Follette v. Vitanza

Decision Date27 March 1987
Docket NumberNo. 81-CV-965.,81-CV-965.
Citation658 F. Supp. 492
PartiesNancy FOLLETTE and Marie Sickler, individually and on behalf of all persons similarly situated, Plaintiffs, v. Hon. Matthew VITANZA and Hon. John T. Hillis, in their capacity as Judges of the City Court of the City of Binghamton and on behalf of all others similarly situated, John Bachochin, Jr., in his capacity as the Marshal of the City Court of the City of Binghamton, and on behalf of all others similarly situated, Thomas J. Hull and Robert B. Kaman, as partners in Kaman and Hull, Richard Gamble, and Susquehanna Anesthesia Affiliates, Defendants.
CourtU.S. District Court — Northern District of New York

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Broome Legal Assistance Corp., Eleanor Polimeni, Binghamton, N.Y., for plaintiffs.

Robert Abrams, Atty. Gen., State of New York, Albany, N.Y., Miriam B. Hutchins, Asst. Atty. Gen., Binghamton, N.Y., for defendants Vitanza, Hillis and Bachochin.

Kaman and Hull, Binghamton, N.Y., pro se.

MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

This suit involves a challenge to New York's wage garnishment procedures. See N.Y.C.P.L.R. §§ 5230, 5231, 5240 (McKinney 1978 & Supp. 1987); N.Y. Uniform City Ct. Act ("UCCA") §§ 1501, 1504, 2102 (McKinney Supp.1987).1 Plaintiffs bring this action under 42 U.S.C. § 1983 (1982), contending that defendants, acting under color of state law, have deprived plaintiffs of wages which are exempt from garnishment by § 303 of the Consumer Credit Protection Act ("CCPA"), 15 U.S.C. § 1673 (1982), thereby denying them "rights, privileges, or immunities" secured by the CCPA and the due process clause of the fourteenth amendment of the United States Constitution.2 Plaintiffs also maintain that New York's garnishment procedures offend due process by failing to adequately notify judgment debtors of the provisions through which an execution can be challenged in state court. Defendants Vitanza, Hillis and Bachochin move to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be granted. Plaintiffs cross move for the certification of three separate classes under Rule 23, Fed.R.Civ.P., and for summary judgment pursuant to Rule 56, Fed.R.Civ.P.

I. BACKGROUND

On June 15, 1981 a default judgment was taken against plaintiff Follette in the City Court of Binghamton, New York in an action to collect a debt owed defendant Susquehanna Anesthesia Affiliates ("Susquehanna"). Thereafter, defendants Kaman and Hull, Binghamton attorneys representing Susquehanna, issued an income execution and delivered it to defendant Bachochin, the Marshal for the City Court in Binghamton, who subsequently served the income execution upon Follette's employer, Federal Electronics, Inc. of Vestal, New York. The income execution was computed under § 5231(b) of New York's Civil Practice Law and Rules ("CPLR"), and ten percent of Follette's wages earned between July 17, 1981 and August 21, 1981 were garnished. A total of $84.00 was retained by Federal Electronics, Inc. and turned over to Bachochin to be delivered to Susquehanna. Meanwhile, on June 5, 1981, a default judgment was rendered against plaintiff Sickler for a debt owed defendant Richard Gamble. Kaman and Hull, on behalf of Gamble, issued an income execution upon Sickler's employer, the Ramada Inn in Binghamton. This execution was also computed under CPLR § 5231(b), and $74.57 was withheld from Sickler's wages between July 11, 1981 and August 22, 1981.

Section 303 of the Consumer Credit Protection Act provides that, subject to certain exceptions not applicable to the present case,

the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed (1) 25 per centum of his disposable earnings for that week, or
(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206(a)(1) of Title 29 in effect at the time the earnings are payable, whichever is less.

15 U.S.C. § 1673(a) (1982). An individual's "disposable earnings" consists of that part of his earnings "remaining after the deduction from those earnings of any amounts required by law to be withheld." 15 U.S.C. § 1672(b). Since January 1, 1981 the minimum wage prescribed by the Fair Labor Standards Act has been $3.35 an hour. 29 U.S.C. § 206(a)(1) (1982). Thus, as a general rule the CCPA completely exempts $100.50 of net weekly income from garnishment. Further, if an individual's disposable income for a work week exceeds $100.50 but is less than $134, only the amount above $100.50 is subject to garnishment. 29 C.F.R. § 870.10(b)(2) (1986). Section 5231(b) of the CPLR, however, provides that "where a judgment debtor is receiving or will receive more than eighty-five dollars per week from any person, an income execution for installments therefrom of not more than ten percent thereof may be issued...." N.Y.C.P.L.R. § 5231(b) (McKinney 1978 & Supp.1987). This subsection has not been adjusted by the New York legislature since 1970, and now clearly violates the limitations on garnishment imposed by federal law when applied to certain low-income judgment debtors.3 In the present case, plaintiff Follette had $84.00 in wages withheld pursuant to the income execution calculated under CPLR § 5231(b) despite the fact that 15 U.S.C. § 1673(a) only authorized the retention of $19.99. Similarly, $74.57 was withheld from plaintiff Sickler's wages, even though federal law allowed only $9.88 to be withheld. Affidavit of L. David Zube, Doc. 3, ¶ 6.

On September 10, 1981 plaintiffs instituted this lawsuit.4 In addition to Hull, Kaman, Gamble and Susquehanna, plaintiffs have named as defendants the Honorable Matthew Vitanza and the Honorable John T. Hillis, in their official capacities as Judges of the City Court of Binghamton, New York, and John Bachochin, Jr., in his official capacity as Marshal of the City Court of Binghamton. Plaintiffs seek the certification of one plaintiff class and two defendant classes, declaratory and injunctive relief on behalf of themselves and other judgment debtors subject to wage garnishment5 under New York law, the recovery of that portion of her garnished wages exempt under 15 U.S.C. § 1673, and attorney fees under 42 U.S.C. § 1988 (1982). In essence, plaintiffs claim they were deprived of rights safeguarded by 15 U.S.C. § 1673 and the due process clause of the fourteenth amendment, giving rise to a cause of action under 42 U.S.C. § 1983. To address the substantive issues raised by the parties in as orderly a manner as possible, the court will first examine the extent to which a cause of action under § 1983 can be maintained under the facts as alleged by plaintiffs.

II. PLAINTIFFS' § 1983 CLAIMS PREDICATED UPON THE ALLEGED VIOLATION OF 15 U.S.C. § 1673

Plaintiffs assert that the court has jurisdiction over their claims based on the violations of the CCPA under 28 U.S.C. § 1331 (1982)6 since plaintiffs seek relief from these violations through the remedy provided by 42 U.S.C. § 1983. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. To state a cause of action under § 1983, plaintiffs must show that they were deprived of rights "secured by the Constitution and laws" of the United States. The Supreme Court recognized in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), that the remedy provided by § 1983 "encompasses violations of federal statutory as well as constitutional law." Id. at 4, 100 S.Ct. at 2504. Section 1983, however, is remedial in nature and neither creates substantive rights in and of itself nor adds anything of a substantive nature to rights created by statute. Maher v. Gagne, 448 U.S. 122, 129 n. 11, 100 S.Ct. 2570, 2574 n. 11, 65 L.Ed.2d 653 (1980); Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617, 99 S.Ct. 1905, 1915, 60 L.Ed.2d 508 (1979). A party basing its § 1983 claim on the violation of a federal statute must establish that the statute at issue created "rights, privileges, or immunities" within the meaning of § 1983 and that Congress did not foreclose private enforcement of that statute under § 1983 in the enactment itself, for instance by providing "`an exclusive remedy for violations of its terms.'" Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981) (quoting Maine v. Thiboutot, 448 U.S. at 22 n. 11, 100 S.Ct. at 2514 n. 11 (Powell, J., dissenting)); see also Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981) (hereinafter Sea Clammers). Thus, the court must preliminarily determine whether Congress intended to foreclose private enforcement of 15 U.S.C. § 1673 through the remedial provision of 42 U.S.C. § 1983.

Section 303 of the Consumer Credit Protection Act, 15 U.S.C. § 1673 (1982), falls within Subchapter II of that Act. Under 15 U.S.C. § 1676 (1982), it is mandated that the Secretary of Labor, through the Labor Department's Wage and Hour Division, "shall enforce the provisions" of Subchapter II. In cases involving other sections of that subchapter, courts have concluded that "judicially implying a private remedy under Subchapter II would disrupt the administrative procedure set out by Congress for vindication of those federally created rights." Smith v. Cotton Brothers Baking Co., 609 F.2d 738, 742 (5th Cir.), cert. denied, ...

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