McDowell et al v. Price et al

Filing 526

ORDER that 485 Motion for Order is granted in the following respect; the Court will no longer entertain motions from the pltfs nor the defts except as stated; granting in part and denying in part 495 Motion for Discovery; denying 497 Motion for Ruling; denying 500 Motion for Order; denying 505 Motion for Order; denying 509 Motion for Ruling; deadlines established for bringing this case to a conclusion. Signed by Magistrate Judge H. David Young on 4/6/12. (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

v.

PLAINTIFFS

NO. 4:08CV03979 SWW/HDY

ELBERT PRICE, Individually and as Trustee for
Bud Price’s Excavating Service, Inc., Profit-Sharing
Plan; Bud Price’s Excavating Service, Inc., Retirement
Plan; Price’s Utility Contractors, Inc., Retirement
Plan; and six unnamed plans; MARY RUTH PRICE,
Individually and as Trustee for Bud Price’s Excavating
Service, Inc., Profit-Sharing Plan; Bud Price’s
Excavating Service, Inc., Retirement Plan; Price’s
Utility Contractors, Inc., Retirement Plan; and six
unnamed plans; BUD PRICE’S EXCAVATING SERVICE,
INC., PROFIT-SHARING PLAN; PRICE’S UTILITY
CONTRACTORS, INC., RETIREMENT PLAN; BUD PRICE’S
EXCAVATING SERVICE, INC., RETIREMENT PLAN;
SIX UNNAMED PLANS; PRICE’S UTILITY CONTRACTORS,
INC., as plan administrator for Price’s Utility Contractors,
Inc., Retirement Plan, and six unnamed plans; and
BUD PRICE’S EXCAVATING SERVICE, INC., as plan
administrator for Bud Price’s Excavating Service, Inc.,
Profit-Sharing Plan; Bud Price’s Excavating Service,
Inc., Retirement Plan; and six unnamed plans

DEFENDANTS

ORDER

DOCUMENT 495. The plaintiffs have filed several motions in the case at bar. First,
they have filed a motion requesting, inter alia, the production of all Schwab statements
and the list of Schwab payees for the Schwab accounts. See Document 495.1 The motion
is granted in the following one respect only. United States District Judge Susan Webber
Wright has found that the following plaintiffs are entitled to distributions from the Bud
Price’s Excavating Service, Inc., profit-sharing plan (“profit-sharing plan”) in the
following amounts, amounts determined as of October 31, 2009:
1. Kennith McDowell

$18,776.00

2. Robert Maulding

$34,692.00

3. Luther Stripling

$4,054.00

4. Rudy Kyle

$3,045.00

5. James Milner

$17,402.22

6. Janet Stripling, on behalf of Royce Stripling

$38,608.00

See Document 450 at 30-31, adopted by Judge Wright in Document 459. Judge Wright
found that with regard to the profit-sharing plan, all that remains to be done is for the
plaintiffs’ accounts to be made current and distributed. With specific regard to the
Schwab accounts, the Court orders the following:

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The plaintiffs did not actually file such a motion. Instead, they filed two briefs in support of such
a motion. See Document 495 and 496. Rather than require the plaintiffs to file an actual motion, the Court
has simply construed one of the briefs as a motion.

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A. The defendants shall provide the plaintiffs with account
information from the Schwab accounts for those plaintiffs entitled to
benefits from the profit-sharing plan, specifically, information pertaining
to accounts for Kennith McDowell; Robert Maulding; Luther Stripling; Rudy
Kyle; James Milner; and Janet Stripling, on behalf of Royce Stripling. The
defendants shall not provide account information for any other individual.
B. The defendants shall provide the Schwab accounts for the period
from November of 2009 through March of 2012, only.
C. The defendants shall provide the plaintiffs with the Schwab
accounts by the close of business on April 30, 2012.
The plaintiffs’ motion is denied in all other respects.
DOCUMENT 497. Second, the plaintiffs have filed a motion regarding the following
matters: (1) joint and several liability, (2) pre-judgment interest, (3) actuarial
adjustment for benefit plan distributions, (4) continuing jurisdiction, (5) setting a
payment date for distribution of pension benefits, (6) providing documents and
calculations for all benefit calculations, (7) revisiting discovery rulings, and (8) estoppel.
See Document 497. The motion is denied as it lacks a factual and legal basis.
DOCUMENT 500. Third, the plaintiffs have filed a motion requesting “application
of the 204(h) findings to Bud Price’s Excavating Service, Inc., Retirement Plan [1983 plan]
and to brief those percentages for the 1983 plan.” See Document 500. In the motion,
they request the following:
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Plaintiffs ask ... the Court to apply its findings that no 204(h) notices
were provided for both the 1997 and 1983 plans.
Plaintiffs ask that the Court order the Nisbet “recalculations” to
include changes to the 1983 plan benefits by application of the correct
204(h) percents and by correction of any multiplication errors. ...
Plaintiffs ask for permission to brief the percentages that should
apply to the calculation of their benefits in the 1983 plan.

See Document 500 at 1. The motion is denied. The 1983 defined benefit plan no longer
exists. Any penalties awarded the plaintiffs in the case at bar will be for the defendants’
failure to provide the required 204(h) notices for the profit-sharing plan and the Price’s
Utility Contractors, Inc., retirement plan (“1997 defined benefit plan”).
DOCUMENT 505. Fourth, the plaintiffs have filed a motion regarding “payment of
contributions to Bud Price’s Excavating Service, Inc., Retirement Plan and Price’s Utility
Contractors, Inc., Retirement Plan until termination of each plan.” See Document 505.
In the motion, they request the following:

The plan administrators should be ordered to catch up and continue
to make contributions to Bud Price’s Excavating Service, Inc., Retirement
Plan and Price’s Utility Contractors, Inc., Retirement Plan until each is
terminated.
An independent firm should be used to do the math for PUC re the
204(h) percentages and that same firm should do the contribution
calculations from the last one made until the PUC plan terminates.

See Document 505 at 1. The motion is denied. The 1983 defined benefit plan no longer
exists, and the plaintiffs have failed to show good cause for compelling the defendants
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to catch up and continue making contributions to the 1997 defined benefit plan. Benefit
accruals for the 1997 defined benefit plan were terminated effective January 1, 2003,
when Price’s Utility “froze” the plan.
DOCUMENT 509. Fifth, the plaintiffs have filed a motion requesting the
“production of fiduciary documents.” See Document 509. In the motion, they request the
following:

The Court has recently found that Nisbet, Turpin, and Mitchell as
well as their respective employers do not have to repay plan funds used to
pay these entities.
Since litigation expenses cannot be paid out [of] plan funds but plan
administration expenses can, this implies that these three are plan
administrators and thus fiduciaries. Plaintiffs want a ruling concerning the
fiduciary status or lack thereof for Nisbet, Turpin, and Mitchell and the
specific facts the Court relied upon for this finding.
Plaintiffs want all particulars about these new-found fiduciaries:
their fiduciary duties, tasks, fees, and all other relevant information.

See Document 509 at 1. The motion is denied for the following reasons. First, the Court
has made no finding regarding whether A. Wyckliff Nisbet, Jr. (“Nisbet”), James Turpin
(“Turpin”), and James Mitchell (“Mitchell”) must repay any funds. See Document 487 at
1. Second, notwithstanding the foregoing, it appears that Nisbet, Turpin, and Mitchell
have simply assisted the various plans in determining and distributing the plaintiffs’
benefits. The plaintiffs have not shown that these actions made Nisbet, Turpin, and
Mitchell plan fiduciaries.

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DOCUMENT 485. The defendants have also filed a motion, one to “enjoin further
pleadings.” See Document 485. In a brief accompanying the motion, they represent the
following:
Throughout this litigation, the plaintiffs have filed improper,
unnecessary, and redundant pleadings and amendments for no apparent
reason other than to make it unduly burdensome to understand or decide
this action. After the denial of their objections to the proposed findings and
recommendations, the plaintiffs resumed their onslaught of the record by
filing numerous, variously-titled motions that are nothing but repetitions
of the erroneous arguments asserted both before and with their motion for
summary judgment.
With the approval of the findings and recommendation, all that
remains is to enter a final order. Should the Court consider additional
proceedings or filings necessary, it can order compliance by the parties.
The defendants should not be compelled to respond to repetitious,
rambling pleadings, and the Court’s time should not be diverted from
reaching a conclusion to this matter.

See Document 486 at 1. The motion is granted in the following respect. The record is
replete with the plaintiffs’ repeated efforts to re-argue issues that have already been
decided and to argue issues that can only be decided by Judge Wright after the parties
have had an opportunity to object to the final recommendation made to her. In order to
help expedite the final resolution of this case, the Court will no longer entertain motions
from the plaintiffs nor the defendants, save a motion relating to the production of the
Schwab accounts or involving some ministerial act such as an extension of time. In the
event either party files a motion other than one relating to the production of the Schwab
accounts or involving some ministerial act, the opposing party need not respond and the

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motion will be summarily denied. If an additional submission is required from either
party, the Court will so notify the party. When a final recommendation is made to Judge
Wright, the parties may raise any relevant argument in objection.
THE CONCLUSION OF THIS CASE. This case is now approximately three and one-half
years old and needs to come to a conclusion. In order to help do so, the Court establishes
the following deadlines. First, the Court desires to have up-to-date calculations made of
the benefits owed from the profit-sharing plan and establishes the following deadline:
A. The defendants are ordered to submit up-to-date calculations for
the plaintiffs owed benefits from the profit-sharing plan.
B. The defendants shall submit up-to-date calculations for the
plaintiffs owed benefits from the profit-sharing plan by the close of
business on April 30, 2012.
C The plaintiffs shall have until the close of business on May 10,
2012, to lodge any objection to the defendants’ up-to-date calculations for
the profit-sharing plan.
Second, the defendants have until the close of business on April 23, 2012, to
submit a re-calculation of benefits owed from the 1997 defined benefit plan. See
Document 524. As to a response, the Court establishes the following deadline:
The plaintiffs shall have until the close of business on May 10, 2012,
to lodge any objection to the defendants’ re-calculations of benefits owed
from the 1997 defined benefit plan.
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Third, the plaintiffs have filed a motion requesting an award of penalties from the
defendants. See Document 465. The defendants have never responded to that motion.
The Court therefore establishes the following deadline for doing so:
A. The defendants are ordered to submit a response to the motion
requesting an award of penalties by the close of business on April 30,
2012.
B. The Court will not entertain a rebuttal from the plaintiffs.
Last, in the final recommendation to Judge Wright, the Court desires to address
the issue of attorney’s fees. The Court therefore establishes the following deadlines for
the submission of pleadings relating to attorney’s fees:
A. The plaintiffs shall file their motion for attorney’s fees by the
close of business on April 30, 2012.
B. The defendants shall have until the close of business on May 10,
2012, to file a response to the plaintiffs’ motion for attorney’s fees.
C. The Court will not entertain a rebuttal from the plaintiffs.
After the submission of the aforementioned matters, the Court will make a final
recommendation to Judge Wright. At that time, the parties may raise any relevant
argument in objection.
SUMMARY. In summary, the Court orders the following:
1) Document 495. The motion is granted in one respect and denied in all other
respects. The defendants shall provide the plaintiffs with the Schwab accounts for the
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plaintiffs entitled to benefits from the profit-sharing plan for the period from November
of 2009 through March of 2012, only. The defendants shall not provide account
information for any other individual. The defendants shall provide the plaintiffs with the
Schwab accounts by the close of business on April 30, 2012.
2) Document 497. The motion is denied.
3) Document 500. The motion is denied.
4) Document 505. The motion is denied.
5) Document 509. The motion is denied.
6) Document 485. The motion is granted in the following respect. The Court will
no longer entertain motions from the plaintiffs nor the defendants, save a motion
relating to the production of the Schwab accounts or involving some ministerial act such
as an extension of time.
7) The Court establishes the following deadlines for bringing this case to a
conclusion:
I. For the profit-sharing plan:
(a) The defendants shall submit up-to-date calculations
for the plaintiffs owed benefits from the profit-sharing plan
by the close of business on April 30, 2012.
(b) The plaintiffs shall have until the close of business
on May 10, 2012, to lodge any objection to the defendants’
up-to-date calculations for the profit-sharing plan.
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II. For the 1997 defined benefit plan:
(a) The defendants have until the close of business on
April 23, 2012, to submit a re-calculation of benefits owed
from the 1997 defined benefit plan. See Document 524.
(b) The plaintiffs shall have until the close of business
on May 10, 2012, to lodge any objection to the defendants’
re-calculations of benefits owed from the 1997 defined
benefit plan.
III. For an award of penalties:
(a) The defendants are ordered to submit a response to
the plaintiffs’ motion requesting an award of penalties by the
close of business on April 30, 2012.
(b) No rebuttal from the plaintiffs will be entertained.
IV. For an award of attorney’s fees:
(a) The plaintiffs shall file their motion for attorney’s
fees by the close of business on April 30, 2012.
(b) The defendants shall have until the close of
business on May 10, 2012, to file a response to the plaintiffs’
motion for attorney’s fees.
(c) No rebuttal from the plaintiffs will be entertained.

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IT IS SO ORDERED this

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day of April, 2012.

UNITED STATES MAGISTRATE JUDGE

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