Greater St. Louis Construction Laborers Welfare Fund et al v. Kirkwood Masonry, Inc.

Filing 94

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the motion for leave to withdraw as counsel for defendant [# 88 ] is granted. IT IS FURTHER ORDERED that plaintiffs shall have until March 7, 2014 to effect service upon Luna Builds St. Louis, LLC. Signed by District Judge Catherine D. Perry on 01/31/2014. (Copy of order sent to Kirkwood Masonry, 540 Leffingwell Avenue, Kirkwood, Missouri 63122.)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREATER ST. LOUIS CONSTRUCTION, )
LABORERS WELFARE FUND, et al.
)
)
Plaintiffs,
)
)
vs.
)
)
KIRKWOOD MASONRY, INC.,
)
)
Defendant.
)

Case No. 4:12 CV 694 CDP

MEMORANDUM AND ORDER
Plaintiffs obtained a default judgment against Kirkwood Masonry, Inc., and now
seek a creditor’s bill in equity against Luna Builds St. Louis, LLC, which plaintiffs allege
is an alter-ego entity of the named defendant. Kirkwood Masonry has been served and
counsel has entered an appearance upon its behalf. I ordered defendant to show cause
why plaintiffs’ motion should not be summarily granted. In response, Kirkwood
Masonry states that it has neither the will nor resources to defend this case and has
discharged counsel. I will grant counsel’s motion to withdraw. However, I find that
Luna Builds has not been provided sufficient notice of the motion for a creditor’s bill. I
will not rule on that motion at this time, but will grant additional time for plaintiffs to
provide proper notice.

Background
Plaintiffs were granted a default judgment against Kirkwood Masonry, who is the
sole defendant in this case. They then filed a motion for a creditor’s bill in equity,
alleging that Kirkwood Masonry and Luna Builds were alter egos. This motion was
served by registered mail upon counsel “for Defendant Kirkwood Masonry, Inc. and
Luna Builds STL, LLC” and filed electronically with the court on July 31, 2013.
Discussion
A creditor’s bill is the “equitable equivalent of garnishment on execution and is
comparable to proceedings supplementary to and in aid of execution.” Shockley v. Harry
Sandar Realty Co., Inc., 771 S.W.2d 922, 925 (Mo. Ct. App. 1989) (citing United States
ex rel. Goldman v. Meredith, 596 F.2d 1353, 1357 (8th Cir. 1979)). Absent a controlling
federal statute, this 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., Cupples Prods. Div. v. V.S. DiCarlo Gen. Contractors, Inc., 994
F.2d 476, 477 (8th Cir. 1993) (quotation marks and citation omitted); Fed. R. Civ. P.
69(a).
Creditor’s bill garnishees need not be named as parties in the original action. Id. at
478 (citing Shockley, 771 S.W.2d at 925). Rather, notice must be provided as to the
motion for a creditor’s bill in equity. See id. Garnishment notice is an indispensable
prerequisite to obtaining jurisdiction over the debt garnished. Gore v. Londoff, 807

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S.W.2d 139, 140 (Mo. Ct. App. 1991). Garnishment is a purely statutory proceeding and
strict compliance with the governing statute and Rule is essential. Meyer v. Meyer, 571
S.W.2d 477, 479 (Mo. Ct. App. 1978) (citing Rev. Stat. Mo. § 525.020; Mo. S. Ct. Rule
90.04).

I believe that Missouri Courts would find that mailing a copy of the motion

to counsel purportedly representing Luna Builds to be insufficient notice under the
statute. Cf. H.H. Robertson Co., Cupples Prods. Div. v. V.S. DiCarlo Gen. Contractors,
Inc., 994 F.2d 476, 477 (8th Cir. 1993) (finding effective notice where non-party served
with garnishee’s summons in addition to service on counsel).
Accordingly,
IT IS HEREBY ORDERED that the motion for leave to withdraw as counsel for
defendant [# 88] is granted.
IT IS FURTHER ORDERED that plaintiffs shall have until March 7, 2014 to
effect service upon Luna Builds St. Louis, LLC.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 31st day of January, 2014.

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