Greater St. Louis Construction Laborers Welfare Fund et al v. General Site Services, LLC

Filing 29

MEMORANDUM AND ORDER. (see order for details)IT IS HEREBY ORDERED that defendants' motion to dismiss for lack of jurisdiction and for insufficient service of process [# 20 ] is denied without prejudice. IT IS FURTHER ORDERED that plaintiffs shall properly serve Dickinson and GSS with their motion by no later than November 22, 2013. Signed by District Judge Catherine D. Perry on 10/31/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREATER ST. LOUIS
CONSTRUCTION LABORERS
WELFARE FUND, et al.,
Plaintiffs,
vs.
GENERAL SITE SERVICES, LLC,
Defendant.

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) Case No. 4:12CV791 CDP
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MEMORANDUM AND ORDER
Plaintiffs obtained a default judgment against General Site Services, LLC.
Plaintiffs now seek a creditor’s bill in equity against John Dickinson and GSS,
L.L.C., which plaintiffs allege are alter-ego entities of the named defendant.
Dickinson and GSS now seek dismissal under Rule 12(b)(5) for insufficient service
of process as to the original complaint. However, both Dickinson and GSS have
retained counsel who has entered a special appearance in this case. That counsel
has received copies of the plaintiffs’ motion for a creditor’s bill in equity. Because
I find that the interests of justice and the speedy and inexpensive resolution of this
action do not favor dismissal, I will deny without prejudice defendants’ motion to
dismiss.

Background
Plaintiffs are individual laborers, unions, benefit plans, and trustees of funds
that obtained a default judgment against General Site Services, LLC, for its failure
to comply with the Employee Retirement Income Security Act of 1974 and the
Labor Management Relations Act of 1947.1 Plaintiffs filed a motion for a
creditor’s bill in equity in this court to pierce the corporate veil of General Site
Services and thereby receive restitution from John Dickinson and GSS, LLC,
which plaintiffs allege are alter egos of General Site Services.2
John Dickinson is the registered agent for General Site Services and in that
capacity was served with the motion. Both Dickinson and GSS have retained
counsel who have entered special appearance for purposes of challenging the
court’s jurisdiction and sufficiency of service. Plaintiffs have since sent copies of
their motion for a creditor’s bill in equity via first-class mail to Dickinson as agent
for General Site Services as well as to counsel for Dickinson and GSS.
Discussion
A creditor’s bill is the “equitable equivalent of garnishment on execution
and is comparable to proceedings supplementary to and in aid of execution.”
Shockley v. Harry Sandar Realty Co., Inc., 771 S.W.2d 922, 925 (Mo. Ct. App.
1989) (citing United States ex rel. Goldman v. Meredith, 596 F.2d 1353, 1357 (8th
1
2

29 U.S.C. §§ 1332, et seq. & 29 U.S.C. §§ 185, et seq., respectively.
GSS and General Site Services are, at this stage in the litigation, legally distinct entities.

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Cir. 1979)). Absent a controlling federal statute, this court “has the same authority
to aid judgment creditors in supplementary proceedings as that which is provided
to state courts under local law.” H.H. Robertson Co., Cupples Prods. Div. v. V.S.
DiCarlo Gen. Contractors, Inc., 994 F.2d 476, 477 (8th Cir. 1993) (quotation
marks and citation omitted); Fed. R. Civ. P. 69(a).
Creditor’s bill garnishees need not be named as parties in the original action.
Id. at 478 (citing Shockley, 771 S.W.2d at 925). Rather, notice must be provided as
to the motion for a creditor’s bill in equity. See id. Garnishment notice is an
indispensable prerequisite to obtaining jurisdiction over the debt garnished. Gore v.
Londoff, 807 S.W.2d 139, 140 (Mo. Ct. App. 1991). Garnishment is a purely
statutory proceeding and strict compliance with the governing statute and Rule is
essential. Meyer v. Meyer, 571 S.W.2d 477, 479 (Mo. Ct. App. 1978) (citing Rev.
Stat. Mo. § 525.020; Mo. S. Ct. Rule 90.04).
Dickinson and GSS dispute whether the propriety of service should be
analyzed under Rule 4 or under Rule 5 of the Federal Rules of Civil Procedure.3
Plaintiffs cite H.H. Robertson Co. in support of their argument that service on
counsel provides sufficient notice. But in that case, the potential garnishees were
served with a garnishee’s summons before the final adjudication of the creditor’s
bill in equity. See H.H. Robertson Co., 994 F.2d at *478. Were service on counsel
3

Rule 5 allows service of motions and certain other papers on counsel who has entered an appearance on behalf of a
party. Rule 4 governs service of an original complaint or a pleading which asserts a new claim for relief.

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sufficient to provide notice, there would be no need for the court to highlight that
fact.
I find that plaintiffs have not properly served Dickinson and GSS with notice
of their motion for a creditor’s bill in equity. However, I find that the interests of
justice and efficiency do not weigh in favor of dismissal with prejudice.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to dismiss for lack of
jurisdiction and for insufficient service of process [# 20] is denied without
prejudice.
IT IS FURTHER ORDERED that plaintiffs shall properly serve Dickinson
and GSS with their motion by no later than November 22, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 31st day of October, 2013.

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