Greater St. Louis Construction Laborers Welfare Fund et al v. Symmetry Landscaping, Inc.

Filing 93

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that and Defendant Symmetry Design and Installation, LLC's "Motion to Withdraw Appearance as Attorney for Defendant" [ECF No. 86 ] is GRANTED. Signed by District Judge E. Richard Webber on 02/03/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GREATER ST. LOUIS CONSTRUCTION
LABORERS WELFARE FUND, et al.,

)
)
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Plaintiffs,
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vs.
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SYMMETRY DESIGN and INSTALLATION, )
LLC,
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)
Defendant.
)

Case No. 4:09CV00401 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Symmetry Design and Installation,
LLC’s (“Symmetry”) “Motion to Withdraw Appearance as Attorney for Defendant” [ECF No.
86].
I.

BACKGROUND
Plaintiffs brought this action against Symmetry, under the Employee Retirement Income

Security Act and the Labor Management Relations Act, to collect delinquent fringe benefit
contributions due under various collective bargaining agreements [ECF Nos. 27, 79]. On March
29, 2012, this Court entered judgment in favor of Plaintiffs and against Symmetry, awarding
Plaintiffs a total of $35,317.80 in delinquent contributions, liquidated damages, interest, costs,
and attorneys’ fees [ECF Nos. 79, 80]. To date, the entire amount of the judgment remains
outstanding [ECF Nos. 82, 82-1].
On June 25, 2012,Counsel for Plaintiffs served a Notice of Rule 69 Deposition on
Symmetry’s principal, Theodore Bergman, contemporaneously with a Request for Production of
Documents to be produced at the deposition [ECF Nos. 82-1, 82-2]. Mr. Bergman appeared with
counsel at the deposition, and produced some of the requested documents [ECF No. 82-1].

However, he did not produce any tax returns for Symmetry, and no other person acting on
Symmetry’s behalf has produced tax returns since the deposition [ECF No. 82-1].
Plaintiffs sent their First Set of Post-Judgment Interrogatories to Symmetry, requiring an
answer, under oath, within thirty (30) days of their January 18, 2013 submission [ECF Nos. 82-1,
82-3]. On June 24, 2013, Plaintiffs filed their “Motion to Compel Responses to Post-Judgment
Discovery Requests,” moving the Court to compel Symmetry to respond to Plaintiffs’ First Set of
Post-Judgment Interrogatories and Requests for Production of Documents [ECF No. 81].
In its Response, Symmetry stated it had been out of business for over two-and-one-half (2
½ ) years [ECF No. 83]. Among other things, Symmetry stated that it has no employees, no
funds, and no assets with which to employ persons to answer interrogatories, and that its Chief
Financial Officer works for another company. Plaintiffs filed a “Response Memorandum in
Support of Plaintiffs’ Motion to Compel Discovery Responses” [ECF No. 84].
On July 17, 2013, Counsel for Symmetry filed its Motion to Withdraw, asserting they had
completed the assignment for which they were engaged, did not agree to handle post-trial
collection matters, and no longer had Symmetry as a client [ECF No. 86].
The parties appeared before the Court for hearing on the two motions on July 18, 2013
[ECF No. 87]. The Court granted Plaintiffs’ Motion to Compel, directing Plaintiffs to submit no
more than ten (10) interrogatories and five (5) requests for production to Symmetry within ten
(10) days, and directing Symmetry to respond within twenty (20) days of submission. Counsel’s
Motion to Withdraw was held in abeyance. Plaintiffs filed a Status Report on September 6, 2013
[ECF No. 89]. In this report, Plaintiffs stated that Symmetry failed to respond timely to Second
Post-Judgment Interrogatories and Second Post-Judgment Requests for Production sent to
Symmetry on July 27, 2013, indicating Symmetry’s responses were, even after application of

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Rule 6(d)’s three-day extension for service made via U.S. Mail, one day late. Plaintiffs further
stated Symmetry failed to produce all documents requested, including certain tax records and
bank statements.
Nevertheless, Plaintiffs indicated a willingness to continue their investigation of the
evidence necessary to support a motion for a creditor’s bill in equity, without further courtordered relief. Consequently, the Motion to Withdraw filed by counsel for Symmetry was held in
abeyance, pending notice that the instant discovery issues had been informally resolved.
Subsequently, Plaintiffs have submitted “Plaintiffs’ Status Report of January 24, 2014,” reporting
that Symmetry had submitted additional discovery responses, which Plaintiffs had reviewed, and
Plaintiffs are continuing to investigate leads for possible recovery of the judgment [ECF No. 92].
In the Status Report, Plaintiffs state they do not oppose the “Motion to Withdraw Appearance as
Attorney for Defendant.”
Accordingly,
IT IS HEREBY ORDERED that and Defendant Symmetry Design and Installation,
LLC’s “Motion to Withdraw Appearance as Attorney for Defendant” [ECF No. 86] is
GRANTED.
Dated this

3rd

day of February, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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