Painters District Council No. 58 et al v. JohnEd, Inc. et al
Filing
56
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Defendant Edward Benson's Renewed Objection to Deposition Notice and Motion to Quash (ECF No. 54 ) is GRANTED without prejudice. The notice of taking deposition of Benson on February 11, 2021, is quashed. Signed by Magistrate Judge John M. Bodenhausen on 2/9/2021. (NEP)
Case: 4:17-cv-01271-JMB Doc. #: 56 Filed: 02/09/21 Page: 1 of 3 PageID #: 523
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAINTERS DISTRICT COUNCIL NO. 58, et al.,1 )
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Plaintiffs,
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v.
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JOHNED, INC. and EDWARD BENSON,
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Defendants.
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No. 4:17 CV 1271 JMB
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Edward Benson's ("Benson") Renewed
Objection to Deposition Notice and Motion to Quash (ECF No. 54). The time for filing a
responsive pleading has not passed but the deposition Benson seeks to quash is noticed for
February 11, 2021.
In a further attempt to satisfy their judgment, Plaintiffs served a Notice of Rule 69
Deposition (ECF No. 54-1), seeking to depose Benson, individually and as an officer of Johned,
Inc., regarding a range of topics related to their efforts to collect their judgment in the amount of
$45,687.43. (ECF No.28) Rule 69(a)(1) provides that a deposition in aid of execution of a
judgment "must accord with the procedure of the state where the court is located." Fed.R.Civ.P.
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Plaintiffs are Painters District Council No. 58, Gregg Smith, in his capacity as Business
Manager of Painters District Council No. 58, St. Louis Painters Pension Trust, St. Louis
Painters Welfare Trust, St. Louis Painters Vacation Trust, Painters District Council No. 2
Apprenticeship and Journeyman Training Trust, by and through, Gregg Smith, David Doerr,
Rich Lucks, Joseph F. Mueller, Carl Farrell, Donald Thomas, Daniel Wienstroer, Michael Smith,
Walter Bazan, Jr., Steve Phillipp, Jr., Mark Borgmann, Dane McGraw, Joseph Keipp, Tim Weis,
Fred Phillipp, Jr., in their capacities as trustees (collectively referred to as “Plaintiffs”).
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Case: 4:17-cv-01271-JMB Doc. #: 56 Filed: 02/09/21 Page: 2 of 3 PageID #: 524
69(a)(1). Accordingly, Plaintiffs' efforts to execute upon its judgment and proceedings
supplementary to and in aid of judgment or execution must comply with the applicable
provisions of Missouri law.
There is very little published Missouri case law on this issue. In Missouri, Rule 76.27
provides that "[w]hen an execution is returned unsatisfied, the judgment creditor may petition the
court which rendered the judgment to enter an order requiring the judgment creditor to appear
and be examined under oath concerning his means of satisfying the judgment." Rule 76.27
Mo.R.Civ.P. Further, the scope of such examination is limited to "matters, not privileged, that
are relevant to the discovery of assets, including insurance, or income subject to execution or
garnishment for the satisfaction of judgments." Rule 76.28 Mo.R.Civ.P.
In State ex rel. Rowland Group, Inc. v. Koehr, 831 S.W.2d 930, 932 (Mo. 1992) (en
banc), the Missouri Supreme Court explained that:
The judgment debtor examination is a supplementary proceeding, summary in
nature…. The principal purpose of a judgment creditor examination is to discover
assets, to compel the defendant in execution to disclose under oath all the assets
of his estate, and, after this discovery, to authorize the court to say whether or not
the debtor has assets that may be levied on by execution in favor of the judgment
creditor…. A related purpose is to disclose fraudulently concealed property to
that it may properly be subjected to the payment of a just debt.
Id. (internal citations omitted)
Here, Plaintiffs, judgment creditors, have not filed a motion requesting the Court to direct
a judgment creditor to appear and be examined under oath. Benson's Renewed Objection to
Deposition Notice and Motion to Quash (ECF No. 54) shall be granted without prejudice. The
Court directs that the parties to work together to resolve the need to take Benson's deposition.
Accordingly,
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Case: 4:17-cv-01271-JMB Doc. #: 56 Filed: 02/09/21 Page: 3 of 3 PageID #: 525
IT IS HEREBY ORDERED that Defendant Edward Benson's Renewed Objection to
Deposition Notice and Motion to Quash (ECF No. 54) is GRANTED without prejudice. The
notice of taking deposition of Benson on February 11, 2021, is quashed.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of February, 2021.
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