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LEON C. BAKER, P.C. v. BENNETT

September 24, 1996

LEON C. BAKER, P.C., Plaintiff, against J.R. BENNETT, LAURA BENNETT, JAMES L. NORTH ASSOCIATES and HARE, WYNN, NEWELL AND NEWTON, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Sr. D.J.:

 Plaintiff asserts claims for violation of its constitutional right to due process under 42 U.S.C. § 1983, conversion, and punitive damages. Defendants have moved to dismiss the complaint on grounds that this court lacks jurisdiction over them, Fed. R. Civ. P. 12(b)(2), that venue is improper, Fed. R. Civ. P. 12(b)(3), and that the complaint fails to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6). In the alternative, defendants seek change of venue to the Northern District of Alabama pursuant to 28 U.S.C. § 1404(a), and have moved to strike scandalous matter alleged in the complaint pursuant to Fed. R. Civ. P. 12(f). Plaintiff has moved for partial summary judgment. *fn1" For the reasons discussed below, defendants' motion to change venue is granted.

 BACKGROUND

 Plaintiff Leon C. Baker, P.C. (the "Corporation") is a professional corporation organized under the laws of the State of New York. Leon C. Baker ("Baker"), a resident of Florida, is the sole shareholder of the Corporation. Defendants J.R. Bennett and Laura Bennett (collectively, the "Bennetts") are residents of Florida. Defendants James North & Associates ("Associates") and Hare, Wynn, Newell & Newton ("Hare") are partnerships engaged in the practice of law in Birmingham, Alabama. All members of Associates and Hare are residents of Alabama.

 The Corporation has been a customer of Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill") since 1990, and, as of October 1, 1994, had on deposit with Merrill securities with a market value in excess of $ 1 million. Plaintiff alleges that, during all times relevant to this action, all certificates for securities in the Corporation's account with Merrill were located in the State of New York and within the Southern District of New York.

 In an attempt to enforce their Judgment against Baker in Alabama, the Bennetts brought garnishment proceedings in the Circuit Court for Madison County, Alabama against Merrill and two other national securities firms with which Baker and his wife had accounts as tenants by the entirety demanding that the securities firms bring into Alabama securities of Baker which the Bennetts could apply to their judgment against Baker. *fn2" In that proceeding, the Bennetts also sought a decree in equity requiring Baker or one or more of the securities firms to transfer securities to Alabama to be used to satisfy the Judgment. The Circuit Court for Madison County dismissed the Bennetts' garnishment proceeding on the ground that it could not issue a garnishment over out-of-state assets that were beyond its jurisdiction. The Alabama Supreme Court affirmed this decision, and the Bennetts' application for rehearing in the Alabama Supreme Court was denied. Baker v. Bennett, 644 So. 2d 901 (Ala. 1994).

 The Bennetts then initiated an action in the Circuit Court for Jefferson County, Alabama before Judge Monroe, through their attorneys Associates and Hare, invoking the equitable jurisdiction of the court under sections 6-6-180 and 6-6-185 of the Alabama Code to enforce their Judgment against Baker. These sections provide as follows:

 
When an execution for money from any court has been issued against a defendant and is not satisfied, the plaintiff, or the person for whose benefit such execution is sued out, may file a complaint against such defendant to compel the discovery of any property belonging to him, or held in trust for him, and to prevent the transfer, payment or delivery thereof to such defendant, except when the trust has been created by, or proceeds from, some other person than the defendant himself; and the court may bring any other party before it and adjudge such property, or the interest of the defendant therein, to the satisfaction of the sum due the plaintiff.

 Ala. Code § 6-6-180 (1975).

 
If, from the answer, it appears that the defendant had property, real and personal, or an interest in property, real or personal, subject to the payment of debts, or has money, effects, or choses in action or an interest in moneys, effects or choses in action subject to the payment of debts, whether such property, money, effects or choses in action are within or without the state, the court must make all such orders or judgments as may be necessary and proper to reach and subject such property, moneys, effects, or choses in action and, for that purpose, may appoint a receiver with authority to demand, commence an action for and recover or otherwise to reduce to possession such property, moneys, effects, or choses in action and may require the debtor to make to such receiver all conveyances, assignments, or transfers which may be necessary and proper to enable him to receive or to commence an action for and recover such property.

 Ala. Code § 6-6-185 (1975).

 According to plaintiff, the Bennetts were seeking the same relief that had been denied in 644 So. 2d 901. ...


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