817 F.2d 102
FLYNT DISTRIBUTING COMPANY, INC., a California Corporation, Appellee,
MORAVIA NEWS COMPANY, INC., a Maryland Corporation, Appellant,
Bon-Jay Sales, Inc., a Maryland Corporation; Jack Gresser,
FLYNT DISTRIBUTING COMPANY, INC., a California Corporation, Appellee,
BON-JAY SALES, INC., a Maryland Corporation, Appellant,
Moravia News Company, Inc., A Maryland Corporation; Jack
Nos. 86-3526, 86-3615.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 11, 1986.
Decided April 24, 1987.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Walter E. Black, Jr., U. S. District Judge. (CA 84-3207)
Before WINTER, Chief Circuit Judge, RUSSELL, Circuit Judge, and ROBERT G. DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.
J. Allen Galbraith (Williams & Connolly, on brief), for appellant.
Gilbert B. Weiner (Judith C. Levinson; Weinberg & Green, on brief), for appellants.
James A. Rothschild (Burton H. Levin; Anderson, Coe & King, on brief), for appellees.
Moravia News Company, Inc., appeals the ruling of the District Court for the District of Maryland that Moravia was subject to the exercise of in personam jurisdiction by the court. Bon-Jay Sales, Inc., appeals the ruling of the District Court that Flynt Distributing Co. had capacity to sue Bon-Jay as garnishee. Bon-Jay also appeals the lower court's order entering judgment in favor of Flynt for part of the amount garnished, without prejudice to its right to pursue the remainder. We affirm the District Court.
Flynt, a California corporation, brought this action on November 10, 1983, against Moravia and Bon-Jay, Maryland corporations, and Jack Gresser, a Maryland resident, in the United States District Court for the Central District of California. The complaint sought to recover a $243,047.58 debt owed by Moravia, and alleged that Bon-Jay and Gresser were alter egos of Moravia. Gresser and Moravia were served with process; Bon-Jay, however, was not.
On May 7, 1984, Moravia filed with the California District Court a motion which it titled "Motion to Dismiss or in Lieu Thereof to Quash Service of Summons and Complaint for Lack of Personal Jurisdiction over the Defendants, or, in the alternative, for a Change of Venue Pursuant to 28 U.S.C.A. Sec. 1404(a)." On June 25, 1984, Judge Edward Rafeedie of the United States District Court for the Central District of California entered an order dismissing Moravia from the suit for lack of personal jurisdiction. Flynt filed a Motion for Reconsideration on June 28, alleging that defendants had attempted to avoid service of process, and would do so again if the case were dismissed. Flynt requested that the court grant a change of venue rather than dismiss the case. Accordingly, on July 31, 1984, the court vacated its prior order, and transferred this action to the United States District Court for the District of Maryland.
On October 25, 1984, Moravia filed a Motion to Dismiss in the Maryland District Court, alleging that the District Court lacked subject matter jurisdiction. Moravia argued that because Flynt had not registered to do business in Maryland, he was precluded by the state's "door closing" statute, Md. Corp. & Assoc. Code Sec.7-301, from maintaining a suit there. After a hearing, the court denied defendant's motion, holding that "the defendants are estopped from denying this Court's jurisdiction." Flynt Distributing Co., Inc. v. Moravia News Co., Inc., Civil No. B-84-3207 (D. Md. May. 31, 1985). The order was entered on June 20, 1985.
Moravia filed its answer on June 25, 1985, stating as affirmative defenses that the Maryland court lacked personal jurisdiction over the defendants because the California court did not have jurisdiction and that Flynt lacked capacity to sue in Maryland as a result of the "door closing" statute. On January 9, 1986, the Maryland District court entered judgment against Moravia in the amount of $235,886.37, plus pre-judgment and post-judgment interest.
After entry of the judgment, Flynt caused a Writ of Garnishment, issued out of the District Court in Maryland, to be laid in the hands of Bon-Jay. Bon-Jay filed its answer to the writ on February 24, 1986, admitting 'liability to Moravia in the amount of $169,692.02, but contending that any claim for monies owed over and above that amount was barred by the statute of limitations. Bon-Jay also argued that Flynt was barred by the Maryland "door-closing" statute from maintaining an action for garnishment against Bon-Jay in Maryland.
In the order of the Maryland District Court dated July 21, 1986, the court rejected Bon-Jay's argument that Flynt lacked capacity to sue, holding that Bon-Jay could not attack the underlying judgment against Moravia. The court noted that "BonJay is not being sued in this aspect of the litigation, but merely stands as a garnishee of property belonging to Moravia News." Flynt Distributing Co., Inc. v. Moravia News Co., Inc., Civil No. B-84-3207 (D. Md. July 21, 1986). The court entered judgment against Bon-Jay in the amount of $169,692.02, "without prejudice to the right of Flynt Distributing Company, Inc. to controvert the assertion of Bon-Jay Sales, Inc. that it is not liable for the remainder of the amount garnished."
This Court ordered a consolidation of the appeals in both cases.
It is unclear from Moravia's submissions in this case which court's judgment it is appealing. Moravia submits that the issue presented for review is "whether a federal court in California has personal jurisdiction over a Maryland corporation" under the circumstances of this case. Appellant's Brief at 1. To the extent that Moravia wishes us to review the decision of the California District Court, we are powerless to comply. 28 U.S.C. SS 1294 provides that an appeal from a decision of a United States District Court shall be taken "to the court of appeals for the circuit embracing the district." See also Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 986 (11th Cir. 1982); Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir. 1980). Any review of the California court's action would have to have been had, if at all, in the Ninth Circuit.
If Moravia wishes to appeal the decision of the Maryland District Court to retain jurisdiction in this case, we affirm the judgment of the Maryland court. In its motion in the California court, Moravia requested either that the court dismiss for want of jurisdiction, or that the court transfer the case to the District of Maryland. There is nothing in Moravia's motion to suggest that it desired a transfer only in the event the California court found it had personal jurisdiction. Having requested a transfer, and having thereby submitted itself to the jurisdiction of the Maryland District Court, Moravia is estopped from arguing that the Maryland court lacked in personam jurisdiction. Cf. A.S. International Corp. v. Salem Carpet Mills, Inc., 441 F. Supp. 125, 127 (N.D. Ga. 197).
Appellant Bon-Jay Sales contends that under Maryland's "door-closing" statute, Md. Corp. & Assoc. Code Sec.7-301, Flynt lacked capacity to bring suit, and was accordingly barred from bringing an action against Bon-Jay Sales as garnishee. We find no error in the District Court's ruling on this point. Maryland Rule of Civil Procedure 2-645(b) requires that a writ of garnishment be filed "in the same action in which the judgment was entered." The garnishee may not attempt to reopen or relitigate issues that have already been decided in that action. Farley v. Colver, 113 Md. 379, 384-85, 77 A. 589, 591 (1910). Because the District Court had ruled that Flynt had capacity to sue Moravia on the underlying claim, Bon-Jay could not, as garnishee, attack Flynt's capacity by invoking the "closed-door" statute.1
Bon-Jay also contends that the District Court erred in entering summary judgment against Bon-Jay for part of the amount claimed by Flynt, without prejudice to Flynt's right to sue for the remainder in a subsequent proceeding. We find no error.
The District Court ruling is governed by Federal Rule of Civil Procedure 69, which provides that "[t]he procedure on execution ... 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, ... except that any statute of the United States governs to the extent that it is applicable." Fed. R. Civ. P. 69(a). Under the Maryland Rules of Civil Procedure, the court may enter summary judgment in favor of a party "for some but less than all of the amount requested when the claim for relief is for money only and the court reserves disposition of the balance of the amount requested." Md. R. Civ. Pro. 2-501(e). These rules expressly govern garnishment actions. Md. R. Civ. P. 2-645(g). Therefore, the District Court's entry of judgment was proper.
We affirm all holdings of the District Court.
By discussing the "closed door" statute, this opinion specifically does not consider its validity