Smith v. Johnson et al

Filing 94

ORDER denying #93 Motion for Writ of Execution. Signed by District Judge Keith Starrett on 9/27/2013 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
JAMES ESTUS SMITH
PLAINTIFF
VS.

CIVIL ACTION NO. 2:11cv221-KS-MTP

MATTHEW HAYES

DEFENDANT
ORDER

This matter is before the Court on the Plaintiff James Estus Smith’s Motion for
Writ of Execution [93]. On June 11, 2013, Plaintiff obtained a default judgment against
Defendant “Matthew Hayes in the amount of $3,500.00 for actual damages received
and $1,500.00 for punitive or exemplary damages, plus all costs of this action.”
(Judgment by Default [85].) Plaintiff subsequently filed the following motions relating to
the default judgment: Motion for Discovery [86]; Motion to Freeze Defendant’s Assets
[87]; Request for Court Costs to be Removed from Account [88]; and Motion to Clarify
Relief [89]. On July 1, 2013, the Court denied the Plaintiff’s motions for the reasons
stated in its Opinion and Order [90]. Plaintiff now seeks a writ of execution from the
Clerk of Court pursuant to Federal Rules of Civil Procedure 69 and 70(d).
Rule 70 provides in pertinent part: “On application by a party who obtains a
judgment or order for possession, the clerk must issue a writ of execution or
assistance.” Fed. R. Civ. P. 70(d). This Rule applies when “a judgment directs a party
to execute a conveyance of land or to deliver deeds or other documents or to perform
any other specific act and the party has failed to comply within the time specified.” 12
Charles Alan Wright et al., Federal Practice and Procedure § 3021 (2d ed.) (citations
omitted). The Judgment by Default [85] is a money judgment and does not order

Defendant Hayes to convey property or perform any other specific act. Therefore, the
Plaintiff is not entitled to a writ of execution pursuant to Rule 70(d).
Rule 69, which applies to money judgments, states in pertinent part:
(1) Money Judgment; Applicable Procedure. A money judgment is enforced
by a writ of execution, unless the court directs otherwise. The procedure on
execution–and in proceedings supplementary to and in aid of judgment or
execution–must accord with the procedure of the state where the court is
located, but a federal statute governs to the extent it applies.
(2) Obtaining Discovery. In aid of the judgment or execution, the judgment
creditor or a successor in interest whose interest appears of record may
obtain discovery from any person–including the judgment debtor–as provided
in these rules or by the procedure of the state where the court is located.
Fed. R. Civ. P. 69(a). United States Marshals are charged with serving and enforcing
writs of execution issued by federal district courts. See, e.g., 28 U.S.C. § 1921(a)(1);
Fed. R. Civ. P. 4.1(a); Schneider v. Nat’l R.R. Passenger Corp., 72 F.3d 17, 19-20 (2d
Cir. 1995).
Plaintiff’s request for a writ of execution pursuant to Rule 69 is not well taken.
Plaintiff has failed to identify any specific asset or property belonging to Defendant
Hayes that is available to execute upon to satisfy, in whole or in part, the Judgment by
Default [85]. Thus, Plaintiff’s motion contemplates a writ of execution listing the amount
of the underlying monetary judgment, but omitting any specific property that may be
seized by the U.S. Marshal to satisfy the judgment. The Court finds that enforcement of
such a writ would be impracticable and that the Plaintiff should attempt to discover
assets belonging to Defendant Hayes prior to seeking execution in this Court. Cf.
Harley v. Health Ctr. of Coconut Creek, Inc., No. 04-61309, 2008 WL 1885795, at *1-2
(S.D. Fla. Apr. 28, 2008) (determining that traditional processes, such as discovery in

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aid of execution, should take place prior to the issuance of a writ of execution, and
denying a motion for a writ that would have directed a U.S. Marshal to enter the
defendant’s business and demand payment).
The Court previously denied Plaintiff’s Motion for Discovery [86] due to his failure
to provide enough information for the Court “to determine whether the discovery sought
is unreasonably cumulative or duplicative; whether the discovery can be obtained from
some other less burdensome, more convenient source; or whether the burden or
expense of the proposed discovery outweighs its likely benefit.” (Opinion and Order
[90] at p. 3) (citing Fed. R. Civ. P. 26(b)(2)(C)). Nonetheless, this denial was without
prejudice to the Plaintiff re-urging his request to conduct post-judgment discovery,
provided that he “specify the subject matters upon which he seeks information, the
specific discovery device(s) he seeks to employ to gain such information, and from
whom he proposes to obtain the information.” (Opinion and Order [90] at p. 6.) The
Court directs the Plaintiff to its prior Order and to Rule 69(a)(2), which is quoted above,
if he seeks to employ discovery in aid of execution on the Judgment by Default [85] in
this Court.
The Court also takes note that there are procedural mechanisms under which the
Plaintiff may seek execution on the Judgment by Default [85] in a Mississippi state
court. The Mississippi Court of Appeals’ decision in Buckley v. Personnel Support
Systems, Inc., 852 So. 2d 648 (Miss. Ct. App. 2003), discusses at length two
procedures by which a federal district court judgment may be given effect in a
Mississippi circuit court: (1) filing an abstract of judgment pursuant to Miss. Code Ann.
§§ 11-7-195, 11-7-197; and (2) the Uniform Enforcement of Foreign Judgments Act,
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Miss. Code Ann. §§ 11-7-301 through 11-7-309. Moreover, Miss. Code Ann. §§ 15-143, 15-1-45 and 15-1-47 contain provisions regarding the length of time a judgment is
effective under Mississippi law. The preceding authorities are in no way exhaustive of
the Mississippi law potentially applicable to the Judgment by Default [85]. Furthermore,
the Court leaves it to the Plaintiff to determine which, if any, of these Mississippi
authorities he relies upon in his efforts to execute on the subject judgment since the
Court’s task is to function as an impartial decision maker and not to act as an advocate
for any party.
CONCLUSION
For the foregoing reasons:
IT IS ORDERED AND ADJUDGED that the Plaintiff’s Motion for Writ of Execution
[93] is denied without prejudice. Plaintiff may again seek a writ of execution in this
Court after he discovers and identifies any specific asset or property belonging to the
Defendant Matthew Hayes that is subject to execution.
SO ORDERED AND ADJUDGED this the 27th day of September, 2013.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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