U. S. Foodservice, Inc. v. Almost Heaven Ribs, Inc.
Filing
19
MEMORANDUM OPINION AND ORDER granting 17 MOTION for appointment of Special Commissioner; Magistrate Judge Cheryl A. Eifert is appointed to serve as a commissioner over this matter. Signed by Judge Joseph R. Goodwin on 4/30/2012. (cc: attys; any unrepresented party) (dcm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
U. S. FOODSERVICE, INC.,
Plaintiff,
v.
CIVIL ACTION NO. 3:11-cv-00595
ALMOST HEAVEN RIBS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is the plaintiff’s Motion for Appointment of Special
Commissioner [Docket 17].
The motion is GRANTED.
The court hereby APPOINTS
Magistrate Judge Cheryl A. Eifert to serve as a commissioner over this matter.
The plaintiff, U.S. Foodservice, Inc., brought this lawsuit against the defendant Almost
Heaven Ribs, Inc. Following the defendant’s default, judgment was entered in favor of the
plaintiff on December 6, 2011 [Docket 12]. The plaintiff then applied for a writ of execution as
to the defendant. The Clerk issued the writ of execution on March 2, 2012 [Docket 16].
Because the plaintiff has been unable to satisfy its judgment, however, it now seeks the
appointment of a commissioner to conduct a proceeding in aid of execution pursuant to state and
federal law.
Federal Rule of Civil Procedure 69(a) provides the general guidelines by which a money
judgment is to be executed.
Namely, the “procedure on execution—and in proceedings
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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.” FED. R.
CIV. P. 69(a)(1). Moreover, the judgment creditor “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)(2).
Because there is no specific federal statute on point, West Virginia law applies. Under
West Virginia law, a judgment creditor may institute interrogatory proceedings before a
“commissioner in chancery” (simply a “commissioner” following the consolidation of law and
equity) to enforce an existing judgment. See W. Va. Code § 38-5-1; see also State ex rel.
TermNet Merchant Servs., Inc. v. Jordan, 217 W. Va. 696, 701 (2005). The “required duties,
responsibilities and authority of a commissioner acting in interrogatory proceedings are further
developed in subsequent portions of Article 5.” TermNet, 217 W. Va. at 701.
Although there is no “commissioner” in the federal judicial system, federal courts have
ruled that a magistrate judge may serve in that role for purposes of conducting proceedings in aid
of execution under West Virginia Code § 38-5-1. See, e.g., Chicago Pneumatic Tool Co. v.
Stonestreet, 107 F.R.D. 674, 675 (S.D. W. Va. 1985); U.S. Foodservice, Inc. v. Donahue, No.
3:10-cv-183, 2010 WL 5067939, at *1 (S.D. W. Va. Dec. 3, 2010); Byron Originals, Inc. v. Iron
Bay Model Co., No. 5:05-cv-82, 2006 WL 1004827, at *1 (N.D. W. Va. Apr. 12, 2006). As
Chief Judge Haden observed in Chicago Pneumatic Tool, interrogatory proceedings essentially
allow a commissioner “to join in the questioning during the deposition” of a judgment debtor,
and the power to take depositions is specifically conferred on magistrate judges by 28 U.S.C.
§ 636(a)(2). Moreover, the Federal Magistrate Act specifically provides that magistrate judges
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“may be assigned such additional duties as are not inconsistent with the Constitution and laws of
the United States.” 28 U.S.C. § 636(b)(3).
Accordingly, the court hereby APPOINTS Magistrate Judge Cheryl A. Eifert as a
“commissioner” for purposes of conducting a proceeding pursuant to West Virginia Code § 385-1. Upon the plaintiff’s ascertaining of a date and time that will be convenient to Magistrate
Judge Eifert, the Clerk is DIRECTED to issue summonses, pursuant to Rule 4 of the Federal
Rules of Civil Procedure, directing the defendant to appear at the specified date and time before
Magistrate Judge Eifert. In conducting the proceeding in aid of execution, Magistrate Judge
Eifert may enter any additional order pursuant to the Federal Rules of Civil Procedure or Chapter
38, Article 5 of the West Virginia Code.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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April 30, 2012
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