United States District Court, E.D. Louisiana
ORDER AND REASONS
MORGAN UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Issuance of a Writ of Seizure and
and Motion for Alternate Keeper,  filed by Plaintiff
People's United Equipment Finance Corp.
(“People's United”). For the reasons that
follow, the Motion for Issuance of a Writ of Seizure and Sale
is DENIED, and the Motion for Alternate
Keeper is DENIED AS MOOT.
November 29, 2018, People's United filed a Complaint and
Request for Seizure and Sale and the instant
motions. In its Amended Complaint, Plaintiffs
invoke the jurisdiction of this Court in diversity, pursuant
to 28 U.S.C. § 1332, and establish that the parties are
completely diverse and that the amount-in-controversy exceeds
$75, 000.People's United alleges Defendants have
failed to meet their obligations pursuant to loan documents
they executed with People's United. People's
United requests that the Court issue a writ of seizure and
sale pursuant to Article 2638 of the Louisiana Code of Civil
Procedure, which governs executory proceedings. People's
United argues that, pursuant to Rule 64 of the Federal Rules
of Civil Procedure, any remedy available under Louisiana law
is available in federal court. Accordingly, it argues that this
Court has jurisdiction to issue a writ of seizure and
Court has issued summonses as to Defendants. The summonses
have not been returned executed, and Defendants have yet to
United filed the instant motions ex parte in
connection with its request for executory
process. In its Motion for Issuance of a Writ of
Seizure and Sale, Plaintiff requests that the Court issue a
writ of seizure and sale on the collateral to which
People's United alleges it is entitled, pursuant to the
provisions in the Louisiana Code of Civil Procedure governing
executory proceedings. In its Motion for Alternate Keeper,
Plaintiff requests that, following the service of the writ of
seizure and sale, Bobby A. Walker serve as alternate keeper
for the collateral.
Amended Complaint, People's United requests that, if the
Court determines the instant action cannot be brought as an
executory proceeding, that the action be converted to an
ordinary proceeding. Although the request is included in a
pleading, the Court construes the request as a motion
requesting conversion to an ordinary proceeding if the Court
does not grant Plaintiff's Motion for Issuance of a Writ
of Seizure and Sale.
This Court cannot issue a writ of seizure and sale in an
Court turns to the question of whether it has the authority
to grant Plaintiff's motion for a writ of seizure and
to Rule 64(a) of the Federal Rules of Civil Procedure,
“[a]t the commencement of and throughout an action,
every remedy is available that, under the law of the state
where the court is located, provides for seizing a person or
property to secure satisfaction of the potential judgment.
But a federal statute governs to the extent it
applies.” The remedies available under this rule
include arrest and attachment.
the Louisiana Code of Civil Procedure, executory proceedings
allow for the sale of property “without previous
citation and judgment.” Defenses must be asserted
either by a separate injunction proceeding or a suspensive
appeal, not an answer. This directly contradicts the
procedural requirements imposed by the Federal Rules of Civil
Procedure. As the court in BancBoston Mortg. Corp. v.
F.R.C.P. 3 provides that a civil action is commenced by the
filing of a complaint. F.R.C.P. 4(a) provides in part that
“[u]pon the filing of the complaint the clerk shall
forthwith issue a summons and deliver the summons to the
plaintiff or the plaintiff's attorney, who shall be
responsible for prompt service of the summons and a copy of
the complaint.” F.R.C.P. 12(a) gives a defendant twenty
days to answer a complaint.
proceedings under the Louisiana Code of Civil Procedure do
not comport with the Federal rules of Civil Procedure. As a
result, “[a] federal court cannot issue a writ of
seizure and sale in an executory proceeding, because under
Louisiana law an executory proceeding is not commenced and
prosecuted pursuant to the Federal Rules of Civil
United argues Thermo Credit does not address Rule 64
of the Federal Rules of Civil Procedure and notes that the
current version of Rule 64 had been in effect for less than a
year before the briefing in that case.
BancBoston and FDIC v. Saxena, the cases on
which the Thermo Credit court based its holding that
a federal courts “may not entertain a Louisiana
executory proceeding, ” in turn based their holdings
on Rule 64. The version of Rule 64 interpreted by the
BancBoston and FDIC v. Saxena courts
provided that “the action in which any of the foregoing
remedies is used shall be commenced and prosecuted . . .
pursuant to these rules.” BancBoston and
FDIC v. Saxena quoted this language in support of
their holdings. Although the 2007 amendment to Rule 64
eliminated this language, the notes to the amendment clarify
that any “changes are intended to be stylistic
only.” It further clarified that the provision
that the Rules “govern from the time the action is
commenced if filed in federal court . . . [is] deleted as
redundant [because] Rule 1 establishes that the Civil Rules
apply to all actions in a district
court.” Rule 64, as amended, does not allow for
actions to proceed in federal court contrary to the Federal
Rules of Civil Procedure. As a result, the Court does not
have the authority to grant Plaintiff's Motion for
Issuance of a Writ of Seizure and Sale.
The Court converts the case to an ordinary proceeding
consistentwith the ...