Opinion
Civil Action 97-1176, SECTION "T"(3)
June 22, 2000
Before the Court is a Motion to Execute Against Garnishee, Signal Companies, Inc., filed on behalf of the plaintiff, General Electric Capital Corporation ("GECC"). This matter was set for hearing on June 21, 2000. The parties waived oral argument and the matter was submitted on the briefs. The Court, having considered the arguments of counsel, the evidence submitted, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
A judgment was rendered on October 28, 1997, in favor of GECC and against Guilford J. Acosta for $656,625.00, together with interest in the amount of $90,217.18 and penalties in the amount of $44,812.24, through October 4, 1997, with interest accruing thereafter at the rate of $209.87 per day, plus attorney's fees and all costs of the proceeding. The Judgment has not been satisfied and has been made executory. GECC sought to have Signal Companies, Inc. ("Signal") answer garnishment interrogatories concerning the assets of the judgment debtor.
GECC contends that Signal has failed to timely respond to the interrogatories served upon it by GECC; therefore, according to Louisiana Code of Civil Procedure ("C.C.P.") Article 2413, Signal is now indebted directly to GECC for the full unpaid judgment amount rendered. Signal, however, submits that GECC's motion must be denied as the garnishment interrogatories were not served properly. Service of process was effected on Donald J. Arnoult on April 19, 2000. Mr. Arnoult however is not, and never has been, agent for service of process for Signal, nor is he shown on the records for the Secretary of State as an officer of Signal. In response to Signal's opposition, GECC contends that service was proper in accordance with Federal Rules of Civil Procedure 4 and 4.1.
Federal Rule of Civil Procedure ("Fed.R.Civ.Pr.") 69(a) provides:
Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.
As such, it is clear that Louisiana law governs the garnishment proceedings. However, the language in Fed.R.Civ.Pr. 69 which states "except that any statute of the United States governs to the extent that it is applicable" raises the issue for this Court to resolve, namely, whether service must be effected in accordance with the Federal Rules of Civil Procedure or the state law provisions for service.
The Louisiana Code of Civil Procedure has specific articles which address garnishment proceedings in articles 2411 through 2413. Article 2412 address the method of service in such a proceeding and subsection C provides that service of garnishment interrogatories "shall be made in the manner provided for the service of citation". C.C.P. 2412(C). Service of citation upon a domestic or foreign corporation is "made by personal service on any one of its agents for service of process." C.C.P. 1261(A). As Signal's exhibit 1 shows that Stephen R. Edwards is the registered agent for service, service effected upon Donald J. Arnoult was not proper under state law.
The plaintiff relies on the case of United States v. Pauly 725 F. Supp. 923 (W.D.Mich. 1989) to support its position that the Federal Rules for service are applicable. In that case, the issue concerned whether service had to be effected by the United States Marshals or whether local sheriffs could effect service of process. The Court ruled that the federal provisions on service were to be applied as the "Michigan Court Rules relates to service of process in general and does not specifically to supplementary proceedings." Id. (emphasis added). This case is clearly distinguishable. The specific state code provisions for garnishment proceedings make specific provisions for service, it is not a situation where the general state service rules were employed over the general federal rules for service.
Moreover, this interpretation is further supported by the case ofApostolic Pentecostal Church v. Colbert 169 F.3d 409 (6th Cir. 1998) which abrogated the ruling in Pauly. In this case service was effected by an agent of Apostolic rather than a United States Marshal. The Court analyzed Federal Rules 69(a), and 4, as well as 28 U.S.C. § 566 in making its decision. The Court stated that "it is a traditional maxim of interpretation that specific rules control over general rules." Id. As such, it ruled that as service was "in accordance with the practice and procedure of the state in which the district court is held" service of process was proper.
The Fifth Circuit also considered the issue of service effected by a state county sheriff rather than a United States Marshal in United States v. St. Paul Mercury Ins, Co., 361 F.2d 838 (5th Cir. 1966). The Court was of the opinion that Rule 4(c) governed the service of writs of garnishment issued in a proceeding in federal court rather than the state rule for service " which is not a rule peculiarly applicable to service of writs of garnishment." Id. (emphasis added). Again, as in Pauly, this case is distinguishable, as the Louisiana provisions for garnishment proceedings set forth a process for service specific to this situation.
Plaintiff mentions in a footnote that service on Signal's registered agent for service of process, Stephen Edwards, will be difficult; if this is the case, the applicable state provision specifically provides for alternative means for service upon certification that due diligence to serve the designated agent has been made. C.C.P. 1261. There has been no such certification made in this case. As such, it is the ruling of this Court that the state rules regarding service in garnishment proceedings apply. Because service was not effected in accordance with those provisions, plaintiff's motion is without merit.
Accordingly,
IT IS ORDERED that the Motion to Execute Against Garnishee Signal Companies, Inc., be and the same is hereby DENIED.