Pennsylvania Higher Education Assistance Agency v. Merrell

Filing 54

ORDER adopting Report and Recommendations re 53 Report and Recommendations. Signed by District Judge Harry S Mattice, Jr on 10/5/17. (KFB, ) Modified on 10/5/2017 (KFB, ). Serviced via US Mail to Keri Cash and Timothy Merrell.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at WINCHESTER
UNITED STATES OF AMERICA, ET AL.,
Plaintiffs,
v.
TIMOTHY R. MERRELL,
Defendant,
and
MERRELL FOOT CLINIC
Garnishee.

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Case No. 4:04-cv-48
Judge Mattice
Magistrate Judge Steger

ORDER
On June 9, 2017, United States Magistrate Judge Christopher Steger filed a Report
and Recommendation (Doc. 53) pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of
Civil Procedure 72(b). Magistrate Judge Steger made the following recommendation
regarding the United States’ Writ of Garnishment (Doc. 37):
[T]hat judgment be entered against the Garnishee, Merrell Foot Clinic and
Marnie Merrell, [as its sole proprietor,] for the value of Defendant’s
nonexempt interest in any property in the Garnishee’s possession, up to and
including the full value of Defendant’s Judgment ($93,005.99 as of May 25,
2017) plus interest, upon which execution may issue if necessary, until such
time that the Writ of Garnishment is terminated as provided by 28 U.S.C. §
3205(c)(1).
(Doc. 53 at 1). Magistrate Judge Steger made this recommendation following two hearings
on the matter, the first held on October 19, 2016, and the second on May 25, 2017. The
Garnishee failed both to answer the writ and to appear at either hearing. Pursuant to the
Federal Debt Collection Procedure Act,

[i]f a garnishee fails to answer the writ of garnishment or to withhold
property in accordance with the writ, the United States may petition the
court for an order requiring the garnishee to appear before the court to
answer the writ and to so withhold property before the appearance date. If
the garnishee fails to appear, or appears and fails to show good cause why
the garnishee failed to comply with the writ, the court shall enter judgment
against the garnishee for the value of the judgment debtor’s nonexempt
interest in such property (including nonexempt disposable earnings).
28 U.S.C. § 3205(c)(6). As set forth in his Report and Recommendation, Judge Steger
found no good cause for the Garnishee’s failure to answer the writ or appear at the
hearings.
Neither party has filed objections to the Magistrate Judge’s Report and
Recommendation.1 Nevertheless, the Court has reviewed the record in this matter, and
the undersigned agrees with the Magistrate Judge’s well-reasoned conclusions.
Accordingly, the Court ACCEPTS and ADOPTS Magistrate Judge Steger’s
findings of fact and conclusions of law. A separate judgment shall enter against the
Garnishee for the value of Defendant’s nonexempt interest in any property in the
Garnishee’s possession, up to and including the full value of Defendant’s Judgment
($93,005.99 as of May 25, 2017) plus interest, upon which execution may issue if
necessary, until such time that the Writ of Garnishment is terminated as provided by 28
U.S.C. § 3205(c)(1).

Magistrate Judge Steger specifically advised the parties that they had 14 days in which to object to the
Report and Recommendation and that failure to do so would waive their right to appeal. (Doc. 53 at 1 n. 1);
see Fed. R. Civ. P. 72(b)(2); see also Thomas v. Arn, 474 U.S. 140, 148-51 (1985) (noting that “[i]t does not
appear that Congress intended to require district court review of a magistrate's factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings”).

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SO ORDERED this 5th day of October, 2017.

/s/ Harry S. Mattice, Jr.______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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