Margo Hudson v. Bryan Coleman; Eric Rodgers

*The Honorable Karl S. Forester, Chief United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0367P (6th Cir.)
File Name: 03a0367p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARGO HUDSON,
Plaintiff-Appellant,
v.
BRYAN COLEMAN; ERIC
RODGERS,
Defendants-Appellees,
CITY OF FLINT,
Garnishee-Appellee.
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No. 01-1653
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-71145—Denise Page Hood, District Judge.
Argued: December 12, 2002
Decided and Filed: October 14, 2003
Before: BATCHELDER and MOORE, Circuit Judges;
FORESTER, Chief District Judge.*
2 Hudson v. Coleman et al. No. 01-1653
_________________
COUNSEL
ARGUED: David J. Nickola, NICKOLA & NICKOLA,
Flint, Michigan, for Appellant. Patrick L. Rose, Lansing,
Michigan, for Appellees. ON BRIEF: David J. Nickola,
NICKOLA & NICKOLA, Flint, Michigan, for Appellant.
Patrick L. Rose, Lansing, Michigan, for Appellees.
FORESTER, D. J., delivered the opinion of the court, in
which BATCHELDER, J., joined. MOORE, J. (pp. 15-21),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
FORESTER, District Judge. Plaintiff appeals the district
court’s order granting the City of Flint’s (“City”) motion to
quash Plaintiff’s garnishment action against the City. For the
following reasons, we AFFIRM the judgment of the district
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed an action in state court asserting state and
federal causes of action against Officers Bryan Coleman, Eric
Rodgers, and the City of Flint arising from the Officers’ theft
of Hudson’s Cocker Spaniel, “Brandy.” The City removed
the action to the Eastern District of Michigan based on
Plaintiff’s 42 U.S.C. §§ 1983 and 1985 claims.
The facts giving rise to this dispute are undisputed and
merit only a brief discussion before turning to the
determinative legal issue of subject matter jurisdiction.
Hudson reported that her car had been stolen with her dog
inside the car. Officers Coleman and Rodgers responded to
a radio call to investigate Hudson’s missing vehicle and dog.

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No. 01-1653 Hudson v. Coleman et al. 3
1Officers Colem an and R odgers agreed to pay $300,0 00 to settle
Plaintiff’s claims arising from th e Officers’ theft of the dog. As will be
discussed, the legal issue presented is whether the federal courts have
jurisdiction to determine whether the City is liable for this debt in
Plaintiff’s garnishment actio n against the City.
The Officers located the stolen vehicle and proceeded to take
the dog from the car and ultimately to Officer Coleman’s
house. The Officers then lied by reporting that they did not
find a dog inside the car. The truth concerning the theft of the
would-be “$300,000 Cocker Spaniel1” finally surfaced five
months later during an internal police department
investigation in which the Officers admitted to stealing the
dog. The Cocker Spaniel was returned to Hudson and the
Officers faced discipline by the Police Department.
After the district court granted the City’s motion for
summary judgment dismissing it from the case, Hudson and
the Officers entered into a consent judgment whereby
Coleman would pay $200,000 and Rodgers would pay
$100,000 in settlement of Hudson’s claims. In an effort to
collect upon the consent judgment against Coleman and
Rodgers, Hudson filed writs of garnishment against the City.
Hudson asserted that the City would be liable to pay the
consent judgment because of an indemnity agreement
between the City and the Police Officers Union.
The indemnification agreement under which Hudson
attempts to collect the consent judgment from the City
provides:
Whenever any claim is made or any civil action is
commenced against an Employee for injuries to persons
or property caused by negligence or other acts of the
Employee while in the course of his employment, and
while acting within the scope of his authority, the
Employer will pay for or engage in or furnish the
services of an Attorney to advise the Employee as to the
4 Hudson v. Coleman et al. No. 01-1653
2W e commend Magistrate Judge Paul J. Komives for a thorough and
well-reasoned repo rt and recommendation, m uch of which has been
ado pted in this opinion.
claim and to appear for and represent the Employee in
the action.
The Employer may compromise, settle and pay such
claim before or after the commencement of any civil
action. Whenever any judgment for damages, excluding
punitive damages, is awarded against an Employee as the
result of any civil action for personal injuries or property
damage caused by the Employee while in the course of
his employment, and while acting within the scope of his
authority, the Employer will indemnify the employee or
will pay, settle, or compromise the judgment. The Chief
Legal Officer will make the selection of the attorney or
attorneys to represent the Employee in any particular
case, and allow the Employee to object to the selection if
he has cause to do so.
Pursuant to the above indemnity agreement, the City
provided the Officers with legal counsel during the course of
the proceedings. There is no evidence in the record indicating
that the City’s liability under the indemnification agreement
has been established, or, more specifically, whether the
Officers were acting within the scope of their employment
and authority when they stole the dog. By the time Hudson
instituted the garnishment proceeding against the City, the
Officers each had paid $12,500 to Hudson in partial
satisfaction of their debts.
The City filed a motion to quash the garnishment on the
basis of several theories, including lack of subject matter
jurisdiction. After the Magistrate Judge2 filed a report and
recommendation concluding that the court lacked jurisdiction,
the district court adopted the report and recommendation and
granted the City’s motion to quash. Hudson timely filed a
notice of appeal.

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No. 01-1653 Hudson v. Coleman et al. 5
II. ANALYSIS
We review de novo a district court’s determination of
subject matter jurisdiction. See, e.g., Greater Detroit
Resource Recovery Authority v. EPA, 916 F.2d 317, 319 (6th
Cir. 1990). As an initial observation, it is well established
that federal courts are courts of limited jurisdiction,
possessing only that power authorized by the Constitution and
statute, see Willy v. Coastal Corp., 503 U.S. 131 (1992);
Bender v. Williamsport Area School Dist., 475 U.S. 534, 541
(1986), which is not to be expanded by judicial decree,
American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951).
Accordingly, “[i]t is to be presumed that a cause lies outside
this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Id (citing
Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 (1799);
McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
182-183 (1936)).
The district court found that it lacked jurisdiction over the
garnishment, primarily because the action attempts to hold the
City, a third party, liable for payment of a judgment on an
independent legal theory, the indemnity agreement, which
would require separate analysis and possible discovery
concerning the City’s defenses to liability. As set forth
above, the City was dismissed from the action on September
30, 1998. The Officers then settled with the Plaintiff and a
consent judgment was entered on February 29, 2000. It was
not until June 30, 2000, that the Plaintiff served writs of
garnishment on the City relying upon Fed. R. Civ. P. 69.
The jurisdictional analysis in this garnishment action begins
with a consideration of Peacock v. Thomas, 516 U.S. 349
(1996), and its discussion of ancillary subject matter
jurisdiction. As a starting point, it is necessary to understand
that there are two situations in which a court may exercise
ancillary jurisdiction over a claim otherwise not within the
jurisdiction of the court: “‘(1) to permit disposition by a
single court of claims that are, in varying respects and
6 Hudson v. Coleman et al. No. 01-1653
degrees, factually interdependent; and (2) to enable a court to
function successfully, that is, to manage its proceedings,
vindicate its authority, and effectuate its decrees.’” Peacock,
516 U.S. at 354 (quoting Kokkomen v. Guardian Life Ins. Co.,
511 U.S. 375, 379-80 (1994) (citations omitted)). The first
category of ancillary jurisdiction identified above has largely
been codified in the supplemental jurisdiction statute, 28
U.S.C. § 1367. The second category of ancillary jurisdiction
is generally referred to as “ancillary enforcement
jurisdiction.”
In Peacock, the plaintiff obtained a federal court judgment
against a corporation pursuant to the Employee Retirement
Income Security Act of 1974 (ERISA), 88 Stat. 832, as
amended, 29 U.S.C. § 1001 et seq. After efforts to collect on
the judgment failed, the plaintiff filed a second suit seeking to
hold Peacock, an officer and shareholder of the corporation,
personally liable under a piercing of the corporate veil theory.
The Supreme Court determined that it was without an
independent jurisdictional basis for the suit because ERISA
does not authorize a veil-piercing action. In addition, the
Court rejected the plaintiff’s argument that the federal courts
had ancillary enforcement jurisdiction over the second suit.
The Court began its analysis by emphasizing that it has
“reserved the use of ancillary jurisdiction in subsequent
proceedings for the exercise of a federal court’s inherent
power to enforce its judgments.” Peacock, 516 U.S. at 356.
The Court further explained that, “[i]n defining that power,
we have approved the exercise of ancillary jurisdiction over
a broad range of supplementary proceedings involving third
parties to assist in the protection and enforcement of federal
judgments–including attachment, mandamus, garnishment,
and the prejudgment avoidance of fraudulent conveyances.”
Id. (citations omitted).
Nevertheless, Peacock concluded that it was without
ancillary jurisdiction to entertain plaintiff’s second suit. The
Court cautioned that the recognition of ancillary

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No. 01-1653 Hudson v. Coleman et al. 7
supplementary proceedings has not extended beyond attempts
to execute, or guarantee the eventual executability of a federal
judgment. More specifically, the Court has “never authorized
the exercise of ancillary jurisdiction in a subsequent lawsuit
to impose an obligation to pay an existing federal judgment
on a person not already liable for that judgment.” Id. at 357.
The Court further explained that
[i]n determining the reach of the federal courts’ ancillary
jurisdiction, we have cautioned against the exercise of
jurisdiction over proceedings that are “‘entirely new and
original,”’ or where “the relief [sought is] of a different
kind or on a different principle” than that of the prior
decree.
Id. at 358 (citations omitted).
Peacock concluded that the federal courts were without
ancillary enforcement jurisdiction because plaintiff’s action
was “founded not only upon different facts than the ERISA
suit, but also upon entirely new theories of liability.” Id.
Here, it is undisputed that Plaintiff’s indemnity claim does
not raise a federal question and that the parties are not
diverse. Accordingly, the Court is without independent
subject matter jurisdiction over the “writs of garnishment.”
Peacock’s analysis controls regarding exercise of the first
category of ancillary jurisdiction, i.e., “ordinary” ancillary
jurisdiction. According to Peacock:
The basis of the doctrine of ancillary jurisdiction is the
practical need “to protect legal rights or effectively to
resolve an entire, logically entwined lawsuit. [Owen
Equipment & Erection Co. v.] Kroger, [437 U.S. 365,
377 (1978)]. But once judgment was entered in the
original suit, the ability to resolve simultaneously
factually intertwined issues vanished. As in Kroger,
“neither the convenience of litigants nor considerations
of judicial economy” can justify the extension of
8 Hudson v. Coleman et al. No. 01-1653
3The Plaintiff attempts to distinguish Peacock on the basis that it
involved a separate suit and the case at bar involves writs of garnishment
against the non-party City proceeding under the same case number as the
original suit. This distinction has no bearing on “ordinary” ancillary
jurisdiction analysis, as such jurisdiction is discretionary with the Court
and contemplates proceedings under the same case numb er in any event.
See 28 U.S.C. § 1367. The “separate suit” issue and its bearing on
ancillary enforcement jurisdiction is discussed infra at pp. 7-13.
ancillary jurisdiction over [plaintiff’s] claims in this
subsequent proceeding.
Peacock, 516 U.S. at 255.3
Just as in Peacock, there is no rationale to support
exercising ancillary jurisdiction over Plaintiff’s state law
indemnity claim against the City. The indemnity claim was
not asserted until after the City was dismissed and the case
against the individual defendants was settled. Accordingly,
there are no factually intertwined issues to resolve and neither
the convenience of the litigants nor considerations of judicial
economy justify the exercise of ancillary jurisdiction over
Plaintiff’s state law indemnity claim.
Turning to the purported ancillary “enforcement” grounds
for jurisdiction, we find that a proper reading of Peacock
dictates that the federal courts are without jurisdiction to
entertain this garnishment action. The precise issue presented
by the Plaintiff in actuality is whether the fact that the
garnishment action is proceeding under the same case number
as the original action, rather than in a second lawsuit,
sufficiently distinguishes the case from Peacock.
Peacock explained that ancillary jurisdiction is
inappropriate in two distinct proceedings, only one of which
involves a subsequent lawsuit. First, the Court indicated that
ancillary jurisdiction is inappropriate in “proceedings that are
entirely new and original.” Peacock, 516 U.S. at 358
(internal quotation and citation omitted). Assuming without

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No. 01-1653 Hudson v. Coleman et al. 9
deciding that the garnishment action falls outside this first
precept, the action is squarely prohibited by the second
category identified in Peacock “where ‘the relief [sought is]
of a different kind or on a different principle’ than that of the
prior decree.” Id. (quoting Dugas v. American Surety Co.,
300 U.S 414, 428 (1937)) (alteration in original).
Plaintiff’s garnishment claim seeks to impose liability on
the City, a third party not a party to the consent judgment, on
the basis of the indemnity agreement, a legal theory entirely
independent from that in the original action. As stated above,
there is no evidence in the record indicating that the City’s
liability under the indemnification agreement has been
established, or, more specifically, whether the Officers were
acting within the scope of their employment or authority
when they stole the dog. In fact, the City was not served with
the writs of garnishment until one year and nine months after
being dismissed from the lawsuit. At this stage, there has
simply been no interpretation of the indemnity clause in the
labor agreement between the City and the Police Officer’s
union. The City has not been adjudged liable to indemnify
the Officers’ settlement with the Plaintiff, in that there remain
substantial questions regarding the interpretation of the labor
agreement, e.g., whether each Officer was acting “while in the
course of his employment” and “within the scope of his
authority.” The interpretation of the indemnity provision
presents unresolved issues such as whether each Officers’
conduct giving rise to the suit constituted a frolic or a mere
detour from duty.
In sum, the relief sought by the Plaintiff is based upon a
vastly different principle than that of the prior consent decree.
We find Hudson’s reading of Peacock far too narrow and
conclude that she has not carried her burden of demonstrating
that this suit falls within either category of ancillary
jurisdiction.
Hudson relies upon the statement in Peacock that “we have
approved the exercise of ancillary jurisdiction over a broad
10 Hudson v. Coleman et al. No. 01-1653
4Likewise, Fed. R. Civ. P. 69(a), providing supplementary
proceedings in aid of executing a judgment, does not purport to confer
ancillary subject matter jurisdiction for all garnishment proceedings
arising out of a common nucleus of fact to the original federal proceeding.
Instead , Peacock explains the limits of federal ancillary jurisdiction.
range of supplementary proceedings involving third parties to
assist in the protection and enforcement of federal
judgments–including attachment, mandamus, garnishment,
and the prejudgment avoidance of fraudulent conveyances.”
Peacock, 516 U.S. at 356 (emphasis added) (citations
omitted). The Supreme Court’s acknowledgment of the fact
that garnishment sometimes falls within ancillary jurisdiction
is obviously not imprimatur for all garnishment actions
arising from previous factually similar underlying federal
claims to proceed in federal court.4 The type of garnishment
proceeding referred to in Peacock does not contemplate
making the garnishee personally liable on the judgment based
on some independent legal theory as Hudson seeks to do in
this case. Instead, the typical garnishment proceeding
referenced in Peacock contemplates the garnishee’s paying
the judgment creditor/garnishing party directly for funds, such
as a salary, owed by the garnishee to the defendant in the
underlying action. Cf. Sandlin v. Corporate Interiors, Inc.,
972 F.2d 1212, 1216-17 (10th Cir. 1992) (applying H.C.
Cook Co. v. Beecher, 217 U.S. 497 (1910), a case with
renewed vitality post-Peacock); Merrell v. Miller, No. 91-
493-A, 1998 WL 329264, at *2 (E.D. Va. June 8, 1998)
(noting that Peacock prohibits “efforts, unsupported by an
independent basis for federal jurisdiction, to establish a new
defendant’s personal liability for an existing judgment.”).
Michigan law apparently acknowledges the above
distinction in the forms of garnishment by labeling the typical
form of garnishment as “periodic” and the type garnishment
sought by Hudson as “non-periodic.” To be sure, Hudson is
not requesting that any wages owed by the City to the
Officers be paid by the City to Hudson. Instead, Hudson

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No. 01-1653 Hudson v. Coleman et al. 11
5Yang relies on the previous S eventh Circuit decision of Argento v.
Village of Melrose Park, 838 F.2d 1483 (7th Cir. 1988). The Supreme
Court in Peacock implied that Argento and its progeny were on the wrong
side of a circuit split. See Peacock, 516 U.S. at 532 n.2; see also Yang,
137 F.3d at 526. Argento, predating Peacock, permits ancillary
jurisdiction “when the plaintiff is proceeding in his original suit rather
than by means of a new suit.” Yang, 137 F.3d at 526 (citations omitted).
This jurisdictional analysis based upon “original suit” versus “new suit”
labeling is irreconcilable with Peacock’s more sub stantive analysis
prohibiting jurisdiction “where ‘the relief [sought is] of a different kind
or on a d ifferent principle’ than that of the prior decree.” Peacock, 516
U.S. at 358 (quoting Du gas v. American Surety Co., 300 U.S. 414, 428
(1937)) (alteration in original).
seeks to hold the City individually liable under the indemnity
clause for the full amount of the Officers’ settlement. The
state form used by Hudson is labeled “non-periodic” request
and writ for garnishment and Hudson’s attorney has mailed a
letter to the City on July 10, 2000, indicating the belief that
the City is responsible for payment of the entire judgment
under the indemnity clause. As stated above, the type
garnishment sought by Hudson contemplates making the third
party City, a non-party to the consent judgment, personally
liable on the consent judgment entered into by the Officers
based on the independent legal theory of the indemnification
agreement. The City’s liability under the newly presented
indemnity principle is far from established; thus, the issues to
be litigated under the indemnity agreement deprive the Court
of ancillary jurisdiction. See Peacock, 516 U.S. at 358; see
also, Travelers Indemnity Co. of Ill. v. Hash Management,
Inc., 173 F.R.D. 150, 153 (M.D.N.C. 1997) (“However, if the
proceedings are entirely new and original or seek relief
different in kind, on a different principle, or to impose
liability on persons not already bound by the previous action
and judgment, the moving party must be able to assert an
independent basis for federal jurisdiction over the controversy
with the third party.”).
Hudson also relies on Yang v. City of Chicago5, 137 F.3d
522 (7th Cir. 1998), permitting ancillary jurisdiction under
12 Hudson v. Coleman et al. No. 01-1653
Fed. R. Civ. P. 69 for an indemnification action against the
City of Chicago after the City was dismissed from the original
lawsuit. Yang involved police officer defendants who, after
responding to a break-in at Yang’s store, proceeded to
continue the looting started by the original thieves. After
Yang objected to the officers’ looting, the officers drove for
two blocks with Yang hanging on to the car door. One officer
eventually pulled his gun and punched Yang before fleeing
the scene.
The Yang district court entered judgment against the
officers and dismissed the action against the City. Yang then
sought indemnification from the City on the basis of Illinois’
indemnification statute, 745 ILCS 10/9-102, providing in
pertinent part that a local public entity must pay any tort
judgment against an employee “while acting within the scope
of his employment.” The district court dismissed the
indemnification petition on the basis of the Peacock decision.
The Seventh Circuit held that the federal courts had
jurisdiction over the indemnification petition because the
petition was not a separate lawsuit and involved the same core
of operative facts as the original action. According to Yang,
“a Rule 69 garnishment proceeding to collect a judgment
from a third person not party to the original suit is within a
court’s ancillary jurisdiction, providing the additional
proceeding does not inject so many new issues that it is
functionally a separate case.” Yang, 137 F.3d at 526. (internal
quotation omitted). Yang concluded that interpreting the
scope of employment issue in order to resolve the indemnity
question did not inject so many new issues into the action as
to make it functionally a separate case. The Seventh Circuit
then proceeded to resolve the scope of employment issue by
concluding that under Illinois law the officer was acting
within the scope of his employment when he pulled the gun
on Yang. Id. at 525.
As an initial matter, Yang acknowledges that whether the
garnishment arises by way of a separate action or under the

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No. 01-1653 Hudson v. Coleman et al. 13
6W e acknowledge that the Peacock framework for denying ancillary
jurisdiction “where ‘the relief [sought is] of a different kind or on a
different principle’ than that of the prior decree” permits a certain degree
of subjectivity in decision making. Perhaps Yang can be explained on this
basis in that the litigation resulted in a more than six year saga due in part
to delays by the City, including multiple reviews by the Seventh Circuit.
Yang involved a remand with directions that the case be reassigned to a
different district judge due to inordinate delays. See Yang, 137 F.3d at
527. In addition, the Court expressed, “Yang has waited long enough for
this lawsuit to come to an end.” Id. at 527. We regret the inconvenience
and delay that may be associated with a separate state court garnishment
proceeding; howe ver, as stated earlier, it is well-established that we must
presume that a cause of action lies outside the limited federal jurisdiction
when presented with a subjective choice or close call concerning the
existence of jurisdiction.
same case number as the original action is far from
determinative of ancillary jurisdiction. Instead, Yang focuses
on whether the garnishment injects sufficient new issues as to
make the garnishment functionally separate, thus destroying
ancillary jurisdiction. Yang’s “functionally separate”
subjective framework is fact-specific and can be interpreted
as facially consistent with the Supreme Court’s
pronouncement that ancillary jurisdiction is inappropriate in
“proceedings that are entirely new and original” and in
proceedings “where ‘the relief [sought is] of a different kind
or on a different principle’ than that of the prior decree.”
Peacock, 516 U.S. at 358 (internal quotation omitted)
(quoting Dugas v. American Surety Co., 300 U.S 414, 428
(1937)) (alteration in original).
We disagree with Yang’s application of the “functionally
separate” framework6 in deciding the indemnification issue
and hold that legitimate, unresolved disputes concerning
whether conduct occurs within the scope of employment or
authority deprives a federal court of ancillary jurisdiction in
a garnishment action pursuant to Peacock. As stated, the City
of Flint’s liability under the newly presented indemnity
principle is far from established; thus, the issues to be
litigated under the indemnity agreement deprive the Court of
14 Hudson v. Coleman et al. No. 01-1653
ancillary jurisdiction. It is inappropriate for a Court to decide
legitimate scope of employment and/or scope of authority
questions without the benefit of fact-finding and briefing.
Our determination in this action overrules Childress v.
Williams, 121 F. Supp.2d 1094 (E.D. Mich. 2000). Childress
attempts to distinguish the disputed application of the
indemnity agreement from Peacock’s ambit by stating:
[I]f all the prerequisites of the indemnification agreement
were met, the City would be liable for indemnification at
the time the judgment was rendered against the defendant
Williams . . . . Because Defendant Williams may have a
right to collect from the City, so too may plaintiff.
Childress, 121 F. Supp.2d at 1096 (emphasis added).
Instead, as we have set forth above, the very contingencies
identified in Childress (“if,” “would be,” and “may”) require
sufficient fact-finding and legal analysis to distinguish the
garnishment proceeding from the original action, rendering
the federal courts without ancillary jurisdiction.
III. CONCLUSION
Based upon the above, we AFFIRM the district court’s
order granting the City of Flint’s motion to quash Plaintiff
Hudson’s garnishment action.

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No. 01-1653 Hudson v. Coleman et al. 15
1Hudson named the City as a d efendant in her com plaint, but the
district court granted summary judgment in favor of the City on
September 30, 1998.
_______________
DISSENT
_______________
KAREN NELSON MOORE, Circuit Judge, dissenting. I
respectfully dissent from the majority’s conclusion that the
district court lacks subject matter jurisdiction over Plaintiff-
Appellant, Margo Hudson’s (“Hudson”), garnishment action
against Defendant-Appellee, the City of Flint (“City”).
Contrary to the majority, I conclude that Hudson’s
garnishment action is merely a post-judgment proceeding
following her prior § 1983 action against Defendants-
Appellees, Bryan Coleman and Eric Rodgers (collectively
“police officers”), and that the garnishment action will not
inject so many new issues as to become a functionally
separate lawsuit. I further conclude that Hudson is merely
seeking to collect her judgment, rather than to impose liability
upon someone not otherwise liable for the judgment.
Therefore, the doctrine of ancillary jurisdiction gives the
district court subject matter jurisdiction over the garnishment
action. For the following reasons, I would REVERSE the
district court’s order granting the City’s motion to quash
Hudson’s garnishment action and REMAND for further
proceedings.
As discussed in the majority opinion, Hudson brought
§§ 1983, 1985, and state law claims against the police officers
arising from the police officers’ theft of Hudson’s dog.1 On
February 29, 2000, Hudson and the police officers entered
into a consent judgment, whereby the police officers agreed
to pay $300,000 in settlement of Hudson’s claims. Then, on
June 30, 2000, Hudson, seeking to collect the consent
judgment, filed writs of garnishment on the City pursuant to
16 Hudson v. Coleman et al. No. 01-1653
2Rule 69 directs district courts to emp loy the procedures for
executing judgments of the state in which the district court sits. See Fed.
R. Civ. P. 69(a). Rule 69(a) pro vides:
The procedure on execution, in p roceedings supp lementary to
and in aid of a judgment, 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, existing at the time
the remedy is sought, except that any statute of the United States
governs to the extent that it is applicable.
Id.
The Michigan garnishment statute allows a prevailing plaintiff to
seek a writ of garnishment against an obligation owe d to the de fendant,
if the ob ligor is sub ject to p ersonal jurisdiction in M ichigan. See Mich.
Com p. Laws § 600.4011 (1). Section 600.40 11(1) provide s:
[T]he court has po wer by garnishment to app ly the follow ing
property or obligation, or both, to the satisfaction of a claim
evidenced by contract, judgment of this state, or foreign
judgment, whether or no t the state has jurisdiction over the
person against whom the claim is asserted:
(a) Personal property belonging to the person against
whom the claim is asserted but which is in the
possession or control of a third person if the third
perso n is subject to the judicial jurisdiction of the
state and the pe rsonal prop erty to be app lied is
within the boundaries of this state.
(b) An obligation owed to the person against whom
the claim is asserted if the obligor is subject to the
judicial jurisdiction of the state.
Id.
Federal Rule of Civil Procedure 69(a) (“Rule 69(a)") and
Mich. Comp. Laws § 600.4011(1).2 The district court found
that it lacked subject matter jurisdiction over the garnishment
action because the garnishment action seeks “to hold the City,
a third party, liable for payment of a judgment on an
independent legal theory, the indemnity agreement, which
would require separate analysis and possible discovery
concerning the City’s defenses to liability.” Majority Op. at
5. The majority affirms the district court’s order quashing
Hudson’s garnishment action based upon the same reasoning
employed by the district court.

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No. 01-1653 Hudson v. Coleman et al. 17
Contrary to the majority, I would hold that the doctrine of
ancillary jurisdiction gives the district court subject matter
jurisdiction over the garnishment action. Unlike the majority,
I conclude that the Supreme Court’s holding in Peacock v.
Thomas, 516 U.S. 349 (1996), does not prohibit this use of
ancillary jurisdiction. Instead, I conclude that the Seventh
Circuit’s reasoning in Yang v. City of Chicago, 137 F.3d 522
(7th Cir. 1998), cert. denied, 525 U.S. 1140 (1999), and the
Eastern District of Michigan’s reasoning in Childress v.
Williams, 121 F. Supp. 2d 1094 (E.D. Mich. 2000), correctly
analyze Peacock’s effect on the doctrine of ancillary
jurisdiction in Rule 69 proceedings.
In Peacock, Thomas had been awarded a judgment of
$187,628.93 by the district court in his ERISA class action
against Tru-Tech, his former employer. Peacock, 516 U.S. at
351. The district court had found that Tru-Tech breached its
fiduciary duties in administering the corporation’s pension
benefits plan, but the district court had also explicitly ruled
that Peacock, an officer and shareholder of Tru-Tech, was not
a fiduciary. Id. Unable to obtain the money from Tru-Tech,
Thomas sued Peacock in federal court alleging various
theories, including a veil-piercing claim under ERISA. Id. at
352.
The Supreme Court held that ERISA does not authorize
veil-piercing claims; therefore, ERISA did not provide a basis
for federal jurisdiction over Thomas’s veil-piercing claim. Id.
at 353. The Court further held that the doctrine of ancillary
jurisdiction did not apply to Thomas’s veil-piercing claim,
and as a result, the district court lacked subject matter
jurisdiction over Thomas’s action against Peacock. Id. at
355-59. In so holding, the Court stated that “a federal court
may exercise ancillary jurisdiction ‘(1) to permit disposition
by a single court of claims that are, in varying respects and
degrees, factually interdependent; and (2) to enable a court to
function successfully, that is, to manage its proceedings,
vindicate its authority, and effectuate its decrees.’” Id. at 354
(quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
18 Hudson v. Coleman et al. No. 01-1653
3This holding is not inconsistent with the T enth Circuit’s view in
San dlin v. Corporate Interiors, Inc., 972 F.2d 12 12, 1217 (10th Cir.
1992), a pre-Peacock decision, in which the court held that the district
court lacked subject matter jurisdiction over the plaintiff’s subsequent
veil-piercing claim because the claim involved new parties, new issues,
and new theories o f liability. The Tenth Circuit explicitly noted that the
379-80 (1994)). The Court held that Thomas’s veil-piercing
claim did not involve the first accepted usage of ancillary
jurisdiction, as Thomas brought his veil-piercing claim in a
subsequent lawsuit, and thus “the ability to resolve
simultaneously factually intertwined issues vanished.” Id. at
355. The Court further held that Thomas’s veil-piercing
claim did not involve the second accepted usage of ancillary
jurisdiction because, although ancillary jurisdiction may be
used to enforce judgments, the Court has “never authorized
the exercise of ancillary jurisdiction in a subsequent lawsuit
to impose an obligation to pay an existing federal judgment
on a person not already liable for that judgment.” Id. at 357.
In Yang, a post-Peacock decision, the Seventh Circuit held
that the doctrine of ancillary jurisdiction gave the district
court subject matter jurisdiction over Yang’s Rule 69
garnishment action. Yang, 137 F.3d at 526. Yang had been
awarded a substantial monetary judgment in his §§ 1983 and
1985 actions against two police officers. Id. at 522-23.
Approximately three months later, “Yang filed a petition for
indemnification and writ of execution, seeking
indemnification of [his judgments against the officers] from
the City of Chicago pursuant to 745 ILCS 10*9-102. Section
9-102 directs a municipality to indemnify a tort judgment
entered against an employee if the employee’s misconduct
was within the scope of his employment.” Id. at 524. The
court held that “a Rule 69 garnishment proceeding to collect
a judgment from a third person not party to the original suit
is within a court’s ancillary jurisdiction, providing ‘the
additional proceeding does not inject so many new issues that
it is functionally a separate case.’” Id. at 526 (quotations
omitted).3 The court concluded that Yang’s garnishment

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No. 01-1653 Hudson v. Coleman et al. 19
plaintiff was not bringing a traditional indemnity claim. Id.
action fell within the district court’s ancillary jurisdiction
because the only new issue raised in the action was whether
the officers were acting within the scope of their employment
when they violated Yang’s constitutional rights. See id. The
Yang court further distinguished Peacock by noting that the
plaintiff in Yang was not trying to impose liability for a
money judgment on a person not otherwise liable for the
judgment, because if the officers were acting within the scope
of their employment, the city would be liable for their
judgment. Id. at 525 n.1. Similarly, in Childress, the Eastern
District of Michigan held that the doctrine of ancillary
jurisdiction gave it subject matter jurisdiction over
Childress’s Rule 69 garnishment proceeding because the only
new issue raised in the proceeding was whether the officer
was acting within the scope of his employment when he
violated Childress’s constitutional rights. Childress, 121 F.
Supp. 2d at 1096.
The courts in both Yang and Childress reasoned that the
Rule 69 garnishment actions were not separate lawsuits
because they were post-judgment proceedings, and because
the factual issues in the garnishment actions would overlap
substantially with the factual issues in the underlying claims.
See Yang, 137 F.3d at 526; Childress, 121 F. Supp. 2d at
1096. Thus, the garnishment actions involved the first
accepted use of ancillary jurisdiction—resolving factually
interdependent claims in a single proceeding. The courts in
both Yang and Childress also reasoned that the district court’s
exercise of ancillary jurisdiction over the Rule 69
garnishment proceeding was necessary to effectuate the
district court’s prior judgment. Yang, 137 F.3d at 526;
Childress, 121 F. Supp. 2d at 1096-97. Thus, the garnishment
actions involved the second accepted usage of ancillary
20 Hudson v. Coleman et al. No. 01-1653
4Federal courts have exercised ancillary jurisdiction in supplemental
proceedings to effectuate jud gments for over one hundred years. See Root
v. Woolwo rth, 150 U.S. 401, 410-11 (1893). Peacock did no t strip federal
courts of subject matter jurisdiction over proceedings to effectuate
judgments. Peacock v. Thomas, 516 U.S. 349 , 356 (1996 ).
5Furthermore, in a footnote in Peacock, the Supreme Court explicitly
stated that a Rule 69 (a) proceeding was an effective me chan ism for a
district court to use in effectuating its judgment. Pea cock, 516 U.S. at
359 n.7.
jurisdiction—protecting judgments.4 In fact, the courts in
both Yang and Childress relied upon the following passage
from Peacock to support their holdings: “we have approved
the exercise of ancillary jurisdiction over a broad range of
supplementary proceedings involving third parties to assist in
the protection and enforcement of federal judgments —
including attachment, mandamus, garnishment, and the
prejudgment avoidance of fraudulent conveyances.” Peacock,
516 U.S. at 356 (cited in Yang, 137 F.3d at 525; Childress,
121 F. Supp. 2d at 1096).5
I find the reasoning of the courts in Yang and Childress
both convincing and applicable to the present case. Here,
Hudson entered into a consent judgment with the police
officers for $300,000. Hudson then brought a garnishment
proceeding against the City pursuant to Rule 69 seeking to
collect from the City in accordance with City’s
indemnification agreement with the police officers. Hudson’s
Rule 69 proceeding was a post-judgment proceeding, not a
separate lawsuit. The factual issues in the garnishment
proceedings will overlap substantially with those in Hudson’s
underlying §§ 1983, 1985, and state-law claims; therefore, the
Rule 69 proceeding will not inject so many new issues as to
become a functionally separate lawsuit. Unlike the plaintiff
in Peacock, Hudson is not seeking to impose liability on the
City for post-judgment conduct; rather, the City’s potential
liability arose when the police officers committed the conduct

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No. 01-1653 Hudson v. Coleman et al. 21
6For the same reason, the City canno t be considered a party that is
not otherwise liable, because if the police officers were acting within the
scope of their employment, the City would be liable for the police
officers’ conduct.
7The indemnification agreement between the City and the Flint
Police Officers Association provides, in pertinent part:
W henever any judgment for damages, excluding punitive
damages, is awarded against an Employee as the result of any
civil action for personal injuries or property damage caused by
the Employee while in the course of his employment, and while
acting within the scope of his authority, the E mplo yer will
indem nify the employee or will pay, settle, or comprom ise the
judgment.
Joint App endix at 512 (Pls.’ Br. in O pp’n to the C ity of Flint’s M ot. to
Quash Ga rnishment, Ex. A).
underlying Hudson’s initial § 1983 action.6 The only new
factual issue involved in the Rule 69 garnishment proceeding
will be whether the police officers were acting within the
scope of their employment.7 This is the exact same factual
issue that both the Seventh Circuit and the Eastern District of
Michigan found insufficient to render the Rule 69
garnishment proceedings separate, subsequent lawsuits.
Additionally, the Rule 69 garnishment proceeding is
necessary to enable the district court to effectuate its prior
judgment against the police officers. Requiring a separate
state-court lawsuit to enforce a federal-court judgment would
compromise the federal interests that were resolved in the
initial federal-court proceedings and would impose an
unnecessary burden on state courts. Childress, 121 F. Supp.
2d at 1097. I respectfully dissent.

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