McCoy v. LaFaut
| Decision Date | 12 February 1993 |
| Docket Number | Civ. A. No. 87-1455-MLB. |
| Citation | 813 F. Supp. 1508 |
| Parties | Joann Kay McCOY, Plaintiff, v. Randy LAFAUT, Defendant. Automobile Club of Michigan Insurance Group, Garnishee. |
| Court | U.S. District Court — District of Kansas |
Donald A. McKinney, Michaud, Hutton & Bradshaw, Wichita, KS, for plaintiff.
Gaye B. Tibbets, Foulston, Siefkin, Powers & Eberhardt, Wichita, KS, for defendant.
Larry A. Withers, Don D. Gribble, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, KS, for garnishee.
This matter is before the court on the motion of plaintiff for judgment against garnishee (Doc. 117), and the objections of garnishee to the magistrate's order (Doc. 118).
This garnishment proceeding follows a trial that resulted in a judgment of $112,000 in favor of plaintiff. Judgment was affirmed on appeal to the Tenth Circuit. The judgment was satisfied in part when garnishee paid to plaintiff the insurance proceeds from a $50,000 insurance policy issued by garnishee to defendant. Plaintiff seeks to recover from garnishee the remainder of her judgment on the grounds that garnishee acted negligently and in bad faith toward its insured by failing to settle plaintiff's claim against the defendant-insured. See Gilley v. Farmer, 207 Kan. 536, 544, 485 P.2d 1284 (1971) ().
By the express consent of the parties, and pursuant to 28 U.S.C. § 636(c), the magistrate presided over the underlying trial. Following the trial, the magistrate also conducted the garnishment proceedings. On June 22, 1992, the magistrate granted garnishee's motion to strike plaintiff's reply and garnishee's motion for judgment on the pleadings. Accordingly, the magistrate entered judgment in favor of garnishee. (Doc. 98). Thereafter, plaintiff moved for relief from judgment, arguing for the first time that the magistrate lacked jurisdiction over the garnishment proceeding. The magistrate agreed and on October 26, 1992 vacated his order of June 22, 1992. See 144 F.R.D. 123 (D.Kan.1992).
Garnishee challenges the magistrate's October 26 order vacating judgment — apparently on three grounds.
First, garnishee argues that the magistrate found a lack of jurisdiction based only upon garnishee's failure1 to give § 636(c) consent to the magistrate's jurisdiction over the garnishment action, and thus, plaintiff had no standing to object to the magistrate's jurisdiction. This argument, unsupported by any authority, is meritless. Even assuming that plaintiff had no "standing" to object to the magistrate's jurisdiction, the magistrate has both the authority and duty to determine his jurisdiction sua sponte "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter,...." Fed.R.Civ.P. 12(h)(3). See also Tuck v. United Servs. Auto. Ass'n, 859 F.2d 842, 844 (10th Cir.1988), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989).
Second, and relatedly, garnishee appears to assert that plaintiff is estopped from objecting to the magistrate's jurisdiction. This argument also finds no support in the law. Consent to a magistrate's jurisdiction under § 636(c) "must be explicit and cannot be inferred from the conduct of the parties." Clark v. Poulton, 914 F.2d 1426, 1431 (10th Cir.1990). Unless plaintiff expressly consented to jurisdiction over the garnishment proceeding, the conduct of neither party can provide an estoppel defense to jurisdiction that was never bestowed on the magistrate.
Finally, garnishee contends that the magistrate erred in his legal conclusion. Garnishee argues, again with no cite to authority, that § 636(c) consent to a trial before the magistrate also confers magistrate jurisdiction over a garnishment proceeding in aid of execution of the judgment. The magistrate found otherwise, relying on Parks v. Collins, 761 F.2d 1101 (5th Cir.1985) and Guess v. Chenault, 108 F.R.D. 446 (N.D.Ind.1985).
In Parks, the parties consented to trial of the issues to a magistrate. Plaintiffs received a favorable verdict, and the magistrate entered judgment accordingly. Plaintiffs then filed a writ of garnishment, and, when no answer from defendant was forthcoming, the district court entered default judgment against defendant on the writ of garnishment. Thereafter, defendant filed a motion to set aside default, which for some reason was noticed before the magistrate who had presided over the underlying trial. The magistrate granted the motion, setting aside the default judgment that the district court had entered. The court of appeals vacated the magistrate's order, however: "Notwithstanding the parties' consent to allow the magistrate to try the original action, the parties did not consent to such jurisdiction in the garnishment action." Parks, 761 F.2d at 1106. Because the magistrate had received no clear and unambiguous consent to preside over the garnishment action, the court held that the magistrate had exceeded his statutory authority under 28 U.S.C. § 636.
The court agrees with the magistrate and with his reliance on the rationale of Parks. When the magistrate assumed jurisdiction over the trial of the underlying action, his authority did not extend beyond that action. This limitation is reflected in the language of 28 U.S.C. § 636(c)(1), which allows the magistrate to "conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,...." (emphasis added). Once the magistrate had entered judgment in the matter, however, his special designation was at an end. The court need not decide what, if any, authority might remain to the magistrate after judgment is entered as part of the court's continuing ancillary jurisdiction. See generally Foster v. Board of Trustees, 771 F.Supp. 1118 (D.Kan.1991). The court only rules that the authority under § 636(c) to preside over the original action does not extend to a garnishment action arising out of that action, absent consent of the parties.
This is particularly true for a garnishment action of the type presented by this case. Plaintiff alleges that garnishee-insurer exercised bad faith or negligence in failing to settle plaintiff's claim against defendant-insured. On this ground, plaintiff seeks to recover from garnishee the full amount of her judgment—notwithstanding the limits of the policy issued by garnishee to defendant. Although Kansas allows a successful plaintiff to raise such a claim in a garnishment action, see Bergeson v. Dilworth, 749 F.Supp. 1555, 1558 (D.Kan.1990), a "bad faith" claim against an insurance company presents an entirely new action that is separate from the issues tried in the original action.
The court finds that the magistrate correctly determined that he lacked jurisdiction over the garnishment proceeding. Because the court has concluded that the magistrate lacked such jurisdiction, the court will proceed to rule on the dispositive motions in the garnishment action.
Kansas procedural law governs the execution of judgment in this garnishment action. See Fed.R.Civ.P. 69.
On February 15, 1990 plaintiff filed a "Request for Garnishment" that listed "Automobile Club of Michigan Ins. Group"2 as the garnishee. (Doc. 74). Attached to the Request for Garnishment was a "Praecipe for Non-Wage Garnishment." The Praecipe requested that the Clerk of the Court "direct this garnishment to the sheriff or process server of Shawnee County, Kansas for service upon Fletcher Bell, Commissioner of Insurance." The following day, on February 16, 1990, an "Order of Garnishment" issued from this court. (Doc. 75). The order of garnishment was directed to garnishee under the name supplied by plaintiff and ordered garnishee to file an answer within forty days of service of the order upon it.3
Garnishee filed its answer on April 23, 1990—forty-one days4 after it acknowledged receiving service of the order of garnishment. Plaintiff did not file her reply to garnishee's answer until December 6, 1991—over 19 months after garnishee filed its answer. (Doc. 91). Plaintiff filed her reply without seeking leave of the court. On the same day, plaintiff filed a motion to quash garnishee's answer for untimeliness. (Doc. 89). On December 19, 1991 garnishee moved to strike plaintiff's reply and for judgment on the pleadings. (Doc. 94). Plaintiff filed no reply to this motion.5
Plaintiff argues that garnishee was required to file an answer to the order of garnishment within 10 days. Plaintiff relies on K.S.A. § 60-718(a) (Supp.1991), which provides in relevant part: "Within 10 days after service upon a garnishee of an order of garnishment ... the garnishee shall file a verified answer thereto with the clerk of the court, stating the facts with respect to the demands of the order." The statute further provides that "if the garnishee fails to answer within the time and manner herein specified, the court may grant judgment against garnishee for the amount of the plaintiff's judgment or claim against the defendant,...." K.S.A. § 60-718(c) (emphasis added).
The court finds no basis for quashing garnishee's answer. The court is not compelled to enter default judgment against a garnishee who files his answer out of the time prescribed by K.S.A. § 60-718(c), and the court should consider whether garnishee's failure is due to excusable neglect. Boyce v. Boyce, 206 Kan. 53, 57, 476 P.2d 625 (1970); K.S.A. § 60-206(b). The order of garnishment directs garnishee to file an answer within 40 days—not the 10 days set forth in K.S.A. § 60-718(c). Moreover, it appears that the reason the Clerk supplied the term of 40 days was because plaintiff...
To continue reading
Request your trial
-
Peer v. Lewis
...proceedings, but rather covers the trial and final judgment which has already occurred." [D.E. 294 at 2-3] (citing McCoy v. Lafaut, 813 F. Supp. 1508, 1510-11 (D. Kan. 1992)). Notwithstanding the fact that the issue in McCoy was whether a magistrate judge had jurisdiction over a newly-added......