UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1559

TERRY W. OSBORN,

Plaintiff - Appellant,

versus

PHARMACEUTICAL EDUCATION AND DEVELOPMENT

FOUNDATION OF THE MEDICAL UNIVERSITY OF SOUTH

CAROLINA,

Defendant - Appellee,

and

UNIVERSITY MEDICAL ASSOCIATES OF THE MEDICAL

UNIVERSITY OF SOUTH CAROLINA; MEDICAL

UNIVERSITY OF SOUTH CAROLINA; HEALTH SCIENCES

FOUNDATION OF THE MEDICAL UNIVERSITY OF SOUTH

CAROLINA; JAMES B. EDWARDS; THOMAS P.

ANDERSON,

Defendants.

Appeal from the United States District Court for the District of

South Carolina at Charleston. David C. Norton, District Judge.

(CA-01-4002-1-18)

Submitted: January 19, 2006 Decided: April 6, 2006

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.
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Carl F. Muller, Troy A. Tessier, Hannah Rogers Metcalfe, WYCHE,

BURGESS, FREEMAN & PARHAM, P.A., Greenville, South Carolina, for

Appellant. Thomas S. White, HAYNSWORTH SINKLER BOYD, P.A.,

Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

On February 2, 2004, the district court entered judgment

in this diversity case in the amount of $131,100 plus interest and

costs in favor of Terry Osborn and against his former employer,

Pharmaceutical Education and Development Foundation (PEDF), an

affiliate of the Medical University of South Carolina (MUSC). The

jury had concluded that PEDF breached its employment contract with

Osborn and had violated the South Carolina Wage Payment Act.

Neither party appealed.

After the district court assessed costs of $2,227.46, it

issued a writ of execution against the property of PEDF on October

5, 2004, in the amount of $133,327.46. Osborn delivered the writ

to the United States Marshal in South Carolina, giving special

instructions that the Marshal only serve the writ and designating

James Wynn, PEDF’s registered agent, as the person to be served.

The Marshal, unable to locate Wynn, inquired with MUSC employees

and learned that Wynn was no longer employed. After several

inquiries, the Marshal ultimately left the writ with Joseph Good,

Jr., general counsel for MUSC, and filed a return reporting this

fact.

When the judgment remained unsatisfied two and one-half

months after the Marshal served the writ on Good, Osborn filed a

motion to institute supplementary proceedings to enforce his

judgment. Specifically, Osborn wanted to examine PEDF to learn of
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its ability to pay the judgment. The district court denied the

motion by order dated April 11, 2005, finding “from a review of the

record that there are no grounds to support this motion.” From

this order, Osborn appealed.

Federal Rule of Civil Procedure 69(a) provides that

federal courts apply the practice and procedure of the states in

which they sit to conduct “proceedings supplementary to and in aid

of judgment[] and in proceedings on and in aid of execution.” In

South Carolina, the institution of supplementary proceedings is

governed by § 15-39-310 of the South Carolina Code, which provides

that “[w]hen an execution against property of the judgment debtor

. . . is returned unsatisfied in whole or in part the judgment

creditor at any time after such return is made is entitled to an

order from a judge . . . requiring such judgment debtor to appear

and answer concerning his property . . . .” The South Carolina

Court of Appeals has commented that trial courts have discretion to

determine whether a writ has been returned unsatisfied. See AgChem Equip. Co. v. Daggerheart, 315 S.E.2d 379, 384 n.2 (S.C. App.

1984) (“We think the better practice is for judges . . . to satisfy

themselves that an unsatisfied execution exists before examining a

judgment debtor”).

In this case, there is virtually no evidence that Osborn

has pursued execution as authorized by South Carolina law. While

the writ of execution directed the Marshal to execute on PEDF’s
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property, Osborn instructed the marshal only to serve it.

Moreover, service was not effected on PEDF or any of its agents.

The Marshal served Joseph Good, Jr., the general counsel for MUSC.

But MUSC is only an affiliate of PEDF, and Osborn has not

demonstrated that Good, as general counsel for MUSC, is also an

agent of PEDF. It thus appears that Osborn cannot claim that the

writ of execution was “returned unsatisfied,” as required to

entitle him to supplementary proceedings. See S.C. Code, § 15-39-

310.

In these circumstances, we cannot conclude that the

district court abused its discretion in denying Osborn’s motion.

AFFIRMED