Landmark Capital Investments, Inc. v. Savannah Nephrology

Filing 11

ORDER dismissing without prejudice 9 Motion to Dismiss. Savannah Nephrology may renew or refile its motion subsequent to LCI's filing an amended affidavit and summons. Signed by Judge B. Avant Edenfield on 9/4/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LANDMARK CAPITAL
INVESTMENTS, INC.,
Plaintiff,
V.

4:11-cv-291

SAVANNAH NEPHROLOGY,

The Court ordered further briefing in the
case, and Savannah Nephrology responded
on April 17, 2012 with its motion to dismiss.
See Does. 8; 9; see also Doc. 10.
The Court, however, has determined
after inquiry and review of the record that
the Garnishee, Cahaba Government Benefit
Administrator, LLC ("Cahaba"), has not
been served with LCI's affidavit or the
summons of garnishment.
III.

Defendant,
V.

CAHABA GOVERNMENT BENEFIT
ADMINISTRATOR, LLC,
Garnishee.
ORDER
I.

INTRODUCTION

Before the Court is Defendant Savannah
Nephrology's motion to dismiss. See Doc.
9.
II.

BACKGROUND

Plaintiff Landmark Capital Investments,
Inc. ("LCI") filed this garnishment action on
August 11, 2011, in the Northern District of
Georgia seeking garnishment for a
$383,655.53 judgment in favor of LCI. See
Doc. 1. Defendant Savannah Nephrology, a
professional corporation organized under
Georgia law, Doc. 1-3 at 1, filed a traverse,
alleging that Georgia's post-judgment
garnishment procedure is unconstitutional.
Doc. 2; see also Doc. 10-1 at 1. Upon a
motion by LCI, the case was transferred to
this Court. See Does. 3; 4; 5.

ANALYSIS

"A post-judgment garnishment action is
between the plaintiff and the garnishee and
the latter must be served with the summons
of garnishment." Cook v. NC Two, L.P., 289
Ga. 462, 463 (2011) (citing O.C.G.A. § 184-62 (2010)); see also O.C.G.A. § 18-4-93
("A garnishment proceeding is an action
between the plaintiff and the garnishee[.").
A judgment debtor, such as Savannah
Nephrology, is not initially a party to the
garnishment action. Cook, 289 Ga. at 463.
Nevertheless, the judgment debtor must "be
given notice of the filing of the first
summons of garnishment ....O.C.G.A. §
18-4-64(a). "[Providing notice to the
defendant is an essential element for due
process." TBF Fin., LLC v. Houston, 298
Ga. App. 657, 659 (2009). The judgment
debtor may then become a party to the
garnishment proceeding by filing a traverse
to the plaintiff's affidavit. See O.C.G.A. §
18-4-93. Savannah Nephrology became a
party when it filed its traverse. See Doc. 2.
Cahaba, however, has never been made a
party to this garnishment action. See
Houston, 298 Ga. App. at 658 ("[T]he
garnishee becomes a party to the action
when service is accomplished ....); see

also Dc Jarnette Supply Co. v. F.P. Plaza,
Inc., 229 Ga. 625, 625 (1972) ("Where there

refile its motion subsequent to LCI's filing
an amended affidavit and summons.

has been no legal service . . . the court has
no jurisdiction to enter any judgment in the
case unless it be one dismissing the case for
lack of jurisdiction.").

Moreover, Savannah Nephrology's
renewed traverse or motion to dismiss will
not relieve Cahaba of the obligation to file
an answer unless Savannah Nephrology files
with the clerk of this Court a bond in favor
of LCI. See O.C.G.A. § 18-4-81 (requiring
the clerk of court to release a summons of
garnishment upon the judgment defendant's
posting of bond). After Cahaba files its
answer, the Court will adjudicate Savannah
Nephrology's renewed motion to dismiss.
See Ed. § 18-4-88; see also Ed. § 18-4-93
("[ A ] hearing shall be available to the
defendant as a matter of right after filing his

After LCI filed its affidavit in the
Northern District of Georgia, the affidavit
should have been approved and the clerk
subsequently should have issued the
summons of garnishment. See S GA. PROC.
VERDICT AND JUDGMENTS § 9:158, 9:160
(2012); O.C.G.A. § 18-4-61. The record
does not indicate, nor have the parties
suggested, that the affidavit was approved
and a summons issued before this action was
transferred to this Court.

traverse."); A.M. Buckler & Assocs., Inc. v.
Sanders, 305 Ga. App. 704, 705 (2010) ("If

Accordingly, LCI should amend the
affidavit and summons originally submitted
and file them with this Court.' See Does. 1;
1-1; Fed. R. Civ. P. 15(b) (noting that courts
should freely give leave to amend

a defendant . . . files a traverse or adverse
claim in a garnishment proceeding, the trial
court must conduct an evidentiary hearing to
determine the rights of the parties to the
money or other property or other property at
issue.").

pleadings); Concert Promotions, Inc. v.
Haas & Dodd, Inc., 169 Ga. App. 711, 712

IV. CONCLUSION

(1984) (stating that an affidavit for
garnishment may be amended like any other
pleading); see also O.C.G.A. § 18-4-66
(demonstrating the standard forms for
affidavits and summons in garnishment
actions under Georgia law). Cahaba also
needs to be served with the summons of
garnishment. See O.C.G.A. § 18-4-62(a).

Savannah Nephrology's motion to

dismiss is DISMISSED WITHOUT
PREJUDICE. See Doc. 9. Savannah
Nephrology may renew or refile its motion
subsequent to LCI's filing an amended
affidavit and summons.

The Court therefore DISMISSES
WITHOUT PREJUDICE Savannah
Nephrology's motion to dismiss. See Doc.
9. Savannah Nephrology may renew or

I

This 4th day of September 2012.

B AVANT RDENFIELØ JUDGE
UNITE!) STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

1

In particular, the amended affidavit and summons
should reflect that the garnishment action is now in
the Southern District of Georgia.

2