Opinion
Case No. 2:02 CV 204 TC.
December 6, 2004
ORDER DENYING MOTIONS TO STRIKE and MOTION FOR SANCTIONS
Defendant Wallace R. Bennett ("Bennett") has moved to strike certain papers filed by Plaintiff The Society of Lloyd's ("Lloyd's"). He also seeks sanctions. The documents sought to be stricken generally related to post-judgment enforcement proceedings — garnishment applications and affidavits, and a motion for writ of execution, praecipe and affidavit. Some of the garnishment papers pertain to other judgment debtors in this case.
Docket no. 318 filed October 18, 2004, and docket no. 339, filed November 3, 2004.
Docket nos. 306-310.
Docket nos. 330, 331 and 332.
Docket nos. 306, 307, and 308.
Careful reading of Fed.R.Civ.P. 5(a) shows that none of these papers are enumerated there in the list of papers which "shall be served upon each of the parties." To the contrary, the garnishment and execution rules assume a quasi-in-rem type proceeding where seizure occurs before the debtor receives notice. In garnishment, the first notice to the debtor is given by the garnishee after the writ is served. The garnishee must serve copies of his answers on the defendant. In execution, the officer is required to serve a notice of execution on the debtor only when the writ is served.
Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties.
U.R.Civ.P. 64D(d)(iii) (as in effect before November 1, 2004).
U.R.Civ.P. 69(g) (as in effect before November 1, 2004).
These provisions recognize that notice to the debtor may be delayed when the debt has already been adjudicated, and that this delay ensures the creditor a fair chance of locating property of the debtor.
[T]he established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment. Thus, in the absence of a statutory requirement, it is not essential that he be given notice before the issuance of an execution against his tangible property; after the rendition of the judgment he must take notice of what will follow, no further notice being necessary to advance justice.
[I]f judgment debtors were given notice prior to the actual garnishment, they may attempt to move their assets and, therefore, frustrate the purpose of post-judgment summary procedures.
Endicott-Johnson Corporation v. Encyclopedia Press, 266 U.S. 285, 288 (1924) (citations and quotation marks omitted).
Wanex v. Provident State Bank of Preston, 53 Md. App. 409, 419 n. 9, 454 A.2d 381, 387 n. 9 (Md.App. 1983).
Therefore, there is no basis to strike these papers. Both motions to strike and the request for sanctions will be denied.
ORDER
IT IS HEREBY ORDERED that the motions to strike and motion for sanctions are DENIED.
Docket no. 318 filed October 18, 2004, and docket no. 339, filed November 3, 2004.