A. et al v. Doe Run Resources Corporation et al

Filing 721

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that the Renco defendants' Motion for Reconsideration Pursuant to Rule 54(b) 662 is DENIED. Signed by District Judge Catherine D. Perry on 11/15/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
A.O.A., et al.,
Plaintiffs,
v.
IRA L. RENNERT, et al.,
Defendants.

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Case No. 4:11 CV 44 CDP

MEMORANDUM AND ORDER
On August 29, 2017, I granted plaintiffs’ motion to compel responses to
their sixth request for production of documents and ordered defendants to comply
within thirty days. At midnight of the thirtieth day, the Renco defendants filed a
motion asking that I reconsider my Order with respect to certain categories of
documents I ordered them to produce. I will deny the motion.
Federal Rule of Civil Procedure 54(b) permits the district court to “exercise
its general discretionary authority to review and revise its interlocutory rulings
prior to the entry of final judgment.” Auto Servs. Co., Inc. v. KPMG, LLP, 537
F.3d 853, 856-57 (8th Cir. 2008) (citing Partmar Corp. v. Paramount Pictures
Theatres Corp., 347 U.S. 89, 100 (1954) (observing that “[t]he power remained in
the trial court until the entry of his final judgment to set aside, for appropriate
reasons,” orders previously entered in the case); Interstate Power Co. v. Kansas

City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993) (“Under the last clause
of Rule 54(b), a non-final order ‘is subject to revision at any time before the entry
of judgment adjudicating all the claims and the rights and liabilities of all the
parties.’”)). Under Rule 54(b), I may amend or reconsider any of my rulings in
order “to correct any clearly or manifestly erroneous findings of facts or
conclusions of law.” Jones v. Casey’s Gen. Stores, 551 F. Supp. 2d 848, 854 (S.D.
Iowa 2008) (internal citations and quotation marks omitted). I may also grant
reconsideration if I patently misunderstood a party, made a decision outside the
adversarial issues presented to me by the parties, made an error not of reasoning
but of apprehension, or where a controlling or significant change in the law or facts
has occurred since the issue was submitted to the Court. See Singh v. George
Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005). Although I have the
power to revisit my prior decisions, I “should be loathe to do so” in the absence of
such extraordinary circumstances. Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 817 (1988). “[T]he Court . . . has an interest in judicial economy
and ensuring respect for the finality of its decisions, values which would be
undermined if it were to routinely reconsider its interlocutory orders.” Trickey v.
Kaman Indus. Techs. Corp., No. 1:09CV26 SNLJ, 2011 WL 2118578, at *2 (E.D.
Mo. May 26, 2011).
In their motion, the Renco defendants ask that I reconsider that portion of

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my previous Order compelling production of certain financial documents and tax
returns in response to plaintiffs’ Request Nos. 3(a), 6(a), 9(a), 9(c), and 11. They
argue, as they did in response to the original motion to compel, that 1) the
documents sought are not relevant to the alter ego and/or choice of law analyses; 2)
information contained in this compelled production is cumulative to information in
other documents that have been or will be produced; and 3) plaintiffs have failed to
show good cause for disclosure of tax returns. These defendants also argue,
generally, that I erred when I considered and based my findings on documents first
submitted by plaintiffs with their reply brief, because doing so deprived them of
the opportunity to respond to plaintiffs’ mischaracterization of these documents.
Upon careful and thorough consideration of the parties’ arguments on the
motion to reconsider, as well as the exhibits submitted and all of the case law cited,
I find that the Renco defendants have not demonstrated any manifest error of law
or fact in my previous Order. Nor have they shown any true misapprehension of
the adversarial issues presented to me or that my decision was outside of these
issues. In fact, the arguments raised in their motion to reconsider – and the case
law they cite – convince me that my previous ruling was correct.
Requests 3(a), 9(a), and 11
The Renco defendants argue that none of the information sought in these
requests is relevant to the alter ego or choice of law analyses; that the financial

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information is cumulative to other information plaintiffs possess regarding
transfers between Renco and Rennert and/or the Trusts; that they are willing to
provide stipulations that would satisfy plaintiffs’ relevant need; and that plaintiffs
have other tools at their disposal to resolve any perceived financial discrepancies in
the records already produced.
Contrary to Renco’s argument, the conversion of corporate assets for a
shareholder’s personal benefit is relevant to the “control” factor of alter ego
analysis. See Fleming Cos., Inc. v. Rich, 978 F. Supp. 1281, 1304 (E.D. Mo.
1997); NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 728 (8th Cir. 2008).
Accordingly, “how” the shareholders allegedly used Doe Run Peru’s corporate
assets is relevant, as well as “where” such conversions and/or personal
expenditures occurred for choice of law determination.
The Renco defendants also aver that Renco’s General Ledger contains
information regarding transfers and payments from Renco to Rennert and any
Trust defendant, and that this information is sufficient to show whether the
relationships at issue in this litigation warrant piercing the corporate veil. I agree
with plaintiffs that this information is too limited and not sufficient to show the
alleged commingling of funds and assets among and between the subsidiaries and
Renco, which were then ultimately paid to and used by Rennert and the Trusts for
non-corporate purposes. See Hometown 2006-1 1925 Valley View LLC v. Prime

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Income Asset Mgmt., LLC, No. 3:13-CV-04440-N, 2016 WL 6464485, at *2 (N.D.
Tex. Mar. 29, 2016) (requests pertain to the interrelatedness and financial setup of
the defendants, which is relevant to claims for alter ego liability). Production is
warranted because plaintiffs bear the burden of proof on each of their claims, the
information is necessary to determine whether the unique facts of this case warrant
veil piercing, and the defendants currently have exclusive access to the information
sought. Id. The proposed stipulations do not provide this relevant information.
Finally, the Renco defendants argue that these requested documents are not
necessary to resolve the purported financial discrepancies identified in documents
already produced. Citing Coll v. Stryker Corp., No. 14-CV-1089 KG/SMV, 2017
WL 3052498 (D.N.M. July 12, 2017), they contend that, instead, plaintiffs can
depose corporate representatives about these alleged discrepancies, or wait until
trial and ask the factfinder to make inferences based on such discrepancies. In
Coll, however, the integrity of the financial information was not yet at issue – the
plaintiff merely sought the underlying source documents in an effort to verify the
financial data already produced. No discrepancies or irregularities in the data had
yet arisen or been identified. Because of that circumstance, the court noted that
plaintiff could investigate the integrity of the data through Rule 30(b)(6)
depositions or through examination of the comprehensive database from which the
already-produced financial information came. The court noted, however, that if

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such investigation revealed discrepancies, discovery may be had on the underlying
documents that plaintiff sought. Id. at *3. See also Flexiteek Ams., Inc. v. TekDek, LTD., No. 08-60995-CIV-SNOW, 2015 WL 11123312, at *1 (S.D. Fla. Mar.
6, 2015) (plaintiffs were entitled to discovery of additional source documents to fill
in gaps in financial information, where defendant had already provided some
source documents and plaintiffs had identified discrepancies within the materials
produced) (cited in Coll, 2017 WL 3052498, at *6). Here, contrary to Coll,
plaintiffs have identified discrepancies in the financial data already produced and
seek additional documents to reconcile these conflicts. Such discovery is
permissible in these circumstances. See Coll, 2017 WL 3052498, at *3; Piller v.
Perftech, Inc., No. 10 C 5504, 2011 WL 2293363, at *3 (N.D. Ill. June 9, 2011)
(motion to compel financial documents granted in part – relevant to add context
and meaning to financial statements already produced).
I also question the assertion that the information plaintiffs seek to obtain is
within some other source available to them. Notably, many of the sources that the
Renco defendants describe as “available” are documents that I ordered them to
produce over their wholesale objections to all discovery requests propounded by
plaintiffs, and some of these documents have yet to be produced. It thus appears
that regardless of the perceived “availability” of other sources for this requested
information, plaintiffs’ access to those other sources has been obstructed or

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substantially delayed.
I will not reconsider my Order to the Renco defendants to produce this
information.
Requests 6(a) and 9(c)
The Renco defendants argue that plaintiffs have failed to show good cause
for production of Rennert’s and the Trust defendants’ tax returns as sought in these
requests, and that I therefore erred when I compelled their disclosure.
Tax returns are discoverable upon a showing of good cause. A party seeking
disclosure of tax returns must show: 1) the information is relevant, and 2) there is
a compelling need for the disclosure because the information is not otherwise
readily obtainable. Tank Holdings v. Bell, No. 4:12-CV-713 JAR, 2013 WL
2457189, at *1 (E.D. Mo. June 6, 2013); Sowers v. Gatehouse Media Mo.
Holdings, Inc., No. 4:08CV633 TIA, 2009 WL 1106946, at *1 (E.D. Mo. Apr. 23,
2009). While the moving party has the initial burden of showing that the tax
returns are relevant, the opposing party has the burden of proving that the
information is readily obtainable from another source. Scottrade, Inc. v. Variant,
Inc., No. 4:13CV1710 RLW, 2014 WL 5489291, at *2 (E.D. Mo. Oct. 30, 2014);
PSK, L.L.C. v. Hicklin, No. C09-0105, 2010 WL 2710507, at *2 (N.D. Iowa July 8,
2010). In my previous Order, I found the records to be relevant and to not
otherwise be available to the plaintiffs. The Renco defendants’ arguments do not

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persuade me that I erred in this determination.
Plaintiffs have shown the relevance of these tax returns. Given the
complicated corporate structure(s) involved in this case and the interrelatedness of
these structures, both among themselves and their owners/shareholders, the tax
returns of Rennert and the Trust defendants may help to ascertain the extent and
nature of the financial dealings between them and these entities, including the
commingling of assets. See Federal Trade Comm'n v. AMG Servs., Inc., No. 2:12CV-536-GMN-VCF, 2015 WL 5097526, at *6 (D. Nev. Aug. 28, 2015); In re
Don's Making Money, LLP, No. 2:99-BK-07757-CGC, 2008 WL 509531 (Bankr.
D. Ariz. Feb. 19, 2008); Benchmark Design, Inc. v. BDC, Inc., No. 88-1007-FR,
1989 WL 81618, at *1 (D. Ore. July 5, 1989). Cf. Certified Enters., Inc. v. United
States, No. 4:17-CV-202 SNLJ, 2017 WL 4778558, at *3 (E.D. Mo. Oct. 23, 2017)
(personal financial information relevant to alter ego claim because it may show
movement of money between interrelated entities). And, for the reasons stated
earlier in this Order, the Renco defendants have failed to meet their burden of
showing that the information contained in the requested tax returns is readily
obtainable.
I will not reconsider my Order to the Renco defendants to produce the
information requested in Request Nos. 6(a) and 9(c).

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Documents Submitted in Reply
My review of documents submitted with plaintiffs’ reply brief on their
motion to compel does not require me to revisit the findings in my Order. As
noted previously in this district, “there is no absolute bar to filing documentary
evidence in support of a reply brief, provided that the reply and the evidence is
limited to matters in reply and does not raise new arguments[.]” Cowden v. BNSF
Ry. Co., No. 4:08CV01534 ERW (E.D. Mo. July 23, 2010) (memorandum and
order). “It seems absurd to say that reply briefs are allowed but that a party is
proscribed from backing up its arguments in reply with the necessary evidentiary
material.” Baugh v. City of Milwaukee, 823 F. Supp. 1452, 1456 (E.D. Wis. 1993)
(quoted in Cowden). Plaintiffs’ reply brief did not raise new arguments and the
documentary evidence submitted in support did not improperly bring new issues
before the Court on their motion to compel.
Conclusion
The alter ego analysis in this case will prove to be a complicated one. But
the ultimate determination as to whether plaintiffs’ information is sufficient to
prove alter ego status such that the corporate veil may be pierced will not be made
on a motion to compel or on arguments involving my ruling on such discovery
motions. During this contentious discovery process, I am guided by Fed. R. Civ.
P. 26(b)(1) and not on whether any party will prevail on their claims or defenses in

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this action. With this current discovery dispute, the Renco defendants have not
shown any extraordinary circumstances to warrant reconsideration of my August
29 Order.
Addendum
As I stated above, I thoroughly reviewed the Renco defendants’ motion to
reconsider, the parties’ briefs and exhibits submitted in support of their respective
positions, and the case law cited by the parties. During this review, repeated
accusations of “gross” or “blatant” mischaracterizations, “outright”
misrepresentations, falsehoods, and the like served more to detract from the
arguments than support a reasoned position. While “zealous advocacy is essential
to the conscientious, vigorous representation of a client’s interests,” United States
v. Dowdy, 960 F.2d 78, 81 (8th Cir. 1992), vituperative rhetoric is “too often
substituted for logic and reason.” State v. Banks, 215 S.W.3d 118, 122 (Mo. banc
2007).
Accordingly,
IT IS HEREBY ORDERED that the Renco defendants’ Motion for
Reconsideration Pursuant to Rule 54(b) [662] is DENIED.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 15th day of November, 2017.
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