Sturgis et al v. Ollivier Dispatch et al

Filing 119

ORDER granting 116 Motion to Vacate for the reasons set out in the order. The Judgment Nisi of March 23, 2011 41 is VACATED, and Ameriprise Financial f/k/a American Express Financial Corporation is DISMISSED WITH PREJUDICE. Signed by District Judge Daniel P. Jordan III on June 27, 2012. (SP)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
YVETTE STURGIS AND
YVONNE COUNCE

PLAINTIFFS

VS.

CIVIL ACTION NO.: 3:09CV636DPJ-FKB

OLLIVIER DISPATCH, FABRICE LERMINE,
LEDA DECORS, BEATRICE SCHMITZEHE,
AERONET-DFW, BEKINS VAN LINES, LLC,
And JOHN DOES 1 THROUGH 15
AMERICAN EXPRESS FINANCIAL CORPORATION, INC.

DEFENDANTS
GARNISHEE

ORDER
This cause is before the Court on Garnishee, Ameriprise Financial f/k/a American
Express Financial Corporation’s (“Garnishee” or “Ameriprise”) Motion to Vacate Judgment Nisi
and Set Aside Award of Attorneys Fees and Costs [116]. Having considered the issues and the
parties’ submissions in light of the applicable standard, the Court finds that Garnishee’s Motion
is granted.
I.

FACTS AND PROCEDURAL HISTORY
On March 23, 2011, the Court entered a Judgment Nisi [41] against Garnishee stemming

from its failure to answer, appear, or otherwise defend against the Writ of Garnishment. [37].
Thereafter, Garnishee filed its Response to Judgment Nisi and Answer to Writ of Garnishment
[90] and denied indebtedness to Defendants.
Garnishee then filed a Motion to Vacate Judgment Nisi and Set Aside Award of
Attorneys Fees and Costs [116], requesting that the Court vacate the March 23, 2011, Judgment
Nisi and award of $750 attorney fees and costs.
On June 7, 2012, the Court held a telephonic status conference in this action regarding
whether the Judgment Nisi should be suspended or vacated. The status conference was attended

by counsel for Plaintiffs and counsel for Garnishee. Counsel for Plaintiffs requested, and were
given, until June 15, 2012, to file any contest of Garnishee’s answer pursuant to Mississippi
Code Annotated section 11-35-45. The Court informed all counsel that Plaintiffs’ failure to
contest Garnishee’s answer by June 15, 2012, would “result in an order vacating the Judgment
Nisi and dismissing Garnishee.” [6/7/12 Text Order]. Alternatively, if Plaintiffs contested
Garnishee's answer, any request for continuance of the trial date for discovery must be presented
and properly supported by that same date, June 15, 2012. [Id.] On June 15, 2012, Plaintiffs
notified the Court that they did not contest Garnishee’s answer pursuant to Mississippi Code
Annotated section 11-35-45.
II.

ANALYSIS
Garnishee’s pending Motion to Vacate Judgment Nisi and Set Aside Award of Attorneys

Fees and Costs [116] is premised on Mississippi Code Annotated section 11-35-31, which
provides:
If a garnishee, personally summoned, shall fail to answer as required by law, or if
a scire facias on a judgment nisi be executed on him, and he fail to show cause for
vacating it, the court shall enter a judgment against him for the amount of
plaintiff’s demand; and execution shall issue thereon, provided, however, that the
garnishee may suspend the execution by filing a sworn declaration in said court
showing the property and effects in his possession belonging to the debtor, and
his indebtedness to the debtor, if any, or showing that there be none, if that be
true; and by such act and upon a hearing thereon, the garnishee shall limit his
liability to the extent of such property and effects in his hands, and such
indebtedness due by him to the debtor, plus court costs and reasonable attorney’s
fees of the judgment creditor in said garnishment action.
In addressing section 11-35-31 with respect to analogous facts, the Mississippi Supreme Court
held that, even though the garnishee failed to answer the writ of garnishment and a judgment was
entered against it, the garnishee could still limit its liability to the judgment creditor by filing a
sworn declaration. First Mississippi National Bank v. KLH Industries, Inc., 457 So. 2d 1333,

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1339 (Miss. 1984). Furthermore, “the statute [11-31-35] itself places no time limit on the filing
of a sworn declaration . . . .” Id. at 1339.
This is what occurred here. Garnishee filed its sworn declaration on June 28, 2011, and
denied any indebtedness to Defendants. Ameriprise Resp. [90] ¶¶ 4-9. While answers to several
supplemental writs had been served at the time Garnishee filed its sworn declaration, none
acknowledged indebtedness to Garnishee, and no monies had been paid into the Court.
Ameriprise Mot. [100] ¶ 2. Therefore, the enforcement process against Garnishee had not been
completed, and pursuant to section 11-35-31, the execution of the Judgment Nisi was suspended.
Miss. Code Ann. § 11-35-31; KLH, 457 So. 2d at 1339.
Mississippi Code Annotated Section 11-35-45 afforded Plaintiffs the means to contest
Garnishee’s answer. Section 11-35-45 provides:
If the plaintiff believe that the answer of the garnishee is untrue, or that it is not a
full discovery as to the debt due by the garnishee, or as to the property in his
possession belonging to the defendant, he shall, at the term when the answer is
filed, unless the court grant further time, contest the same, in writing, specifying
in what particular he believes the answer to be incorrect. Thereupon, the court
shall try the issue at once, unless cause be shown for a continuance, as to the truth
of the answer, and shall render judgment upon the facts found, when in plaintiff’s
favor, as if they had been admitted by the answer, but if the answer be found
correct, the garnishee shall have judgment for costs against the plaintiff.
This Court allowed Plaintiffs until June 15, 2012, to contest Garnishee’s answer pursuant
to section 11-35-45—approximately one year after Garnishee filed its answer. On June 15,
Plaintiffs informed the Court that they chose not to contest Garnishee’s answer to the Writ and
Judgment Nisi. Accordingly, and pursuant to this Court’s June 7, 2012, Order, the Judgment
Nisi is due to be vacated, and Garnishee is due to be dismissed.

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III.

CONCLUSION
For the reasons set forth herein, Ameriprise’s Motion to Vacate Judgment Nisi and Set

Aside Award of Attorneys Fees and Costs [116] is granted. The Judgment Nisi of March 23,
2011 [41] is hereby VACATED, and Ameriprise Financial f/k/a American Express Financial
Corporation is hereby DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED this the 27th day of June, 2012.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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