Patterson v. Mann

Filing 11

ORDER denying without prejudice 10 Motion to Dismiss for Failure to State a Claim, and directing Mann to comply with the provisions of the Order. Signed by Magistrate Judge Jeremiah C. Lynch on 10/25/2016. (TCL, ) Modified on 10/25/2016 cpy emailed to Mann and sent by US Mail (ELL, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
ROBERT PATTERSON,

MC 15-1-BU-BMM-JCL

Plaintiff,
ORDER
vs.
JOHN B. MANN,
Defendant.

Following the United States Marshals Service’s seizure of property from
Defendant John B. Mann pursuant to a Writ of Execution issued in this case,
Mann requested a hearing as to the items seized. Presumably Mann seeks to avail
himself of the opportunity to establish that some of the items seized are exempt
from execution. Based on Mann’s request, the Court set a hearing for November
3, 2016.
On October 25, 2016, Plaintiff Robert Patterson moved to dismiss Mann’s
purported claim for exempt property. Patterson asserts Mann has not complied
with Fed. R. Civ. P. 69 and Mont. Code Ann. § 25-13-212. For the reasons
discussed, the Court will deny Patterson’s motion without prejudice pending
Mann’s compliance with section 25-13-212.
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Montana law, as applicable by the terms of Rule 69, requires that a debtor
who claims that certain property is exempt from execution must support the claims
as required under Mont. Code Ann. § 25-13-212. The referenced Montana law
requires that a debtor’s written request for a hearing must be accompanied by (1)
“a written statement that describes the property that the judgment debtor claims is
exempt and the reasons for the claim that the property is exempt,” and (2) “any
documentation upon which the judgment debtor is relying for the exemption
claim.” Mont. Code Ann. § 25-13-212(1). Additionally, the judgment debtor
must mail his request for a hearing, and the referenced written statement and
documents to (1) the judgment creditor’s attorney, and (2) to the levying officer –
the United States Marshal. Id. Absent the debtor’s compliance with section 2513-212(1), the “debtor may not claim an exemption in the seized property.” Mont.
Code Ann. § 25-13-212(2).
The record reflects than Mann has not filed the required written statement
and supporting documents with the Court. And Patterson asserts Mann also has
not provided the required materials to him. But because the hearing is still nine
days away, the Court will afford Mann an opportunity to comply with the Montana
statute.
Therefore, IT IS HEREBY ORDERED that Patterson’s motion to dismiss
2

Mann’s claim for exempt property is DENIED without prejudice pending Mann’s
compliance with Mont. Code Ann. § 25-13-212(1). Specifically, on or before
October 27, 2016, Mann shall (1) file with the Court the required written
statement and supporting documents relative to each item of property he claims is
exempt from execution, and (2) mail those same materials to both Patterson’s
counsel and to the United States Marshal’s office at the following address:
United States Marshals Service
201 E. Broadway St, Ste 220
Missoula MT 59802-4507
If Mann fails to comply with this Order and Mont. Code Ann. § 25-13212(1), then Patterson may renew his motion to dismiss Mann’s claim.
Alternatively, the Court would entertain a motion filed by either party to continue
the November 3, 2016 hearing.
DATED this 25th day of October, 2016.

Jeremiah C. Lynch
United States Magistrate Judge

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