Modi v. Alexander

GIRISH MODI, Plaintiff, v. RICHARD T. ALEXANDER, Clerk of the State Court of Gwinnett County, Defendant.

CIVIL ACTION FILE No. 1:19-cv-05619-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

September 28, 2020

ORDER AND OPINION¹

Several filings are pending before the Court. First, the Court discusses Plaintiff's Motion for Recusal. [Doc. 45]. Then, the Court turns to Plaintiff's Amended Motion for Leave to File Amended Complaint ("Motion to Amend"). [Doc. 48]. Finally, the Court addresses the prior Order of the District Judge then assigned to the case that entered a stay and ordered Plaintiff to identify the basis for the Court's jurisdiction. [Doc. 21]. For the reasons set forth below, the undersigned DENIES the Motion for Recusal and Motion to Amend and, uponconsideration of the District Judge's prior Order and Plaintiff's responses thereto, DISMISSES PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE for lack of jurisdiction. All other pending motions are DENIED AS MOOT.

I. Introduction

On December 16, 2019, Plaintiff filed a complaint against Richard T. Alexander, Clerk of the State Court of Gwinnett County, alleging that Georgia's post-judgment continuing-wage-garnishment statute is contradictory, burdensome, and unconstitutionally violates due process. [Doc. 1 at 1]. Plaintiff sought appropriate declaratory and injunctive relief. [Doc. 1, passim]. Plaintiff filed a supplementary pleading on December 19, 2019 ("Supplementary Pleading"), a Motion to Certify Class on December 26, 2019, and a Consent to Jurisdiction by U.S. Magistrate Judge on January 13, 2020. [See Docs. 4, 6, 8].

On January 15, 2020, Plaintiff filed a Motion for Judgment on the Pleadings and then moved to withdraw that motion two days later. [Docs. 11, 14]. Plaintiff filed a Notice of Filing Second Supplementary Pleading on January 17, 2020 ("Second Supplementary Pleading"), a Motion for a Three-Judge Court on January 24, 2020, and a Motion to Add the Attorney General of Georgia on February 10, 2020. [Docs. 12, 15, 17]. Defendant filed a Motion to Dismiss for Failure to State a Claim on February 5, 2020, to which Plaintiff filed a responseand a supplemental response. [Docs. 16, 18, 20]. On February 12, 2020, Plaintiff filed an Emergency Motion for Preliminary Injunctive Relief that was denied by the District Judge on February 19, 2020. [Docs. 19, 25].

On February 13, 2020, the District Judge entered an Order directing Plaintiff to file a notice indicating the basis for the Court's jurisdiction within 21 days and staying the case until further order of the Court. [Doc. 21].² On February 14, 2020, Plaintiff filed a Pro se Motion for Leave to file an Amended Complaint and a Notice of Court's Jurisdiction; on February 18, 2020, Plaintiff filed a Motion for Reconsideration of the Court's Order entering a stay; and on the same day filed a Notice of Filing an Amended Notice of Court's Jurisdiction. [Docs. 23-24, 26-27]. On February 20, 2020, Plaintiff filed another Emergency Motion or Preliminary Injunctive Relief. [Doc. 28]. On the same day, the District Judge granted the parties' consent to jurisdiction by a magistrate judge. [Doc. 30].

On February 21, 2020, Defendant replied to Plaintiff's Motion to Add Party; on February 24, 2020, Plaintiff filed another Pro Se Motion for Leave to Amend; and on March 27, 2020, Plaintiff filed a Pro Se Third Motion to Grant Leave toAmend his Complaint. [Docs. 29, 33, 36]. On April 13, 2020, Plaintiff filed a Renewed Emergency Motion for Preliminary Injunctive Relief and on April 21, 2020, Defendant filed a Response in Opposition to Plaintiff's Motion for a Preliminary Injunction. [Docs. 40, 42]. On April 14, 2020, Defendant filed a Response in Opposition to Plaintiff's Motion for Leave to File an Amended Complaint and, on April 16, 2020, Plaintiff filed a Reply in support of the Motion for Leave. [Docs. 39, 41].

On May 7, 2020, Plaintiff filed a Motion for Recusal, and on May 11, 2020, filed a document that was construed by the Clerk's Office to be a Motion for Ruling on Pending Motions. [Docs. 45, 46]. On June 5, 2020, Plaintiff filed his Motion to Amend; on June 22, 2020, Defendant filed a response in opposition; and on July 6, 2020, Plaintiff filed a reply brief in support. [Docs. 48, 49, 51].

II. Facts

In his original complaint, Plaintiff alleges that Georgia's post-judgment continuing-wage-garnishment statute is "contradictory, burdensome, unfair, unconstitutional and violates due process requirements."³ [Doc. 1 at 1]. Plaintiffstates that he is a judgment-creditor jointly and severally against Ramzan Virani ("Ramzan") and his spouse Shehnaz Virani ("Shehnaz") following a judgment in the Superior Court of Gwinnett County. [Id.]. Plaintiff alleges that after he received a writ of execution against the Viranis, they filed separate bankruptcy petitions. [Id. at 2]. Plaintiff alleges that Ramzan withdrew his petition but Shehnaz's petition moved forward and hers was ultimately denied after three years of litigation. [Id.]. Plaintiff alleges that he thereafter initiated a continuing wage garnishment case against Shehnaz, who was employed at the Gwinnett Clinic, but did not initiate a suit against Ramzan because he is unemployed. [Id.]. The case against Shehnaz was given docket number 18-GC-00817. [Id.]. The Gwinnett Clinic filed its answer and ultimately $2,619.88 was collected and disbursed by the Superior Court before the case was closed. [Id. at 2-3].

Plaintiff alleges that he was instructed to file a new writ or summons instead of re-opening the case, which he did on November 13, 2019, at a cost of $263 infees. [Id. at 3]. That case was given docket number 19-GC-03497. [Id.]. Plaintiff alleges that when new summons was served on the Gwinnett Clinic and Shehnaz, they "got confused and upset," and Shehnaz filed a motion to dismiss the new matter. [Id.]. At a hearing on December 12, 2019, the court explained why a new filing was required and Plaintiff asked the judge to waive the statute, but his request was denied. [Id.]. Plaintiff alleges that he had problems following the continuing wage garnishment statutes because they contradict other statutes, are unconstitutional, and place undue burdens on him and other similarly situated individuals. [Id. at 4].

Specifically, Plaintiff contends that O.C.G.A. § 18-4-4(c)(1) is in conflict with O.C.G.A. § 18-4-9 because the former limits the period for a continuing wage garnishment to 179 days and does not specify that a new summons will be issued after two years, but the latter states that summons of garnishment may be issued from time to time until the judgment is paid or the proceedings are otherwise terminated and that no new summons of garnishment shall issue after two years from the date of the filing of the original affidavit. [Id.]. Plaintiff asks why the continuing garnishment should only be effective for two years. [Id.].

Second, Plaintiff contends that O.C.G.A. § 18-4-10(b) caused an undue delay in Shehnaz's answer and the loss of two and a half months garnishment dueto the discontinuity between when Plaintiff received a garnished check in early October and when a new summons was issued in mid-November. [Id.]. Plaintiff contends that, without the 30-day waiting period for Shehnaz's first answer in the second case, there would have been continuity and no garnished wages would have been lost. [Id. at 5]. Plaintiff argues that this problem will occur every six months, which results in judgement-creditors being treated unfairly, and so the statutes for continuing wage garnishment for family support and non-support should be merged. [Id.].

Plaintiff argues that, without a change being implemented, it will take him approximately 20 years to collect the debt owed and he will pay $10,520 in court costs over that time. [Id. at 6]. Plaintiff argues that this is unfair where the garnishment statute for family support, O.C.G.A. § 18-4-4(c)(3), allows a single summons and only one case as long as a debt remains unpaid. [Id.]. In support of his position, Plaintiff cites to garnishment statutes from different states, including California and Michigan. [Id. at 7-8]. Plaintiff also points to a decision from the Third Circuit, Finberg v. Sullivan,⁴ which he argues recognizes a creditor's interestin seeking quick and inexpensive satisfaction of a debt after having obtained judgment. [Id. at 8].

As relief, Plaintiff requests that Defendant be enjoined from enforcing §§ 18-4-4(c)(1) and 18-4-4(c)(3) and that the Court merge the two code sections together. [Id. at 9]. Plaintiff further requests that Defendant be enjoined from imposing the requirements of O.C.G.A. § 18-4-8(b) on Plaintiff and that the Court make garnishees responsible for notifying debtors of garnishments because debtors have a direct relationship with the employee and can better explain the garnishment process. [Id.]. Plaintiff contends that these modifications will help countless similarly situated judgment creditors and employers. [Id.].

Plaintiff subsequently filed his Supplemental Pleading and requested that it be reviewed with his Complaint. [Doc. 4].⁵ In his Supplemental Pleading, Plaintiff invokes the Equal Protection Clause. [Id. at 1]. Plaintiff contends that, under the Equal Protection Clause, no state shall deny any person within its jurisdiction equal protection of the laws. [Id. at 2]. Plaintiff contends that Georgia's wage-garnishment statutes are extremely harsh and ask judgment-creditors to give up collection efforts against poor debtors. [Id. at 3]. Plaintiff argues that the Senate Bill that included all the revised garnishment statutes, Senate Bill 255, was hurriedly submitted to the Georgia Assembly and was confusing, biased, and unconstitutional. [Id. at 4]. Plaintiff contends that it is actually innocent judgment-creditors who need protection in the wage-garnishment statute because they are likely not to collect the full amount owed as judgment-debtors are...