United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
the Court, is Plaintiff's Motion for Delivery Order (Rec.
Doc. 151), Defendant's Memorandum in Opposition (Rec.
Doc. 153), Plaintiff's Reply (Rec. Doc. 162) and
Defendant's Sur-Reply (Rec. Doc. 164). For the reasons
that follow, the motion is GRANTED in part and DENIED in
Background Facts and Procedural History
is the judgment creditor of Defendant in the amount of
§6, 700, 000.00, along with legal interest and costs
from May 27, 2015, until paid. According to Plaintiff, the
judgment remains unsatisfied. By the present motion,
Plaintiff seeks an Order from this Court directing Defendant
to deliver to the United States Marshal, for subsequent
delivery to Plaintiff, “the cash proceeds of a certain
contract payment from South Oil Company in the amount of $5,
Contentions of the parties
contends that it is entitled to an order, pursuant to La.
Rev. Stat. 13:3862, based on this Court's issuance of a
Writ of Fieri Facias (Rec. Doc. 50) directing the
United States Marshal, by seizure and sale of Defendant's
property, real and personal, rights and credits, to raise the
funds necessary to satisfy judgment. In support of its
motion, Plaintiff submits the Declaration of Marcus J. Green,
an attorney for Plaintiff, which states that Defendant is a
party to a supply contract with South Oil Company
(“SOC”), which was executed in February 2013.
(Rec. Doc. 151-2). According to Plaintiff, the contract is
for the supply of two 148 foot multipurpose support and
maintenance vessels and provides for payments to Defendant
totaling $29, 230, 000.00. Id.
submits that the contract further provides that a payment of
$5, 846, 000.00 was to be paid to the Defendant upon
successful sea trials, and another $5, 846, 000.00 upon the
physical delivery of the vessels to Iraq. Id.
Additionally, Plaintiff contends that the Defendant completed
construction on the vessels by February 15, 2016 and, as of
March 2017, both vessels have arrived in Iraq. Id.
According to Plaintiff, approximately $9, 000, 000 in
payments remain due to Defendant on the SOC contract. (Rec.
Doc. 162, at p. 5). Plaintiff contends that, of the
outstanding amount, $5, 846, 000 came due to Defendant upon
delivery of the vessels to Iraq, and an additional $2, 923,
000 will become due to Defendant in the future. Id.
opposes Plaintiff's motion and submits that Plaintiff has
not met its burden of proving that the contract proceeds
referenced in Plaintiff's motion are either on the person
of, in the possession of, or under the control of Defendant,
such that they would be subject to a delivery order under La.
Rev. Stat. 13:3862. (Rec. Doc. 153, at p.1). According to
Defendant, because the property which Plaintiff seeks - the
right to payment on the SOC contract - constitutes intangible
property, a delivery order is not the proper vehicle by which
to execute on Plaintiff's judgment. (Rec. Doc. 164, at
pp. 5-9). Rather, a writ of garnishment is the process by
which assets due a judgment debtor by third persons are
Law and Analysis
of the Federal Rules of Civil Procedure provides that a money
judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution - and in
proceedings supplementary to and in aid of judgment or
execution - must accord with the procedure of the state where
the court is located, but a federal statute governs to the
extent it applies. Fed.R.Civ.P. 69(a)(1).
“turnover” statute provides:
On ex parte motion of a party who has caused to be issued a
writ directing the seizure of property, the court may order
that money or other property on the person or party against
whom the order is directed, or otherwise in his possession or
under his control, be delivered to the Sheriff immediately
upon personal service of the order. If it is proved that at
the time of such service the person ordered to deliver the
money or other property had it on his person, or otherwise in
his possession or under his control, the failure to comply
with the order shall be punished as a contempt of court,
unless it is shown that the property is exempt from seizure.
La. Rev. Stat. § 13:3862. Pursuant to this statute,
“[t]he two factual issues that are critical to the
turnover proceeding are (i) the past existence of the
property or money in the debtor's possession and (ii) the
fact that it is ‘yet within the power' of the
debtor to produce the property to the court.”
Johnson & Placke v. Norris,874 ...