CSX Transportation, Inc. v. Gilkison et al

Filing 1670

MEMORANDUM OPINION AND ORDER GRANTING 1668 CSX'S MOTION FOR APPOINTMENT OF SPECIAL COMMISSIONER TO CONDUCT PROCEEDINGS IN AID OF EXECUTION AGAINST DEFENDANT HARRON. Hearing set for 1/8/2014 01:30 PM in Magistrate Judge Seibert Chambers before Magistrate Judge James E. Seibert. A Subpoena is to be issued to Defendant Harron. Signed by Senior Judge Frederick P. Stamp, Jr on 12/11/2013. (copy to counsel of record via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.

Civil Action No. 5:05CV202
(STAMP)

ROBERT N. PEIRCE, JR.,
LOUIS A. RAIMOND,
and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING CSX’S MOTION FOR APPOINTMENT
OF SPECIAL COMMISSIONER TO CONDUCT PROCEEDINGS
IN AID OF EXECUTION AGAINST DEFENDANT HARRON
I.

Background

On December 20, 2012, a jury rendered a verdict in favor of
the plaintiff, CSX Transportation, Inc. (“CSX”), finding that the
above-named defendants’ conduct violated the federal Racketeer
Influenced

and

§ 1961, et seq.

Corrupt

Organizations

Act

(“RICO”),

18

U.S.C.

Further, the jury found that Robert N. Peirce, Jr.

and Louis A. Raimond (collectively the “lawyer defendants”) were
liable to CSX for fraud, and had participated in a conspiracy to
commit fraud with defendant Ray Harron, M.D. (“Harron”). The jury,
however, did not find that CSX was liable for fraud based on its
representations made during this litigation, as was alleged in the
defendants’ counterclaims.

The jury awarded CSX $429,240.47 in

relation to the RICO violations, but did not award CSX any monetary
relief in relation to the fraud claims.

This Court then entered a

judgment in favor of CSX as to these verdicts and ordered that CSX
also recover any post-judgment interest in accordance with 28
U.S.C. § 1961.
Thereafter, CSX filed a motion to amend the judgment to
reflect the statutorily-mandated trebling of RICO damages.

This

Court granted CSX’s motion and entered an amended judgment in the
amount of $1,287,721.41 with post-judgment interest.

CSX also

filed a motion for attorneys’ fees and a bill of costs.

This Court

stayed the motion for attorneys’ fees and a ruling on the bill of
costs pending the resolution of any appeal in this matter or other
resolution

of

the

defendant

Harron

civil
filed

action.

The

post-judgment

lawyer

defendants

motions

as

and

well.

Specifically, the defendants filed motions for judgment as a matter
of law or for a new trial.

This Court denied these motions.

After this Court entered its memorandum opinion and orders
denying the motions for judgment as a matter of law or for a new
trial, CSX filed a motion for the issuance of writs of execution
against all defendants. The lawyer defendants opposed such motion.
Further, the lawyer defendants filed a notice of appeal and a
motion for approval of supersedeas bond and stay of judgment
pending the appeal.

Defendant Harron did not oppose CSX’s motion

for the issuance of a writs of execution, but did thereafter file
a notice of appeal.

This Court granted the lawyer defendants’

motion for approval of supersedeas bond and stay of judgment

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pending appeal.

As such, it denied CSX’s motion for writs of

execution against the lawyer defendants. However, due to defendant
Harron’s failure to file a supersedeas bond and motion to stay
judgment pending appeal, this Court granted CSX’s motion for the
issuance of a writ of execution as to defendant Harron.
On November 4, 2013, this Court issued a writ of execution
directed to defendant Harron in the amount of the amended judgment,
which was served by the United States Marshal on November 25, 2013.
On December 2, 2013, defendant Harron filed a response to the writ
of

execution,

wherein

he

stated

that

“he

cannot

pay

the

$1,287,721.41, because he has no money or assets in the Northern
District of West Virginia to pay the judgment.”

ECF No. 1667.

On

December 6, 2013, in response to defendant Harron’s assertion, CSX
filed a motion for appointment of special commissioner to conduct
proceedings pursuant to West Virginia Code § 38-5-1 in aid of
execution against defendant Harron. CSX specifically requests that
United States Magistrate Judge James E. Seibert be appointed to
serve as the commissioner.
II.

Discussion

Rule 69(a) of the Federal Rules of Civil Procedure guides this
Court in execution procedures generally and in discovery in aid of
execution.

Chicago Pneumatic Tool Co. v. O.V. Stonestreet, 107

F.R.D. 674 (S.D. W. Va. 1995).

Rule 69(a)(1)-(2) of the Federal

Rules of Civil Procedure provides:

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A money judgment is enforced by a writ of execution,
unless the court directs otherwise. The procedure on
execution--and in proceedings supplementary to and in aid
of judgment or execution--must accord with the procedure
of the state where the court is located, but a federal
statute governs to the extent it applies . . . . In aid
of the judgment or execution, the judgment creditor or a
successor in interest whose interest appears of record
may obtain discovery from any person--including the
judgment debtor--as provided in these rules or by the
procedure of the state where the court is located.
Fed. R. Civ. P. 69(a)(1). Pursuant to West Virginia Code § 38-5-1,
a debtor can be brought before a commissioner in chancery “to
answer upon oath such questions as shall be propounded at such time
and

place

by

counsel

commissioner.”

for

the

execution

W. Va. Code § 38-5-1.

creditor,

or

by

the

While the federal court

system does not have a commissioner in chancery, 28 U.S.C. § 636
provides, in pertinent part, that “[a] magistrate may be assigned
such

additional

Constitution

and

duties
laws

as
of

are
the

not
United

inconsistent
States.”

with
28

the

U.S.C.

§ 636(b)(3); Chicago Pneumatic Tool Co., 107 F.R.D. at 676.
Accordingly,

the

magistrate

judge

may

conduct

a

hearing

as

described by West Virginia Code § 38-5-1 pursuant to Federal Rule
of Civil Procedure 69(a) and may also order the execution debtor to
assign personal property to the United States Marshal for the
purpose of satisfying a judgment.
Pursuant

to

Rule

69,

this

Id. at 677.
Court

appoints

United

States

Magistrate Judge James E. Seibert to serve as a “commissioner” to
conduct a hearing as described by West Virginia Code § 38-5-1. The

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Clerk is DIRECTED to issue a subpoena pursuant to Rule 45 of the
Federal Rules of Civil Procedure upon defendant Harron, to appear
before Magistrate Judge Seibert on January 8, 2014 at 1:30 p.m at
the Magistrate Judge’s Courtroom on the Fourth Floor of the United
States Courthouse, 1125 Chapline Street, Wheeling, West Virginia
26003 to answer upon oath questions propounded by counsel for the
plaintiff or by Magistrate Judge Seibert.

In addition, the Clerk

is DIRECTED to attach a copy of this order to the subpoena issued
to defendant Harron.

Accordingly, pursuant to Federal Rule of

Civil Procedure 45, the United States Marshals Service is DIRECTED
to serve process.

Any recovery in this action will be subject to

an applicable service of process fee assessed by the United States
Marshal.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

December 11, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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