Robinson v. J.R. Custom Tree

Filing 164

MEMORANDUM AND ORDER -.....IT IS HEREBY ORDERED that plaintiff's filings titled "Notice of Execution," filed May 9, 2011 are STRICKEN from the record. {Docs. 162 and 163]. Signed by Honorable Charles A. Shaw on 5/12/2011. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHN ROBINSON,
Plaintiff,
v.
CUSTOM TREE & LAWN SERVICE,
INC., et al.,
Defendants.

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No. 4:08-CV-992 CAS

MEMORANDUM AND ORDER
This matter is before the Court on review of the file. On May 9, 2011, plaintiff’s counsel filed
a document entitled “Notice of Execution,” which lists as a garnishee Commerce Bank (Doc. 162),
and a document entitled “Notice of Execution,” which lists as a garnishee Custom Tree & Lawn
Service, Inc. (Doc. 163). Both documents appear to request Court action in the form of a Writ of
Execution upon the assets of debtor Custom Tree & Lawn Service, Inc. “as and for the principal
balance unsatisfied on the consent judgment entered October 14, 2010.” The documents attach
various forms as exhibits, labeled by counsel as “Summons to Garnishee,” “Writ of Execution,”
“Marshal’s Form 285,” and more than 100 pages of print-outs from the Missouri Department of
Revenue, presumably of vehicles owned by Custom Tree & Lawn Service, Inc.
As an initial matter, although plaintiff’s counsel filed a document titled “Consent Judgment”
on October 14, 2010, this Consent Judgment was never approved by the Court. If counsel seeks to
have the Consent Judgment recognized by the Court, counsel needs to file a Motion for Approval of
the Consent Judgment. The Court will take no further action on any writ of execution or writ of
garnishment until the Consent Judgment has been approved.

Additionally, pursuant to Federal Rule of Civil Procedure Rule 69(a), a “money judgment is
enforced by a writ of execution, unless the court directs otherwise.” Fed. R. Civ. P. 69(a)(1). Rule
69 further provides that the procedure on execution, and in proceedings in aid of execution, “must
accord with the procedure of the state where the court is located, but a federal statute governs to the
extent it applies.” Id. In the absence of a controlling federal statute, a district court “has the same
authority to aid judgment creditors in supplementary proceedings as that which is provided to state
courts under local law.” H.H. Robertson Co. v. V.S. DiCarlo Gen. Contractors, Inc., 994 F.2d 476,
477 (8th Cir.) (citation omitted), cert. denied, 510 U.S. 1019 (1993).
Missouri proceedings for attachments and garnishments are governed by Missouri Revised
Statutes, Title XXXVI, Chapters 521 and 525. The Rules of Civil Procedure applicable to these
proceedings are Missouri Rules of Civil Procedure 85 and 90. Based on the Court’s cursory review
of the “Notices of Execution” and exhibits filed by plaintiff, the documents are not in accordance with
the procedures of Missouri state courts for attachment and garnishment proceedings. Although not
an exhaustive list, the Court notes the following errors: (1) the “Notice of Execution” to Commerce
Bank states, “Summons to garnishee is to be returnable February 11, 2011,” (2) the “Certificate of
Service” attached to the “Notice of Execution” to Commerce Bank has a empty blank as the delivery
date on the United States Marshal; (3) the “Summons to Garnishee” to Commerce Bank states that
the garnishee is to appear before the Judge on February 11, 2011; (4) the Summons to Garnishee to
Custom Tree & Lawn Service, Inc. is directed to vehicles identified in attachments “Exhibit 1 through
Exhibit *****,” which are unidentifiable; and (5) the documents are not in accordance with Missouri
law and procedures for seizing property. For these reasons, the Court will order the “Notices of
Execution” to be stricken from the record for filing error. In the future, the documents shall be filed
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in accordance with the procedure on execution of judgment, and in proceedings in aid of execution
of judgment, of the State of Missouri. See generally Chapter 525 R.S.Mo.; Mo. R. Civ. P. 90.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s filings titled “Notice of Execution,” filed May
9, 2011 are STRICKEN from the record. [Docs. 162 and 163]

______________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 12th day of May, 2011.

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