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Real Good Technologies, LLC v. Victory Solutions, LLC

United States District Court, N.D. Ohio, Eastern Division

April 4, 2018

REAL GOOD TECHNOLOGIES, LLC, Plaintiff,
v.
VICTORY SOLUTIONS, LLC, Defendant

          JUDGE DONALD C. NUGENT

          MEMORANDUM OF OPINION AND ORDER

          THOMAS M. PARKER, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Currently before the court is the December 26, 2017 motion for reconsideration (ECF Doc. 121) of the Court's December 18th non-document order for special examination filed by garnishee, Murphy, Nasica & Associates, LLC (“MNA”). This matter is before the undersigned pursuant to an order of reference entered by Judge Donald C. Nugent on March 7, 2018. ECF Doc. 128. Because MNA was not properly served with the Court's May 26, 2017 order of garnishment (ECF Doc. 23), the December 18th order permitting a special examination is hereby VACATED. Plaintiff, Real Good Technologies, LLC (“RGT”) must properly serve MNA with a notice of garnishment pursuant to O.R.C. § 2716.13(B) before it may proceed with the relevant garnishment.[1]

         II. Brief Statement of Facts

         RGT filed this lawsuit to enforce a settlement agreement with Defendant Victory Solutions, LLC (“Victory Solutions”). RGT obtained a default judgment against Victory Solutions on April 19, 2017 (ECF Doc. 16) and took steps to collect on the judgment.

         MNA is one of many garnishees named in this lawsuit. The Court issued an order and notice of garnishment to MNA on May 26, 2017. ECF Doc. 23. However, nothing on the docket shows that MNA was properly served with the order of garnishment, and MNA attests that it wasn't. ECF Doc. 121-2 at Ex. B, Page ID# 597-598. In fact, MNA represents that it “had no knowledge whatsoever of this garnishment proceeding until Murphy Nasica received notice of the Plaintiff's Motion for a Special Examination.” Id.

         RGT does not argue that MNA was properly served. Rather, it argues that its failure to comply with the technical requirements of Fed.R.Civ.P. 4 should be excused in this matter because MNA had actual notice of the Court's order. In support of its representation that MNA was aware of the order, RGT submits various correspondence it sent to Attorney Matt Brownfield, one of the attorneys working at MNA, including nearly illegible text messages seeming to show a personal friendship between Mr. Brownfield and Tony Gius, the president of RGT, as well as e-mail correspondence to MNA's local attorney. ECF Doc.122-1 through 3, Page ID# 608-632. None of these documents shows that MNA was properly served with the May 26th order.

         III. Law & Analysis

         Fed. R. Civ. P. 69 (a)(1) provides in relevant part:

Money Judgment. Applicable Procedure. 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…

         Here, RGT has moved for a special examination in accordance with applicable sections of Ohio's garnishment statute, specifically Ohio Rev. Code § 2716.21. Regarding service, Ohio Rev. Code § 2716.13(B) provides:

The copies of the order and of the notice shall be served upon the garnishee in the same manner as a summons is served and the clerk shall also mail a copy of the order and notice of garnishment to the garnishee by ordinary or regular mail service. The copies of the order and of the notice shall not be served later than seven days prior to the date on which the hearing is scheduled.

         Under Ohio Rule of Civil Procedure 4.3(B) out of state service of process may be served in the same manner as provided by Civ. R. 4.1(A)(1) through Civ. R. 4.1(A)(3). Civil Rule 4.1(A)(1) provides that service may be by United States certified or express mail or by commercial carrier service and, for either method, the carrier is required to return a signed receipt showing to whom the copy was delivered, the date delivered, and the address where ...


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