Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 1282

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that "Plaintiffs' Motion to Modify or Reconsider Order Granting Motion for Leave to Withdraw as Counsel for Defendants J. Tyler Cassity and Hollywood Forever, Inc." [ECF No. 1221 ], is DENIED. IT IS FURTHER ORDERED that "Tyler Cassity and Hollywood Forever, Inc.'s Response to Court Order and Motion for Reconsideration" [ECF No. 1235 ], is DENIED. IT IS FURTHER ORDERED that "Plaintiffs 9; Opposition to Defendants Tyler Cassity and Hollywood Forever, Inc.'s Response to Court Order and Motion for Reconsideration, and Plaintiffs' Motion to Compel a More Complete Response [ECF No. 1238 ], is DENIED, as moot. IT IS FURTHER OR DERED that "Defendants, Tyler Cassity and Hollywood Forever, Inc.'s Motion to Compel Plaintiffs, SDR, to Produce Documents Requested in Defendants' Amended First Request for Production" [ECF No. 1246 ], is DENIED, as moot. It is further ordered that Defendants Tyler Cassity and Hollywood Forever shall be allowed up to, and until October 1, 2013, to rephrase Defendants' production requests. The Court will consider any future motions to compel after the time for response to the rephrased requests has expired. Signed by District Judge E. Richard Webber on 09/23/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.

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Case No. 4:09CV01252 ERW

MEMORANDUM AND ORDER

This matter comes before the Court on “Plaintiffs’ Motion to Modify or Reconsider Order
Granting Motion for Leave to Withdraw as Counsel for Defendants J. Tyler Cassity and
Hollywood Forever, Inc.” [ECF No. 1221], “Tyler Cassity and Hollywood Forever, Inc.’s
Response to Court Order and Motion for Reconsideration” [ECF No. 1235], “Plaintiffs’
Opposition to Defendants Tyler Cassity and Hollywood Forever, Inc.’s Response to Court Order
and Motion for Reconsideration, and Plaintiffs’ Motion to Compel a More Complete Response
[ECF No. 1238], and “Defendants, Tyler Cassity and Hollywood Forever, Inc.’s Motion to
Compel Plaintiffs [ ] to Produce Documents Requested in Defendants’ Amended First Request
for Production” [ECF No. 1246].
Plaintiff Jo Ann Howard & Associates, P.C., has been appointed to serve as the Special
Deputy Receiver (“SDR”) of three companies, National Prearranged Services Agency, Inc.
(“NPS”); Lincoln Memorial Life Insurance Co. (“Lincoln”); and Memorial Service Life
Insurance Co (“Memorial”). In the instant case, Plaintiff Jo Ann Howard & Associates, in its

capacity as the SDR, has asserted, against numerous defendants, claims such as violation of the
RICO Act, 18 U.S.C. § 1962(d); breach of fiduciary duty; and gross negligence. Other plaintiffs
include national and individual state life and health insurance guaranty associations.
NPS, Lincoln, Memorial, and Defendant Hollywood Forever (“Hollywood Forever”), are
part of a larger consortium of related entities that are all ultimately owned by a family trust of the
St. Louis-based Cassity family. Defendant J. Tyler Cassity served as an officer or director of
several entities within the Cassity consortium, including Lincoln, Memorial, and Hollywood
Forever, and was a beneficiary of the family trust. Hollywood Forever is a subsidiary of another
named defendant, Forever Network, and operates funeral home and cemetery services.
I.

TYLER CASSITY AND HOLLYWOOD FOREVER INC.’S RESPONSE TO
COURT ORDER AND MOTION FOR RECONSIDERATION [ECF NO. 1235]
Previously, this matter came before the Court on the defendants’ motion to compel return

of an inadvertently produced document, referred to as “Narrative Timeline,” and on Plaintiff
SDR’s motion for discovery status update by the defendants regarding documents cited in the
Narrative Timeline [ECF Nos. 1197, 1217]. Following hearing on the motions, the Court denied
the defendants’ motion to compel return of the Narrative Timeline, granted Plaintiff SDR’s
motion for discovery status update, and ordered defendants to provide to Plaintiffs and this Court
a status report concerning their larger document collection, giving a date certain as to when
production would be forthcoming, and specifying the circumstances surrounding the loss or
destruction of documents cited, referenced, or quoted in the timeline [ECF No. 1228]. The Court
also ordered the defendants to produce all documents responsive to Plaintiff SDR’s Request for
Production, and to provide Plaintiff and the Court a privilege log.

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In their Motion for Reconsideration, Defendants request the Court to allow them to
preserve their objections asserted to Plaintiff SDR’s First Set of Docment Requests, to produce
responsive documents to non-objectionable document requests beginning thirty (30) days from
July 19, 2013, but proceeding until November 19, 2013, and to reconsider its ruling regarding the
claw back request pertaining to the Narrative Timeline [ECF No. 1235]. Defendants again
contend production of the Narrative Timeline “was made through no fault of the client and it is
tragic that his case could be affected [or] jeopardized by something that he did not do.” During
the hearing, Defendants’ counsel urged the Court to consider the damage done to Tyler Cassity
by release of the document, and asked the Court to have the document returend.
In their “Opposition to Defendants Tyler Cassity and Hollywood Forever, Inc.’s Response
to Court Order and Motion for Reconsideration,” Plaintiffs contend, “Defendants present little to
no argument, other than to lament the perceived unfairness of the ruling and lay blame on their
California counsel” [ECF No. 1238]. They argue that Defendants have failed to address any of
the elements needed for reconsideration. This Court agrees.
“A motion for reconsideration ‘serve[s] the limited function of correcting manifest errors
of law or fact or . . . present[ing] newly discovered evidence’ after a final judgment.” Bradley
Timberland Res. v. Bradley Lumber Co., 712 F.3d 401, 406-07 (8th Cir. 2013) (citing United
States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)). Such motions cannot
be used to introduce new evidence that could have been offered prior to judgment. Id.
Defendants have identified no manifest error of law or fact, and have presented no newly
discovered evidence. The Court will deny Defendants’ motion for reconsideration [ECF No.
1235].
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II.

PLAINTIFFS’ MOTION TO MODIFY OR RECONSIDER ORDER GRANTING
MOTION FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANTS J.
TYLER CASSITY AND HOLLYWOOD FOREVER, INC. [ECF NO. 1221].
On July 5, 2013, Darren S. Enenstein, David Z. Ribakoff, and Robert A. Rabbat, of the

law firm Enenstein & Ribakoff, APC, filed a Motion and Memorandum for Leave to Withdraw
as Counsel for Defendants J. Tyler Cassity and Hollywood Forever, citing irreconcilable
differences and stating the defendants were no longer cooperating with counsel to aid in the
defense of this action [ECF No. 1219]. This Court granted counsel’s motion on July 8, 2013
[ECF No. 1220]. Thereafter, Plaintiffs filed their motion asking the Court to reconsider its Order
granting the motion to withdraw.
In their Motion, Plaintiffs request that the Court modify or reconsider its July 8th Order
granting the defendants’ counsel leave to withdraw. Plaintiffs contend the Court should either
reconsider its withdrawal decision, or condition the withdrawal by requiring the attorneys to
remain subject to the jurisdiction of the Court, including for questioning as necessary regarding
the loss of the Timeline documents. Plaintiffs claim the firm is directly involved in the
disappearance of certain key documents that were in their possession and control. Plaintiffs
contend the defendants failed to meet the production deadline of the documents cited within the
Narrative Timeline and other documents, stating that these defendants “have not produced a
single document in response to the SDR’s requests.” Plaintiffs further assert that there has been
no explanation from the firm as to how the more than thirty (30) documents cited and quoted in
the Narrative Timeline were lost. Given the firm’s central role in the receipt and production of
the Timeline, and the receipt and loss of the Timeline documents, Plaintiff assert it is critical
these attorneys remain subject to the Court’s jurisdiction until the Timeline-related issues are
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resolved.
Defendants Tyler Cassity and Hollywood Forever are currently represented by Deidre
Gallagher, Esq., and Ms. Gallagher was appeared on their behalf at the motion hearing.
Defendants’ former counsel, Darren S. Enenstein, David Z. Ribakoff, and Robert A. Rabbat of
the law firm Enenstein & Ribakoff, participated in the hearing by telephone conference. During
the hearing, Plaintiffs stated they no longer opposed withdrawal by Defendants’ former counsel.
Information supplied during the hearing revealed Defendants were attempting to recreate the
missing documents, and indicated Plaintiffs recently received copies of the Timeline documents.
Defendants’ former counsel conceded the Court’s jurisdiction over them for every purpose, and
further stated on the record that they would be available to assist with discovery, and to answer
questions. Accordingly, the Court will deny “Plaintiffs’ Motion to Modify or Reconsider Order
Granting Motion for Leave to Withdraw as Counsel for Defendants J. Tyler Cassity and
Hollywood Forever, Inc.” [ECF No. 1221].
III.

PLAINTIFFS’ MOTION TO COMPEL A MORE COMPLETE RESPONSE [ECF
NO. 1238].
In their Motion to Compel a More Complete Response from Defendants, Plaintiffs

contend Defendants fail to “specify the circumstances surrounding the loss or destruction of the
documents cited, referenced, or quoted in the Narrative Timeline” as required by this Court’s
July 19, 2013 Order [ECF No. 1228 at 12].
During the hearing, Defendants’ former counsel supplied more information surrounding
the loss of the documents cited, referenced, or quoted in the Narrative Timeline. According to
former counsel, several boxes of documents they had received from Tyler Cassity and Hollywood

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Forever, “went missing” when they moved their office to smaller quarters, and a period of time
elapsed before the loss was discovered. The Narrative Timeline documents were in a box that
was lost in the move. Former counsel further explained that the declaration prepared by Robert
A. Rabbat, which stated that the firm had gathered and scanned the documents received from
Tyler Cassity and Hollywood Forever, addressed the documents within his possession at the time
of his declaration, and did not include the missing files. Former counsel stated that they
recreated some documents by reimaging company computers, and that they believed more could
be recreated from company servers and they will continue to recreate additional documents.
Ms. Gallagher, Defendants’ present counsel, indicated that Defendants were served with
Plaintiffs’ First Request for Production on January 30, 2013, and that Defendants were making a
good faith effort to respond to the requests and to comply with the Court’s July 19, 2013 Order,
which, among other things, directed Defendants to provide to Plaintiffs and the Court a Status
Report concerning their larger document collection, giving a date certain as to when productions
would be forthcoming. The July 19th Order further directed Defendants to produce all
documents responsive to Plaintiffs’ production requests within thirty (30) days, and to provide
Plaintiffs and the Court a privilege log within forty-five (45) days. During the hearing,
Defendants stated they had decided the requested documents were not privileged and they were
producing them all. Defendants further explained they were trying to place the requested
information in a format suitable for production, and they stated their response should be complete
fairly soon. Given the more complete explanation supplied during the hearing, the substantial
amount of documents already supplied to Plaintiffs, and former counsel’s assurance they would
be available to assist with discovery, the Court will deny, as moot, Plaintiffs’ Motion to Compel
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a More Complete Response from Defendants Specifying the Circumstances Surrounding the
Alleged Loss or Destruction of the Timeline Documents and Detailing Their Efforts to Locate
Them [ECF No. 1238].
IV.

DEFENDANTS, TYLER CASSITY AND HOLLYWOOD FOREVER, INC.’S
MOTION TO COMPEL PLAINTIFFS[ ]TO PRODUCE DOCUMENTS
REQUESTED IN DEFENDANTS’ AMENDED FIRST REQUEST FOR
PRODUCTION [ECF NO. 1246].
In their Motion to Compel Plaintiffs to Produce, Defendants ask the Court to compel
Plaintiffs to produce certain documents Defendants Tyler Cassity and Hollywood Forever
requested in the Amended First Request for Production to Plaintiffs. Defendants state they have
made a good faith effort to resolve this discovery issue, to no avail, and claim Plaintiffs have
failed to provide any specific evidence to support their general objections that the requests were
“improper, unnecessary, abusive, unduly burdensome, unnecessarily cumulative or duplicative,
overly broad, and seeking to invade attorney work product.”
In their Response, Plaintiffs claim the Court should deny the Motion to Compel because
the Defendants’ requests for production are contention requests and are categorically improper
[ECF No. 1257]. They assert that Defendants failed to confer before filing their motion, and
have never attempted to access or review thousands of text-searchable documents already made
available to them. They additionally claim the requests are improper because, rather than seeking
production of any withheld documents, they would only burden Plaintiffs with the task of recategorizing previously produced documents according to allegations in Plaintiff’s complaint.
They assert that the requests “simply copy allegations made in Plaintiffs’ complaint and ask for
documents that ‘support’ each allegation.”

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In their Reply, Defendants reiterate their claim that Plaintiffs have failed to provide
specific objections to any of their requests for production or show how the requested information
is protected by privilege, and they contend Plaintiffs have failed to produce documents in
compliance with the requirements of Federal Rule of Civil Procedure 34, because they have
failed to satisfy their burden of showing the documents in their initial disclosures were produced
as they were kept in the ususal course of business [ECF No. 1260].
During the hearing, Defendants’ present counsel agreed to redraft Defendants’ requests
for production and submit them to Plaintiffs’ within twenty (20) days of the September 11, 2013
hearing. Based upon the representations of Defendants’ present counsel, the Court will rule as
moot “Defendants, Tyler Cassity and Hollywood Forever, Inc.’s Motion to Compel Plaintiffs,
SDR, to Produce Documents Requested in Defendants’ Amended First Request for Production”
[ECF No. 1246], allowing Defendants twenty (20) days to rephrase their production requests.
The Court will consider any future motions to compel after that time.
Accordingly,
IT IS HEREBY ORDERED that “Plaintiffs’ Motion to Modify or Reconsider Order
Granting Motion for Leave to Withdraw as Counsel for Defendants J. Tyler Cassity and
Hollywood Forever, Inc.” [ECF No. 1221], is DENIED.
IT IS FURTHER ORDERED that “Tyler Cassity and Hollywood Forever, Inc.’s
Response to Court Order and Motion for Reconsideration” [ECF No. 1235], is DENIED.
IT IS FURTHER ORDERED that “Plaintiffs’ Opposition to Defendants Tyler Cassity
and Hollywood Forever, Inc.’s Response to Court Order and Motion for Reconsideration, and
Plaintiffs’ Motion to Compel a More Complete Response” [ECF No. 1238], is DENIED, as
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moot.
IT IS FURTHER ORDERED that “Defendants, Tyler Cassity and Hollywood Forever,
Inc.’s Motion to Compel Plaintiffs, SDR, to Produce Documents Requested in Defendants’
Amended First Request for Production” [ECF No. 1246], is DENIED, as moot. It is further
ordered that Defendants Tyler Cassity and Hollywood Forever shall be allowed up to, and until
October 1, 2013, to rephrase Defendants’ production requests. The Court will consider any
future motions to compel after the time for response to the rephrased requests has expired.
Dated this 23rd

day of September, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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