Glasgow, Inc. v. Noetzel, Civ. A. No. 81-2114.

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: Herbert G. Underwood, Clarksburg, W.Va., for plaintiff
• Decision Date: 02 February 1983
• Parties: GLASGOW, INC., a corporation, Plaintiff, v. Stephen S. NOETZEL and Marilyn B. Noetzel, Defendant.
• Docket Number: Civ. A. No. 81-2114.

556 F. Supp. 595

GLASGOW, INC., a corporation, Plaintiff,
v.
Stephen S. NOETZEL and Marilyn B. Noetzel, Defendant.

Civ. A. No. 81-2114.

United States District Court, S.D. West Virginia, Charleston Division.

February 2, 1983.

Herbert G. Underwood, Clarksburg, W.Va., for plaintiff.

Jack W. DeBolt, Charleston, W.Va., for defendants.

MEMORANDUM ORDER

COPENHAVER, District Judge.

This matter is before the court on defendants' motion for summary judgment in the above-styled civil action. The record before the court consists of various affidavits and exhibits filed by the parties as well as the pleadings.

I.

This action derives from proceedings had in the Circuit Court of Kanawha County, West Virginia, in which the present defendants brought an action against the present plaintiff, a Pennsylvania corporation, for damages allegedly suffered as the result of a motor vehicle accident. The complaint in that action was filed on or about June 13, 1979. When Glasgow did not appear or otherwise defend the action in circuit court, the Noetzels, on August 13, 1979, obtained a

556 F. Supp. 596

default judgment against it as to liability pursuant to Rule 55(b)(2) of the West Virginia Rules of Civil Procedure. A jury, empanelled to determine damages, rendered a verdict in favor of both Noetzels in the amount of $300,000.00 and judgment was entered accordingly on June 25, 1980

Glasgow had no notice of either the default judgment or of the empanelling of the jury. According to affidavits filed by Glasgow, process was served on its statutory agent in West Virginia, who forwarded a copy to Glasgow's attorney in Philadelphia, Pennsylvania. A copy was also to be sent by the agent to Glasgow's corporate secretary. The attorney believed, based on a telephone conversation with the corporate secretary, that the secretary had received notice of the Noetzel action but apparently the notice to which reference was made by the corporate secretary in the conversation was of another personal injury case filed about the same time, also in Kanawha County Circuit Court. This latter action was turned over by the corporate secretary to Glasgow's insurance carrier for defense. The affidavit of Glasgow's attorney states that he never received notice of the latter action and the corporate secretary never received notice of the Noetzel action. The Noetzel action was not turned over to the insurance carrier for defense, although the attorney believed, based on his conversation with the corporate secretary, that it had been. Some eight months after the judgments in the Noetzel action were entered, the Noetzels caused a writ of execution to be issued and a notice of suggestion served on the holder of funds owing to the defendant. Thereafter, on or about March 12, 1981, Glasgow learned, through the suggestee, of the judgments entered against it.

On March 16, 1981, an order was entered in the Circuit Court of Kanawha County directing that the suggestee, the West Virginia Department of Highways, pay to the Noetzels the sum of $92,543.11.¹ This amount has been delivered to the Noetzels. The defendants thereupon filed a motion for a preliminary injunction and for relief from judgment in the Circuit Court of Kanawha County. See W.Va.R.Civ.P. 55(c), 60(b). By order entered on April 9, 1981,² the Circuit Court denied the relief sought, nunc pro tunc as of March 23, 1981, finding that there was no deficiency in service of original process on Glasgow and that its agent actually received the original process; that by virtue of its failure to appear, the defendant was not entitled to further notice;³ that Glasgow had failed to support its claim of fraud or mistake; that the other grounds asserted were untimely by virtue of the eight-month requirement of W.Va.R. Civ.P. 60(b);⁴ and that in general Glasgow

556 F. Supp. 597

had asserted no factual or legal basis to substantiate a claim for relief. The record does not indicate that this order was ever appealed.⁵

In its complaint in this court, filed April 7, 1981, plaintiff seeks declaratory and injunctive relief, predicating jurisdiction on 28 U.S.C. § 1331 and asserting that W.Va. Rule 55(b)(2) is unconstitutional on its face and as applied as a denial of the due process rights of notice and an opportunity to be heard. With respect to this contention, it notes that a party taking default can conceal the judgment by not executing on it until after the time period specified in W.Va. Rule 60(b) for motions to set aside on certain grounds has passed. Plaintiff demands a declaration that Rule 55(b) is unconstitutional and unenforceable and that the judgment of the Circuit Court of Kanawha County is violative of the Fourteenth Amendment. It also seeks an injunction against execution or enforcement of the state court judgment by the defendants. Although plaintiff's due process claim is an appealing one from the standpoint of fundamental fairness, the plaintiff ought to have pressed its constitutional and related claims through the state court system, including exhaustion of appellate remedies. Having failed so to do, it is for reasons below noted inappropriate for this court to grant the relief which plaintiff now seeks.

II.

Defendants' motion for summary judgment goes to the merits of plaintiff's constitutional claim. However, in order to rule on such a claim, the court must have jurisdiction over it and the power to grant the relief sought. Based on the record presented, the court concludes that it does not have jurisdiction to grant the relief sought and this action should therefore be dismissed. Fed.R.Civ.P. 12(h)(3).

The Noetzels initiated proceedings in state court and a state court entered judgment in that action. Glasgow's complaint, in effect, asks this court to intervene and decide a constitutional question in a collateral attack seeking stay of a state court judgment.

Congress has explicitly limited the instances in which federal district courts may stay proceedings in a state court.

A court of the United States may not grant an injunction to

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