Painters District Council No. 58 et al v. JohnEd, Inc. et al

Filing 60

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion for Reconsideration (ECF No. 57 ) is GRANTED. The previously noticed deposition of Benson, in his capacity as an individual defendant and a corporate officer of JohnEd to discover assets to satisfy the outstanding judgment owed, shall occur through videoconference within sixty days of this Order. Signed by Magistrate Judge John M. Bodenhausen on 08/17/2021. (ANP)

Case: 4:17-cv-01271-JMB Doc. #: 60 Filed: 08/17/21 Page: 1 of 4 PageID #: 546

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAINTERS DISTRICT COUNCIL NO. 58, et al.,1 )
)
Plaintiffs,
)
)
v.
)
)
)
JOHNED, INC. and EDWARD BENSON,
)
)
Defendants.
)

No. 4:17 CV 1271 JMB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs' Motion for Reconsideration (ECF No. 57) of
the February 9, 2021, Memorandum and Order, granting Defendant Edward Benson's ("Benson")
Renewed Motion to Quash his Deposition (ECF No. 56). In that Order, the Court noted that the
time for filing a responsive pleading had not passed but Benson's deposition was noticed for
February 11, 2021, a date prior to the responsive pleading deadline. In the instant motion, Plaintiffs
seek to take a post-judgment deposition of Benson in aid of execution of their judgment. For the

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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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reasons outlined below, the motion to reconsider is granted, and Benson's deposition shall go
forward via videoconference within sixty days of this Order.
I.

Background
Plaintiffs filed this action on April 7, 2017, alleging that Defendant JohnEd, Inc.

("JohnEd"), an employer and signatory to and/or bound by a collective bargaining agreement failed
to (1) accurately account to and fully pay several employee benefit funds, (2) remit deducted dues,
and (3) make contributions to trust funds. (ECF No. 1 at ¶¶ 15-47, 58-61) Plaintiffs further allege
that Benson should be held liable for JohnEd's violations and breaches by virtue of his personal
guaranty. (Id. at ¶¶ 55-61; ECF No. 25-5)
Although Defendants were served on April 18, 2017, neither Defendant has filed an
answer. On May 19, 2017, the Clerk of the Court entered an Order of Default against Defendants.
(ECF No. 7) Defendants have not moved to set aside the default judgment. On January 7, 2019,
the Court awarded default judgment against Defendants, jointly and severally, for a total of
$45,687.43. (ECF No. 27)
In 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)
II.

Discussion
"A motion for reconsideration is not a vehicle to identify facts or legal arguments that could

have been, but were not, raised at the time the relevant motion was pending." Julianello v. K-V
Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015). "District courts have substantial discretion in
ruling on motions for reconsideration. However, in general, '[m]otions for reconsideration serve

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a limited function: to correct manifest errors of law or fact or to present newly discovered
evidence.'" Boswell v. Panera Bread Co., 2016 WL 1392066, at *2 (E.D. Mo. Apr. 8, 2016
(quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)).
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. 69(a)(1). Although Rule
69(a)(1) clearly mandates adherence to most state law execution procedures, the next provision of
the rule provides that "[i]n aid of the judgment or execution, the judgment creditor … may obtain
discovery from any person – including the judgment creditor – in the manner provided in these
rules or by the procedure of the state where the court is located." Fed.R.Civ.P. 69(a)(2).
Plainitffs ask the Court to reconsider the February 9, 2021, Memorandum and Order,
applying state law before their time for filing responsive pleading passed. The Court finds the
orders at issue here, granting without prejudice a motion to quash a subpoena and to reconsider its
ruling on the motion to quash, are discovery orders which are generally considered not final and
not immediately appealable. See, e.g., In re Grand Jury Subpoenas, 472 F.3d 990 (8th Cir. 2007);
Borntrager v. Central States, Southeast and Southwest Areas Pension Fund, 425 F.3d 1087, 1093
(8th Cir. 2005).
Here, Plaintiffs, judgment creditors, seek to depose Benson, under oath, as a judgment
creditors, electing to conduct post-judgment under Rule 69(a)(2). In this case, Plainitffs elect to
use federal procedure rules for its post-judgment discovery regarding Benson. Rule 69(a)(2)
clearly provides that "the judgment creditor … may obtain discovery from any person" and the
scope of such discovery is broad and should be liberally construed. "The judgment creditor is
allowed discovery to find out about assets on which execution can issue or about assets that have
been fraudulently transferred or otherwise beyond the reach of execution." 12 Charles A. Wright

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& Arthur R. Miller, Federal Practice & Procedure § 3014 (3d ed. 2020 update). "The scope of
examination is very broad, as it must be if the procedure is to be of any value." Id.
The party seeking discovery has the burden of making a threshold showing of relevance.
See Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). Once that burden has been
met, the burden shifts to the party seeking to resist the discovery. The Court's initial ruling on this
matter, based on the incomplete briefing and impending deposition scheduled, did not address
whether some threshold of relevance of the information sought had been made. The Court finds
that the requested deposition properly falls within the scope of permissible discovery sanctioned
by the Federal Rules of Civil Procedure. See, e.g., Fed.R.Civ.P. 26(b)(1); YCB Int'l, Inc. v. UCF
Trading Co., Ltd., 2014 WL 1173353, at *2 (N.D. Ill. Jan. 13, 2014) ("The rules mentioned in Rule
69(a)(2) are the federal rules governing pre-trial discovery."). Here, Plaintiffs have satisfactorily
demonstrated that the information sought is relevant to the collection of any outstanding judgment
and is reasonably calculated to lead to the discovery of assets to aid in the satisfaction of the
outstanding judgment. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' Motion for Reconsideration (ECF No. 57) is
GRANTED. The previously noticed deposition of Benson, in his capacity as an individual
defendant and a corporate officer of JohnEd to discover assets to satisfy the outstanding judgment
owed, shall occur through videoconference within sixty days of this Order.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 17th day of August, 2021.

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