Central States, Southeast and Southwest Areas Pension Fund et al v. King Dodge, Inc. et al
Filing
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MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that Plaintiffs' Motion to Compel Defendant Wendy Sewell's Compliance With Subpoena(Doc. 11) is GRANTED in part. IT IS FURTHER ORDERED that Defendant Wendy Sewell, as Trustee of t he Wally Brinkmann Testamentary Trust, shall within seven(7) days from the date of this Order,produce to Plaintiffs' counsel:...{see order for complete details} IT IS FURTHER ORDERED that Plaintiffs' Motion to Compel Defendant Kenneth Sewell's Compliance with Subpoena (Doc. 13) is GRANTED in part. IT IS FURTHTER ORDERED that Defendant Kenneth Sewell, as Trustee of the Dolores Brinkmann Revocable Trust, shall, within seven(7) days from the date of this Order, produce to Plaintiffs' counsel: {see order for complete details} IT IS FURTHER ORDERED that Plaintiffs' Motion to Compel Defendant Kenneth Sewell's Compliance With Subpoena (Doc. 3) is DENIED as moot. IT IS FURTHER ORDERED that Plaintiffs' Motion to Compel Defendant Wendy Sewell's Compliance With Subpoena (Doc. 5) is DENIED as moot.. Signed by Honorable Audrey G. Fleissig on 7/15/2011. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CENTRAL STATES, SOUTHEAST
AND SOUTHWEST AREAS PENSION
FUND and HOWARD MCDOUGALL,
Plaintiffs,
vs.
KING DODGE, INC., WENDY
SEWELL, and KENNETH SEWELL,
Defendants.
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Case No. 4:11MC00233 AGF
MEMORANDUM AND ORDER
This matter is before the Court on the motions to compel made by Plaintiffs
Central States, Southeast and Southwest Areas Pension Fund (the “Fund”) and Howard
McDougall. (Docs. 11, 13.)1 On September 16, 2010, the Fund’s counsel issued
subpoenas from this Court to Defendants Wendy Sewell and Kenneth Sewell in an effort
to collect upon an earlier judgment entered by the United States District Court for the
Northern District of Illinois, Eastern Division. (Doc. 11-2 at ¶6; Doc. 11-3; Doc. 13-2 at
¶6; Doc. 13-3.) To date, the documents requested in the subpoenas have not been
produced, and neither Ms. Sewell nor Mr. Sewell has served any objections to the
subpoenas. (Doc. 11-1 at ¶¶10, 14.; Doc. 13-2 at ¶¶10, 14.) Plaintiffs now seek to have
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Plaintiffs originally filed their motions to compel and accompanying
memoranda on April 22, 2011; however, the certificates of service contained within these
documents were undated. (Docs. 3-6.) Plaintiffs thereafter filed the pending motions to
compel and accompanying memoranda on May 11, 2011, which contained dated
certificates of service. (Docs. 11-14.)
this Court order Ms. Sewell and Mr. Sewell to produce the requested documents within
seven days of the Court’s order on their motions to compel. Plaintiffs also move for an
award of $750.00 from both Ms. Sewell and Mr. Sewell to compensate the Fund for the
attorney’s fees and costs incurred in bringing these motions. Defendants have failed to
respond to Plaintiffs’ motions, and the time to do so has since passed.
Background
On December 2, 2009, the Fund filed suit under the Multiemployer Pension Plan
Amendments Act of 1980 (“MPPAA”), 29 U.S.C. §§ 1381-1461, against Defendant King
Dodge, Inc. (“King Dodge”) in the United States District Court for the Northern District
of Illinois, Eastern Division, to collect withdrawal liability incurred after King Dodge had
withdrawn from the Fund. The case was styled Central States, Southeast and Southwest
Areas Pension Fund, et al., Case No. 09 CV 7480 (N.D. Ill.) (the “Underlying Suit”). On
July 27, 2010, the court in the underlying suit granted Central States’ motion for
summary judgment. On August 9, 2010, a judgment was entered against King Dodge in
the amount of $709,094.97 (the “Judgment”). (Doc. 11-1.)
In support of their motions to compel, Plaintiffs have submitted the affidavits of
the Fund’s counsel, Charles H. Lee. (Doc. 11-2.) Mr. Lee states that according to
information gathered in connection with the Underlying Suit, 51% of the stock of King
Dodge is owned by the Wally Brinkmann Testamentary Trust (the “Testamentary Trust”)
and 49% of the stock of King Dodge is owned by the Dolores Brinkmann Revocable
Trust (the “Revocable Trust”). (Doc. 11-2 at ¶5; Doc. 13-2 at ¶5.) Defendant Wendy
Sewell is the Trustee of the Testamentary Trust and Kenneth Sewell is the Trustee of the
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Revocable Trust. Id. On September 16, 2010, Mr. Lee issued subpoenas to Ms. Sewell,
as Trustee of the Testamentary Trust, and to Mr. Sewell, as Trustee of the Revocable
Trust, in an effort to collect on the Judgment. (Doc. 11-2 at ¶6; Doc. 11-3; Doc. 13-2 at
¶6; Doc. 13-3.) Because Ms. Sewell and Mr. Sewell both reside in Ballwin, Missouri, the
subpoenas were issued from the United States District Court for the Eastern District of
Missouri. (Doc. 11-3; Doc. 13-3.) The subpoenas commanded Ms. Sewell and Mr.
Sewell to produce by November 15, 2010: (i) a copy of their respective trust, together
with all amendments and attachments; (ii) all documents which governed the
administration of their respective trust from its establishment to December 31, 2006; and
(iii) any and all federal tax returns, including schedules and attachments thereto, filed on
behalf of their respective trust for the tax years 2005 to 2007 and any related, underlying
or supporting documentation. (Doc. 11-3 at 4; Doc. 13-3 at 4.) Ms. Sewell and Mr.
Sewell were both served with their respective subpoenas on September 19, 2010. (Doc.
11-4; Doc. 13-4.)
Mr. Lee states that he has made numerous attempts to meet and confer with
Stephen Evans, the attorney who represented King Dodge in the Underlying Suit and who
advised Mr. Lee that he also represented Ms. Sewell and Mr. Sewell in connection with
the subpoenas, regarding the production of the requested documents. (Doc. 11-1 at ¶8;
Doc. 13-2 at ¶8.) Mr. Evans twice advised Mr. Lee that the requested documents would
be produced, the latter time stating that the documents would be produced before the end
of April 20, 2011. (Doc. 11-1 at ¶¶9, 14; Doc. 13-2 at ¶¶9, 14) To date, neither Ms.
Sewell or Mr. Sewell has produced the requested documents or served any written
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objections to either subpoena. (Doc. 11-1 at ¶¶10, 14.; Doc. 13-2 at ¶¶10, 14.) In the
absence of any written objection, Plaintiffs filed these motions to compel.
Legal Standard
Federal Rule of Civil Procedure 45(c)(2)(B) allows a “person commanded to
produce documents or tangible things” pursuant to a subpoena, to serve written objections
to the subpoena to the party or attorney designated in the subpoena, before the earlier of
the time specified for compliance or 14 days after the subpoena is served. When a
non-party subpoena recipient fails to respond to a Rule 45 subpoena, the party serving the
subpoena may file a motion to compel compliance with the subpoena, and must provide
notice of the motion to the person subject to the subpoena and to the other parties to the
action. See Fed.R.Civ.P. 45(c)(2)(B)(i); Fed. R. Civ. P. 5(a)(1) (general requirement of
service of all papers on all parties). The moving party carries the burden of showing that
the requested documents are discoverable within the meaning of Federal Rule of Civil
Procedure 26. Rule 26(b)(1) provides that “parties may obtain discovery regarding any
non-privileged matter that is relevant to any party's claim or defense.” Fed.R.Civ.P.
26(b)(1).
Discussion
Plaintiffs argue that the documents requested by the two subpoenas are
discoverable under Federal Rule of Civil Procedure 69(a)(2). Rule 69(a)(2) provides that
“In aid of the judgment or execution, the judgment creditor or a successor in interest
whose interest appears of record may obtain discovery from any person – including the
judgment debtor – as provided in these rules . . . .” (emphasis added).
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The Court finds that the categories of documents subpoenaed by Plaintiffs fall
soundly within the scope of discovery allowed by Rule 69(a)(2). Because the
Testamentary Trust and Revocable Trust were both owners of King Dodge, the trustrelated documents and tax returns are legitimate subjects of inquiry. Under the MPPAA,
all trades or businesses under the “common control” of King Dodge are jointly and
severally liable for the withdrawal liability under the Judgment. 29 U.S.C. § 1301(b)(1).
See also Vaughn v. Sexton, 975 F.2d 498, 502 (8th Cir. 1992). In order to determine
whether an entity is under “common control,” the MPPAA looks to whether the owners
of King Dodge also have ownership interests in any other trade or businesses. 29 U.S.C.
§ 1301(b)(1); 26 C.F.R. § 1.414(c)-2.
Plaintiffs seek the requested documents in order to determine whether such joint
and several liability exists. The Court therefore finds that Plaintiffs have met their burden
of showing that the requested documents are discoverable under Rules 26 and 69.
Moreover, by failing to timely serve written objections, Ms. Sewell and Mr. Sewell have
waived any objections to the subpoenas. See Union Pacific R. Co. v. Huxtable, No.
8:05CV296, 2006 WL 2335220, *2 (D. Neb. Aug. 10, 2006) (citing McCabe v. Ernst &
Young, LLP, 221 F.R.D. 423, 424-25 (D. N.J .2004)).
The Court will therefore grant Plaintiffs’ motions to compel in part. However, the
Court will deny Plaintiffs’ request for attorney’s fees and costs incurred in bringing these
motions because Plaintiffs have failed to establish the legal or factual basis for their
request of $750 each from Ms. Sewell and Mr. Sewell.
Accordingly,
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IT IS HEREBY ORDERED that Plaintiffs’ Motion to Compel Defendant Wendy
Sewell’s Compliance With Subpoena (Doc. 11) is GRANTED in part.
IT IS FURTHER ORDERED that Defendant Wendy Sewell, as Trustee of the
Wally Brinkmann Testamentary Trust, shall, within seven (7) days from the date of this
Order, produce to Plaintiffs’ counsel:
(i) A copy of the Wally Brinkmann Testamentary Trust, together with all
amendments and attachments.
(ii) All documents which governed the administration of the Wally Brinkmann
Testamentary Trust from its establishment to December 31, 2006.
(iii) Any and all federal tax returns, including schedules and attachments thereto,
filed on behalf of the Wally Brinkmann Testamentary Trust for the tax years 2005 to
2007 and any related, underlying or supporting documentation.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Defendant
Kenneth Sewell’s Compliance With Subpoena (Doc. 13) is GRANTED in part.
IT IS FURTHER ORDERED that Defendant Kenneth Sewell, as Trustee of the
Dolores Brinkmann Revocable Trust, shall, within seven (7) days from the date of this
Order, produce to Plaintiffs’ counsel:
(i) A copy of the Dolores Brinkmann Revocable Trust, together with all
amendments and attachments.
(ii) All documents which governed the administration of the Dolores Brinkmann
Revocable Trust from its establishment to December 31, 2006.
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(iii) Any and all federal tax returns, including schedules and attachments thereto,
filed on behalf of the Dolores Brinkmann Revocable Trust for the tax years 2005 to 2007
and any related, underlying or supporting documentation.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Defendant
Kenneth Sewell’s Compliance With Subpoena (Doc. 3) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Defendant
Wendy Sewell’s Compliance With Subpoena (Doc. 5) is DENIED as moot.
____________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 15th day of July, 2011.
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