United States of America v. Vogelsang, No. 2:2007mc00129 - Document 32 (E.D. Cal. 2020)
Court Description: FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/3/2020 RECOMMENDING that 22 the motion to compel be DENIED as MOOT and that this case be CLOSED. Referred to Judge Kimberly J. Mueller. Objections due within 21 days after being served with these F & R's.(Reader, L)
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United States of America v. Vogelsang Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 13 14 15 No. 2:07-mc-00129 KJM AC Plaintiff, v. FINDINGS AND RECOMMENDATIONS SCOTT MICHAEL VOGELSANG, Defendant. 16 17 Defendant is proceeding in this action pro se, and this matter was accordingly referred to 18 the undersigned pursuant to Local Rule 302(c)(21). This miscellaneous matter arises out of a 19 Writ of Garnishment (Interest in Withheld Money) directed to the Garnishee California 20 Department of Health Services, which was duly issued and served upon the Garnishee in late 21 2007, in order to partially satisfy the outstanding debt owed by the Defendant and Judgment 22 Debtor Scott Michael Vogelsang (“Judgment Debtor”). ECF No. 5. The balance owed by the 23 Judgment Debtor was $170,552.84 as of April 7, 2008. Id. On December 5, 2007, the Garnishee 24 filed an Answer of Garnishee stating that at the time of service of the Writ, the Garnishee had 25 custody or possession of properties (non-earnings), in which the “Judgement Debtor” maintains 26 an interest in the amount of $41,807.95. ECF No. 6. On May 16, 2008, then-Magistrate Judge 27 Kimberly J. Mueller issued an order stating: “the Garnishee California Department of Health 28 Services shall turn over the amount of $41,807.95, payable to the Clerk of the Court . . .[and] that 1 Dockets.Justia.com 1 2 upon receipt of payment, the Writ of Garnishment is hereby terminated.” ECF No. 19 at 2. In February of 2020, nearly 12 years later, Mr. Vogelsang filed the motion to compel that 3 is now before the court, demanding the payment owed from the Garnishee. ECF No. 22. Mr. 4 Vogelsang also requests 10% interest and “extensive punitive penalties” for the delay. Id. at 2. 5 On March 9, 2020, the Garnishee submitted the $41,807.95 to the Clerk of Court. ECF No. 27. 6 The Plaintiff, United States of America, contends that the motion to compel is now moot, and 7 opposes interest and sanctions on the ground that there is no legal basis for either. ECF No. 28. 8 The United States notes that, while the delay is regrettable, there was no due date for payment in 9 either the original Writ or the 2008 order from Judge Mueller. Id. Defendant submitted a 71- 10 page reply brief, arguing that sanctions are appropriate and that the court should apply California 11 contract law to assess interest. ECF No. 31. 12 The undersigned agrees with Plaintiff that this motion to compel payment is moot in light 13 of the payment that has recently been made by the Garnishee, and that no further penalties or 14 assessment of interest are appropriate. While over a decade of delay in payment is troublesome, 15 Plaintiff is correct that no date was set for the Garnishee’s payment. See ECF Nos. 5, 19. 16 Accordingly, there has been no violation of a court order. This is not a breach of contract case; 17 no contract exists between Mr. Vogelsang and the Garnishee. Accordingly, the law that 18 Defendant cites in support of an award of interest has no application here. Defendant has 19 identified no other legal basis for the court to impose interest or sanctions here, and the court is 20 aware of none. 21 IV. CONCLUSION 22 For the reasons stated above, IT IS HEREBY RECOMMENDED that the motion to 23 24 compel at ECF No. 22 be DENIED as MOOT and that this case be CLOSED. These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) 26 days after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 1 objections shall be filed and served within fourteen (14) days after service of the objections. 2 Failure to file objections within the specified time may waive the right to appeal the District 3 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 4 1153, 1156-57 (9th Cir. 1991). 5 DATED: April 3, 2020 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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