Bowman v. City of New Orleans

747 F. Supp. 344, 1989 U.S. Dist. LEXIS 17280, 1989 WL 225590
CourtDistrict Court, E.D. Louisiana
DecidedNovember 9, 1989
DocketCiv. A. No. 86-596
StatusPublished
Cited by3 cases

This text of 747 F. Supp. 344 (Bowman v. City of New Orleans) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowman v. City of New Orleans, 747 F. Supp. 344, 1989 U.S. Dist. LEXIS 17280, 1989 WL 225590 (E.D. La. 1989).

Opinion

McNAMARA, District Judge.

Before the court is the Motion of Judgment Debtor, the City of New Orleans (the City), et al., for Stay and to Quash Writ of Execution. After conducting a telephone conference on October 5, 1989, the court declined to stay proceedings incident to the execution of Plaintiffs’ judgment, but, with agreement of counsel, directed that no property be seized pending further order of this court.1 The court granted Plaintiffs’ counsel until October 16, 1989, to respond to the City’s Motion. Having received and reviewed this response, the court is now prepared to rule on the Motion without oral argument.

The instant dispute arises from Plaintiffs’ efforts to collect the unpaid balance of a partially satisfied Consent Judgment against the City. The Consent Judgment, rendered by the court and entered on September 25, 1986 (Document No. 26), stems from a Complaint that challenged the constitutionality of City Ordinance No. 11036.2 Named defendants in this Complaint were the City; Ernest Morial, individually and as Mayor of the City; Mike Early, individually and as a member of the City Council; and Warren Woodfork, individually and as Superintendent of Police of the City.

By the terms of the Consent Judgment, Defendants admitted that Ordinance No. 11036 is unconstitutional because it violates the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Defendants agreed to being permanently enjoined from enforcing the Ordinance and further agreed to pay reasonable attorneys’ fees3 in the amount of $6,330.00 and costs of $500.05. The Consent Judgment stipulated that fees and costs were due and payable on February 1, 1987, that legal interest would run from February 1, 1987, until paid, and that the Judgment for fees and costs would become executory on February 1, 1987. The City failed to satisfy the Consent Judgment by February 1, 1987.

On April 22, 1988, Plaintiffs’ counsel notified the court that partial payment in the amount of $6,830.05 had been received.4 Because interest began accruing on February 1, 1987, this amount was insufficient to constitute full satisfaction of the Consent Judgment. As of June 28, 1989, the City had still not satisfied the Consent Judgment. Consequently, Plaintiffs’ counsel filed a Judgment Debtor Rule and, subsequently, requested that the Clerk of this Court issue a Writ of Fieri Facias (FIFA) commanding the United States Marshal to [346]*346seize and sell property of the City sufficient to satisfy the outstanding debt owed pursuant to the Consent Judgment.5 The City now seeks to quash the writ of execution (FIFA) issued by the Clerk on October 4. 1989.

Arguing that this court erred in allowing any proceedings in aid of execution of the Consent Judgment, the City steadfastly maintains that federal courts are powerless to authorize a judgment creditor to execute a judgment against property or funds belonging to the State of Louisiana or its political subdivisions unless the governing body of the state or municipality has appropriated the funds to satisfy the judgment. This argument rests on the premise that federal courts may not enforce collection procedures that contravene restrictions established by state law. Vital to the City’s position is its interpretation of Federal Rule of Civil Procedure 69, an interpretation which the court determines to be misguided.

Federal Rule of Civil Procedure 69 provides in part:

Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.

The City places great emphasis on the language “proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held.” Consequently, it argues that the substantive provisions contained in Article 12, Section 10(C) of the Louisiana Constitution and Louisiana Revised Statute Section 13:5109,6 both of which exempt public property from seizure and require that money judgments against the state or any of its political subdivisions be satisfied only from specially appropriated funds, operate to restrict federal courts from ordering the seizure of public property to satisfy its judgments.7 Case Law emanating from the Federal Fifth Circuit unquestionably contradicts the City’s position.

[347]*347The Fifth Circuit has had more than one occasion to visit this issue, but has thus far addressed it only in dicta. In Gates v. Collier, 616 F.2d 1268 (5th Cir.1980), the court confronted a similar situation involving a Mississippi law that required legislative appropriation of funds to satisfy money judgments rendered against the state. As in the instant case, the judgments sought to be enforced in Gates awarded attorneys’ fees pursuant to 42 U.S.C. § 1988. The district court directed that

Mississippi’s Auditor and Treasurer be added as defendants and that the other defendants submit a requisition to the Auditor for the issuance of a warrant upon the Treasurer to satisfy the judgment out of funds appropriated for the operation of Parchman [Penitentiary]8 or out of any other funds subject to the control of the treasurer.

616 F.2d at 1270. On appeal, the Fifth Circuit upheld the district court’s order. The Fifth Circuit determined that the district court “acted well within its authority to ensure compliance with its lawful orders,” id. at 1271, noting that if statutory authority were needed for the district court’s actions, such authority may be found in Federal Rule of Civil Procedure 70.9

Acknowledging that the legislative history of 42 U.S.C. § 1988 neglected to address the question of how to make an unwilling state or its officials satisfy a judgment awarding attorneys’ fees, the Gates court suggested that “Congress assumed it ... unnecessary to consider the subject because the Federal Rules of Civil Procedure contains a provision for the execution of district court judgments.” 616 F.2d at 1271 (citing Fed.R.Civ.P. 69). Nonetheless, the decision in Gates

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Cite This Page — Counsel Stack

Bluebook (online)
747 F. Supp. 344, 1989 U.S. Dist. LEXIS 17280, 1989 WL 225590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowman-v-city-of-new-orleans-laed-1989.