North American Van Lines Inc v. Firebird Moving & Storage Inc

Filing 14

OPINION AND ORDER DENYING WITHOUT PREJUDICE 12 MOTION to Enforce Judgment by Proceedings Supplemental by Plaintiff North American Van Lines Inc. Signed by Magistrate Judge Roger B Cosbey on 7/11/11. (cer). Modified on 7/11/2011. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

NORTH AMERICAN VAN LINES, INC. )
)
Plaintiff,
)
)
vs.
)
)
FIREBIRD MOVING &
)
STORAGE, INC.
)
)
Defendant.
)

CASE NO. 1:10-cv-199

OPINION AND ORDER
This matter is before the Court on the Plaintiff’s Motion to Enforce Judgment by
Proceedings Supplemental. (Docket #12.) On May 5, 2011, a default judgment in the amount of
$162,442.57 was entered against the Defendant on the Plaintiff’s Lanham Act and breach of
contract claims. (Docket ##9, 10.) The Defendant has failed to pay that judgment and the
Plaintiff now asks the Court to order Marc Espinosa, named as the Defendant’s “owner,” to
appear before the Court in proceedings supplemental and answer to the Defendant’s property.
On this record, however, the motion must be denied because it is not clear how the Court
has jurisdiction over Espinosa to order him to personally appear. See Goins v. Werner
Enterprises, Inc., No. 3:07-cv-633, 2009 WL 5175208 (N.D. Ind. Dec. 22, 2009) (raising
personal jurisdiction question sua sponte). To begin, the mere fact that Espinosa is alleged to be
the owner of the Defendant does not subject him to this Court’s jurisdiction. “Seventh Circuit
law is clear—mere stock ownership is insufficient to establish personal jurisdiction over a
shareholder.” Roser v. Jackson & Perkins Wholesale, Inc., No. 10 C 1894, 2010 WL 4823074, at
*8 (N.D. Ill. Nov. 15, 2010) (citing Judson Atkinson Candies, Inc. v. Latini-Hohberger

Dhimantec et al, 529 F.3d 371, 381 (7th Cir. 2008) (citing Plastic Film Corp. of Am., Inc. v.
Unipac, Inc., 128 F. Supp. 2d 1143, 1147 (N.D. Ill. 2001) (“[T]he fact that a corporation has
only one single shareholder is not proof that the corporation is the ‘alter ego’ of that
shareholder.”))).
Alternatively, the Plaintiff may actually be alleging that Espinosa is in possession of
corporate assets that may be used to satisfy the judgment. In that case, he must be named as a
garnishee defendant and the Plaintiff must seek to pierce the Defendant’s corporate veil. See e.g.,
Mann v. Russell’s Trailer Repair, Inc., 787 N.E. 2d 922 (Ind. Ct. App. 2003).1
Because it is not clear how the Court may exercise jurisdiction over Espinosa, the
Plaintiff’s Motion to Enforce Judgment by Proceedings Supplemental (Docket #12) is DENIED
WITHOUT PREJUDICE.

SO ORDERED.
Enter for July 11, 2011.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

1

Indiana substantive law is applicable because Federal Rule of Civil Procedure 69(a) directs that in federal
court proceedings supplemental “must accord with the procedure of the state where the court is located.”