BMO Harris Bank, N.A., a national banking association v. Zoccoli et al

Filing 59

ORDER granting 58 Motion to Compel. Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BMO Harris Bank, N.A., a national
banking association,
Plaintiff,
v.
Zoccoli et al,

Case No. 18-11954
Judith E. Levy
United States District Judge
Mona K. Majzoub
Magistrate Judge

Defendants.
________________________________/
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
DEFENDANT TO PRODUCE DOCUMENTS AND ATTEND
DEPOSITION [58]
Before the Court is Plaintiff BMO Harris Bank N.A.’s motion for an
order pursuant to Fed. Rs. Civ. P. 37 and 69 compelling Defendant Harry
Zoccoli, III to respond to post-judgment discovery requests that were
served and ignored. Plaintiff also moves for an order granting
reimbursement of the fees it incurred in filing this motion and in hiring
a court reporter for the missed deposition. For the foregoing reasons,
Plaintiff’s motion to compel document production and deposition
attendance is GRANTED. The Court also provisionally GRANTS

Plaintiff’s motion to recover reasonable expenses related to this motion,
subject to Plaintiff submitting an affidavit of reasonable expenses.
On January 22, 2019, Plaintiff obtained a default judgment against
Defendant in the amount of $553,844.91. (ECF No. 28.) On January 17,
2020, pursuant to Federal Rule of Civil Procedure 45, Plaintiff served
Defendant with a subpoena to testify at a deposition on February 13,
2020 and to produce documents related to Defendant’s assets and
liabilities. (ECF No. 57.) Plaintiff alleges that Defendant failed to appear
at the deposition and failed to produce documents.
On March 10, 2020, Plaintiff filed a motion to compel Defendant’s
attendance at a deposition and to produce the requested documents.
(ECF No. 58.) Plaintiff also moved for reimbursement of its expenses
related

to

filing

the

motion.

(Id.)

Plaintiff

attached

exhibits

demonstrating that its service of Defendant complied with all rules and
requirements. (Id.) Defendant did not respond to Plaintiff’s motion.
Plaintiff is entitled to receive the requested documents from
Defendant and to have Defendant appear for deposition. After obtaining
a money judgment, a creditor is entitled to “obtain discovery from any
person—including the judgment debtor—as provided in [the Federal
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Rules of Civil Procedure]” in “aid of the judgment or execution.” Fed. R.
Civ. P. 69(a)(2). The scope of discovery under Rule 69 is “very broad,”
United States v. Conces, 507 F.3d 1028, 1040 (6th Cir. 2007), and includes
any means of discovery allowable under the federal or state discovery
rules, including depositions and document requests. See United States v.
Thomas, No. 4-cv-49, 2017 WL 571506, at *1 (E.D. Tenn. Feb. 13, 2017).
The Court may compel a response to a permissible discovery
request, including post-judgment discovery requests, under Rule 69. Fed.
Rs. Civ. P. 37(a); 69(a)(2). Here, the Court has examined Plaintiff’s
subpoena and has concluded that the deposition and document requests
are permissible post-judgment discovery requests. Therefore, Plaintiff’s
motion to compel deposition attendance and document production is
GRANTED. Defendant is COMPELLED to provide full and complete
answers to Plaintiff’s document requests for production on or before
Friday, May 15, 2020. Defendant is further COMPELLED to attend the
forthcoming deposition. Defendant is cautioned that failure to comply
with a court order may expose him to sanctions for contempt of court.
Fed. R. Civ. P. 37(b)(2), (d)(3).

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Plaintiff is also entitled to recoup the reasonable expenses that it
incurred in filing the motion to compel. Fed. R. Civ. P. 37(a)(5)(A).
However, the Court must conduct an accounting to determine that the
expenses are reasonable. See id. Therefore, Plaintiff is ORDERED to
provide an accounting of the reasonable expenses it incurred in filing this
motion by Friday, May 1, 2020.
IT IS SO ORDERED.
Dated: April 14, 2020
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 14, 2020.
s/William J. Barkholz
WILLIAM J. BARKHOLZ
Case Manager

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