               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0020n.06

                                          No. 13-3686

                         UNITED STATES COURT OF APPEALS                               FILED
                              FOR THE SIXTH CIRCUIT                             Jan 15, 2014
                                                                            DEBORAH S. HUNT, Clerk

MILLIE OGDEN,                                      )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )
                                                   )      ON APPEAL FROM THE UNITED
FORTRESS GROUP USA; CRM                            )      STATES DISTRICT COURT FOR
INVESTORS; ROGER CLARK,                            )      THE NORTHERN DISTRICT OF
                                                   )      OHIO
       Defendants,                                 )
                                                   )
and                                                )
                                                   )
NATIONAL CITY BANK,                                )
                                                   )
       Garnishee-Appellee.                         )


       BEFORE: MERRITT, SUTTON, and STRANCH, Circuit Judges.


       PER CURIAM. Millie Ogden appeals through counsel a district court order denying her

motion to alter or amend an order in a garnishment proceeding.

       Ogden was defrauded of substantial assets by Roger Clark, doing business as Fortress

Group USA and CRM Investors. In 2008, she obtained a default judgment against Clark in a

California federal court for $324,500. She sought to collect on this judgment in the Northern

District of Ohio, seeking assets from the defendants held by National City Bank (NCB) in

Cleveland. NCB informed the court that it had three accounts in the name of the defendants.

Ogden successfully garnished the amounts in two of these accounts, but NCB informed the court

that the third account, in the name of Fortress Group, was an escrow account that was the subject

of another lawsuit in which another victim of Clark’s was seeking the amounts she had deposited
No. 13-3686
Ogden v. Nat’l City Bank

into the escrow account, among other claims. Ogden moved the court to order NCB to disburse

the amounts in the third account to her. However, the district court concluded that Ogden had

not established that the defendants actually had an interest in the account. In fact, the district

court found that the other victim, the plaintiff in the second lawsuit before the same judge, was

entitled to the cash in the account that could be traced to her deposits. The district court could

not determine the ownership of the remaining assets in the escrow account, mostly in the form of

treasury securities. Therefore, Ogden’s motion to disburse the funds to her was denied.

       Ogden filed a motion to alter or amend the district court’s order, pursuant to Federal Rule

of Civil Procedure 59(e). The vast majority of Ogden’s arguments attacked the district court’s

determination that the cash in the account belonged to the other victim, arguing that the account

was not an escrow account, that the other victim was not entitled to specific performance, and

that the other victim did not have a judgment against the defendants as Ogden had. She also

argued that NCB lacked standing to participate in the action because there was no interpleader of

the funds in the account and NCB had not moved to intervene. The district court rejected all of

Ogden’s arguments, including her argument that it could not consider the information about the

accounts provided by NCB because NCB had not intervened in the action. The motion to alter or

amend was denied. The cash in the account was disbursed to the other victim, and the treasury

securities remain in the account.

       Ogden appealed the district court’s order. In her brief, she has abandoned any claim to

the cash in the account that was awarded to Clark’s other victim. She argues only that NCB

lacks standing to participate in the litigation before the district court or this court. NCB has filed

a brief in opposition, as well as a motion for the court to take judicial notice of pleadings filed in

the related lawsuits.


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No. 13-3686
Ogden v. Nat’l City Bank

       We review the denial of a motion to alter or amend judgment under Rule 59(e) for an

abuse of discretion. Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 766 (6th Cir.

2003). Relief under Rule 59(e) is available to correct a clear error of law, on the basis of newly

discovered evidence or an intervening change in the law, or to prevent manifest injustice.

Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006). We find no abuse of

discretion in this case because Ogden’s motion to alter or amend did not establish that she was

entitled to relief for any of these reasons. She did not present any newly discovered evidence,

there was no change in the law, and no manifest injustice or clear error of law was established.

       The district court properly declined to order the disbursement of the escrow account to

Ogden because it was not subject to garnishment as she did not submit any evidence that the

funds in the account were those of her judgment debtors. See Cent. Nat’l Bank v. Broadview

Sav. & Loan Co., 411 N.E.2d 840, 845 (Ohio Ct. App. 1979). The only argument Ogden makes

on appeal is that NCB could not provide the district court with information about the account

without moving to intervene. She does not explain how this argument would entitle her to

garnish the funds in the escrow account. Moreover, she has abandoned any claim against the

amounts that have been disbursed from the account. If she has any newly discovered evidence

that the remaining funds belong to her judgment debtors, she remains free to move the district

court for disbursement.

       We deny NCB’s motion to take judicial notice as unnecessary, and affirm the district

court’s order denying Ogden’s motion to alter or amend its order denying disbursement of the

escrow account to Ogden.




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