*

The Honorable Karl S. Forester, Chief United States District Judge

for the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0367P (6th Cir.)

File Name: 03a0367p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MARGO HUDSON,

Plaintiff-Appellant,

v.

BRYAN COLEMAN; ERIC

RODGERS,

Defendants-Appellees,

CITY OF FLINT,

Garnishee-Appellee.

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No. 01-1653

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 97-71145—Denise Page Hood, District Judge.

Argued: December 12, 2002

Decided and Filed: October 14, 2003 

Before: BATCHELDER and MOORE, Circuit Judges;

FORESTER, Chief District Judge.*

2 Hudson v. Coleman et al. No. 01-1653

_________________

COUNSEL

ARGUED: David J. Nickola, NICKOLA & NICKOLA,

Flint, Michigan, for Appellant. Patrick L. Rose, Lansing,

Michigan, for Appellees. ON BRIEF: David J. Nickola,

NICKOLA & NICKOLA, Flint, Michigan, for Appellant.

Patrick L. Rose, Lansing, Michigan, for Appellees.

FORESTER, D. J., delivered the opinion of the court, in

which BATCHELDER, J., joined. MOORE, J. (pp. 15-21),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

FORESTER, District Judge. Plaintiff appeals the district

court’s order granting the City of Flint’s (“City”) motion to

quash Plaintiff’s garnishment action against the City. For the

following reasons, we AFFIRM the judgment of the district

court.

I. FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff filed an action in state court asserting state and

federal causes of action against Officers Bryan Coleman, Eric

Rodgers, and the City of Flint arising from the Officers’ theft

of Hudson’s Cocker Spaniel, “Brandy.” The City removed

the action to the Eastern District of Michigan based on

Plaintiff’s 42 U.S.C. §§ 1983 and 1985 claims. 

The facts giving rise to this dispute are undisputed and

merit only a brief discussion before turning to the

determinative legal issue of subject matter jurisdiction.

Hudson reported that her car had been stolen with her dog

inside the car. Officers Coleman and Rodgers responded to

a radio call to investigate Hudson’s missing vehicle and dog.
No. 01-1653 Hudson v. Coleman et al. 3

1

Officers Coleman and Rodgers agreed to pay $300,000 to settle

Plaintiff’s claims arising from the Officers’ theft of the dog. As will be

discussed, the legal issue presented is whether the federal courts have

jurisdiction to determine whether the City is liable for this debt in

Plaintiff’s garnishment action against the City. 

The Officers located the stolen vehicle and proceeded to take

the dog from the car and ultimately to Officer Coleman’s

house. The Officers then lied by reporting that they did not

find a dog inside the car. The truth concerning the theft of the

would-be “$300,000 Cocker Spaniel1” finally surfaced five

months later during an internal police department

investigation in which the Officers admitted to stealing the

dog. The Cocker Spaniel was returned to Hudson and the

Officers faced discipline by the Police Department. 

After the district court granted the City’s motion for

summary judgment dismissing it from the case, Hudson and

the Officers entered into a consent judgment whereby

Coleman would pay $200,000 and Rodgers would pay

$100,000 in settlement of Hudson’s claims. In an effort to

collect upon the consent judgment against Coleman and

Rodgers, Hudson filed writs of garnishment against the City.

Hudson asserted that the City would be liable to pay the

consent judgment because of an indemnity agreement

between the City and the Police Officers Union. 

The indemnification agreement under which Hudson

attempts to collect the consent judgment from the City

provides: 

Whenever any claim is made or any civil action is

commenced against an Employee for injuries to persons

or property caused by negligence or other acts of the

Employee while in the course of his employment, and

while acting within the scope of his authority, the

Employer will pay for or engage in or furnish the

services of an Attorney to advise the Employee as to the

4 Hudson v. Coleman et al. No. 01-1653

2We commend Magistrate Judge Paul J. Komives for a thorough and

well-reasoned report and recommendation, much of which has been

adopted in this opinion. 

claim and to appear for and represent the Employee in

the action. 

The Employer may compromise, settle and pay such

claim before or after the commencement of any civil

action. Whenever any judgment for damages, excluding

punitive damages, is awarded against an Employee as the

result of any civil action for personal injuries or property

damage caused by the Employee while in the course of

his employment, and while acting within the scope of his

authority, the Employer will indemnify the employee or

will pay, settle, or compromise the judgment. The Chief

Legal Officer will make the selection of the attorney or

attorneys to represent the Employee in any particular

case, and allow the Employee to object to the selection if

he has cause to do so. 

Pursuant to the above indemnity agreement, the City

provided the Officers with legal counsel during the course of

the proceedings. There is no evidence in the record indicating

that the City’s liability under the indemnification agreement

has been established, or, more specifically, whether the

Officers were acting within the scope of their employment

and authority when they stole the dog. By the time Hudson

instituted the garnishment proceeding against the City, the

Officers each had paid $12,500 to Hudson in partial

satisfaction of their debts.

The City filed a motion to quash the garnishment on the

basis of several theories, including lack of subject matter

jurisdiction. After the Magistrate Judge

2

 filed a report and

recommendation concluding that the courtlacked jurisdiction,

the district court adopted the report and recommendation and

granted the City’s motion to quash. Hudson timely filed a

notice of appeal. 
No. 01-1653 Hudson v. Coleman et al. 5

II. ANALYSIS 

We review de novo a district court’s determination of

subject matter jurisdiction. See, e.g., Greater Detroit

Resource Recovery Authority v. EPA, 916 F.2d 317, 319 (6th

Cir. 1990). As an initial observation, it is well established

that federal courts are courts of limited jurisdiction,

possessing only that power authorized by the Constitution and

statute, see Willy v. Coastal Corp., 503 U.S. 131 (1992);

Bender v. Williamsport Area School Dist., 475 U.S. 534, 541

(1986), which is not to be expanded by judicial decree,

American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951).

Accordingly, “[i]t is to be presumed that a cause lies outside

this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction.” Id (citing

Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 (1799);

McNutt v. General Motors Acceptance Corp., 298 U.S. 178,

182-183 (1936)). 

The district court found that it lacked jurisdiction over the

garnishment, primarily because the action attempts to hold the

City, a third party, liable for payment of a judgment on an

independent legal theory, the indemnity agreement, which

would require separate analysis and possible discovery

concerning the City’s defenses to liability. As set forth

above, the City was dismissed from the action on September

30, 1998. The Officers then settled with the Plaintiff and a

consent judgment was entered on February 29, 2000. It was

not until June 30, 2000, that the Plaintiff served writs of

garnishment on the City relying upon Fed. R. Civ. P. 69.

The jurisdictional analysis in this garnishment action begins

with a consideration of Peacock v. Thomas, 516 U.S. 349

(1996), and its discussion of ancillary subject matter

jurisdiction. As a starting point, it is necessary to understand

that there are two situations in which a court may exercise

ancillary jurisdiction over a claim otherwise not within the

jurisdiction of the court: “‘(1) to permit disposition by a

single court of claims that are, in varying respects and

6 Hudson v. Coleman et al. No. 01-1653

degrees, factually interdependent; and (2) to enable a court to

function successfully, that is, to manage its proceedings,

vindicate its authority, and effectuate its decrees.’” Peacock,

516 U.S. at 354 (quoting Kokkomen v. Guardian Life Ins. Co.,

511 U.S. 375, 379-80 (1994) (citations omitted)). The first

category of ancillary jurisdiction identified above has largely

been codified in the supplemental jurisdiction statute, 28

U.S.C. § 1367. The second category of ancillary jurisdiction

is generally referred to as “ancillary enforcement

jurisdiction.” 

 In Peacock, the plaintiff obtained a federal court judgment

against a corporation pursuant to the Employee Retirement

Income Security Act of 1974 (ERISA), 88 Stat. 832, as

amended, 29 U.S.C. § 1001 et seq. After efforts to collect on

the judgment failed, the plaintiff filed a second suit seeking to

hold Peacock, an officer and shareholder of the corporation,

personally liable under a piercing of the corporate veil theory.

The Supreme Court determined that it was without an

independent jurisdictional basis for the suit because ERISA

does not authorize a veil-piercing action. In addition, the

Court rejected the plaintiff’s argument that the federal courts

had ancillary enforcement jurisdiction over the second suit.

The Court began its analysis by emphasizing that it has

“reserved the use of ancillary jurisdiction in subsequent

proceedings for the exercise of a federal court’s inherent

power to enforce its judgments.” Peacock, 516 U.S. at 356.

The Court further explained that, “[i]n defining that power,

we have approved the exercise of ancillary jurisdiction over

a broad range of supplementary proceedings involving third

parties to assist in the protection and enforcement of federal

judgments–including attachment, mandamus, garnishment,

and the prejudgment avoidance of fraudulent conveyances.”

Id. (citations omitted).

Nevertheless, Peacock concluded that it was without

ancillary jurisdiction to entertain plaintiff’s second suit. The

Court cautioned that the recognition of ancillary
No. 01-1653 Hudson v. Coleman et al. 7

supplementary proceedings has not extended beyond attempts

to execute, or guarantee the eventual executability of a federal

judgment. More specifically, the Court has “never authorized

the exercise of ancillary jurisdiction in a subsequent lawsuit

to impose an obligation to pay an existing federal judgment

on a person not already liable for that judgment.” Id. at 357.

The Court further explained that

[i]n determining the reach of the federal courts’ ancillary

jurisdiction, we have cautioned against the exercise of

jurisdiction over proceedings that are “‘entirely new and

original,”’ or where “the relief [sought is] of a different

kind or on a different principle” than that of the prior

decree.

Id. at 358 (citations omitted). 

Peacock concluded that the federal courts were without

ancillary enforcement jurisdiction because plaintiff’s action

was “founded not only upon different facts than the ERISA

suit, but also upon entirely new theories of liability.” Id. 

Here, it is undisputed that Plaintiff’s indemnity claim does

not raise a federal question and that the parties are not

diverse. Accordingly, the Court is without independent

subject matter jurisdiction over the “writs of garnishment.”

Peacock’s analysis controls regarding exercise of the first

category of ancillary jurisdiction, i.e., “ordinary” ancillary

jurisdiction. According to Peacock:

The basis of the doctrine of ancillary jurisdiction is the

practical need “to protect legal rights or effectively to

resolve an entire, logically entwined lawsuit. [Owen

Equipment & Erection Co. v.] Kroger, [437 U.S. 365,

377 (1978)]. But once judgment was entered in the

original suit, the ability to resolve simultaneously

factually intertwined issues vanished. As in Kroger,

“neither the convenience of litigants nor considerations

of judicial economy” can justify the extension of

8 Hudson v. Coleman et al. No. 01-1653

3

The Plaintiff attempts to distinguish Peacock on the basis that it

involved a separate suit and the case at bar involves writs of garnishment

against the non-party City proceeding under the same case number as the

original suit. This distinction has no bearing on “ordinary” ancillary

jurisdiction analysis, as such jurisdiction is discretionary with the Court

and contemplates proceedings under the same case number in any event.

See 28 U.S.C. § 1367. The “separate suit” issue and its bearing on

ancillary enforcement jurisdiction is discussed infra at pp. 7-13.

ancillary jurisdiction over [plaintiff’s] claims in this

subsequent proceeding. 

Peacock, 516 U.S. at 255.3 

Just as in Peacock, there is no rationale to support

exercising ancillary jurisdiction over Plaintiff’s state law

indemnity claim against the City. The indemnity claim was

not asserted until after the City was dismissed and the case

against the individual defendants was settled. Accordingly,

there are no factually intertwined issues to resolve and neither

the convenience of the litigants nor considerations of judicial

economy justify the exercise of ancillary jurisdiction over

Plaintiff’s state law indemnity claim. 

Turning to the purported ancillary “enforcement” grounds

for jurisdiction, we find that a proper reading of Peacock

dictates that the federal courts are without jurisdiction to

entertain this garnishment action. The precise issue presented

by the Plaintiff in actuality is whether the fact that the

garnishment action is proceeding under the same case number

as the original action, rather than in a second lawsuit,

sufficiently distinguishes the case from Peacock.

Peacock explained that ancillary jurisdiction is

inappropriate in two distinct proceedings, only one of which

involves a subsequent lawsuit. First, the Court indicated that

ancillary jurisdiction is inappropriate in “proceedings that are

entirely new and original.” Peacock, 516 U.S. at 358

(internal quotation and citation omitted). Assuming without
No. 01-1653 Hudson v. Coleman et al. 9

deciding that the garnishment action falls outside this first

precept, the action is squarely prohibited by the second

category identified in Peacock “where ‘the relief [sought is]

of a different kind or on a different principle’ than that of the

prior decree.” Id. (quoting Dugas v. American Surety Co.,

300 U.S 414, 428 (1937)) (alteration in original). 

Plaintiff’s garnishment claim seeks to impose liability on

the City, a third party not a party to the consent judgment, on

the basis of the indemnity agreement, a legal theory entirely

independent from that in the original action. As stated above,

there is no evidence in the record indicating that the City’s

liability under the indemnification agreement has been

established, or, more specifically, whether the Officers were

acting within the scope of their employment or authority

when they stole the dog. In fact, the City was not served with

the writs of garnishment until one year and nine months after

being dismissed from the lawsuit. At this stage, there has

simply been no interpretation of the indemnity clause in the

labor agreement between the City and the Police Officer’s

union. The City has not been adjudged liable to indemnify

the Officers’ settlement with the Plaintiff, in that there remain

substantial questions regarding the interpretation of the labor

agreement, e.g., whether each Officer was acting “while in the

course of his employment” and “within the scope of his

authority.” The interpretation of the indemnity provision

presents unresolved issues such as whether each Officers’

conduct giving rise to the suit constituted a frolic or a mere

detour from duty.

In sum, the relief sought by the Plaintiff is based upon a

vastly different principle than that of the prior consent decree.

We find Hudson’s reading of Peacock far too narrow and

conclude that she has not carried her burden of demonstrating

that this suit falls within either category of ancillary

jurisdiction.

Hudson relies upon the statement in Peacock that “we have

approved the exercise of ancillary jurisdiction over a broad

10 Hudson v. Coleman et al. No. 01-1653

4

Likewise, Fed. R. Civ. P. 69(a), providing supplementary

proceedings in aid of executing a judgment, does not purport to confer

ancillary subject matter jurisdiction for all garnishment proceedings

arising out of a common nucleus of fact to the original federal proceeding.

Instead, Peacock explains the limits of federal ancillary jurisdiction.

range of supplementary proceedings involving third parties to

assist in the protection and enforcement of federal

judgments–including attachment, mandamus, garnishment,

and the prejudgment avoidance of fraudulent conveyances.”

Peacock, 516 U.S. at 356 (emphasis added) (citations

omitted). The Supreme Court’s acknowledgment of the fact

that garnishment sometimes falls within ancillary jurisdiction

is obviously not imprimatur for all garnishment actions

arising from previous factually similar underlying federal

claims to proceed in federal court.4 The type of garnishment

proceeding referred to in Peacock does not contemplate

making the garnishee personally liable on the judgment based

on some independent legal theory as Hudson seeks to do in

this case. Instead, the typical garnishment proceeding

referenced in Peacock contemplates the garnishee’s paying

the judgment creditor/garnishing party directly forfunds,such

as a salary, owed by the garnishee to the defendant in the

underlying action. Cf. Sandlin v. Corporate Interiors, Inc.,

972 F.2d 1212, 1216-17 (10th Cir. 1992) (applying H.C.

Cook Co. v. Beecher, 217 U.S. 497 (1910), a case with

renewed vitality post-Peacock); Merrell v. Miller, No. 91-

493-A, 1998 WL 329264, at *2 (E.D. Va. June 8, 1998)

(noting that Peacock prohibits “efforts, unsupported by an

independent basis for federal jurisdiction, to establish a new

defendant’s personal liability for an existing judgment.”).

Michigan law apparently acknowledges the above

distinction in the forms of garnishment by labeling the typical

form of garnishment as “periodic” and the type garnishment

sought by Hudson as “non-periodic.” To be sure, Hudson is

not requesting that any wages owed by the City to the

Officers be paid by the City to Hudson. Instead, Hudson
No. 01-1653 Hudson v. Coleman et al. 11

5

Yang relies on the previous Seventh Circuit decision of Argento v.

Village of Melrose Park, 838 F.2d 1483 (7th Cir. 1988). The Supreme

Court in Peacock implied that Argento and its progeny were on the wrong

side of a circuit split. See Peacock, 516 U.S. at 532 n.2; see also Yang,

137 F.3d at 526. Argento, predating Peacock, permits ancillary

jurisdiction “when the plaintiff is proceeding in his original suit rather

than by means of a new suit.” Yang, 137 F.3d at 526 (citations omitted).

This jurisdictional analysis based upon “original suit” versus “new suit”

labeling is irreconcilable with Peacock’s more substantive analysis

prohibiting jurisdiction “where ‘the relief [sought is] of a different kind

or on a different principle’ than that of the prior decree.” Peacock, 516

U.S. at 358 (quoting Dugas v. American Surety Co., 300 U.S. 414, 428

(1937)) (alteration in original).

seeks to hold the City individually liable under the indemnity

clause for the full amount of the Officers’ settlement. The

state form used by Hudson is labeled “non-periodic” request

and writ for garnishment and Hudson’s attorney has mailed a

letter to the City on July 10, 2000, indicating the belief that

the City is responsible for payment of the entire judgment

under the indemnity clause. As stated above, the type

garnishmentsought by Hudson contemplates making the third

party City, a non-party to the consent judgment, personally

liable on the consent judgment entered into by the Officers

based on the independent legal theory of the indemnification

agreement. The City’s liability under the newly presented

indemnity principle is far from established; thus, the issues to

be litigated under the indemnity agreement deprive the Court

of ancillary jurisdiction. See Peacock, 516 U.S. at 358; see

also, Travelers Indemnity Co. of Ill. v. Hash Management,

Inc., 173 F.R.D. 150, 153 (M.D.N.C. 1997) (“However, if the

proceedings are entirely new and original or seek relief

different in kind, on a different principle, or to impose

liability on persons not already bound by the previous action

and judgment, the moving party must be able to assert an

independent basis for federal jurisdiction over the controversy

with the third party.”). 

Hudson also relies on Yang v. City of Chicago5, 137 F.3d

522 (7th Cir. 1998), permitting ancillary jurisdiction under

12 Hudson v. Coleman et al. No. 01-1653

Fed. R. Civ. P. 69 for an indemnification action against the

City of Chicago after the City was dismissed from the original

lawsuit. Yang involved police officer defendants who, after

responding to a break-in at Yang’s store, proceeded to

continue the looting started by the original thieves. After

Yang objected to the officers’ looting, the officers drove for

two blocks with Yang hanging on to the car door. One officer

eventually pulled his gun and punched Yang before fleeing

the scene. 

The Yang district court entered judgment against the

officers and dismissed the action against the City. Yang then

sought indemnification from the City on the basis of Illinois’

indemnification statute, 745 ILCS 10/9-102, providing in

pertinent part that a local public entity must pay any tort

judgment against an employee “while acting within the scope

of his employment.” The district court dismissed the

indemnification petition on the basis of the Peacock decision.

The Seventh Circuit held that the federal courts had

jurisdiction over the indemnification petition because the

petition was not a separate lawsuit and involved the same core

of operative facts as the original action. According to Yang,

“a Rule 69 garnishment proceeding to collect a judgment

from a third person not party to the original suit is within a

court’s ancillary jurisdiction, providing the additional

proceeding does not inject so many new issues that it is

functionally a separate case.” Yang, 137 F.3d at 526. (internal

quotation omitted). Yang concluded that interpreting the

scope of employment issue in order to resolve the indemnity

question did not inject so many new issues into the action as

to make it functionally a separate case. The Seventh Circuit

then proceeded to resolve the scope of employment issue by

concluding that under Illinois law the officer was acting

within the scope of his employment when he pulled the gun

on Yang. Id. at 525. 

As an initial matter, Yang acknowledges that whether the

garnishment arises by way of a separate action or under the
No. 01-1653 Hudson v. Coleman et al. 13

6We acknowledge that the Peacock framework for denying ancillary

jurisdiction “where ‘the relief [sought is] of a different kind or on a

different principle’ than that of the prior decree” permits a certain degree

of subjectivity in decision making. Perhaps Yang can be explained on this

basis in that the litigation resulted in a more than six year saga due in part

to delays by the City, including multiple reviews by the Seventh Circuit.

Yang involved a remand with directions that the case be reassigned to a

different district judge due to inordinate delays. See Yang, 137 F.3d at

527. In addition, the Court expressed, “Yang has waited long enough for

this lawsuit to come to an end.” Id. at 527. We regret the inconvenience

and delay that may be associated with a separate state court garnishment

proceeding; however, as stated earlier, it is well-established that we must

presume that a cause of action lies outside the limited federal jurisdiction

when presented with a subjective choice or close call concerning the

existence of jurisdiction.

same case number as the original action is far from

determinative of ancillary jurisdiction. Instead, Yang focuses

on whether the garnishment injects sufficient new issues as to

make the garnishment functionally separate, thus destroying

ancillary jurisdiction. Yang’s “functionally separate”

subjective framework is fact-specific and can be interpreted

as facially consistent with the Supreme Court’s

pronouncement that ancillary jurisdiction is inappropriate in

“proceedings that are entirely new and original” and in

proceedings “where ‘the relief [sought is] of a different kind

or on a different principle’ than that of the prior decree.”

Peacock, 516 U.S. at 358 (internal quotation omitted)

(quoting Dugas v. American Surety Co., 300 U.S 414, 428

(1937)) (alteration in original). 

We disagree with Yang’s application of the “functionally

separate” framework6 in deciding the indemnification issue

and hold that legitimate, unresolved disputes concerning

whether conduct occurs within the scope of employment or

authority deprives a federal court of ancillary jurisdiction in

a garnishment action pursuant to Peacock. As stated, the City

of Flint’s liability under the newly presented indemnity

principle is far from established; thus, the issues to be

litigated under the indemnity agreement deprive the Court of

14 Hudson v. Coleman et al. No. 01-1653

ancillary jurisdiction. It is inappropriate for a Court to decide

legitimate scope of employment and/or scope of authority

questions without the benefit of fact-finding and briefing. 

Our determination in this action overrules Childress v.

Williams, 121 F. Supp.2d 1094 (E.D. Mich. 2000). Childress

attempts to distinguish the disputed application of the

indemnity agreement from Peacock’s ambit by stating: 

[I]f all the prerequisites of the indemnification agreement

were met, the City would be liable for indemnification at

the time the judgment was rendered against the defendant

Williams . . . . Because Defendant Williams may have a

right to collect from the City, so too may plaintiff.

Childress, 121 F. Supp.2d at 1096 (emphasis added). 

Instead, as we have set forth above, the very contingencies

identified in Childress (“if,” “would be,” and “may”) require

sufficient fact-finding and legal analysis to distinguish the

garnishment proceeding from the original action, rendering

the federal courts without ancillary jurisdiction. 

III. CONCLUSION 

Based upon the above, we AFFIRM the district court’s

order granting the City of Flint’s motion to quash Plaintiff

Hudson’s garnishment action. 
No. 01-1653 Hudson v. Coleman et al. 15

1

Hudson named the City as a defendant in her complaint, but the

district court granted summary judgment in favor of the City on

September 30, 1998.

_______________

DISSENT

_______________

KAREN NELSON MOORE, Circuit Judge, dissenting. I

respectfully dissent from the majority’s conclusion that the

district court lacks subject matter jurisdiction over PlaintiffAppellant, Margo Hudson’s (“Hudson”), garnishment action

against Defendant-Appellee, the City of Flint (“City”).

Contrary to the majority, I conclude that Hudson’s

garnishment action is merely a post-judgment proceeding

following her prior § 1983 action against DefendantsAppellees, Bryan Coleman and Eric Rodgers (collectively

“police officers”), and that the garnishment action will not

inject so many new issues as to become a functionally

separate lawsuit. I further conclude that Hudson is merely

seeking to collect her judgment, rather than to impose liability

upon someone not otherwise liable for the judgment.

Therefore, the doctrine of ancillary jurisdiction gives the

district court subject matter jurisdiction over the garnishment

action. For the following reasons, I would REVERSE the

district court’s order granting the City’s motion to quash

Hudson’s garnishment action and REMAND for further

proceedings.

As discussed in the majority opinion, Hudson brought

§§ 1983, 1985, and state law claims against the police officers

arising from the police officers’ theft of Hudson’s dog.

1

 On

February 29, 2000, Hudson and the police officers entered

into a consent judgment, whereby the police officers agreed

to pay $300,000 in settlement of Hudson’s claims. Then, on

June 30, 2000, Hudson, seeking to collect the consent

judgment, filed writs of garnishment on the City pursuant to

16 Hudson v. Coleman et al. No. 01-1653

2

Rule 69 directs district courts to employ the procedures for

executing judgments of the state in which the district court sits. See Fed.

R. Civ. P. 69(a). Rule 69(a) provides:

The procedure on execution, in proceedings supplementary to

and in aid of a judgment, and in proceedings on and in aid of

execution shall be in accordance with the practice and procedure

of the state in which the district court is held, existing at the time

the remedy is sought, except that any statute of the United States

governs to the extent that it is applicable.

Id.

The Michigan garnishment statute allows a prevailing plaintiff to

seek a writ of garnishment against an obligation owed to the defendant,

if the obligor is subject to personal jurisdiction in Michigan. See Mich.

Comp. Laws § 600.4011(1). Section 600.4011(1) provides:

[T]he court has power by garnishment to apply the following

property or obligation, or both, to the satisfaction of a claim

evidenced by contract, judgment of this state, or foreign

judgment, whether or not the state has jurisdiction over the

person against whom the claim is asserted:

(a) Personal property belonging to the person against

whom the claim is asserted but which is in the

possession or control of a third person if the third

person is subject to the judicial jurisdiction of the

state and the personal property to be applied is

within the boundaries of this state.

(b) An obligation owed to the person against whom

the claim is asserted if the obligor is subject to the

judicial jurisdiction of the state.

Id.

Federal Rule of Civil Procedure 69(a) (“Rule 69(a)") and

Mich. Comp. Laws § 600.4011(1).2 The district court found

that it lacked subject matter jurisdiction over the garnishment

action because the garnishment action seeks “to hold the City,

a third party, liable for payment of a judgment on an

independent legal theory, the indemnity agreement, which

would require separate analysis and possible discovery

concerning the City’s defenses to liability.” Majority Op. at

5. The majority affirms the district court’s order quashing

Hudson’s garnishment action based upon the same reasoning

employed by the district court.
No. 01-1653 Hudson v. Coleman et al. 17

Contrary to the majority, I would hold that the doctrine of

ancillary jurisdiction gives the district court subject matter

jurisdiction over the garnishment action. Unlike the majority,

I conclude that the Supreme Court’s holding in Peacock v.

Thomas, 516 U.S. 349 (1996), does not prohibit this use of

ancillary jurisdiction. Instead, I conclude that the Seventh

Circuit’s reasoning in Yang v. City of Chicago, 137 F.3d 522

(7th Cir. 1998), cert. denied, 525 U.S. 1140 (1999), and the

Eastern District of Michigan’s reasoning in Childress v.

Williams, 121 F. Supp. 2d 1094 (E.D. Mich. 2000), correctly

analyze Peacock’s effect on the doctrine of ancillary

jurisdiction in Rule 69 proceedings.

In Peacock, Thomas had been awarded a judgment of

$187,628.93 by the district court in his ERISA class action

against Tru-Tech, his former employer. Peacock, 516 U.S. at

351. The district court had found that Tru-Tech breached its

fiduciary duties in administering the corporation’s pension

benefits plan, but the district court had also explicitly ruled

that Peacock, an officer and shareholder of Tru-Tech, was not

a fiduciary. Id. Unable to obtain the money from Tru-Tech,

Thomas sued Peacock in federal court alleging various

theories, including a veil-piercing claim under ERISA. Id. at

352.

The Supreme Court held that ERISA does not authorize

veil-piercing claims; therefore, ERISA did not provide a basis

for federal jurisdiction over Thomas’s veil-piercing claim. Id.

at 353. The Court further held that the doctrine of ancillary

jurisdiction did not apply to Thomas’s veil-piercing claim,

and as a result, the district court lacked subject matter

jurisdiction over Thomas’s action against Peacock. Id. at

355-59. In so holding, the Court stated that “a federal court

may exercise ancillary jurisdiction ‘(1) to permit disposition

by a single court of claims that are, in varying respects and

degrees, factually interdependent; and (2) to enable a court to

function successfully, that is, to manage its proceedings,

vindicate its authority, and effectuate its decrees.’” Id. at 354

(quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,

18 Hudson v. Coleman et al. No. 01-1653

3

This holding is not inconsistent with the Tenth Circuit’s view in

Sandlin v. Corporate Interiors, Inc., 972 F.2d 1212, 1217 (10th Cir.

1992), a pre-Peacock decision, in which the court held that the district

court lacked subject matter jurisdiction over the plaintiff’s subsequent

veil-piercing claim because the claim involved new parties, new issues,

and new theories of liability. The Tenth Circuit explicitly noted that the

379-80 (1994)). The Court held that Thomas’s veil-piercing

claim did not involve the first accepted usage of ancillary

jurisdiction, as Thomas brought his veil-piercing claim in a

subsequent lawsuit, and thus “the ability to resolve

simultaneously factually intertwined issues vanished.” Id. at

355. The Court further held that Thomas’s veil-piercing

claim did not involve the second accepted usage of ancillary

jurisdiction because, although ancillary jurisdiction may be

used to enforce judgments, the Court has “never authorized

the exercise of ancillary jurisdiction in a subsequent lawsuit

to impose an obligation to pay an existing federal judgment

on a person not already liable for that judgment.” Id. at 357.

In Yang, a post-Peacock decision, the Seventh Circuit held

that the doctrine of ancillary jurisdiction gave the district

court subject matter jurisdiction over Yang’s Rule 69

garnishment action. Yang, 137 F.3d at 526. Yang had been

awarded a substantial monetary judgment in his §§ 1983 and

1985 actions against two police officers. Id. at 522-23.

Approximately three months later, “Yang filed a petition for

indemnification and writ of execution, seeking

indemnification of [his judgments against the officers] from

the City of Chicago pursuant to 745 ILCS 10*9-102. Section

9-102 directs a municipality to indemnify a tort judgment

entered against an employee if the employee’s misconduct

was within the scope of his employment.” Id. at 524. The

court held that “a Rule 69 garnishment proceeding to collect

a judgment from a third person not party to the original suit

is within a court’s ancillary jurisdiction, providing ‘the

additional proceeding does not inject so many new issues that

it is functionally a separate case.’” Id. at 526 (quotations

omitted).3 The court concluded that Yang’s garnishment
No. 01-1653 Hudson v. Coleman et al. 19

plaintiff was not bringing a traditional indemnity claim. Id.

action fell within the district court’s ancillary jurisdiction

because the only new issue raised in the action was whether

the officers were acting within the scope of their employment

when they violated Yang’s constitutional rights. See id. The

Yang court further distinguished Peacock by noting that the

plaintiff in Yang was not trying to impose liability for a

money judgment on a person not otherwise liable for the

judgment, because if the officers were acting within the scope

of their employment, the city would be liable for their

judgment. Id. at 525 n.1. Similarly, in Childress, the Eastern

District of Michigan held that the doctrine of ancillary

jurisdiction gave it subject matter jurisdiction over

Childress’s Rule 69 garnishment proceeding because the only

new issue raised in the proceeding was whether the officer

was acting within the scope of his employment when he

violated Childress’s constitutional rights. Childress, 121 F.

Supp. 2d at 1096.

The courts in both Yang and Childress reasoned that the

Rule 69 garnishment actions were not separate lawsuits

because they were post-judgment proceedings, and because

the factual issues in the garnishment actions would overlap

substantially with the factual issues in the underlying claims.

See Yang, 137 F.3d at 526; Childress, 121 F. Supp. 2d at

1096. Thus, the garnishment actions involved the first

accepted use of ancillary jurisdiction—resolving factually

interdependent claims in a single proceeding. The courts in

both Yang and Childress also reasoned that the district court’s

exercise of ancillary jurisdiction over the Rule 69

garnishment proceeding was necessary to effectuate the

district court’s prior judgment. Yang, 137 F.3d at 526;

Childress, 121 F. Supp. 2d at 1096-97. Thus, the garnishment

actions involved the second accepted usage of ancillary

20 Hudson v. Coleman et al. No. 01-1653

4

Federal courts have exercised ancillary jurisdiction in supplemental

proceedings to effectuate judgments for over one hundred years. See Root

v. Woolworth, 150 U.S. 401, 410-11 (1893). Peacock did not strip federal

courts of subject matter jurisdiction over proceedings to effectuate

judgments. Peacock v. Thomas, 516 U.S. 349, 356 (1996).

5

Furthermore, in a footnote in Peacock, the Supreme Court explicitly

stated that a Rule 69(a) proceeding was an effective mechanism for a

district court to use in effectuating its judgment. Peacock, 516 U.S. at

359 n.7.

jurisdiction—protecting judgments.

4

 In fact, the courts in

both Yang and Childress relied upon the following passage

from Peacock to support their holdings: “we have approved

the exercise of ancillary jurisdiction over a broad range of

supplementary proceedings involving third parties to assist in

the protection and enforcement of federal judgments —

including attachment, mandamus, garnishment, and the

prejudgment avoidance of fraudulent conveyances.” Peacock,

516 U.S. at 356 (cited in Yang, 137 F.3d at 525; Childress,

121 F. Supp. 2d at 1096).5

I find the reasoning of the courts in Yang and Childress

both convincing and applicable to the present case. Here,

Hudson entered into a consent judgment with the police

officers for $300,000. Hudson then brought a garnishment

proceeding against the City pursuant to Rule 69 seeking to

collect from the City in accordance with City’s

indemnification agreement with the police officers. Hudson’s

Rule 69 proceeding was a post-judgment proceeding, not a

separate lawsuit. The factual issues in the garnishment

proceedings will overlap substantially with those in Hudson’s

underlying §§ 1983, 1985, and state-law claims; therefore, the

Rule 69 proceeding will not inject so many new issues as to

become a functionally separate lawsuit. Unlike the plaintiff

in Peacock, Hudson is not seeking to impose liability on the

City for post-judgment conduct; rather, the City’s potential

liability arose when the police officers committed the conduct
No. 01-1653 Hudson v. Coleman et al. 21

6

For the same reason, the City canno t be considered a party that is

not otherwise liable, because if the police officers were acting within the

scope of their employment, the City would be liable for the police

officers’ conduct.

7

The indemnification agreement between the City and the Flint

Police Officers Association provides, in pertinent part:

Whenever any judgment for damages, excluding punitive

damages, is awarded against an Employee as the result of any

civil action for personal injuries or property damage caused by

the Employee while in the course of his employment, and while

acting within the scope of his authority, the Employer will

indemnify the employee or will pay, settle, or compromise the

judgment.

Joint Appendix at 512 (Pls.’ Br. in Opp’n to the City of Flint’s Mot. to

Quash Garnishment, Ex. A).

underlying Hudson’s initial § 1983 action.6 The only new

factual issue involved in the Rule 69 garnishment proceeding

will be whether the police officers were acting within the

scope of their employment.7 This is the exact same factual

issue that both the Seventh Circuit and the Eastern District of

Michigan found insufficient to render the Rule 69

garnishment proceedings separate, subsequent lawsuits.

Additionally, the Rule 69 garnishment proceeding is

necessary to enable the district court to effectuate its prior

judgment against the police officers. Requiring a separate

state-court lawsuit to enforce a federal-court judgment would

compromise the federal interests that were resolved in the

initial federal-court proceedings and would impose an

unnecessary burden on state courts. Childress, 121 F. Supp.

2d at 1097. I respectfully dissent.