Even if those actions were deemed to have been finally
adjudicated, which is doubtful, it is clear that registering a
judgment

in

federal

court

under

§ 1963

and

domesticating

a

judgment in state court are two distinct procedures that Blach
may use to enforce his judgment.

See Meridian Investing & Dev.

Corp. v. Suncoast Highland Corp., 628 F.2d 370, 372-73 (11th
Cir. 1980) (“[I]n cases . . . in which execution of the federal
court

judgment

is

federal

district

federal

suits

may

pursued

court,
be

through

the

the

filing

judgment

registration
of

concurrent

creditor’s

only

course of action.”) (internal citations omitted).

13

in

another

state

and

effective
Thus, res

judicata

principles

do

not

prevent

Blach

from

pursuing

collection of his judgment by registering it in federal court.
Finally, the Court rejects any argument that res judicata
bars Blach’s garnishment proceedings.

Under Georgia law, Blach

must file a new summons of garnishment each time he seeks to
collect a percentage of the AFLAC payments and may do so until
the judgment is paid.
§ 18-4-110

(providing

O.C.G.A. § 18-4-63; see also O.C.G.A.
that

continuing

garnishment

is

only

available if the garnishee is the defendant’s current employer).
Diaz-Verson’s reference to “improper and duplicative garnishment
actions” demonstrates a misunderstanding of garnishment.

Def.’s

Mem. in Supp. of Traverse and Mot. to Dismiss 2, ECF No. 5-1.
Accordingly,

the

Court

denies

Diaz-Verson’s

motion

on

res

judicata grounds.
III. Georgia’s Garnishment Statute
Diaz-Verson

argues

that

the

Court

should

dismiss

this

action because Georgia’s garnishment statute violates procedural
due process facially and as-applied to him.4

He maintains that

because the statute does not require notice to the debtor of
exemptions from garnishment or that a prompt hearing be held

4

Blach did not argue that Diaz-Verson failed to comply with the
procedure for challenging the constitutionality of a state statute
under Federal Rule of Civil Procedure 5.1, but there is no evidence
that Diaz-Verson complied with the rule.
The Court concludes,
however, that the attorney general is not prejudiced by the Court’s
ruling on this issue because the Court rejects Diaz-Verson’s
constitutional challenge.

14

regarding the application of those exemptions, the statute is
constitutionally infirm.
the

Court

assumes

For purposes of deciding this motion,

that

Diaz-Verson

has

a

constitutionally

protected property interest in his payments from AFLAC.
Generally, due process requires “notice and opportunity for
hearing appropriate to the nature of the case.”

Mullane v.

Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950).
determine

the

extent

of

the

notice

and

hearing

that

To
are

appropriate, the Court considers the following factors: (1) “the
private interest that will be affected by the official action;”
(2)

“the

risk

of

an

erroneous

deprivation

of

such

interest

through the procedures used, and the probative value, if any, of
additional or substitute procedural safeguards;” and (3) “the
Government’s interest, including the function involved and the
fiscal

and

substitute

administrative
procedural

burdens

requirement

that
would

the

additional

entail.”

J.R.

or
v.

Hansen, 736 F.3d 959, 966 (11th Cir. 2013) (quoting Mathews v.
Eldridge, 424 U.S. 319 (1976)).
A.

Due Process Notice Requirement

Applying these factors, several circuits have held that due
process entitles a defendant debtor to notice that includes a
list

of

applicable

exemptions

to

garnishment

and

about the procedures for claiming these exemptions.

information
E.g., Reigh

v. Schleigh, 784 F.2d 1191, 1194-95 (4th Cir. 1986); Dionne v.

15

Bouley,

757

F.2d

1344,

1351-52

(1st

Cir.

1985);

Finberg

Sullivan, 634 F.2d 50, 58 (3d Cir. 1980) (en banc).

v.

For the

purpose of determining this traverse and motion to dismiss, the
Court assumes that due process requires notice that includes
information

about

exemptions

and

the

procedure

for

claiming

them.
Diaz-Verson argues that Georgia’s garnishment statute is
facially unconstitutional because it does not require that the
defendant

receive

notice

of

exemptions

or

the

procedure

for

claiming them:
[Notice] shall consist of a copy of the summons of
garnishment or of a document which includes the names
of the plaintiff and the defendant, the amount claimed
in the affidavit of garnishment, a statement that a
garnishment against the property and credits of the
defendant has been or will be served on the garnishee,
and the name of the court issuing the summons of
garnishment.
O.C.G.A. § 18-4-64(c).

But it is undisputed that Diaz-Verson

received notice of exemptions here.
the

Court

rejects

Diaz-Verson’s

Under these circumstances,
facial

challenge

based

on

standing

to

inadequate notice.
First,

it

is

doubtful

assert a facial challenge.

that

Diaz-Verson

has

Generally, “a party has standing to

challenge the constitutionality of a statute only insofar as it
has an adverse impact on his own rights.” Cty. Court of Ulster
Cty. v. Allen, 442 U.S. 140, 154-55 (1979) (noting the limited

16

exception to this rule in the First Amendment context).
Diaz-Verson’s
impacted

due

by

exemptions

process

the

rights

statute’s

because

he

have

failure

received

to

not

been

require

Here,

adversely
notice

constitutionally

of

sufficient

notice.
Even assuming, however, that the Court has jurisdiction to
entertain the facial challenge, the Court recognizes its “duty
to avoid

constitutional issues that need not be resolved in

order to determine the rights of the parties to the case under
consideration.”

Id. at 154.

Here, the Court need not speculate

about the constitutionality of the Georgia garnishment statute
in

all

contexts

to

determine

that

Diaz-Verson

received

due

process in this case regarding notice of his right to claim
exemptions.
such

As mentioned, it is undisputed that he received

notice.

garnishment

Thus,
statute

the

Court

facially

declines

to

unconstitutional

failure to require notice of exemptions.

hold

Georgia’s

based

on

its

See Fla. League of

Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 461 n.3 (11th Cir.
1996)

(noting

that

unconstitutional

declining

without

to

concrete

hold
facts

a

statute

facially

restrains

judicial

interference with other political branches and reduces the risk
of

constitutional

error).

Moreover,

Diaz-Verson

has

no

as-

applied challenge based on lack of notice of his right to claim
exemptions because he received such notice.

17

B.
In
statute

Due Process Hearing Requirement
addition
is

to

his

claim

unconstitutional

that

based

the

on

its

Georgia

garnishment

failure

to

require

notice regarding exemptions, Diaz-Verson also argues that the
statute

is

unconstitutional

facially

and

as-applied

to

him

because it does not provide a prompt procedure for hearing the
defendant’s

exemption

opportunity

to

be

meaningful

In

heard

manner.”

(1965).

claims.
“at

Due
a

Armstrong

post-judgment

process

meaningful

v.

Manzo,

garnishment

requires

time

380

and

U.S.

an

in

a

545,

proceedings,

552

courts

consistently reject claims that due process requires a hearing
before a debtor’s funds are garnished.

McCahey v. L.P. Inv’rs,

774 F.2d 543, 550 (2d Cir. 1985) (noting that a pre-garnishment
hearing “is not constitutionally required even in the case of
pre-judgment attachments” and thus “it can hardly be required
where

the

court.”).

creditor’s

claim

has

been

finally

confirmed

by

a

But several courts require that defendants are given

a prompt post-garnishment hearing regarding exemption claims.
See, e.g., Finberg, 634 F.2d at 59 (requiring such a hearing).
1.
In

As-Applied Challenge

support

of

his

as-applied

challenge

to

the

Georgia

garnishment hearing procedure, Diaz-Verson appears to rely on
the

fact

that

he

did

not

receive

a

hearing

regarding

his

exemption claim until several days after AFLAC garnished his

18

first

payment.5

But

garnishment hearing.

Diaz-Verson

is

not

entitled

to

a

pre-

And under the Mathews test, Diaz-Verson’s

hearing satisfied due process.
First, Diaz-Verson’s interest in twenty-five percent of his
bimonthly AFLAC payments is far less compelling than a debtor’s
interest in a primary bank account used for food and housing
payments.

Cf. id. at 58 (finding the debtor’s interest in a

bank account used for basic requirements of life compelling,
especially when the funds may be exempt).
erroneously

depriving

Diaz-Verson

of

Second, the risk of
exempt

property

is

exceptionally low in this case because the Court held in 2012
that

the

AFLAC

payments

are

not

exempt

from

garnishment.

Finally, considering that Blach has been trying to collect on
his judgment for the past three years, his interest “in a prompt
and

inexpensive

strong.

satisfaction

the

debt”

is

particularly

Aacen v. San Juan Cty. Sheriff’s Dep’t, 944 F.2d 691,

696 (10th Cir. 1991).
hearing

of

twelve

days

Thus, weighing the factors, Diaz-Verson’s
after

his

first

payment

was

garnished

satisfies due process.
2.

Facial Challenge

Despite the fact that Diaz-Verson filed his exemption claim
with his initial traverse and the Court promptly held a hearing
5

Diaz-Verson received notice of this action on December 21, 2015.
AFLAC garnished his payment on January 15, 2016. Diaz-Verson filed a
traverse on January 19 and his hearing was held on January 27.

19

on that claim, Diaz-Verson again attempts to assert the rights
of hypothetical defendants by bringing a facial challenge.

For

the same reasons listed above, the Court declines to speculate
about the statute’s application to parties not before the Court.
Accordingly, Diaz-Verson’s traverse and motion to dismiss based
on a violation of due process are denied.
IV.

Abstention and Frey’s Judgment
Diaz-Verson

argues

that

the

Court

should

abstain

from

exercising jurisdiction over this case under the Colorado River
doctrine due to Frey’s pending state court garnishment action.6
In the alternative, Diaz-Verson asserts that the Court should
dismiss

this

proceeding

because

Frey

have

a

has

a

superior

claim

against Diaz-Verson.
“Federal

courts

obligation . . .

to

exercise

the

‘virtually
jurisdiction

unflagging
given

them.’”

Ambrosia Coal and Constr. Co. v. Pages Morales, 368 F.3d 1320,
1328 (11th Cir. 2009) (alteration in original) (quoting Colo.
River Water Conservation Dist. v. United States, 424 U.S. 800,
817 (1976)).

But “in situations involving the contemporaneous

exercise of concurrent jurisdictions,” it may be appropriate for

6

Diaz-Verson initially argued that the Court should abstain under the
Colorado River doctrine because Blach’s second state court action was
still pending.
After Diaz-Verson made this argument, Blach filed a
voluntary dismissal of his second state court action.
Pl.’s Resp.
Attach. 2, Voluntary Dismissal, ECF No. 8-2.
Thus, the second state
court filing is not concurrent with this action and does not provide a
reason to abstain under Colorado River.

20

the Court to abstain to conserve judicial resources and avoid
duplicative litigation.

Colo. River Water, 424 U.S. at 817.

The Court may, however, “abstain to avoid duplicative litigation
with

state

courts

only

in

‘exceptional’

circumstances.”

Ambrosia Coal, 368 F.3d at 1328 (quoting Colo. River Water, 424
U.S. at 818).
the

Court

considers:

jurisdiction
litigating

To determine if exceptional circumstances exist

in

over

(1)

the

this

whether

property;

Court;

(3)

either
(2)

the

court

the

has

assumed

inconvenience

desirability

of

of

avoiding

piecemeal litigation; (4) the order in which the actions were
filed; (5) whether state or federal law will be applied; and
(6) the adequacy of the state court to protect the parties’
rights.

Id. at 1331.

Here,

neither

Court

has

assumed

jurisdiction

over

the

property and both forums are equally convenient for the parties.
Thus, the first two factors are neutral regarding abstention.
The third factor is also neutral because the risk of piecemeal
litigation is not “abnormally excessive or deleterious” in this
case.

Id. at 1333.

state court case.

Here, Blach filed a motion to stay the
If granted, that motion could obviate any

concern of piecemeal litigation.
The

fourth

factor

weighs

against

abstention.

Blach

registered his judgment in this Court on October 6, 2015 and
filed the present garnishment action on December 18, 2015.

21

Frey

did not

file his state court

garnishment

action

County Superior Court until December 30, 2015.

in Muscogee

This Court held

a hearing regarding Diaz-Verson’s traverse and motion to dismiss
on January 27, 2016.

The Muscogee County Superior Court did not

hear Diaz-Verson’s similar state court motion until February 12.
Thus, this case was filed first and these proceedings appear to
be more developed.
The fifth factor slightly favors abstention because Georgia
law applies to this case.

This factor is mitigated, however,

by this Court’s inherent authority to enforce Blach’s validly
registered federal judgment.

See McKee-Berger-Mansueto, Inc. v.

Bd. of Educ. of the City of Chicago, 691 F.2d 828, 831 (7th Cir.
1982)

(holding

that

the

district

court

properly

exercised

jurisdiction over proceedings to satisfy a judgment and disperse
funds to creditors even though some of the creditors had filed
garnishment proceedings in state court).

Finally, the sixth

factor is neutral because both courts can adequately protect the
rights of the parties.
of

abstention

and

With only one factor weighing in favor

another

factor

weighing

strongly

against,

Diaz-Verson fails to establish extraordinary circumstances that
make abstention appropriate.
Additionally, the Court will not dismiss this action based
on Frey’s alleged claim against Diaz-Verson because Frey’s claim
is not before the Court.

Frey has not complied with Georgia’s

22

procedure for asserting his claim in this action.

Georgia law

gives Frey the right to assert a third-party claim against DiazVerson

“[a]t

any

time

garnishee’s

answer

garnishment

is

Frey

complies

garnishment

or

before
money

distributed.”
with

the

statute,

consider his claim.

the

judgment
or

other

O.C.G.A.

procedure
Court

is

property

without

in

on

the

subject

§ 18-4-95.

provided

is

entered

But,
the

to

until

Georgia

jurisdiction

to

See Lamb v. T-Shirt City, Inc., 272 Ga.

App. 298, 302, 612 S.E.2d 108, 111 (2005) (holding that “by
failing ‘procedurally to invest themselves with the prerequisite
claimant

status,

court . . . without

[the

claimants

jurisdiction

to

rendered]
consider

the

their

trial

claim.’”)

(quoting Nat’l Loan Investors L.P. v. Satran, 231 Ga. App. 21,
22, 497 S.E.2d 627, 628 (1998))).

Diaz-Verson makes no argument

that he has standing to assert Frey’s claim on Frey’s behalf.
Thus, the Court finds that Frey’s state court claim does not
support abstention here.
V.

Exemption
The

Court

reaffirms

its

holding

that

Diaz-Verson’s

bimonthly payments from AFLAC are subject to garnishment.

In

AFLAC,

WL

Inc.

v.

Diaz-Verson,

No.

4-11-CV-81

(CDL),

2012

1903904, at *5-7 (M.D. Ga. May 25, 2012), the Court issued a
thorough opinion addressing the issue.

23

The Court stands by its

previous holding and confirms that twenty-five percent of the
bimonthly AFLAC payments is subject to garnishment.
CONCLUSION
Diaz-Verson owes a valid and enforceable judgment.

Blach

has the right to pursue collection of that judgment in this
Court.

Although

satisfaction

of

Diaz-Verson
his

clear

may
legal

have

the

right

obligations

by

to

delay

asserting

wasteful and non-meritorious motions, this Court has no duty to
grant them.

The sooner he and his counsel recognize that the

day of reckoning is here, the less likely that Diaz-Verson’s
resources and those of the Court will be further wasted.

Diaz-

Verson’s traverse and motion to dismiss (ECF Nos. 5 & 6) are
denied.
IT IS SO ORDERED, this 18th day of February, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

24