United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court are Petitions for Writs of Execution and Other
Proceedings Supplemental to Judgment (Rec. Docs.
574, 577) filed by Liberty Mutual Insurance Company
(“Liberty”) and Ted Hebert, LLC
(“Hebert”), respectively. The target of these Motions,
the Housing Authority of New Orleans (“HANO”),
has filed an opposition (Rec. Doc. 575) and upon order of
this court, Liberty filed a supplemental memorandum. (Rec.
Doc. 586). Following Liberty's motion, HANO filed its
related Second Motion to Stay Execution of Judgment
(Rec. Doc. 587). Liberty filed opposition
(Rec. Doc. 594) to which HANO replied (Rec. Doc. 602). Having
considered the Motions, the memoranda, the record, and the
applicable law the Court finds the Motions should be
AND PROCEDURAL HISTORY
Court entered judgment in favor of Liberty, granting it $437,
851.60, plus costs and reasonable attorney's fees, on
July 10, 2017. (Rec. Doc. 541). HANO then moved this Court to
reconsider its decision to award attorney's fees and
moved for a stay of execution of the judgment pending
reconsideration. The Court denied both motions. (Rec. Docs.
545, 542). HANO then filed a Motion to stay proceedings
without posting supersedeas bond, pending resolution of its
appeal of the attorney's fees award. The Court also
denied this petition for a stay because HANO had not
satisfied its burden of demonstrating that Liberty's
award for damages and fees was adequately secured. (Rec. Doc.
559). The Court noted that it could grant a stay without
bond, if HANO could demonstrate that it would be willing and
able to satisfy the judgment upon resolution of the appeal.
then filed its petition for a writ of execution on August 17,
2018. Pursuant to its motion, Liberty asks this Court to
“issue a writ of execution commanding the United States
Marshall to seize the nonexempt portion of the property of
HANO sufficient to satisfy the amount of the Judgment subject
to this Petition--$437, 851.60.” (Rec. Doc. 574 at 3).
Liberty also asks to engage in discovery pursuant to
Fed.R.Civ.P. 69(a)(2) and for any other equitable relief this
Court might give. HANO promptly filed an opposition. The
Court ordered that Liberty file memoranda supporting its
motion and Liberty did so. On October 7, 2018, HANO filed a
second motion to stay execution of the Court's judgment.
Liberty filed an opposition memorandum to which HANO replied.
argues a writ of execution should not be issued because the
Federal Rules of Civil Procedure require the application of
state law for application of judgments and the Louisiana
Constitution and Louisiana statutory law prevent seizure of
the property of a state entity such as the local housing
authority. See Holly & Smith Architects, Inc. v. St.
Helena Congregate Facility, Inc., 943 So.2d 1037, 1046
(La. 2006). Furthermore, HANO argues that this Court may not
violate these anti-seizure provisions unless there is a
federal interest in the remedy, which there is not in this
diversity case. Freeman Decorating Co. v. Encuentro Las
Americas Trade Corp., 352 Fed.Appx. 921, 923 (5th Cir.
2009) (per curiam). HANO also resists discovery of its
assets, because it suggests this Court has held that the
state law anti-seizure provisions “prevent Liberty from
executing its judgment against HANO's assets.”
(Rec. Doc. 575 at 8). To find that state law does not grant
Liberty a judicial mortgage over HANO's property but
allow Liberty post-judgment discovery “would be a
support of its second motion to stay, HANO asserts that it is
“committed to submitting a request to HANO's
governing Board of commissioners for allocation of funds to
fulfill the judgment, if affirmed after appeal.” (Rec.
Doc. 587-1 at 2-3). HANO explains that it cannot offer a more
definite promise than that because “HANO has no
independent funding to pay a judgment.” HUD is the sole
source of operation funds. (Rec. Doc. 602-2 at 2). According
to federal regulations, HANO must receive approval from HUD
of payment. Only upon HUD's approval, says HANO, can it
request approval from its Board of Commissioners to pay the
counters that the Louisiana Constitution does not prohibit
seizure of state property because there is a federal interest
in the enforcement of the judgment. Liberty argues a federal
interest exists in this case because (1) courts have an
interest in enforcing their judgments when recalcitrant state
entities attempt to unfairly immunize themselves from paying
and (2) HANO is supported entirely with federal funds. (Rec.
Doc. 586 at 3-6). Liberty also suggests that even if there
were no federal interest, Louisiana law allows for execution
on funds where those funds have been appropriated for in a
contract. (Rec. Doc. 586 at 6). Moreover, Liberty argues that
HANO's motion to stay should be rejected because HANO has
failed yet again to provide any assurance that it will pay
the judgment. Liberty urges that HANO has promised nothing
more than to seek permission to pay the judgment and points
out that when HANO sought permission to fund a supersedeas
bond, at a cost of 2% of the Court's judgment against
HANO, the request was denied. (Rec. Doc. 594 at 2).
STANDARD AND DISCUSSION
diversity action, the mechanics of execution are dictated by
Federal Rule of Civil Procedure 69(a): “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.” Thus, the Court must
look to state law for the procedure of execution against a
Louisiana Constitution provides the proper course of action:
funds are to be appropriated by the state legislature or by
the subdivision of the state that is the judgment debtor. La.
Const. Ann. art. XII, § 10. That same constitutional
provision explicitly prohibits seizure of public property.
See Parkcrest Builders, LLC v. Hous. Auth. of New
Orleans, No. CV 15-1533, 2018 WL 3743812, at *5 (E.D.
La. Aug. 7, 2018) (citing La. Const. Ann. art. XII, §
10). Neither HANO nor the state legislature have ...