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United States v. Powers

United States District Court, E.D. Michigan, Southern Division

March 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TIMOTHY POWERS, Defendant, and RESIDENTIAL SKIRTING PRODUCTS, INC., Garnishee-Defendant.

          SEAN F. COX JUDGE

          REPORT AND RECOMMENDATION

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         This student loan default case comes before the Court on Plaintiff United States of America's Motion to Compel Answers to Interrogatories and Requests to Produce to Garnishee-Defendant. (Docket no. 30.) Neither Garnishee-Defendant, Residential Skirting Products, Inc., nor Defendant, Timothy Powers (who purportedly is the Resident Agent of Garnishee-Defendant), have responded to Plaintiff's Motion. The Motion has been referred to the undersigned for a hearing and determination pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket no. 31.) Because this is a post-judgment matter, the undersigned may only proceed by Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         On October 15, 2018, the undersigned issued a Report and Recommendation, recommending that Plaintiff's Motion to Compel be granted in part and denied in part. (Docket no. 33.) Specifically, the undersigned recommended that Garnishee-Defendant should be ordered to provide full and complete responses to Plaintiff's Interrogatories and Requests to Produce Documents and that Plaintiff's request for an entry of default should be denied without prejudice. (Id. at 5.) The undersigned further recommended that if Plaintiff submitted the proofs of service required by Mich. Comp. Laws § 600.4012(7) to secure an entry of default to the court within fourteen days of the entry of the Report and Recommendation, then Plaintiff's request for an entry of default against Garnishee-Defendant should be granted. (Id. at 5-6.)

         On October 17, 2018, pursuant to the Report and Recommendation, Plaintiff submitted to the court “documents in support of proofs of service” on Garnishee-Defendant. (Docket no. 34.) The court then recommitted matter to the undersigned on February 15, 2019, for a determination of whether Plaintiff has provided the requisite proofs of service. (Docket no. 35.) The undersigned has reviewed the supplemental documents submitted by Plaintiff and issues this updated Report and Recommendation regarding Plaintiff's Motion.

         I. RECOMMENDATION

         For the reasons that follow, it is recommended that Plaintiff's Motion to Compel Answers to Interrogatories and Requests to Produce to Garnishee-Defendant (docket no. 30) be GRANTED IN PART and DENIED IN PART as provided herein.

         II. REPORT

         On March 31, 2010, Plaintiff filed a Complaint against Defendant alleging that he had defaulted on student loan payments. (Docket no. 1.) A default judgment was entered against Defendant in the amount of $33, 282.74, with interest, on April 26, 2010. (Docket no. 7.) On November 7, 2017, upon application of Plaintiff, the court issued a Writ of Continuing Garnishment on Garnishee-Defendant, Residential Skirting Products, Inc. (Docket no. 26.)

         Garnishee-Defendant filed an answer to the Writ on December 14, 2017, in which it indicated that it “has in its custody, control [sic] property owned by defendant, including earnings which may be non-exempt.” (Docket no. 29.) In response to Garnishee-Defendant's Answer and to clarify “Defendant's relationship to Garnishee-Defendant and the status and nature of any property being withheld by Garnishee-Defendant pursuant to the Writ of Continuing Garnishment, ” Plaintiff served Garnishee-Defendant with interrogatories and requests to produce documents, on December 14, 2017. (Docket no. 30 at 2, 6-11.)

         As of March 28, 2018, Plaintiff had not received from Garnishee-Defendant any funds withheld pursuant to the Writ or any responses to its discovery requests. (See docket no. 30 at 3, 12.) Plaintiff asserts that it placed Garnishee-Defendant on notice of its failure to transmit withheld funds to Plaintiff by serving a Notice of Failure upon Garnishee-Defendant on March 28, 2018, pursuant to Mich. Comp. Laws § 600.4012(6). (Id. at 3, 12.) The Notice also informed Garnishee-Defendant that its responses to Plaintiff's Interrogatories and Requests to Produce Documents were overdue. (Id. at 12.) Nevertheless, Plaintiff still did not receive any funds or discovery responses from Garnishee-Defendant. (Id. at 3.) Accordingly, Plaintiff filed the instant Motion to Compel Answers to Interrogatories and Requests to Produce to Garnishee-Defendant. (Docket no. 30.) Through this Motion, Plaintiff seeks (1) an order compelling Garnishee-Defendant to respond to Plaintiff's Interrogatories and Requests to Produce; and (2) an entry of default against Garnishee-Defendant for its “failure to sufficiently disclose the assets of Defendant to be withheld and for failure to release withheld funds pursuant to M.C.R. 3.101 and M.C.L. 600.4012.” (Id. at 3.)

         Federal Rule of Civil Procedure 69 governs the execution of judgments. The Rule states:

A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.

Fed. R. Civ. P. 69(a)(1). Rule 69 also allows a party attempting to enforce a judgment to obtain discovery from any person as provided in the Federal Rules of Civil Procedure or the procedure of the state ...


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