Osborn v. Pharmaceutical Education & Development Foundation of the Medical University , 174 F. App'x 763 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1559
TERRY W. OSBORN,
Plaintiff - Appellant,
versus
PHARMACEUTICAL EDUCATION AND DEVELOPMENT
FOUNDATION OF THE MEDICAL UNIVERSITY OF SOUTH
CAROLINA,
Defendant - Appellee,
and
UNIVERSITY MEDICAL ASSOCIATES OF THE MEDICAL
UNIVERSITY OF SOUTH CAROLINA; MEDICAL
UNIVERSITY OF SOUTH CAROLINA; HEALTH SCIENCES
FOUNDATION OF THE MEDICAL UNIVERSITY OF SOUTH
CAROLINA; JAMES B. EDWARDS; THOMAS P.
ANDERSON,
Defendants.
Appeal from the United States District Court for the District of
South Carolina at Charleston. David C. Norton, District Judge.
(CA-01-4002-1-18)
Submitted: January 19, 2006 Decided: April 6, 2006
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carl F. Muller, Troy A. Tessier, Hannah Rogers Metcalfe, WYCHE,
BURGESS, FREEMAN & PARHAM, P.A., Greenville, South Carolina, for
Appellant. Thomas S. White, HAYNSWORTH SINKLER BOYD, P.A.,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
On February 2, 2004, the district court entered judgment
in this diversity case in the amount of $131,100 plus interest and
costs in favor of Terry Osborn and against his former employer,
Pharmaceutical Education and Development Foundation (PEDF), an
affiliate of the Medical University of South Carolina (MUSC). The
jury had concluded that PEDF breached its employment contract with
Osborn and had violated the South Carolina Wage Payment Act.
Neither party appealed.
After the district court assessed costs of $2,227.46, it
issued a writ of execution against the property of PEDF on October
5, 2004, in the amount of $133,327.46. Osborn delivered the writ
to the United States Marshal in South Carolina, giving special
instructions that the Marshal only serve the writ and designating
James Wynn, PEDF’s registered agent, as the person to be served.
The Marshal, unable to locate Wynn, inquired with MUSC employees
and learned that Wynn was no longer employed. After several
inquiries, the Marshal ultimately left the writ with Joseph Good,
Jr., general counsel for MUSC, and filed a return reporting this
fact.
When the judgment remained unsatisfied two and one-half
months after the Marshal served the writ on Good, Osborn filed a
motion to institute supplementary proceedings to enforce his
judgment. Specifically, Osborn wanted to examine PEDF to learn of
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its ability to pay the judgment. The district court denied the
motion by order dated April 11, 2005, finding “from a review of the
record that there are no grounds to support this motion.” From
this order, Osborn appealed.
Federal Rule of Civil Procedure 69(a) provides that
federal courts apply the practice and procedure of the states in
which they sit to conduct “proceedings supplementary to and in aid
of judgment[] and in proceedings on and in aid of execution.” In
South Carolina, the institution of supplementary proceedings is
governed by § 15-39-310 of the South Carolina Code, which provides
that “[w]hen an execution against property of the judgment debtor
. . . is returned unsatisfied in whole or in part the judgment
creditor at any time after such return is made is entitled to an
order from a judge . . . requiring such judgment debtor to appear
and answer concerning his property . . . .” The South Carolina
Court of Appeals has commented that trial courts have discretion to
determine whether a writ has been returned unsatisfied. See Ag-
Chem Equip. Co. v. Daggerheart, 315 S.E.2d 379, 384 n.2 (S.C. App.
1984) (“We think the better practice is for judges . . . to satisfy
themselves that an unsatisfied execution exists before examining a
judgment debtor”).
In this case, there is virtually no evidence that Osborn
has pursued execution as authorized by South Carolina law. While
the writ of execution directed the Marshal to execute on PEDF’s
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property, Osborn instructed the marshal only to serve it.
Moreover, service was not effected on PEDF or any of its agents.
The Marshal served Joseph Good, Jr., the general counsel for MUSC.
But MUSC is only an affiliate of PEDF, and Osborn has not
demonstrated that Good, as general counsel for MUSC, is also an
agent of PEDF. It thus appears that Osborn cannot claim that the
writ of execution was “returned unsatisfied,” as required to
entitle him to supplementary proceedings. See S.C. Code, § 15-39-
310.
In these circumstances, we cannot conclude that the
district court abused its discretion in denying Osborn’s motion.
AFFIRMED
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