Ospina v. Vanelli

34 F.R.D. 151 | D. Minnesota | 1964

DONOVAN, District Judge.

This matter comes before the Court on a motion by defendants to quash service of the garnishment summons.

This action was commenced to recover for injuries suffered by plaintiff in an attack upon him in a dance hall. The case was tried to a jury which returned a verdict for plaintiff. Plaintiff has prepared a garnishment summons and service was made by someone other than the United States Marshal. Defendants contend that under the Federal Rules of Civil Procedure all process, including garnishment, must be served by the United States Marshal.¹

It is plaintiff’s position that Rule 64 makes available all remedies for the seizure of property to satisfy judgments under the circumstances and in the manner provided by the law of the State in which the District Court is held.² The rule specifically states that these remedies are available “ * * * under the circumstances and in the manner * * ” provided by State law. This seems to fairly indicate that this Court is to adopt both the substantive and procedural law of Minnesota in regard to garnishment proceedings.

Minnesota allows service by any person not a party.³ Here there is no claim that service was made by a party to the action. It is not claimed that personal service was not effected. It has been the general practice for the attorneys to prepare and have served the garnishment summons and the rules support this practice.

Plaintiff has followed the procedure of the State court and the motion should be denied.

It is so ordered.

Defendants are allowed an exception.

1 . Title 28, United States Code Annotated, Rule 4.

2 . Title 28, United States Code Annotated, Rule 64.

3 . Minnesota Statutes Annotated § 571.41; Minnesota Rules of Civil Procedure, Rule 4.