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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3851
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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A motion was filed in Federal District Court for a request

Resolved Question:

A motion was filed in Federal District Court for a request to have a Writ of Execution served by the U. S. Marshall Service. The Writ was signed by the Judge over 4 months ago. What is the hold-up?? Is there anything I can do to expidite the proceedure.?? By the way, this was all done Pro SE.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Are you saying that the judge has signed the writ but has not issued it yet to the marshall?
Customer: replied 1 year ago.

That is correct!! The Writ of Execution was issued almost 3 months ago, and still has not been sent over to the Marshall Service for delivery. I continue to inquire as to WHY., and all I get from the Clerk, is the Judges are busy and not have the time to forward it over!! What can be done??

Expert:  Zachary replied 1 year ago.
The court has the right to sit on the order. In my dealings with federal judges, they seem to work on their own time frame and do not do things in a hurry.

If it is causing you imminent harm, you need to file a Motion to Issue Writ of Execution and ask for a hearing. In your written motion you need to explain why the court needs to act in an expedited manner. If the court fails to act after this, you could file a mandamus action and ask the appellate court to order the district judge to issue the writ.

Please let me know if you have any further questions regarding this matter. Please also consider rating my answer positively so that I am compensated by the website for my work on your question.

Thanks,
ZDN
Customer: replied 1 year ago.


Dear ZDN,

 

I filed a Motion To Appoint U.S. Marshall to serve the Writ, gave the circumstances for the Motion, however, still have not had any action from the Court. Requesting a Hearing on the Originial Writ would prove fruitless, as the Writ was already signed, but not delivered to the Defendant. How long does it usually take, for the Court to rule on a New Motion???

Customer: replied 1 year ago.

Dear ZDN,


Please see my reply to you dated 3/1/13 for further review. Maybe my question was somewhat ambiguous, and I may have left out some details.

Expert:  Zachary replied 1 year ago.
Hi,

Sorry for the delay in getting back to you.


I think I need to look at your case file to get a better idea of what's going on. Can you please tell me which court it is in and provide me the case number? After I take a look, I will get back to you.

-ZDN
Customer: replied 1 year ago.

Dera ZDNLaw,


The case was filed in the Middle District Court, Middle District of Florida, Ocala Division. The Case No: 5:08-CV-528-Oc-PRL. The prior case no that was originally assigned was 5:08-cv-528-Oc-GRJ.


As you can see form the records, A Writ of Execution ( Doc. 32 ) Motion was initiated on 08/16/12, and it was Done and Ordered on October 9, 2012. However, this order was never sent over to the U.S Marshall Service to be served. On Jan. 14, 2013, I filed a Motion for Appointment of U.S. Marshall to Serve Writs Of Execution, along with the Order To Appoint U.S. Marshall To Execute Writs. 9A Am Jur, Pleading and Practice, ss 61 thru ss 86.


Any additional information that you may require, would be immediately available.


Any assistance or insight into this matter, would be greatly appreciated. Vince P.

Expert:  Zachary replied 1 year ago.
The system shows that the Writ has been issued and mailed to you, stating you have the original copy.

If you never received a copy, all you need to do is get a certified copy from the court (call the clerk).

You need to simply take it to the Marshall's office and ask them to execute it. Once the court has actually issued the writ, that is all they do. You must do the rest yourself.
Customer: replied 1 year ago.

Dear ZDNLaw,


ONCE AGAIN, I KNOW I RECIEVED THE WRIT IN THE MAIL, HOWEVER, THE U.S. MARSHALL SERVICE WILL NOT EXECUTE THE WRIT WITHOUT AN ORDER DIRECTLY FROM THE JUDGE!!!!! I DO NOT KNOW ELSE TO EXPLAIN IT TO YOU. I KNOW IT GOES AGAINST WHAT IS IN STATUE, BUT, IT IS WHAT IT IS!!!!!!!!!!!!! SO, WHERE DO I GO FROM HERE, ONCE AGAIN????

Expert:  Zachary replied 1 year ago.
OK, So you've actually taken the writ over to the marshall and the marshall says he won't do anything?

The writ itself is the order from the judge. It starts off with "to the marshall" and orders the marshall to do what's on the writ.

This is very strange indeed. The marshall is disobeying the order of the judge if he will not take the writ and execute as he is ordered to by the writ. If that is the case, then you need to file a Motion for Contempt against the Marshall.
Customer: replied 1 year ago.

 


DEAR ZDNLAW,


NOW, YOU FINALLY UNDERSTAND MY DELEMMA. I do not want to initiate any kind of Motion against the U.S. Marshall's, as some of them are personal friends, and, according to the Clerk's Office, a Motion For Contempt, will only infurerate the situation. PLEASE KEEP IN MIND, THIS IS NOT MY PERSONNAL CASE, IT IS ON BEHALF OF A VERY CLOSE FRIEND, WHOM I BELIEVE WAS MIS-REPRESENTED. AS I EXPLAINED, I AM NOT AN ATTORNEY, HOWEVER, I TOOK THIS CASE FROM ITS INCEPTION, AND DIRECTED THE PRO-SE LITIGENT THUS FAR. I AM NOW AT AN IMPASS!!! Any help would be appreciated. VINCE P.

Expert:  Zachary replied 1 year ago.
Hi Vince,

I understand. However, if the court has already ordered the marshall to act, and the marshall is refusing to act on the writ, then the correct motion is a Motion for Contempt.

The marshall is bound to take the writ of execution pursuant to the court's order, which is on the issued writ. You can go back to court, as you have, and asked the judge to appoint the marshal. However, the failure is not on the court's part, it's on the marshall's part. The marshall is the one not doing what he's supposed to. You've done your job by getting the writ issued by the court.

So, how hard have you pushed the marshall? Have you attempted to reason with the marshall and explain that the executed writ is all you need?
Customer: replied 1 year ago.

Dear ZDNLaw,


No, I have NOT, I expected to Court to forward the Writ to the Marshall for Execution, when the Clerk informed me that I needed a Motion to Direct The Court, (which I filed) to Appoint The U.S. Marshall to Execute the Writ. What you are telling me, is written in the Law, as I understand it, and should be unquestioned as to the Service of the U.S. Marshall. Is that correct????

Expert:  Zachary replied 1 year ago.
Yes. It should be a really simple procedure of walking into the US Marshall's office, handing a certified copy of the writ over and asking the Marshall to go and serve it. If you know some of the guys over there, it might be a good idea to put a call in and pull some strings.

When you spoke to them the first time, did they even look at the writ that the court issued?
Customer: replied 1 year ago.

THANK YOU,


I KNEW THAT WHEN I FILED THE ORIGINAL WRIT, AND THE CLERK LOOKED AT ME, AND KNOW NOTHING WHAT TO DO WITH IT, I WAS IN TROUBLE THEN. I DID MY HOMEWORK, FOLLOWED THE LETTER OF THE LAW, RECIEVED A SIGNED WRIT BY THE JUDGE, AND FOLLOWED PROCEEDURE TO HAVE IT EXECUTED, ONLY TO FIND, IT WAS MY OWN MISTEP. THANK YOU, XXXXX XXXXX MUCH FOR THE INSIGHT, AND I WILL KEEP YOU ABREAST OF THE OUTCOME OF THIS CASE.


SINCERELY,


VINCE p.

Expert:  Zachary replied 1 year ago.
Good Luck, I'd be happy to keep assisting you. Please go ahead and rate my answer so that I may be compensated by the website for the time I've spent with you.

Much appreciated and looking forward to hearing the outcome.

-ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3851
Experience: Lead trial/International commercial attorney licensed 11 yrs
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