McDowell et al v. Price et al

Filing 507

ORDER denying pltfs' 504 Appeal of Magistrate Judge Decision. Signed by Judge Susan Webber Wright on 3/23/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
KENNITH McDOWELL, ROBERT
MAULDING, LUTHER STRIPLING,
RUDY KYLE, FRED DOLLAR, JAMES
JOSLIN, JAMES MILNER, JOE ELLIS,
DAVID ELLIS, DANIEL STRIPLING, and
JANET STRIPLING,
Plaintiffs,
vs.

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ELBERT PRICE, individually and as Trustee *
for these plans: Bud Price’s Excavating
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Service Inc. Profit-Sharing Plan, Bud Price’s *
Excavating Service, Inc. Retirement Plan,
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Price’s Utility Contractors, Inc. Retirement
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Plan and for six unnamed plans; MARY
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RUTH PRICE, individually and as Trustee
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for these plans: Bud Price’s Excavating
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Service, Inc. Profit-Sharing Plan, Bud Price’s *
Excavating Service, Inc. Retirement Plan,
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Price’s Utility Contractors, Inc. Retirement
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Plan and for six unnamed plans (Plans A-F); *
Bud Price’s Excavating Service, Inc.
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Profit-Sharing Plan; Price’s Utility Contractors, *
Inc. Retirement Plan; Bud Price’s Excavating *
Service, Inc. Retirement Plan; six unnamed
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plans (Plans A-F); Price’s Utility Contractors, *
Inc. as plan administrator for Price’s Utility
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Contractor’s Inc., Retirement Plan and up to
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six unnamed plans; Bud Price’s Excavating
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Service, Inc. as plan administrator of Bud
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Price’s Excavating Service, Inc. Profit*
Sharing Plan, Bud Price’s Excavating Service, *
Inc. Retirement Plan, and up to six unnamed *
plans (A-F),
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Defendants.
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No. 4:08-cv-03979-SWW-HDY

ORDER
Plaintiffs Kennith McDowell, Robert Maulding, Luther Stripling, Rudy Kyle, Fred
Dollar, James Joslin, James Milner, Joe Ellis, David Ellis, Daniel Stripling, and Janet Stripling,

former employees or beneficiaries of former employees of defendants Bud Price’s Excavating
Service, Inc. and Price’s Utility Contractors, Inc., bring this action pursuant to the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., to have their
benefits under certain profit sharing plans and defined benefit plans maintained by defendants
determined and paid. The matter was referred to Magistrate Judge H. David Young for further
proceedings and recommendation.
Plaintiffs appeal [doc.#504] the Magistrate Judge’s March 8, 2012 Order [doc.#487] that,
inter alia, (1) denied plaintiffs’ motion seeking an order requiring the plan administrator of the
1997 defined benefit plan to deposit $2,820,000 into the plan and their amended motion seeking
an order requiring the plan administrator of the 1997 defined benefit plan to deposit funds into
the plan so that a balance of $4,820,000 is created [doc.#’s 467 and 478]; (2) denied plaintiffs’
motion requesting a finding that the residuary of the 1997 defined benefit plan be paid to the
plaintiffs and “for payment of funds by the defendants in an amount sufficient to restore a $3.0
residuary in the [plan]” [doc.#469]; and (3) denied plaintiffs’ motion seeking an order requiring
the repayment of funds paid to Nisbet and others from the 1997 defined benefit plan [doc.#472].1
The Court has considered the arguments raised by plaintiffs and finds no basis for setting aside
the Magistrate Judge’s March 8, 2012 Order. Accordingly, the Court denies plaintiff’s appeal of
the Magistrate Judge’s Order.
IT IS SO ORDERED this 23rd day of March 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

1

This is plaintiffs’ seventh appeal of an Order of the Magistrate Judge since March 2010. See document
entries 268, 293, 368, 382, 394, and 421.

2