McDowell et al v. Price et al

Filing 537

ORDER that pltfs' 534 appeal of the Magistrate Judge's Order 526 is DENIED. Signed by Judge Susan Webber Wright on 4/17/12. (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 [Document 534] the Magistrate Judge’s April 6, 2012 Order [Document
526] that 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 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
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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.
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.
The Court has considered the arguments raised by plaintiffs, including their arguments

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that they have been denied the right to counsel as plaintiffs’ counsel cannot file a pleading and
that their due process rights have been taken away, and finds no basis for setting aside any aspect
of the Magistrate Judge’s April 6, 2012 Order.1 Accordingly, the Court denies plaintiff’s appeal
of the Magistrate Judge’s Order.2
IT IS SO ORDERED this 17th day of April 2012.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

1

The Court rejects plaintiffs’ claim that the Magistrate Judge has “evidenced bias” against them
in his rulings.
2

This is plaintiffs’ ninth appeal of an Order of the Magistrate Judge since March 2010. See
Documents 268, 293, 368, 382, 394, 421, 504, and 531.

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