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Kaplan v. Miller

United States District Court, D. Nevada

February 7, 2017

STEPHEN KAPLAN, P.C., Plaintiff(s),
v.
CAMERON L. MILLER, Defendant(s).

          ORDER

         Presently before the court is plaintiff Stephen Kaplan, P.C.'s motion for a default judgment. (ECF No. 8). Defendant Cameron Miller filed a response (ECF No. 9), and plaintiff filed a reply (ECF No. 10).

         I. Introduction

         On July 7, 2015, plaintiff filed in this court for the registration of a judgment rendered in the United States District Court for the Northern District of Texas. (ECF No. 1). On July 14, 2015, the clerk issued a writ of execution on plaintiff's behalf for a sum of $89, 527.95.[1] (ECF No. 5). On July 21, 2015, plaintiff filed a motion for a charging order, which requested this court to charge defendant's interests in two Nevada limited liability companies: RW and Associates, LLC (“RW”) and CLM Development Services, LLC (“CLM”). (ECF No. 6). On March 24, 2016, the court granted that motion. (ECF No. 7).

         On July 21, 2015, defendant initiated bankruptcy proceedings, which plaintiff asserts stayed collection pursuant to 11 U.S.C. § 362. (ECF No. 8). Defendant voluntarily dismissed that bankruptcy action on June 30, 2016. (ECF No. 8-6).

         On August 15, 2016, plaintiff filed the present motion. (ECF No. 8). Plaintiff argues that Nevada Revised Statute (“NRS”) 31.320 entitles plaintiff to relief because the two companies charged with the domesticated judgment have failed to respond to a properly served writ of garnishment within the time required by the writ. (Id.). Therefore, plaintiff asserts, this court should “enter judgment in favor of Cameron and against RW and CLM, in the amount of $86, 425.36.” (Id. at 4).

         Defendant opposes plaintiff's motion, arguing first that Federal Rule of Civil Procedure 19 requires plaintiff to join RW and CLM in the present action. (ECF No. 9). Next, defendant states that the writ of garnishment is no longer valid under NRS 31.296 because 120 days have elapsed since its issuance. (Id.). Finally, defendant specifies that the Las Vegas constable's office never received a request to extend the writ and that the “office closed the matter in its system on or about November 11, 2015.” (ECF No. 9-1 at 2).

         Plaintiff replies that defendant does not have standing to object on behalf of those companies, a charging order remains outstanding, defendant's assertion of rule 19 is meritless, and the companies must respond regardless of the status of the writ. (ECF No. 10).

         II. Legal Standard

         NRS 31.280 grants jurisdiction over garnishee defendants upon “[t]he sheriff's return of the writ of garnishment showing due service of the writ of garnishment upon one or more garnishee defendants with the payment or tender of the garnishee's fees.” NRS 31.280.

         Next, NRS 31.320 governs a garnishee's responsibility to respond to interrogatories. (ECF No. 10). Specifically, that statute provides as follows:

If the garnishee has been duly served with the writ of garnishment and interrogatories, and been paid or tendered the fee of $5, and the fact of the payment or tender is duly certified by the officer who served the writ over the officer's official signature, or that fact is made to appear by the person serving the writ under oath, but the garnishee fails, neglects or refuses to answer the interrogatories within the time required, the court shall . . . enter judgment in favor of the defendant for the use of the plaintiff against the garnishee for . . . [t]he value of the property or amount of money specified in the writ of garnishment.

NRS 31.320 (emphasis added).

         III. Discussion

         As an initial matter, plaintiff is correct that NRS 31.296 requires the garnishee to have responded before a 120-day cap will be imposed on the writ of garnishment. ...


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