Ospina v. Vanelli

Full title: Enrique OSPINA, Plaintiff, v. Leonard VANELLI, Michael Rowan, and Charles…

Court: United States District Court, D. Minnesota, Third Division

Date published: Jan 8, 1964

34 F.R.D. 151 (D. Minn. 1964)

Opinion

         Action for personal injuries sustained by plaintiff in attack upon him in dance hall. The defendants, following jury verdict for the plaintiff, moved to quash service of garnishment summons. The District Court, Donovan, J., held that fact that garnishment summons was not served by United States Marshal did not invalidate service, in absence of claim that personal service was not effected or that service was made by party to action.

         Motion denied.

          William E. Drexler, St. Paul, Minn., for plaintiff.

          John S. Connolly, St. Paul, Minn., for defendants.

          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

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

         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.

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

         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.

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

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

         It is so ordered.

         Defendants are allowed an exception.