Case Information
*1 UNITED STATES DISTRICT COURT The Court ordered further briefing in the SOUTHERN DISTRICT OF GEORGIA case, and Savannah Nephrology responded
SAVANNAH DIVISION on April 17, 2012 with its motion to dismiss. See Does. 8; 9; see also Doc. 10. LANDMARK CAPITAL The Court, however, has determined INVESTMENTS, INC., after inquiry and review of the record that Plaintiff, the Garnishee, Cahaba Government Benefit Administrator, LLC ("Cahaba"), has not 4:11-cv-291 V. been served with LCI's affidavit or the summons of garnishment. SAVANNAH NEPHROLOGY,
III. ANALYSIS Defendant,
"A post-judgment garnishment action is between the plaintiff and the garnishee and V.
the latter must be served with the summons CAHABA GOVERNMENT BENEFIT of garnishment." Cook v. NC Two, L.P., 289 ADMINISTRATOR, LLC, Ga. 462, 463 (2011) (citing O.C.G.A. § 18- 4-62 (2010)); see also O.C.G.A. § 18-4-93 Garnishee. ("A garnishment proceeding is an action between the plaintiff and the garnishee[."). ORDER A judgment debtor, such as Savannah
I. INTRODUCTION Nephrology, is not initially a party to the garnishment action. Cook, 289 Ga. at 463. Before the Court is Defendant Savannah
Nephrology's motion to dismiss. See Doc. Nevertheless, the judgment debtor must "be given notice of the filing of the first 9. summons of garnishment ....O.C.G.A. § II. BACKGROUND 18-4-64(a). "[Providing notice to the Plaintiff Landmark Capital Investments, defendant is an essential element for due Inc. ("LCI") filed this garnishment action on process." TBF Fin., LLC v. Houston, 298 August 11, 2011, in the Northern District of Ga. App. 657, 659 (2009). The judgment Georgia seeking garnishment for a debtor may then become a party to the $383,655.53 judgment in favor of LCI. See garnishment proceeding by filing a traverse Doc. 1. Defendant Savannah Nephrology, a to the plaintiff's affidavit. See O.C.G.A. § professional corporation organized under 18-4-93. Savannah Nephrology became a Georgia law, Doc. 1-3 at 1, filed a traverse, party when it filed its traverse. See Doc. 2. alleging that Georgia's post-judgment Cahaba, however, has never been made a garnishment procedure is unconstitutional. party to this garnishment action. See Doc. 2; see also Doc. 10-1 at 1. Upon a Houston, 298 Ga. App. at 658 ("[T]he motion by LCI, the case was transferred to garnishee becomes a party to the action this Court. See Does. 3; 4; 5. when service is accomplished ....); see *2 also Dc Jarnette Supply Co. v. F.P. Plaza, refile its motion subsequent to LCI's filing Inc., 229 Ga. 625, 625 (1972) ("Where there an amended affidavit and summons. has been no legal service . . . the court has Moreover, Savannah Nephrology's no jurisdiction to enter any judgment in the renewed traverse or motion to dismiss will case unless it be one dismissing the case for not relieve Cahaba of the obligation to file lack of jurisdiction."). an answer unless Savannah Nephrology files
After LCI filed its affidavit in the with the clerk of this Court a bond in favor of LCI. See O.C.G.A. § 18-4-81 (requiring Northern District of Georgia, the affidavit should have been approved and the clerk the clerk of court to release a summons of subsequently should have issued the garnishment upon the judgment defendant's summons of garnishment. See S GA. PROC. posting of bond). After Cahaba files its VERDICT AND JUDGMENTS § 9:158, 9:160 answer, the Court will adjudicate Savannah (2012); O.C.G.A. § 18-4-61. The record Nephrology's renewed motion to dismiss. See Ed. § 18-4-88; see also Ed. § 18-4-93 does not indicate, nor have the parties suggested, that the affidavit was approved ("[A] hearing shall be available to the and a summons issued before this action was defendant as a matter of right after filing his traverse."); A.M. Buckler & Assocs., Inc. v. transferred to this Court. Sanders, 305 Ga. App. 704, 705 (2010) ("If Accordingly, LCI should amend the a defendant . . . files a traverse or adverse affidavit and summons originally submitted claim in a garnishment proceeding, the trial and file them with this Court.' See Does. 1; court must conduct an evidentiary hearing to 1-1; Fed. R. Civ. P. 15(b) (noting that courts determine the rights of the parties to the should freely give leave to amend money or other property or other property at pleadings); Concert Promotions, Inc. v. issue."). Haas & Dodd, Inc., 169 Ga. App. 711, 712 IV. CONCLUSION
(1984) (stating that an affidavit for garnishment may be amended like any other Savannah Nephrology's motion to pleading); see also O.C.G.A. § 18-4-66 dismiss is DISMISSED WITHOUT (demonstrating the standard forms for PREJUDICE. See Doc. 9. Savannah affidavits and summons in garnishment Nephrology may renew or refile its motion actions under Georgia law). Cahaba also subsequent to LCI's filing an amended needs to be served with the summons of affidavit and summons.
garnishment. See O.C.G.A. § 18-4-62(a). The Court therefore DISMISSES I B AVANT RDENFIELØ JUDGE This 4th day of September 2012.
WITHOUT PREJUDICE Savannah Nephrology's motion to dismiss. See Doc.
9. Savannah Nephrology may renew or UNITE!) STATES DISTRICT COURT
1 In particular, the amended affidavit and summons SOUTHERN DISTRICT OF GEORGIA should reflect that the garnishment action is now in the Southern District of Georgia.
2