Johnson v. American Credit Co. of Georgia

• Decision Date: 06 October 1978
• Docket Number: No. 76-2869,76-2869
• Citation: 581 F.2d 526
• Parties: Donna M. JOHNSON, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. AMERICAN CREDIT COMPANY OF GEORGIA, Jeff F. Dickey, Clerk of the State Court of Chatham County, Georgia, and his Agents, Deputies and Assigns, in their official capacities, Walter Mitchell, Jr., Sheriff of the State Court of Chatham County, Georgia, and his Agents, Deputies and Assigns, in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 526

581 F.2d 526

Donna M. JOHNSON, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. AMERICAN CREDIT COMPANY OF GEORGIA, Jeff F. Dickey, Clerk of the State Court of Chatham County, Georgia, and his Agents Deputies and Assigns, in their official capacities, Walter Mitchell, Jr., Sheriff of the State Court of Chatham County Georgia, and his Agents, Deputies and Assigns, in their official capacities, Defendants-Appellees.

No. 76-2869.

United States Court of Appeals Fifth Circuit.

Oct. 6, 1978.

Steven Gottlieb, Savannah, Ga., Charles U. Baird, Georgia Legal Services Program, Atlanta, Ga., for plaintiff-appellant.

John W. Hendrix, Savannah, Ga., for American Credit Co. of Ga.

Anton F. Solms, Jr., Savannah, Ga., Gordon B. Smith, Savannah, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before WISDOM, TJOFLAT and VANCE, Circuit Judges.

WISDOM, Circuit Judge:

Donna M. Johnson appeals from a district court order dismissing her action without prejudice. We reverse the district court, reach the merits of her claim, and find that the Georgia prejudgment attachment scheme does not comport with the procedural due process requirements of the Fourteenth Amendment of the United States Constitution.

I.

In April 1973, American Finance Company financed Johnson's purchase of an automobile. In this transaction the finance company received a security interest in the automobile. A dispute arose between Johnson and the finance company over automobile insurance, and as a result she stopped making payments. On July 19, 1974, the finance company obtained a writ of attachment from the state court of Chatham County, Georgia. Issuance of the writ was based on an affidavit filed by the finance company in which it asserted that Johnson was about to remove her automobile from the state. Acting on this writ, Sheriff Walter Mitchell, a defendant, or one of his deputies attached and seized the automobile. Under Georgia law, by posting a bond the debtor may replevy property attached prior to judgment. ¹ Johnson posted no bond, however. The automobile was returned to her on August 10, 1974, when a state court found that the attachment had lapsed because the finance company had failed to file a "declaration of attachment" a complaint on the underlying claim within fifteen days after the levy of the attachment. ² At no time between July 19 and August 10 was Johnson provided with the opportunity to present any defenses to her alleged failure to make payments on the financing contract.

On August 2, 1974, Johnson filed this action under 42 U.S.C. § 1983 on behalf of herself and all others similarly situated. She alleges that the Georgia prejudgment attachment scheme violates the due process clause of the Fourteenth Amendment. She seeks damages for the alleged unconstitutional deprivation of her automobile. In addition, on behalf of the class she seeks a declaratory judgment that the Georgia prejudgment attachment process is unconstitutional.

On the day the suit was filed, the trial court ordered that the action could proceed provisionally as a class action. Then, on January 31, 1975, Johnson filed a motion for a summary judgment that the Georgia prejudgment attachment scheme is unconstitutional. The trial court, on February 18, 1975, entered an order abstaining from ruling on the constitutional issue and revoking class action certification. ³ Finally, on June 24, 1976, the trial court dismissed Johnson's complaint on the ground that she could pursue state judicial remedies. In its order of dismissal, the trial court explained its February 18, 1975 order as "abstain(ing) from a decision on the constitutional question on the theory that Mrs. Johnson had a right to sue in the Georgia courts on the (finance company's) attachment bond and raise that issue therein". ⁴

II.

The trial court erred when it abstained from ruling on Johnson's motion for partial summary judgment and when it later dismissed her complaint because she supposedly had an adequate remedy at state law. She cannot be denied a federal forum to pursue her § 1983 claim on the ground that an adequate state remedy is available to her. The Supreme Court has squarely held that a plaintiff who brings a § 1983 action need not exhaust state judicial remedies. E. g., Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622. "In a like manner, this Court routinely rejects the cry that it is necessary to exhaust state remedies." Hall v. Garson, 5 Cir. 1970, 430 F.2d 430, 436.

The defendants contend that the trial court's actions in declining to rule on the appellant's summary judgment motion and in later dismissing the complaint can be justified by the doctrine of abstention applied in Railroad Commission v. Pullman Company, 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. We find that case inapposite. In Pullman the Supreme Court held that when a case involves an unsettled question of state law that, if resolved, might make it unnecessary to decide a federal constitutional question, a federal court should stay its hand until a state court has addressed the state questions. ⁵ Pullman, then, does not justify abstention when the state law is unambiguous. Wisconsin v. Constantineau, 1971, 400 U.S. 433, 438-39, 91 S.Ct. 507, 27 L.Ed.2d 515. Nor does Pullman call for abstention when the state courts have authoritatively construed the state law. Kusper v. Pontikes, 1973, 414 U.S. 51, 55-56, 94 S.Ct. 303, 38 L.Ed.2d 260. The alleged constitutional defects are apparent on the face of the Georgia statutory provisions challenged by the appellant. Furthermore, the Supreme Court of Georgia has held that these statutes are constitutional. Doran v. Home Mart Building Centers, Inc., 1975, 233 Ga. 705, 213 S.E.2d 825; Kitson v. Hawke, 1973, 231 Ga. 157, 200 S.E.2d 703. ⁶ Indeed, the Supreme Court of Georgia no longer entertains constitutional challenges to the attachment scheme. ⁷ Under existing law, the trial court had the duty to exercise jurisdiction over Johnson's claims. ⁸

The defendants now suggest yet another theory, not presented to the trial court, to justify avoiding a determination of the merits of Johnson's claims. The defendants argue that, because the automobile has been returned to Johnson, her personal claim is moot. This contention is incorrect. Her claim is for damages for the period in which she was unconstitutionally deprived of her automobile. The return of the automobile, then, simply signals the end of the period of deprivation. It does not destroy her cause of action for that period. E. g., Jones v. Diamond, 5 Cir. 1975, 519 F.2d 1090, 1093 n.1; Cruz v. Estelle, 5 Cir. 1974, 497 F.2d 496, 499.

III.

Johnson had sought class action certification under F.R.Civ.P. 23(b)(2). To qualify under that provision, the action must satisfy all the requirements of both rule 23(a) and rule 23(b)(2). Those portions of rule 23 provide as follows:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

In its order revoking class action certification, the trial court stated that Johnson was not an appropriate representative of the class because "all the members of the class . . . do not have common constitutional questions". ⁹ To determine the propriety of the trial court's order, then, it is necessary to examine the Georgia attachment scheme and the constitutional challenges to it asserted by Johnson on behalf of the suggested class, which Johnson would define as all persons who have had or will have property attached prior to judgment under authority of these Georgia statutes.

In brief, prejudgment attachment is available in Georgia in six circumstances:

1. When the debtor resides out of the State;

2. When the debtor is actually removing, or about to remove, without the limits of the county;

3. When the debtor absconds;

4. When the debtor conceals himself;

5. When the debtor resists legal arrest;

6. When the debtor is causing his property to be removed beyond the limits of the State.

Ga.Code § 8-101. The party seeking the writ of attachment (the plaintiff) must "make an affidavit before some judge of the superior court, judge of the county court, judge of the city court, magistrate, justice of the peace, or clerk of any court of record" that states the amount claimed to be owed and that the debtor satisfies one of the six provisions of Ga.Code § 8-101. Ga.Code § 8-109. The plaintiff must also provide a bond in favor of the defendant in attachment. Ga.Code § 8-111. When an officer specified in Ga.Code § 8-109 is presented with the affidavit and bond, "it shall be (his) duty . . . to issue an attachment against the defendant". Ga.Code § 8-114. No hearing is required prior to issuance of the attachment. An attachment issued on a claim that is not the subject of a pending lawsuit will lapse unless the plaintiff files a "declaration in attachment", which operates as a complaint on the claim, within fifteen days of the date of issuance. Ga.Code § 8-117.

Johnson asserts four constitutional challenges to this...