Seltzer v. Baumruk

Decision Date08 July 1993
Docket NumberNo. 4:92CV 1983 SNL.,4:92CV 1983 SNL.
Citation825 F. Supp. 1434
PartiesGarry K. SELTZER, Plaintiff, v. Kenneth BAUMRUK, Defendant, including Lisa Bakker, etc., et al., Intervenors/Counterclaimants.
CourtU.S. District Court — Eastern District of Missouri

Peter H. Love, Jerome F. Raskas, Sr., Partner, Raskas and Ruthmeyer, St. Louis, MO, for Garry K. Seltzer.

Kenneth Baumruk, pro se.

Douglas A. Copeland, Partner, Richard A. Gartner, Partner, Copeland and Gartner, St. Louis, MO, for Lisa Bakker, Shelley Whelan, Harry Fozzard and Ollie Mae Fozzard.

MEMORANDUM

LIMBAUGH, District Judge.

This matter is before the Court upon various motions by the parties. On September 29, 1992, plaintiff filed a complaint against defendant Kenneth Baumruk, alleging defendant's negligence in a shooting incident at the St. Louis County Courthouse in which defendant Baumruk killed his wife, Mary Louis Baumruk, and allegedly shot plaintiff. On September 30, 1992, plaintiff moved for a writ of attachment upon the property of Kenneth Baumruk, which was granted by this Court. Attached to the writ of attachment was bond in the amount of $125,000.00. On October 16, 1992, a Bond Rider was filed, but was not signed by plaintiff.

On October 21, 1992, this Court granted Motions to Intervene filed by Lisa Bakker, Personal Representative of the Estate of Mary Louise Baumruk (hereinafter the "Personal Representative") and by Lisa Bakker, Shelley Whelan, Harry Fozzard and Ollie Mae Fozzard (hereinafter the "heirs"). On October 19 and October 21, the Personal Representative and the heirs, respectively, filed Motions for an Order to Dissolve the Writ of Attachment issued by the Court. Also on October 21, the Personal Representative and the heirs both filed Counterclaims against plaintiff. The Intervenor Complaints and the Amendments by Interlineation all alleged that plaintiff's attachment was void, unlawful and of no effect and that the intervenors have a superior right to any property which plaintiff sought to attach in this action.

In addition to filing an Answer and Affirmative Defenses to the Intervenor claims, plaintiff filed a Counterclaim against both the Personal Representative and the heirs. Plaintiff, in his prayer for relief, asked the Court to find that plaintiff had a superior right and interest as against the intervenors to all property which was the subject of plaintiff's attachment.

Various motions have been filed by the parties which the Court must address. As stated, both the heirs and the Personal Representative have filed Motions to Dissolve Attachment. On May 11, 1993, this Court entered a Show Cause Order to plaintiff with regards to these motions. Plaintiff, in response, filed a Motion to Strike or Deny the Motions to Dissolve Attachment or, in the Alternative, to Quash the Court's Show Cause Order. There are also numerous motions for summary judgment pending. On March 15, 1993, the Personal Representative filed a Motion for Summary Judgment. On May 26, 1993, the intervenors, including the Personal Representative, jointly filed a Motion for Summary Judgment. On May 28, 1993, plaintiff filed a Motion for Summary Judgment with respect to his counterclaims and the amended counterclaims of the Personal Representative and the heirs. It appears to the Court that all of the motions involve essentially the same issues.

I. Motions to Dissolve Attachment, Motion to Strike Motions to Dissolve, & Motion to Quash Order to Show Cause

Prior to addressing the intervenors' Motions to Dissolve Attachment, it is necessary for the Court to address plaintiff's Motion to Strike the Motions to Dissolve Attachment and Motion to Quash Order to Show Cause. Plaintiff moves to strike said motions, arguing that the intervenors have failed to comply with Local Rule 7(B). Local Rule 7(B) provides in pertinent part that:

the moving party shall serve and file with its motion a brief written statement of the reasons in support of the motion, and a list of citations of any authorities on which the party relies.

Local Rule 7(B). Both Motions to Dissolve Attachment filed by the intervenors were approximately six pages in length. In the motions, the intervenors stated the reasons in support of the motion and cited to Missouri statutes and Missouri Rules of Court. This is sufficient to comply with Local Rule 7(B). Although the intervenors did not file separate memorandums in support of the motions, the intervenors did provide a brief written statement of the reasons in support of the motions and a list of citations of the authorities upon which the intervenors relied. Thus, it is the opinion of this Court that plaintiff's Motion to Strike should be denied because the intervenors sufficiently complied with Local Rule 7(B).

Next, plaintiff moves the Court to quash the Order to Show Cause, arguing that the Court's Order effectively reverses the burden of proof on the intervenors' motions. The Court disagrees. The Court has not shifted the burden of proof to plaintiff to disprove the allegations contained within the Motions to Dissolve Attachment. Rather, the reason for the Court's Order to Show Cause was to give plaintiff an opportunity to address the arguments raised in the motions prior to the Court's ruling upon said motions. The issuance of the Order did not shift any burdens of proof, but rather gave both parties the opportunity to present their arguments. Thus, it is the opinion of this Court that plaintiff's Motion to Quash the Order to Show Cause should be denied.

Both the Personal Representative and the heirs have filed Motions to Dissolve the Attachment. The intervenors raise a variety of arguments in support of their motions. All intervenors argue that plaintiff's attachment is void, unlawful and defective and should be dissolved and vacated because: (1) the bond filed by plaintiff on September 30, 1992 contravenes Mo.S.Ct. Rule 85.08(a) and Mo.Rev. Stat. § 521.070 in that it does not bind plaintiff to the State of Missouri; (2) the bond filed by plaintiff on September 30, 1992 contravenes Mo.S.Ct. Rule 85.08(b) and Mo.Rev. Stat. § 521.070 in that it omits protection for all others including owner(s) of any of the property, etc.; (3) the Bond Rider filed by plaintiff on October 16, 1992 does not retroactively cure the defects in the original bond and the Court was without jurisdiction to issue the original writ of attachment; (4) the Bond Rider contravenes Mo.S.Ct. Rule 85.08(a) and Mo.Rev.Stat. § 521.070 in that plaintiff has not signed the Rider as principal; (5) any cure in the original bond by the Rider would be effective from the date of approval and, therefore, the intervenors' State Court final judgment and executions thereon are superior to plaintiff's attachment claims; (6) that plaintiff has failed to prove that defendant Baumruk was not a resident of the State of Missouri within the meaning of Mo.Rev.Stat. § 521.010, which was plaintiff's sole asserted ground for attachment; and (7) Mo.S.Ct. Rule 85 and Mo.Rev.Stat. Chapter 521 violate the Due Process Clause of the Fourteenth Amendment in that the rules and statutes authorize the substantial impairment of property rights without providing for any notice or hearing. The Personal Representative also argues that plaintiff did not comply with Mo.S.Ct. Rule 85.07 which requires that the writ and written notice be served upon the owner of the property or any non-owner in possession at the time of levy in that the Personal Representative was the owner of at least part of the property which is the subject of plaintiff's attachment.

All of the issues present in the Motions to Dissolve the Attachment and plaintiff's response to the Court's Order to Show Cause are also addressed at least once in the Motions for Summary Judgment filed by the intervenors jointly, by the Personal Representative and by plaintiff. The Court will address the arguments raised in these motions and the responses thereto together in one analysis rather than responding to each specific motion, since the arguments and the motions overlap.

II. Motions to Dissolve Attachment & Motions for Summary Judgment
A. Standard for Summary Judgment

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences...

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1 cases
  • Enterprise Bank v. Magna Bank of Missouri
    • United States
    • U.S. District Court — Eastern District of Missouri
    • August 16, 1995
    ...Under Missouri Supreme Court Rule 85.14, an attachment may be dissolved at any time before final judgment. See Seltzer v. Baumruk, 825 F.Supp. 1434, 1437-38 (E.D.Mo.1993). Final judgment marks the completion of the attachment and the underlying suit. Any person claiming an ownership interes......

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