Service Steel Warehouse, Co., L.P. v. Eakin

Filing 42

ORDER granting 40 Motion to Compel. The non-party trustee shall fully respond to the Rule 45 subpoena within 14 days of receipt of this order. It is further ordered that the clerk of court shall serve a copy of this order upon Samera L. Abide, as Chapter 7 trustee for the Beaird Co., Ltd., 10935 Perkins Road, Baton Rouge, LA 70810. Signed by Magistrate Judge Docia L Dalby on June 7, 2012. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SERVICE STEEL WAREHOUSE CO., L.P

CIVIL ACTION

VERSUS

NUMBER 10-151-BAJ-DLD

SAMUEL F. EAKIN
ORDER
This matter is before the court on a referral from the district court on plaintiff's motion
to compel responses to requests for production (rec. doc. 40), filed herein on May 1, 2012.
(rec.doc. 40) Plaintiff stated in its motion that it propounded discovery to non-party,
Samara L. Abadie, trustee for Beaird Company, Ltd. on March 12, 2012, and while some
documents were produced, others were not. Also, according to Local Rule 7.4, any
opposition to this motion was required to be filed within twenty-one (21) days after service.
The non-party's response to the motion was due May 22, 2012, but as of June 5, 2012, the
court has not received such response.
Background
Plaintiff alleges that in late 2004 or early 2005, it established a business relationship
with Beaird Company, wherein plaintiff agreed to provide steel or steel products to Beaird
and would be paid by Beaird whenever Beaird's customers paid Beaird. Eakin, the
defendant in this suit, was Beaird's “owner, officer, director and agent, and managed and/or
controlled all of Beaird's financial affairs,” and he negotiated Beaird's business relationship
with plaintiff. Plaintiff alleges that Beaird owed more than $1.8 million to it, but that Eakin
“intentionally, knowingly, or with intent to defraud” diverted the funds received from Beaird's

customers to himself and/or his other business entities. (rec.doc. 40-1, pg. 2) Beaird filed
for Chapter 7 bankruptcy, and the non-party was appointed as Beaird's trustee.
The Motion to Compel
Plaintiff propounded discovery to defendant, basically seeking to discover whether
or not Beaird's clients had paid Beaird, and if so, where those payments were disbursed.
Eakin attested that the relevant financial information was held by Beaird itself, which
resulted in the Rule 45 subpoena to the non-party Trustee. Plaintiff states that the nonparty did not move to quash the subpoena or otherwise object to it, and after receiving the
subpoena, Beaird informed plaintiff that the physical files were contained in a Baton Rouge
storage facility, and the electronic files were held by Grace Information Services, LLC, in
Shreveport, Louisiana. Plaintiff states that Beaird agreed to produce all documents, and
plaintiff agreed that it would “assume the burden in locating the responsive documentation
in the physical file, and directly pay the costs associated with its production”; and Beaird
would direct Grace to produce the electronic files at plaintiff's cost. (Id., at pg. 4)
Plaintiff reviewed the physical files, and learned recently from Beaird that certain
portions of its physical files were not in the storage facility but instead were being held by
Beaird's own counsel of record, Doug Stewart, presumably in connection with Beaird's
Adversary Complaint of December 9, 2010. Plaintiff contends that Beaird agreed to
produce the physical file held by its counsel. Moreover, plaintiff has not yet received the
electronic files from Grace. Id. Plaintiff now requests an order compelling the immediate
production of the outstanding physical file from Beaird's counsel and the electronic files
from Grace.

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As the non-party trustee failed to respond to the motion to compel, and provided this
court without an adequate excuse for its failure to obey the subpoena under Rule 45(e),
along with plaintiff's agreement to assume the cost of production, the court will grant the
motion to compel, and order the non-party trustee to produce the outstanding discovery
within 14 days of receipt of this order.
Accordingly,
IT IS ORDERED that the motion to compel is GRANTED. The non-party trustee
shall fully respond to the Rule 45 subpoena within 14 days of receipt of this order. No
attorneys' fees or costs are awarded at this time; however, repeated failure to respond may
result in sanctions, including the recommendation of contempt sanctions under Rule 45(e).
IT IS FURTHER ORDERED that the clerk of court shall serve a copy of this Order
upon Samera L. Abide, as Chapter 7 Trustee for The Beaird Co., Ltd., 10935 Perkins Road,
Baton Rouge, LA 70810.
Signed in Baton Rouge, Louisiana, on June 7, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY

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