Guerra v. NVA Utilities LLC et al
Filing
40
MEMORANDUM OPINION (c/m to Defendants 10/15/15 sat). Signed by Judge Deborah K. Chasanow on 10/15/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ISMAEL GUERRA
:
v.
:
Civil Action No. DKC 13-2997
:
NVA UTILITIES, LLC, et al.
MEMORANDUM OPINION
Presently pending and ready for resolution in this wage and
hour law case is a motion to release property from levy filed by
Defendant Nelmar Velasquez (“Mr. Velasquez”).1
(ECF No. 32).
The relevant issues have been briefed, and the court now rules,
no hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, the motion to release the property from levy
will be granted.
I.
Background
Plaintiff
Defendant
Ismael
NVA
Guerra
Utilities,
(“Plaintiff”)
LLC
(“NVA
approximately January through June 2012.
was
employed
Utilities”)
(ECF No. 1 ¶ 1).
Velasquez is the owner and sole member of NVA Utilities.
Nos. 1 ¶ 5; 32).
1
by
from
Mr.
(ECF
While employed by NVA Utilities, Plaintiff
Mr. Velasquez’s motion appears to be made on behalf of
himself individually and on behalf of NVA Utilities, LLC.
However, Local Rule 101.1 requires that “[a]ll parties other
than individuals must be represented by counsel.”
Local Rules
101.1(a).
Accordingly, Mr. Velasquez’s motion, filed pro se,
will be construed as being made only on his behalf as an
individual.
installed cables for Verizon Communications, Inc. (“Verizon”),
working
up
to
seventy
hours
per
week.
(ECF
No.
1
¶
19).
Plaintiff asserts that he was compensated with weekly lump sum
payments ranging from $180 to $500.
(Id. ¶ 20).
Based on the
hours Plaintiff worked, this compensation was often below the
amount required by the Fair Labor Standards Act and the Maryland
Wage and Hour Law.
(Id. ¶ 22).
In July 2013, Plaintiff’s attorney sent a letter to Mr.
Velasquez demanding payment of back wages, liquidated damages,
and attorneys’ fees.
(ECF No. 21-3 ¶¶ 4-6).
telephoned
attorney
Plaintiff’s
and
confirmed
Mr. Velasquez
receipt
of
the
letter, saying that he did not wish to negotiate out of court.
(Id. ¶ 8).
Plaintiff commenced this action against Defendants
NVA Utilities and Mr. Velasquez on October 10, 2013.
1).
The
Plaintiff
complaint
also
voluntarily
against Verizon.
named
dismissed
Verizon
with
(ECF Nos. 17; 18).
as
a
defendant,
prejudice
his
but
claims
On November 10, 2013, NVA
and Mr. Velasquez were served with the complaint.
11).
(ECF No.
(ECF Nos. 10;
On December 4, 2013, Plaintiff filed a motion for the
clerk to enter default against NVA Utilities and Mr. Velasquez
(ECF No. 12), which the clerk entered on December 31, 2013 (ECF
No. 15).
The case was referred to Magistrate Judge Jillyn K.
Schulze, and on December 4, 2014, the undersigned issued an
order
adopting
Magistrate
Judge
2
Schulze’s
Report
and
Recommendations entering default judgment against Defendants NVA
Utilities and Mr. Velasquez, jointly and severally, in the total
amount of $3,028.35, in addition to $25,587.00 in attorneys’
fees and $82.20 in costs.
On
March
10,
(ECF No. 26).
2015,
Plaintiff
applied
for
a
writ
of
execution (ECF No. 29), which the clerk issued three days later
(ECF No. 30).
The writ placed a levy on the real property
located at 9413 Fendall Lane in Newburg, Maryland.
On April 22,
2015, Mr. Velasquez went to Plaintiff’s attorney’s office with a
copy
of
the
writ
of
execution.
(ECF
No.
35-1
¶
5).
Mr.
Velasquez informed Plaintiff’s attorney that he did not want to
pay the judgment and wanted to sue Plaintiff for his conduct as
an employee.
(ECF No. 35-1 ¶¶ 5-7).
On May 7, 2015, Mr.
Velasquez, appearing pro se, filed the pending motion to release
the
property
from
levy
(ECF
No.
32),
response in opposition (ECF No. 35).
motion
hearing
on
May
28,
2015
and
and
Plaintiff
filed
a
The undersigned held a
directed
submit a status report within thirty days.
the
parties
(ECF No. 36).
to
On
June 29, 2015, the parties filed a status report indicating that
Plaintiff’s
ongoing.
discovery
(ECF No. 37).
of
Defendants’
financial
status
was
On October 1, 2015, the parties filed a
second status report indicating that Plaintiff’s counsel and Mr.
Velasquez met on September 25, 2015.
(ECF No. 39).
At this
meeting, Plaintiff’s counsel asked if Mr. Velasquez would be
3
willing to work out a payment plan to satisfy the judgment, but
Mr. Velasquez refused because he did not have any money.
(Id.).
Plaintiff contends that he “will continue to find an effective
manner to enforce his judgment against Defendant.”
II.
(Id.).
Analysis
“A money judgment is enforced by a writ of execution.”
Fed.R.Civ.P.
69(a)(1).
Under
Rule
69,
“[t]he
procedure
on
execution . . . must accord with the procedure of the state
where the court is located.”
Id.
In Maryland, a judgment
debtor can move for release of property from levy.
643.
Md. Rule 2-
The Rule states:
Upon motion of the judgment debtor, the
court may release some or all of the
property from a levy if it finds that (1)
the judgment has been vacated, has expired,
or has been satisfied, (2) the property is
exempt from levy, (3) the judgment creditor
has failed to comply with these rules or an
order of court regarding the enforcement
proceedings, (4) property sufficient in
value
to
satisfy
the
judgment
and
enforcement costs will remain under levy
after the release, (5) the levy upon the
specific property will cause undue hardship
to the judgment debtor and the judgment
debtor has delivered to the sheriff or made
available for levy alternative property
sufficient in value to satisfy the judgment
and enforcement costs, or (6) the levy has
existed for 120 days without sale of the
property, unless the court for good cause
extends the time.
Md. Rule 2-643(c).
Here, more than 120 days have now passed
since the writ was issued.
Although “upon the expiration of the
4
120-day period the levy does not automatically lapse or expire,”
W.D. Curran & Assocs. V. Cheng-Shum Enters., Inc., 107 Md.App.
373, 386 (1995) (emphasis added), Mr. Velasquez has moved for
release from the levy, triggering Rule 2-643(c).
Plaintiff has
not shown good cause for an extension of time, and, in fact,
notes that he has filed a copy of the court’s judgment with the
Circuit
Court
for
Charles
County,
“creating
a
lien
on
the
residence Mr. Velasquez owns in that county. . . . Plaintiff’s
counsel
believes
that
this
lien
will
effectively
prevent
transfer of this property until this judgment is satisfied and
that this lien would survive any bankruptcy proceeding.”
(ECF
No. 39, at 2).
Although Mr. Velasquez seeks release of the property from
levy, his motion also requests “another opportunity to present
[his] case against Ismael Guerra,” which could be interpreted as
a motion to set aside the default judgment.
(ECF No. 32).
Pursuant to Federal Rule of Civil Procedure 55(c), a court “may
set aside a default judgment under Rule 60(b).”
Rule 60(b)
provides six grounds for relief from a final judgment.2
2
“The
A court may grant relief from a judgment “for the
following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b); (3) fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5)
the judgment has been satisfied, released or discharged; it is
5
consideration
of
Rule
60(b)
motions
proceeds
in
two
stages.
First there is the question of whether the movant has met each
of three threshold conditions. . . .
[A] moving party must show
that his motion is timely, that he has a meritorious defense to
the action, and that the opposing party would not be unfairly
prejudiced by having the judgment set aside.”
Union
Admin.
Bd.
v.
Gray,
1
F.3d
262,
264
Nat’l Credit
(4th
(citations and internal quotation marks omitted).
Cir.
1993)
Because Mr.
Velasquez’s motion includes no assertions supporting his request
for relief, it does not meet any of the threshold conditions or
grounds set forth in Rule 60(b).
Velasquez’s
granted,
motion
the
to
default
release
judgment
Accordingly, although Mr.
property
entered
from
against
levy
him
will
and
be
NVA
Utilities will remain in place.
III. Conclusion
For the foregoing reasons, the motion to release property
from
the
granted.
levy
filed
by
Defendant
Nelmar
Velasquez
will
be
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.” Fed.R.Civ.P. 60(b).
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