Opinion
Argued and Submitted Oct. 7, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Developer of low-income housing project brought suit alleging violation of Fair Housing Act in city's refusal to approve project, as required to obtain state financial assistance from California Housing Department (CHD). After jury returned verdict awarding developer damages, the District Court granted city new trial on damages because of developer's refusal to accept remittitur. After second trial resulted in award of nominal damages only and developer was denied injunctive relief restraining city from violating Fair Housing Act in future, developer appealed. The Court of Appeals, 251 F.3d 814, reversed and remanded. On remand, the United States District Court for the Central District of California, Consuelo B. Marshall, Chief Judge, reinstated damages award, and granted developer's motion to enforce its judgment against city by means of writ of garnishment. City's insurer appealed. The Court of Appeals held that district court did not have supplemental jurisdiction over developer's motion for writ of garnishment.
Reversed and remanded. Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, Chief Judge, Presiding.
William J. Davis, Davis & Company, P.C., Los Angeles, CA, for Plaintiffs-Appellees.
Austin R. Gibbons, Peter A. Urhausen, A. Byrne Conley, Esq., Gibbons & Conley, Walnut Creek, CA, for Intervenor-Appellant.
Kevin P. McVerry, Graves, Roberson & Bourassa, Thousand Oaks, CA, for Defendant-Appellee/Defendant.
Before BRUNETTI, T.G. NELSON, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
The Public Entity Risk Management Authority ("PERMA") appeals the district court's grant of Silver Sage Partners, Ltd's ("Silver Sage") motion to enforce its judgment against the City of Desert Hot Springs ("the City") by means of a writ of garnishment. Because the district court lacked supplemental jurisdiction over the action, we reverse and remand. The parties are familiar with the facts, and we will not recite them here.
The district court concluded that it had supplemental jurisdiction over Silver Sage's motion for a writ of garnishment. We would agree if Silver Sage indeed sought to garnish a debt PERMA owed to the City. On close examination, however, it is clear that there is nothing to garnish. Silver Sage does not claim that PERMA owes anything to the City. Instead, Silver Sage claims that PERMA owes money directly
See Thomas, Head & Greisen Employees Trust v. Buster, 95 F.3d 1449, 1454 (9th Cir.1996) (finding supplemental jurisdiction where collection action involved no new legal theory, but merely sought to wrest sums that the judgment debtor had wrongfully transferred to third parties).
Cf. Meacham v. Meacham, 262 Cal.App.2d 248, 68 Cal.Rptr. 746, 748 (1968) (defining a writ of garnishment as a form of attachment that applies when the property being attached is in the hands of, or under the control of, a third party).
Page 130.
to it as a third-party beneficiary of the agreement between PERMA and the City. This is a new theory based not on garnishment but on contract. Accordingly, Peacock v. Thomas governs, and we reverse. Jurisdiction, if it lies, must stem from some other source. Because the other potential source of jurisdiction, 28 U.S.C. § 1334, is appropriately first considered by the district court, we remand.
See, e.g., San Diego Hous. Comm'n v. Indus. Indem. Co., 95 Cal.App.4th 669, 116 Cal.Rptr.2d 103 (2002) (allowing independent action by judgment creditor against judgment debtor's insurer on the policy between insurer and judgment debtor).
Peacock v. Thomas, 516 U.S. 349, 359-60, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996) (concluding that no supplemental jurisdiction existed where claim involved a new legal theory).
REVERSED AND REMANDED.