SWVA, INC. v. LYND (S.D.W.Va. 2-3-2009)

ROBERT CHAMBERS, District Judge

The Court HOLDS IN ABEYANCE the Plaintiff's Motion for Pre-Judgment Attachment (Doc. 3) to allow the Plaintiff, SWVA, Inc., (hereinafter "SWVA") an opportunity to amend its motion to establish that both state and federal law permit the attachment of funds held in the Defendant's name under the SWVA, Inc. Collective Bargaining Agreement Unit Retirement Plan.

While SWVA's motion sets forth the applicable state laws for attachment of a non-resident's retirement account, it is lacking any reference to a key component of Fed.R.Civ.P. 64, which states that "a federal statute governs to the extent it applies" to remedies available under state law. SWVA must establish that no federal laws, including, but not limited to, the Employee Retirement Income Security Act of 1974, 29 U.S.C., §§ 1001 et. seq, 1056(d), bar it from attaching the retirement funds.

The Court DIRECTS the Clerk to send a copy of this written Order to counsel of record and any unrepresented parties.