The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Presently before the court is plaintiff's amended application for a writ of continuing garnishment ("Application"), seeking the garnishment of "at least" 70 percent of defendant's disposable earnings in furtherance of the payment of a criminal restitution balance of $1,860,660.43, calculated as of October 3, 2011 (Dkt. Nos. 3, 14).*fn1 The court heard this matter on its law and motion calendar on November 10, 2011, entered an interim order at defendant's suggestion, and permitted the parties to file supplemental briefing regarding the Application in light of defendant's recent retention of counsel. (See Order, Nov. 14, 2011, Dkt. No. 18.) The parties filed supplemental briefs (Dkt. Nos. 20-21, 25). Although defendant filed her brief nearly one week late (see Order to Show Cause, Dec. 21, 2011, Dkt. No. 23), the undersigned has considered her brief in drafting these findings and recommendations. Having considered the briefs, prior oral arguments, and record in this case, the undersigned recommends that plaintiff's Application be granted and that defendant's wages be garnished in an amount of 25 percent of disposable earnings in furtherance of the payment of the underlying criminal restitution balance.
A. Brief Factual Overview
The record and defendant's representations in this case support that defendant has a gambling addiction that has contributed, in addition to other factors, to negative circumstances in defendant's life. (See, e.g., Thomas Decl. ¶¶ 7-8, Dec. 1, 2011 ("Thomas Decl."), Dkt. No. 20, Doc. No. 20-1.) These circumstances appear to include a petition for bankruptcy filed by defendant and her husband, and the entry of a criminal judgment against defendant arising from defendant's embezzlement of a large sum of money from her former employer.
On October 2, 2002, a criminal judgment was entered in United States v. Thomas, No. 2:02-cr-00152-01 (E.D. Cal.), which reflects that defendant pled guilty to one count of "Mail Fraud, Aiding and Abetting" in violation of 18 U.S.C. § 1341. (Judgment in a Criminal Case ("Judgment"), Oct. 2, 2002, attached as Ex. A. to Pl.'s Response to J. Debtor's Req. for Hearing on Writ of Cont. Garnishment (Wages) ("Pl.'s Response"), Dkt. No. 14.) In addition to being ordered to serve 37 months in prison and 36 months under supervised release, defendant was ordered to pay $1,651,574.92 in restitution and an assessment of $100.00.*fn2 (See Judgment at 2-3, 5-6.) The Schedule of Payments in the Judgment states: "Payment of the total fine and other criminal monetary penalties shall be due . . . immediately." (Id. at 6.)
On or around July 5, 2005, defendant was released from the Bureau of Prisons and shortly thereafter became employed by Brasher's Sacramento Automotive Auction ("Brasher's Auction") as a clerk, earning $11.00 per hour. (Jochem Decl. ¶¶ 7-8, Oct. 6, 2011, Dkt. No. 14, Doc. No. 14-2.) Defendant is currently a Factory Department Manager at Brasher's Automotive, earning approximately $33.125 per hour. (Id. ¶ 8.) According to Brasher's Auction, defendant's gross bi-weekly pay is $2,650.00, and her disposable earnings*fn3 are $2,097.73. (Id.; see also Acknowledgment of Serv. & Answer of Garnishee (Wages) at 2 ("Answer of Garnishee"), Dkt. No. 7.) Brasher's Auction also indicated that defendant voluntarily contributes $159.00 per pay period to an employee-sponsored retirement fund. (Answer of Garnishee at 2.)
Plaintiff represents that as of October 6, 2011, defendant had paid a total of $19,495 in restitution. (Jochem Decl. ¶ 6.) Defendant represents that she has been attempting to making restitution payments at a rate of $300 per month, and that she does not believe she has missed a payment since her release from prison.*fn4 (See Def.'s Req. for Hearing at 3, Dkt. No. 9.) Plaintiff asserts that defendant "has been paying $300 per month towards her restitution" since March 17, 2008. (Jochem Decl. ¶ 16.)
B. Procedural History Related to the Application
On July 1, 2011, plaintiff filed an application for a writ of continuing garnishment of defendant's wages, and filed an amended application on July 11, 2011 (Dkt. Nos. 1, 3).*fn5 The Clerk of this court executed a Writ of Continuing Garnishment that required Brasher's Auction, as defendant's employer and garnishee, to withhold defendant's disposable earnings until the court issued a further order (Dkt. No. 5, Doc. No. 5-2). Plaintiff subsequently filed proofs of service that confirmed service of statutorily required notices and documents on defendant and Brasher's Auction (Dkt. Nos. 5-6).
On July 25, 2011, Brasher's Auction filed a document entitled "Acknowledgment of Service and Answer of Garnishee (Wages)," which acknowledged receipt of the Application and provided information about defendant's gross pay and disposable earnings (Dkt. No. 7).
On August 5, 2011, plaintiff filed a document entitled "Notice and Instruction to Judgment Debtor Re: Garnishment and Information Regarding Request for Hearing" (Dkt.
No. 8). Appended to this document is a document entitled "Claim for Exemption Form, Exemptions Under Federal Law (18 U.S.C. § 3613)" ("Claim for Exemption Form"), which was completed by defendant, who at the time was proceeding without counsel, and indicates defendant's belief that she is entitled to exemptions from garnishment for: (1) "Wearing apparel and school books"; (2) "Fuel, provisions, furniture, and personal effects"; and (3) "Books and tools of the trade, business, or profession" (id. at 5-6). Also on August 5, 2011, defendant exercised her right to request a hearing regarding the Application, and the request appended a letter from defendant stating her grounds for relief from the level of garnishment sought through the Application (Dkt. No. 9).*fn6
On the basis of defendant's request for a hearing, the court set a hearing on September 8, 2011. (Minute Order, Aug. 17, 2011, Dkt. No. 10.) The parties subsequently filed two stipulations to continue the hearing that were approved by the court, the latter stipulation premised on defendant's retention of counsel (Dkt. Nos. 11, 13, 15-16).
The undersigned ultimately held a hearing on the Application on November 10, 2011. At the hearing, defendant's counsel requested, for the first time, a continuance of the hearing so that he could submit an additional written response to plaintiff's Application. Over plaintiff's objection, the undersigned permitted defendant to file a supplemental brief and plaintiff to file a reply to defendant's forthcoming supplemental brief. (Order at 2, Nov. 14, 2011.) At defendant's counsel's suggestion, the undersigned imposed an interim order regarding defendant's continued payment of restitution pending final resolution of the Application:
Defendant shall pay as restitution, on an interim basis, 25% of her gross bi-weekly pay directly to the office of the United States Attorney for the Eastern District of California. [Defendant's] next such payment shall be made on November 18, 2011, and such payments shall continue on a bi-weekly basis until entry of a final order on plaintiff's Application.
At the November 10, 2011 hearing, the undersigned strongly encouraged defendant to address and file documentation concerning several aspects of her request for relief from increased garnishment. For example, defendant seeks an exemption from a garnishment order so that she may tithe to her church on a monthly basis, which defendant initially claimed was required so that she may attend her church. The undersigned advised defendant that she should file a declaration of a church official substantiating that tithing in the amount suggested by defendant is required for church attendance. Defendant failed to submit such a declaration, and similarly failed to address or document in her late-filed supplemental brief additional points raised by the undersigned at the hearing.
As noted above, defendant and plaintiff filed supplemental briefs (Dkt. Nos. 20-21). However, defendant only filed her brief after the court issued an Order to Show Cause ("OSC") addressed to defendant's failure to file a supplemental brief. (Order to Show Cause, Dec. 21, 2011.) Although the undersigned has considered defendant's supplemental brief, the undersigned has entered an additional OSC regarding ...