Opinion

National Union Fire Insurance Company of Pittsburgh, PA v. Griffis

Court
District Court, M.D. Florida
Filed
Apr 26, 2023
Cited by
0 cases
Authority
More cited than 33.0%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

NATIONAL UNION FIRE INSURANCE

COMPANY OF PITTSBURGH, PA,

as assignee and subrogee of

Florida Education Association,

Plaintiff,

v. CASE NO. 3:20-cv-11-MMH-MCR

MILDRED K. GRIFFIS a/k/a

Kelly Griffis,

Defendant.

____________________________________/

REPORT AND RECOMMENDATION1

THIS CAUSE is before the Court on the Motion of Plaintiff, National

Union Fire Insurance Company of Pittsburgh, PA, for Final Order of

Judgment of Continuing Garnishment (“Motion”) (Doc. 59), which was

referred to the undersigned for a report and recommendation regarding an

appropriate resolution on March 28, 2023 (Doc. 60). The Motion was served

1 “Within 14 days after being served with a copy of [this Report and

Recommendation], a party may serve and file specific written objections to the

proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). “A party may

respond to another party’s objections within 14 days after being served with a copy.”

Id. A party’s failure to serve and file specific objections to the proposed findings

and recommendations alters the scope of review by the District Judge and the

United States Court of Appeals for the Eleventh Circuit, including waiver of the

right to challenge anything to which no specific objection was made. See

Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1.

on Defendant and the Garnishee, by first-class mail, on March 27, 2023.

(See Doc. 59 at 4.) To date, no response to the Motion has been filed;

therefore, the Motion will be treated as unopposed. For the reasons that

follow, the undersigned recommends that the Motion be GRANTED.

I. Background

On September 9, 2020, the Court granted Plaintiff’s motion for final

default judgment and directed the Clerk to enter judgment accordingly.

(Doc. 26.) The same day, the Clerk entered Judgment in favor of Plaintiff,

National Union Fire Insurance Company of Pittsburgh, PA, as assignee and

subrogee of the Florida Education Association, and against Defendant,

Mildred K. Griffis a/k/a Kelly Griffis, for treble damages in the amount of

$220,800.18. (Doc. 27.)

On November 18, 2021, the Court entered an Order granting Plaintiff’s

Motion for Issuance of Writ of Garnishment (Doc. 32), and directing the Clerk

of Court to issue the writ attached to that Motion and return it to Plaintiff’s

counsel for service on the Garnishee. (See Doc. 33.) The same day, the

Clerk issued the writ directed to Garnishee Clay County District Schools to

enforce the Judgment in the amount of $220,800.18, entered in favor of

Plaintiff and against Defendant on September 9, 2020. (See Doc. 34.)

On December 13, 2021, Plaintiff filed a Notice of Service of Writ on the

School Board of Clay County Florida.2 (See Doc. 35.) The Affidavit of

Service attached to the Notice of Service of Writ provides that a copy of the

Writ of Garnishment and Motion for Issuance of Writ of Garnishment were

served on November 30, 2021 on “L. Clark as Office Staff for Clay County

District Schools.” (Id. at 3.) On December 13, 2021, Plaintiff also filed a

Notice of Service of Garnishee’s Answer, which included, as an attachment,

the Answer of Garnishee, which was furnished to Plaintiff, by U.S. Mail, on

December 9, 2021.3 (Doc. 36.) The Answer of Garnishee was also mailed to

the Clerk of Court for filing by Clay County District Schools and entered as a

separate docket entry on December 13, 2021. (See Docs. 37 & 37-1.)

On April 6, 2022, the Court entered a sua sponte Order, directing

Plaintiff to show cause in writing, on or before April 18, 2022, why the Writ of

Garnishment (Doc. 34) should not be dissolved for Plaintiff’s failure to serve

the requisite documents on Defendant in the manner provided under Chapter

77 of the Florida Statutes. (Doc. 38.) The Court explained:

The docket does not show that Plaintiff has complied with

the notice requirements of Fla. Stat. §§ 77.041 and 77.055. Also,

Defendant is not represented by counsel and does not have access

2 The Certificate of Service stated that the Notice was electronically filed

“with the Clerk of Court using CM/ECF which will send notification of such filing(s)

to counsel for the Plaintiff [sic].” (Doc. 35 at 1.)

3 The Certificate of Service stated that the Notice was electronically filed

“with the Clerk of Court using CM/ECF which will send notification of such filing(s)

to all parties.” (Doc. 36 at 1.)

to CM/ECF. Thus, Plaintiff has not only failed to serve

Defendant with the documents set forth in Fla. Stat. §§ 77.041

and 77.055, but it has also failed to serve Ms. Griffis with the

Notice of Service of Writ (Doc. 35) and the Notice of Service of

Garnishee’s Answer (Doc. 36), both of which were filed

electronically in this case. In any event, both § 77.041 and §

77.055, Fla. Stat., require service by mail on Defendant

personally, rather than service via CM/ECF, even when

Defendant is represented by counsel. See Art Remedy LLC v.

Lana Moes Art, LLC, No. 18-cv-61912-STRAUSS, 2020 WL

6800449, *1-2 (S.D. Fla. Nov. 19, 2020).

(Doc. 38 at 3-4.)

On April 18, 2022, Plaintiff responded to the Order to Show Cause and

requested that the Writ of Garnishment be dissolved without prejudice.

(Doc. 39.) On April 25, 2022, the Court discharged the Order to Show Cause

and dissolved the Writ of Garnishment without prejudice. (Doc. 40.) On

July 8, 2022, the Court entered an Order, granting Plaintiff’s new Motion for

Issuance of Writ of Garnishment. (Doc. 42.) Pursuant to that Order, on

July 12, 2022, the Clerk issued a Continuing Writ of Garnishment Against

Salary or Wages, directed to Garnishee Clay County District Schools to

enforce the Judgment in the outstanding amount of $220,288.09. (Doc. 43.)

On July 14, 2022, Plaintiff’s counsel filed a Certificate of Service,

stating that he served on Defendant, by first class mail, copies of (1)

Plaintiff’s Motion for Issuance of Writ of Garnishment; (2) the Order granting

it; and (3) the Continuing Writ of Garnishment Against Salary or Wages,

which included a Notice to Defendant of Right Against Garnishment of

Wages, Money, and Other Property. (Doc. 44.)

On July 28, 2022, the Garnishee filed an Answer to the Continuing

Writ of Garnishment Against Salary or Wages, stating, in relevant part, that

“the amount which must be paid to the Plaintiff” is $615.30 per pay period.

(Doc. 45 at 3.) On August 8, 2022, Plaintiff filed a Notice, advising

Defendant that she must move to dissolve the Continuing Writ of

Garnishment Against Salary or Wages within 20 days thereof, if any

allegation in Plaintiff’s Motion for Writ of Garnishment is untrue. (Doc. 47.)

On August 8, 2022, Plaintiff’s counsel also filed a Certificate of Service,

stating that he served on Defendant, by first class mail, copies of (1)

Garnishee’s Answer; (2) the Notice advising Defendant that she must move to

dissolve the Continuing Writ of Garnishment Against Salary or Wages within

20 days of August 8, 2022; and (3) the Certificate of Service. (Doc. 48.)

Then, on October 12, 2022, Plaintiff filed a Motion for Final Order of

Judgment of Continuing Garnishment directed to Garnishee, the School

Board of Clay County Florida (improperly named as Clay County District

Schools), pursuant to Section 77.083 of the Florida Statutes. (Doc. 49 at 1.)

On December 1, 2022, the Court entered an Order, denying without prejudice

Plaintiff’s Motion for Final Order of Judgment of Continuing Garnishment

for failure to provide a timely notice to Defendant pursuant to Section 77.055

of the Florida Statutes. (Doc. 50.)

On January 10, 2023, on Plaintiff’s motion (Doc. 51), the Court

dissolved the Continuing Writ of Garnishment without prejudice. (Doc. 52.)

On January 23, 2023, the Court entered an Order, granting Plaintiff’s new

Motion for Issuance of Continuing Writ of Garnishment. (Doc. 54.)

Pursuant to that Order, on January 24, 2023, the Clerk issued a Continuing

Writ of Garnishment Against Salary or Wages, directed to Garnishee Clay

County District Schools to enforce the Judgment in the outstanding amount

of $220,288.09. (Doc. 55.)

On January 25, 2023, Plaintiff’s counsel filed a Certificate of Service,

stating that on the same day, he served on Defendant, by first class mail,

copies of (1) Plaintiff’s Motion for Issuance of Writ of Garnishment; (2) the

Order granting it; and (3) the Continuing Writ of Garnishment Against

Salary or Wages, which included a Notice to Defendant of Right Against

Garnishment of Wages, Money, and Other Property. (Doc. 56.)

On February 14, 2023, the Garnishee filed and served an Answer to the

Continuing Writ of Garnishment Against Salary or Wages, stating, in

relevant part, that it employed Defendant and that “the estimated amount

which must be paid” to her per pay period is $435.60. (Doc. 58 at 3.) On

February 16, 2023, Plaintiff’s counsel filed a Certificate of Service, stating

that on the same day, he served on Defendant, by first class mail, copies of (1)

Garnishee’s Answer; (2) the Notice advising Defendant that she must move to

dissolve the Continuing Writ of Garnishment Against Salary or Wages within

20 days after the date indicated on the certificate of service in the Notice if

any allegation in Plaintiff’s Motion for Writ of Garnishment is untrue; and (3)

the Certificate of Service. (Doc. 57.)

On March 27, 2023, Plaintiff filed the present Motion seeking final

order of judgment of continuing garnishment directed to Garnishee, the

School Board of Clay County Florida (improperly named as Clay County

District Schools), pursuant to Section 77.083 of the Florida Statutes. (Doc.

59.) Plaintiff states that the sum of $220,288.09 remains due and owning

pursuant to the Judgment entered on September 9, 2020. (Id. at 1.)

Plaintiff further states that although 20 days have passed since service of

Garnishee’s Answer and the requisite notice on Defendant, Defendant has

not moved to dissolve the Continuing Writ of Garnishment Against Salary or

Wages, has not objected to it, and has not responded to it in any way. (Id. at

2.) As such, pursuant to Section 77.0305 of the Florida Statutes,4 Plaintiff

4 Section 77.0305 of the Florida Statutes provides, in part:

Notwithstanding any other provision of this chapter, if salary or wages

are to be garnished to satisfy a judgment, the court shall issue a

continuing writ of garnishment to the judgment debtor’s employer

which provides for the periodic payment of a portion of the salary or

wages of the judgment debtor as the salary or wages become due until

the judgment is satisfied or until otherwise provided by court order. A

debtor’s status as an employee of the state or its agencies or political

subdivisions does not preclude a judgment creditor’s right to garnish

the debtor’s wages.

requests that final order of judgment of continuing garnishment be entered

against Garnishee, directing Garnishee to garnish the portion of Defendant’s

salary or wages as set forth in the Garnishee’s Answer until the Judgment

against Defendant is satisfied or until the Court orders otherwise. (Id. at 2-

3.)

II. Discussion

Pursuant to Section 77.083 of the Florida Statutes, a judgment shall be

entered against the garnishee based on its answer for the amount of its

liability as disclosed by the answer. Fla. Stat. § 77.083. Any judgment

must not exceed the amount remaining unpaid on the final judgment against

defendant or the amount of the garnishee’s liability to defendant. Id.

“Florida law requires garnishment statutes to be strictly construed.”

Nationwide Judgment Recovery, Inc. v. Nagibina, No. 8:21-mc-131-KKM-JSS,

2022 WL 3636370, *1 (M.D. Fla. Aug. 3, 2022) (report and recommendation

adopted by 2022 WL 3598303 (M.D. Fla. Aug. 23, 2022)) (citing Gigliotti

Contracting North, Inc. v. Traffic Control Products of N. Fla., Inc., 788 So.2d

1013, 1016 (Fla. Dist. Ct. App. 2001)). “When a plaintiff demonstrates that

the defendant was served with the statutorily required notices but failed to

appear or otherwise respond to a writ of garnishment, the plaintiff meets the

statutory requirements for a judgment of garnishment.” Nagibina, 2022 WL

3636370, at *1.

As noted above, despite receiving the requisite statutory notices in a

timely manner, Defendant has not responded, objected, filed a claim of

exemption, or moved to dissolve the Continuing Writ of Garnishment Against

Salary or Wages within the 20 days allowed by Fla. Stat. § 77.055.

Therefore, Plaintiff has met the requirements for a judgment of continuing

garnishment against Garnishee. See Nagibina, 2022 WL 3636370, at *1-2

(“When a plaintiff demonstrates that the defendant was served with the

statutorily required notices but failed to appear or otherwise respond to a

writ of garnishment, the plaintiff meets the statutory requirements for a

judgment of garnishment. . . . [N]either Defendant nor any other party has

responded, objected, filed a claim of exemption or moved to dissolve the writ

within the 20 days allowed by § 77.055. Therefore, the court finds that

Plaintiff has met the statutory requirements for a judgment of

garnishment.”); see also Holland v. Westside Sportsbar & Lounge, Inc., No.

6:19-cv-945-CEM-GJK, 2022 WL 2305880, *2 (M.D. Fla. May 13, 2022)

(report and recommendation adopted by 2022 WL 2916812 (M.D. Fla. July

25, 2022)); Papadopoulos v. Sidi, No. 05-22010-CIV-SEITZ/O’SULLIVAN,

2008 WL 11399763, *3 (S.D. Fla. Sept. 8, 2008) (report and recommendation

adopted by 2008 WL 11400736 (S.D. Fla. Nov. 5, 2008)).

Accordingly, it is respectfully RECOMMENDED:

1. The Motion (Doc. 59) be GRANTED.

2. The Clerk of Court be directed to enter final judgment of

continuing garnishment in favor of Plaintiff, National Union Fire Insurance

Company of Pittsburgh, PA, as assignee and subrogee of the Florida

Education Association, and against Garnishee, the School Board of Clay

County Florida Gmproperly named as Clay County District Schools),

directing Garnishee to garnish the portion of Defendant’s salary or wages as

set forth in the Garnishee’s Answer until the Judgment in the outstanding

amount of $220,288.09 against Defendant is satisfied or until the Court

orders otherwise.

DONE AND ENTERED at Jacksonville, Florida, on April 26, 2023.

□ MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

The Hon. Marcia Morales Howard

United States District Judge

Counsel of Record

Mildred K. Griffis

5240 Mallard Road

Middleburg, FL 32068

The School Board of Clay County, Florida

900 Walnut Street

Green Cove Springs, FL 320438

10

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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