IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

W. NEIL ARMENTROUT and : 

FRANCES ARMENTROUT, : 

 : 

 Plaintiffs, : 

 : 

vs. : CA 10-0149-KD-C 

 : 

ATLANTIC CASUALTY INS. CO., : 

 : 

Defendant. :

 REPORT AND RECOMMENDATION

This matter is before the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B), on 

Plaintiffs= Motion to Remand, (Doc. 6) along with a supporting brief (Doc. 7), both filed 

April 15, 2010, Defendant=s response (Doc. 12) to the motion, filed May 4, 2010, and 

Plaintiffs= reply (Doc. 15) thereto, filed May 18, 2010. After consideration of the motion, 

it is the undersigned=s recommendation that it be DENIED. 

I. Factual Background/Procedural History. 

On February 3, 2009, the Armentrout plaintiffs filed a complaint in the Circuit 

Court of Mobile County, Alabama, against Troy Clemens and Clemens Custom Pools 

(AThe Clemens defendants@), seeking redress for the negligent and oft-delayed 

construction of a swimming pool at their Fairhope, Alabama residence. (Doc. 2-1, 

Complaint, p. 3.) On January 8, 2010, that Court granted a summary judgment in favor 

of the Armentrouts in the amount of $250,000. (Doc. 2-2, Order and Final Judgment of 

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January 8, 2010, p. 1.) 

Then, on February 22, 2010, a writ of garnishment was issued against Atlantic 

Casualty Insurance Company (AACIC@), the Clemens defendants= liability insurance 

provider, reflecting the quarter-million dollar judgment. (Doc. 2-3, Process of 

Garnishment, p. 1.) The garnishment action was given the same case number as the 

action which culminated in the summary judgment. (Id.) 

ACIC removed the garnishment proceeding to this Court on March 31, 2010, 

averring that the garnishment proceeding is a Aseparate and independent action from the 

underlying action@ against the Clemens defendants and noting that the time for the 

Clemens defendants to appeal from the summary judgment or file a post-judgment 

motion had expired. (Doc. 1, Notice of Removal, && 4, 11.) The notice of removal 

asserts that complete diversity between the parties exists by virtue of the fact that the 

Armentrouts are residents of Alabama and ACIC is organized under the laws of and is 

headquartered in North Carolina. (Id. at & 15.) 

The Armentrouts filed a Motion to Remand (Doc. 6) On April 15, 2010, claiming 

that the removal of the action to this Court was improper for four reasons: (1) that only a 

Adefendant@ is entitled to remove an action, following 28 U.S.C. § 1441(a), and not a 

garnishee such as ACIC; (2) that complete diversity between the parties does not exist, 

because the garnishment proceeding is not a separate action, but rather an extension of 

the Aongoing@ action between the parties; (3) that the action (to which the garnishment is 

but an extension) has been pending for more than one year, and therefore 28 U.S.C. § 

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1446(b) disallows such removal; and (4) that if the garnishment action is colorable as a 

Aseparate and independent action against a liability insurer,@ then 28 U.S.C. § 1332(c)(1) 

mandates that ACIC is deemed a resident of its insured, meaning of Alabama, another 

factor destroying the requisite diversity of citizenship for federal jurisdiction. (Doc. 6, 

pp. 1-2.) In their Memorandum in Support of [their] Motion to Remand (Doc. 7), also 

filed April 15, 2010, the Armentrouts re-characterized this last objection to removal as an 

assertion that the current garnishment proceeding is a direct action against ACIC, and 

therefore the citizenship of ACIC=s insured, the Clemens defendants, is imputed to it, 

destroying the diversity of the parties. (Doc. 7, pp. 8-9.) 

ACIC responded (Doc. 12) to the motion to remand on May 4, 2010, claiming (1) 

that the garnishment proceeding is indeed a separate and independent, not ancillary, 

proceeding; (2) that ACIC is a defendant entitled to move for removal; and (3) that the 

garnishment proceeding is not a direct action under 28 U.S.C. § 1332(c). In their reply 

(Doc. 15) to ACIC=s response to their motion to remand, however, the Armentrouts again 

aver that ACIC is not a defendant entitled to removal by using Alabama law to cast doubt 

on whether a case or controversy existed at the time of removal, as under Alabama law, a 

dispute between a plaintiff and a garnishee is not ripe until the garnishee answers the 

process of garnishment and the plaintiff contests the garnishee=s answer. (Doc. 15, p. 17.) 

In the same document, the Armentrouts also argue that this Court should refrain from 

exercising jurisdiction Ain the interest[s] of comity, federalism, and judicial economy.@

(Id. at 8.) 

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II. Discussion.

A. Legal Standards for Remand

AAny civil case filed in state court may be removed by the defendant to federal 

court if the case could have been brought originally in federal court.@ Tapscott v. MS 

Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing 28 U.S.C. ' 1441(a)), 

abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 

2000). Federal courts may exercise diversity jurisdiction over all civil actions where the 

amount in controversy exceeds $75,000, exclusive of interest and costs, and the action is 

between citizens of different states. 28 U.S.C. § 1332(a)(1). However, A[b]ecause 

removal jurisdiction raises significant federalism concerns, federal courts are directed to 

construe removal statutes strictly. . . . Indeed, all doubts about jurisdiction should be 

resolved in favor of remand to state court.@ University of South Alabama v. American 

Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). 

A[T]he party invoking the court=s jurisdiction bears the burden of proving, by a 

preponderance of the evidence, facts supporting the existence of federal jurisdiction.@

McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002); see also Triggs v. John 

Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998) (citation omitted) (A[T]he 

removing party bears the burden of demonstrating federal jurisdiction.@); Tapscott, 77 

F.3d at 1356 (AA removing defendant has the burden of proving the existence of federal 

jurisdiction.@). Therefore, the burden in this case is on ACIC to establish complete 

diversity, or that each defendant is diverse from the plaintiff, Triggs, 154 F.3d at 1287 

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(citation omitted).1

B. The (In)Application of 28 U.S.C. § 1332(c)=s ADirect Action@ Limitation 

The first of the crucial jurisdictional questions raised by Plaintiffs= motion to 

remand concerns the operation of 28 U.S.C. § 1332(c)=s Adirect action@ limitation. That 

statute provides, in pertinent part: 

[A] corporation shall be deemed to be a citizen of any State by which it has 

been incorporated and of the State where it has its principal place of 

business, except that in any direct action against the insurer of a policy or 

contract of liability insurance, whether incorporated or unincorporated, to 

which action the insured is not joined as a party-defendant, such insurer 

shall be deemed a citizen of the State of which the insured is a citizen, as 

well as of any State by which the insurer has been incorporated and of the 

State where it has its principal place of business . . . 

28 U.S.C. § 1332(c)(1) (emphasis added). If the current garnishment proceeding is 

characterized as a direct action, then, complete diversity of citizenship will not be 

present, and this Court will lack the jurisdiction necessary to entertain this suit, as ACIC=s 

insured (the Clemens defendants) are residents of Alabama, just like the Armentrouts. 

Although the question of whether a garnishment proceeding in Alabama, such as the one 

before the undersigned, is a Adirect action@ under the above statute is largely unsettled, it 

is the undersigned’s opinion that the majority interpretation of Eleventh Circuit and old 

Fifth Circuit cases leads to the conclusion that it is not. 

In Fortson v. St. Paul Fire and Marine Ins. Co., 751 F.2d 1157 (11th Cir. 1985), 

 1

 There is no argument between the parties over whether the amount in controversy 

threshold has been met, as the garnishment proceeding seeks recovery for a judgment already 

entered against ACIC=s insured in the amount of $250,000, as mentioned earlier. 

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the Court looked at the legislative intent behind the enactment of 28 U.S.C. § 1332(c): 

That section was enacted by Congress in order to eliminate the basis for 

diversity jurisdiction in states that allow an injured third-party claimant to 

sue an insurance company for payment of a claim without joining the 

company=s insured as a party, where the insured would be a non[-]diverse 

party, even though the party insurance company would otherwise be 

diverse. 

Id. at 1159 (citing Hernandez v. Travelers Ins. Co., 489 F.2d 721, 723 (5th Cir.) cert. 

denied, 419 U.S. 844, 95 S.Ct. 78, 42 L.Ed.2d 73 (1974)). The Hernandez opinion from 

which Fortson derived the above statement, however, states in relevant part: 

Congress intended that wherever a party claiming to have suffered injuries 

or damage for which another is legally responsible is entitled to sue the 

other's liability insuror [sic] without joining the insured and without having 

first obtained a judgment against the insured, the insurer shall be deemed a 

citizen of the State of which the insured is a citizen as well as of any State 

by which the insurer has been incorporated and of the State where it has its 

principal place of business, for the purposes of determining whether 

diversity jurisdiction exists. 

Hernandez, 489 F.2d at 722 (emphasis added) (citing Vines v. United States Fidelity & 

Guaranty Co., 267 F.Supp. 436 (E.D. Tenn. 1967)).2

 

The Fortson opinion, which ACIC partly relies upon in their argument that the 

current garnishment proceeding is not classifiable as a direct action, clearly limits the 

scope of § 1332(c): 

But where the suit brought either by the insured or by an injured third party is 

based not on the primary liability covered by the liability insurance policy[,] but 

 2

 The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (1981), 

adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to 

September 30, 1981. 

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on the insurer=s failure to settle within policy limits or in good faith, the section 

1332(c) direct action proviso does not preclude diversity jurisdiction. We hold 

that unless the cause of action against the insurance company is of such a nature 

that the liability sought to be imposed could be imposed against the insured, the 

action is not a direct action. 

Fortson, 751 F.2d at 1159 (emphasis added) (internal citations omitted). From this holding, 

coupled with the recognition that courts Ahave uniformly defined the term >direct action=. . . as 

those cases in which a party suffering injuries or damage for which another is legally 

responsible is entitled to bring suit against the other=s liability insurer without joining the 

insured or first obtaining a judgment against him[,]@ it is inferred that garnishment actions in 

Alabama are not “direct actions.” Id. (emphasis added) (citation omitted). 

The relevant Alabama statutes supportive of this conclusion clearly require that a final 

judgment must be obtained before a garnishment proceeding or a claim against an insurer may 

proceed. Section 27-23-2 of the Alabama Code reads: 

Upon the recovery of a final judgment against any person, firm, or 

corporation by any person, including administrators or executors, for loss or 

damage on account of bodily injury, or death or for loss or damage to 

property, if the defendant in such action was insured against the loss or 

damage at the time when the right of action arose, the judgment creditor 

shall be entitled to have the insurance money provided for in the contract of 

insurance between the insurer and the defendant applied to the satisfaction 

of the judgment, and if the judgment is not satisfied within 30 days after the 

date when it is entered, the judgment creditor may proceed against the 

defendant and the insurer to reach and apply the insurance money to the 

satisfaction of the judgment. 

Ala. Code 1975 § 27-23-2 (emphasis added). Section 6-6-390 states: 

The plaintiff in any pending action for the recovery of money or the 

plaintiff or assignee in any judgment on which execution can issue may 

obtain process of garnishment as defined in Section 6-6-370; provided, that 

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no garnishment shall issue prior to a final judgment, pursuant to this 

section and Sections 6-6-291 through 6-6-294, unless there is a showing 

that such garnishment is necessary because of extraordinary circumstances. 

Ala. Code 1975 § 6-6-390 (emphasis added). 

A contrary view, however, has been expressed by the Middle District of Alabama, 

in Wheelwright Trucking Co. v. Dorsey Trailers, Inc., 158 F.Supp.2d 1298 (2001). Judge 

DeMent found that Aunder the modern trend, a >direct action= can include post-judgment 

garnishments brought by a judgment creditor against the judgment debtor=s commercial 

insurer.@ Id. at 1301 (collecting cases). See also Paca, Inc. v. Nat=l Union Fire Ins. Co., 

2007 WL 98722 (M.D. Ala. Jan. 11, 2007) (same). These cases from the Middle District, 

however, are not found persuasive upon closer inspection. In Wheelwright Trucking, the 

Court stated: 

In this case, Wheelwright is the judgment creditor, Dorsey is the judgment 

debtor, and Liberty is the judgment debtor's insurer. Wheelwright has 

brought its writ of garnishment under Sections 6-6-370 et seq., 27-23-1 and 

27-23-2 of the Alabama Code. These are direct action statutes, for they 

allow Wheelwright to sue to collect from Dorsey's insurer, i.e. Liberty, 

without joining Dorsey in the same proceeding. See Wiggins v. State Farm 

Fire & Cas. Co., 686 So.2d 218, 220 (Ala.1996); see also Fortson v. St. 

Paul Fire & Mar. Ins. Co., 751 F.2d 1157, 1159 (11th Cir. 1985) (holding 

that direct actions can include claims when Athe liability sought to be 

imposed could be imposed against the insured.@)

Wheelwright Trucking, 158 F.Supp.2d at 1301 (emphasis added). The above language 

from Wheelwright is problematical for several reasons. First, Section 27-23-2 of the 

Alabama Code requires that a plaintiff obtain a final judgment against an insured before 

suing an insurer, as referenced earlier. The Middle District has noted this truism postCase 1:10-cv-00149-KD-C Document 17 Filed 07/22/10 Page 8 of 20
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Wheelwright. See Southern Pioneer Property & Cas. Ins. Co. v. Bennett, 2010 WL 

1416123, *3 (April 7, 2010) (noting that the Alabama Supreme Court Ahas consistently 

held that >under Alabama law . . . an injured party cannot bring a direct action against the 

insurance carrier, absent a final judgment against its insured.@). Next, Section 27-23-1, 

subtitled AWhen insurer=s liability absolute,@ states: 

As to every contract of insurance made between an insurer and any insured 

by which such insured is insured against loss or damage on account of the 

bodily injury or death by accident of any person for which loss or damage 

such insured is responsible, whenever a loss occurs on account of a 

casualty covered by such contract of insurance, the liability of the insurer 

shall become absolute and the payment of the loss shall not depend upon 

the satisfaction by the insured of a final judgment against him for loss, or 

damage, or death occasioned by the casualty. No such contract of 

insurance shall be cancelled or annulled by any agreement between the 

insurer and the insured after the insured has become responsible for such 

loss or damage, and any such cancellation or annulment shall be void. 

Ala. Code 1975 § 27-23-1 (emphasis added). Because the statute allows for recovery 

from the insurer of the tortfeasor insured without first troubling the plaintiff with 

obtaining a final judgment against the insured, 27-23-1 is indeed a direct action statute, 

but is only operable in situations involving damage Aon account of the bodily injury or 

death by accident of any person for which loss or damage such insured is responsible.” 

Id. Wheelwright Trucking, it should be noted, was not such a case, but rather involved 

the sale of allegedly-defective trailers causing Alost profits and lost business 

opportunities,@ as revealed by the Supreme Court of Alabama after the case was 

remanded back to state court. Liberty Mutual Ins. Co. v. Wheelwright Trucking Co., 

Inc., 851 So.2d 466, 469 (Ala. 2002). 

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The third problem with Wheelwright Trucking=s holding that the above-referenced 

sections of the Alabama Code are Adirect action@ statutes is that the two cases that the 

Middle District cites in support of that notion do not appear to be on point. First, the 

Fortson language referenced by Wheelwright Trucking has a very different connotation 

when read within the context of the overall opinion, as mentioned earlier. Second, the 

Alabama state case mentioned, Wiggins v. State Farm Fire and Cas. Co., 686 So.2d 218 

(Ala. 1996), certainly does not stand for the proposition that other sections of the 

Alabama Code may be classified as Adirect action@ statutes in cases not involving bodily 

injury or death. In Wiggins, a female student (AWiggins@) at the University of Alabama 

was somehow injured by being hit in the face at a fraternity party, and then sued the 

tortfeasor. Id. at 219. The fraternity member failed to appear, and so a default judgment 

was entered against him. Id. After obtaining the default judgment, Wiggins attempted to 

add State Farm (the tortfeasor=s insurer) as a defendant and to apply the proceeds of the 

insurance contract between the insured and State Farm to fulfill the default judgment 

under Ala.R.Civ.P. 69 and Sections 27-23-1 and 27-23-2 of the Alabama Code. Id. The 

trial court held that those authorities did not operate to allow the plaintiff=s proposed 

course of action and instead stated that she must bring a separate independent action 

against State Farm. Id. The Wiggins Court started its analysis thusly: 

It is important to note that Wiggins has not sued State Farm. This Court, in 

Insurance Company of North America v. Davis, 274 Ala. 541, 150 So.2d 

192 (1962), discussed this question and determined Athat the legislature [in 

enacting § 12, Tit. 28, Code of Ala.1940, predecessor to § 27-23-1, -2, 

Ala.Code 1975] intended that all such proceedings must be brought against 

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the defendant in the action at law and the insurance company, as joint 

respondents.@ 274 Ala. at 542, 150 So.2d at 194. Moreover, in Davis Ait 

[was] logically deduced that the [insurer by and through the] insured is a 

>necessary party= under the rule that all persons having a material interest in 

the litigation or who are legally or beneficially interested in the subject 

matter of the suit and whose rights or interests are sought to be concluded 

thereby are necessary parties.@ 274 Ala. at 543, 150 So.2d at 194. 

Wiggins, 686 So.2d at 219-20. This rule of having the insured and the insurer in the 

action as joint respondents clearly does not equate into an expression that somehow the 

plaintiff in Wiggins could have sued the insurer directly, although a literal reading of 

Alabama Code Section 27-23-2 would have supported such a proposition in that case 

because it involved bodily injury, unlike the case currently before the undersigned or that 

in front of the Court in Wheelwright.

3

 Furthermore, the Wiggins opinion supports the 

procedure employed by the plaintiffs in this action: 

In Maness v. Alabama Farm Bureau Mutual Cas. Ins. Co., 416 So.2d 979 

(Ala.1982), this Court reasoned that A[o]nce an injured party has recovered 

a judgment against the insured, the injured party may compel the insurer to 

pay the judgment. The injured party, however, can bring an action against 

the insurer only after he has recovered a judgment against the insured and 

only if the insured was covered against the loss or damage at the time the 

injured party's right of action arose against the insured tort-feasor.@ 416 

So.2d at 981-82; see also Fleming v. Pan American Fire & Cas. Co., 495 

F.2d 535, 540 (5th Cir. 1974); Haston v. Transamerica Ins. Services, 662 

So.2d 1138, 1139 (Ala. 1995).

Id. at 220 (emphasis added). The Paca Court=s reliance on Wheelwright Trucking=s 

determination that Alabama Code § 27-23-2 is a blanket direct action statute, then, is also 

 3

 Recall that § 1332(c)=s definition of Adirect action@ mandates that the insured not be 

joined as a party defendant. 

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undermined by the above analysis. See Paca, Inc. v. Nat=l Union Fire Ins. Co., 2007 WL 

98722, *4 (M.D. Ala. Jan. 11, 2007) (referring to § 27-23-2 as Aa provision which this 

Court has previously deemed a >direct action statute.=@). 

Here in the Southern District of Alabama, a review of the case of Stabler v. 

Transportation Ins. Co., No. 06-0237-WS-M, 2006 U.S. Dist. LEXIS 50540 (S.D. Ala. 

July 21, 2006) may be informative. In Stabler, albeit a decision which Judge Steele 

stated was Aentered only to decide the motion or matter addressed@ therein and Ais not 

intended for official publication or to serve as precedent,@ the Court stated the nowfamiliar Fortson definition of direct action: 

With due recognition of the existence of credible precedents to the 

contrary, the Court adopts the definition of >direct action= as articulated by 

the Eleventh Circuit in Fortson and by the old Fifth Circuit in Hernandez . 

. . That definition limits § 1332(c)(1) >direct actions= to those in which an 

aggrieved plaintiff files suit against the wrongdoer=s insurer without either 

joining the wrongdoer as a defendant or first obtaining a judgment against 

the wrongdoer. 

Id. at *1, n. 7; *15-16. The Stabler opinion reinforces the undersigned=s view that the 

current matter is not a direct action by noting the limitations on direct actions against 

insurers for the purpose of garnishing the available proceeds of a contract of insurance: 

A[i]ndeed, Alabama law prohibited Stabler from commencing garnishment proceedings 

against Transportation unless he first obtained a judgment against [the defendant].@ Id. at 

*16 (citations omitted). The expressed holding was: ABecause Stabler obtained a 

judgment against [the defendant] before initiating a garnishment action against [the 

defendant=s] insurer, which judgment was a precondition to said garnishment, this case is 

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not a >direct action= for § 1332(c)(1) purposes.@ Id. (emphasis added).4

C. Garnishment Proceedings as Independent Actions 

In their Memorandum in Support of [the] Motion to Remand (Doc. 7), the 

Armentrouts argue that the case should be returned to the Circuit Court of Mobile County 

for the additional reason that this garnishment action is not a separate and independent 

action, but is rather ancillary to the underlying action that the Armentrouts had against 

the Clemens defendants. (Doc. 7, p. 4.) In support of this contention, the Armentrouts 

cite Alongstanding Alabama Supreme Court precedent finding that garnishments are not 

separate proceedings.@ (Id. at 5.) It is federal law, however, that dictates removability 

under 28 U.S.C. § 1441. See Butler v. Polk, 592 F.2d 1293, 1296 n.7 (5th Cir. 1979) 

(citations omitted) (stating that Athe proper characterization of an action under [section] 

1441 is essentially a matter of federal law@); Stabler, 2006 U.S. Dist. LEXIS 50540, at 

*19, n.7 (citing Randolph v. Employers Mut. Liability Ins. Co., 260 F.2d 461, 463-64 (8th

Cir. 1958) (noting that Afederal law and not state law controls as to whether an action is 

 4

 It is also noteworthy that the district courts of Mississippi until recently had reached 

different conclusions on this issue. Compare Boston v. Titan Indemnity Co., 34 F.Supp.2d 419, 

423 (N.D. Miss. 1999) (“the Mississippi garnishment statute providing for the issuance of a writ 

of garnishment on a suggestion for garnishment filed by a judgment creditor, MISS.CODE. 

ANN. § 11-35-1, is the equivalent of a direct action statute”) with Freeman v. Walley, 276 

F.Supp.2d 597, 602 (S.D. Miss. 2003) (“the post-judgment garnishment situation presented here 

serves to further support this court’s conclusion that what is here presented is not a ‘direct action’ 

to which § 1332(c)(1) is addressed.”) In June of this year, following Freeman, the Southern 

District has again refused to remand a removed action based on a post-judgment writ of 

garnishment. Mabins v. Alfa Insurance Company, 2010 WL 2557743 (S.D. Miss. June 23, 2010) 

In Mabins, it is noted that after Freeman was decided “the Northern District of Mississippi has 

adopted [Freeman’s] reasoning over the reasoning in Boston in two related cases.” Id. at *3. 

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removable under 28 U.S.C. § 1441@); Smotherman v. Caswell, 755 F.Supp. 346, 348 (D. 

Kan. 1990) (citation omitted) (AWe conclude that the characterization of garnishment 

actions for the purposes of removal should be a matter of federal law rather than a matter 

to be determined by construing individual state garnishment statutes.@). 

The Eleventh Circuit, moreover, reached a similar conclusion in Webb v. Zurich 

Ins. Co., 200 F.3d 759 (2000) when it mentioned that a defendant in Alabama state court 

facing a similar motion to remand Aremoved the case to federal court alleging that the 

garnishment proceedings were a separate and independent cause of action@ before noting 

that Aa magistrate judge correctly denied [the] motion to remand the case.@ Id. at 760 

(citing Butler, 592 F.2d). Butler, a case from the pre-split Fifth Circuit, specifically 

stated that the garnishment actions Aare generally construed as independent suits, at least 

in relation to the primary action,@ before labeling them as Asuits involving a new party 

litigating the existence of a new liability.@ Butler, 592 F.2d at 1295-96 (collecting cases). 

Chief Judge Steele of this Court has examined this very issue and decided to go along 

with the Webb-Butler line of precedent as well, as does the undersigned. Stabler, 2006 

U.S. Dist. LEXIS 50540, at *18-19. 

D. Whether ACIC is a ADefendant@ Entitled to Removal

The Armentrouts also make the argument that under 28 U.S.C. § 1441(a), 

garnishee ACIC is not a Adefendant@ entitled to removal, and therefore this cause must be 

remanded out of this Court. (Doc. 7, p. 2.) This argument, however, runs afoul of the 

Eleventh Circuit precedent referenced above, in that Webb and Butler both involved 

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15 

actions that were removed into federal court by garnishees. Aside from this tacit 

authority from the Eleventh Circuit that garnishees are indeed defendants entitled to 

removal (because the garnishment proceeding is indeed a separate and independent cause 

of action), consider Smotherman, where the Court directly stated that A[s]ubsection (a) of 

section 1441 affords [the] garnishee . . . the basis for removal of the case.@ Smotherman, 

755 F.Supp. at 348. 

E. Timeliness of the Removal 

The Armentrouts also make the argument that, pursuant to 28 U.S.C. § 1446(b), 

Athis case should be remanded because it has been pending for more than one (1) year.@ 

(Doc. 6, p. 2; Doc. 7, p. 7.) While it is true that under that statute, Aa case may not be 

removed on the basis of jurisdiction conferred by section 1332 . . . more than 1 year after 

commencement of the action,@ the operative commencement date of this garnishment 

action is February 22, 2010, the date on which the Armentrouts filed the process of 

garnishment. (Doc. 2-3, AProcess of Garnishment,@ p. 1.) See Stabler, 2006 U.S. Dist. 

LEXIS 50540, at *20 (A[T]he operative commencement date is . . . the date on which [the 

plaintiff] filed [the] process of garnishment[], not the date on which the underlying . . . 

proceedings began.@). 

F. Federal Abstention and Comity 

Appearing for the first time in the Armentrouts= Reply Brief in Support of Motion 

to Remand (Doc. 15) is the argument that A[s]hould this Court find that jurisdiction is 

somehow proper, Plaintiffs respectfully submit that the Court should abstain from 

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exercising jurisdiction and remand the entire action . . . in the interest of comity, 

federalism[,] and judicial economy.@ (Doc. 15, p. 8.) The cases cited by Plaintiffs in 

support of this proposition, however, typically involved pending or concurrent state court 

actions, unlike the situation before the undersigned, where a final judgment has been 

entered against the Clemens defendants in state court and a separate garnishment 

proceeding has subsequently been filed. Regardless, the Eleventh Circuit, in 31 Foster 

Children v. Bush, 329 F.3d 1255 (2003) mentioned: 

The Supreme Court has said that federal courts have a Avirtually unflagging 

obligation ... to exercise the jurisdiction given them.@ Col[orado] River 

Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 

1236, 1246, 47 L.Ed.2d 483 (1976). But >virtually= is not >absolutely,= and 

in exceptional cases federal courts may and should withhold equitable relief 

to avoid interference with state proceedings. New Orleans Pub. Serv., Inc. 

v. Council of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 2513, 105 

L.Ed.2d 298 (1989). 

Id. at 1274. Where, as here, there is no possibility of interfering with state proceedings, it 

seems highly implausible that the garnishment proceeding before the undersigned would 

fall into the category of Aexceptional cases@ which would counsel federal abstention 

mentioned by the Supreme Court in New Orleans Pub. Serv., Inc.

G. A Controversy Exists Between the Parties 

The Armentrouts make one final argument in favor of remand, although it again 

appears for the first time in their Reply Brief in Support of Motion to Remand (Doc. 15). 

Therein, the Armentrouts assert that ACIC is not a Adefendant@ entitled to removal 

because no case or controversy existed at the time of removal, as under Alabama law, 

Case 1:10-cv-00149-KD-C Document 17 Filed 07/22/10 Page 16 of 20
17 

Athe issue between a plaintiff and a garnishee is not made up for trial unless and until (1) 

the garnishee answers the process of garnishment, and (2) the plaintiff controverts the 

garnishee=s answer within thirty days after notice of the filing of the answer he believes to 

be untrue. (Doc. 15, p. 17.) In support of this contention, the Armentrouts cite a 

Nineteenth-Century decision of the Supreme Court of Alabama, Hurst v. Home 

Protection Fire Ins. Co., 81 Ala. 174, 1 So. 209 (1887). Hurst, however, does not 

support the sort of far-reaching procedural bar suggested by Plaintiffs. The relevant 

portion of that opinion merely states: 

When an answer in garnishment is full and complete, and leaves nothing 

for the ascertainment by events to transpire afterwards, then, unless the 

truth of the answer is controverted, or some other issue is formed upon it, 

the case is one for simple judicial determination. 

Id. at 209-10. Notably absent from this language is any statement from Alabama=s 

highest court that an answer must be had for a garnishment proceeding to become a Aripe@

action that involves a case or controversy between the parties. The Hurst opinion does

provide, however, that A[i]f the admitted indebtedness has not matured, or if the debt, to 

aid the collection of which the garnishment is sued out, has not been reduced to 

judgment, then the garnishment suit cannot be made effective until the particular event 

happens,@ explaining that A[t]he statute does not provide for such cases.@ Id. at 210 

(citations omitted). In the situation before the undersigned, the Armentrouts have 

reduced the Adebt@ owed to them by the Clemens defendants to a judgment, and thus the 

garnishment proceeding is Aeffective,@ following the Hurst Court=s reasoning. 

Case 1:10-cv-00149-KD-C Document 17 Filed 07/22/10 Page 17 of 20
18 

Even if Hurst did read as the Armentrouts would have this Court believe, its reasoning 

based on Alabama statutes would have no application in this forum. As this Court has 

already remarked in Stabler, A[a] state statute cannot divest a federal court of diversity 

jurisdiction.@ Stabler, 2006 U.S. Dist. LEXIS 50540, at *22 (citing Superior Beverage 

Co. v. Schieffelin & Co., 448 F.3d 910, 917 (6th Cir. 2006)).5

 Numerous other federal 

courts have echoed this viewpoint. See, e.g., Nationwide Investors v. Miller, 793 F.2d 

1044, 1045 (9th Cir. 1986) (repeating the Ninth Circuit=s former holding that Athe 

characterization of a garnishment proceeding is a question of federal law.@); Lewis v. 

Blackmon, 864 F.Supp. 1, 4 (S.D. Miss. 1994) (stating that, in the context of a 

garnishment proceeding, A[r]emoval is a procedural question, thus federal law governs.@); 

Dr. Macht, Podore & Associates, Inc. v. Girton, 392 F.Supp. 66, 67 (D.C. Ohio 1975) 

(adopting view that Athe nature of a garnishment proceeding should be determined by 

federal law,@ albeit with some non-controlling deference to the state characterization). 

III. Conclusion.

For all of the foregoing reasons, it is the undersigned=s recommendation that 

Plaintiffs= Motion to Remand (Doc. 6) be DENIED. 

The instructions that follow the undersigned=s signature contain important 

information regarding objections to the report and recommendation of the Magistrate 

 

 5

 Also recall the discussion, supra, of the various Eleventh Circuit authorities explaining 

that removability is a matter of federal, not state, law. 

Case 1:10-cv-00149-KD-C Document 17 Filed 07/22/10 Page 18 of 20
19 

Judge. 

DONE this 22nd day of July, 2010. 

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00149-KD-C Document 17 Filed 07/22/10 Page 19 of 20
20 

 MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

 RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

 FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific written objections with the Clerk of this 

court. Failure to do so will bar a de novo determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 

U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 

F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and 

recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), 

which provides that: 

A party may object to a recommendation entered by a magistrate judge in a dispositive 

matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by filing a >Statement of 

Objection to Magistrate Judge=s Recommendation= within ten days6 after being served 

with a copy of the recommendation, unless a different time is established by order. The 

statement of objection shall specify those portions of the recommendation to which 

objection is made and the basis for the objection. The objecting party shall submit to the 

district judge, at the time of filing the objection, a brief setting forth the party=s arguments 

that the magistrate judge=s recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief submitted 

to the magistrate judge, although a copy of the original brief may be submitted or referred 

to and incorporated into the brief in support of the objection. Failure to submit a brief in 

support of the objection may be deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district 

judge's order or judgment can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. ' 1915 and 

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are 

adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay 

the fee for a transcript, is advised that a judicial determination that transcription is necessary is required 

before the United States will pay the cost of the transcript. 

 6

 Effective December 1, 2009, the time for filing written objections was extended to A14 

days after being served with a copy of the recommended disposition[.]@ Fed.R.Civ.P. 72(b)(2). 

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