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
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