KCI Auto Auction, INC. v. Anderson et al

Filing 201

ORDER entered by Judge Nanette K. Laughrey. Plaintiff's motion to enforce, Doc. 199 , is granted in part. Defendants Tom Ephrem, David Ephrem, Danny Ephrem, Barry Ristick, Angelo Jefferson and Quality Used Cars, LLC, jointly and severally, are ordered to make payment in certified funds to KCI, within seven (7) days of this Order, in the amount of $8,979.26. The Clerk's Office will mail a copy of this Order to the pro se defendants. Signed on 7/25/2019 by District Judge Nanette K. Laughrey. (Jackson, Rachel) (A copy of this order was mailed to Quality Used Cars LLC, Registered Agent: Angelo Jefferson, 2759 S. Broadway Wichita, KS 67207; Alonzo Anderson, 2551 N. Dellrose, Wichita, KS 67220; Lucky 7 Used Cars, L.L.C., 2551 N. Dellrose, Wichita, KS 67220; Lucky 7 Discount Auto Sales LLC, 2551 N. Dellrose, Wichita, KS 67220; Angelo Jefferson, 8019 E. Orme Street, Wichita, KS 67207; Barry Ristick, 8002 E. Peach Tree Lane, Wichita, KS 67207; Danny Ephrem, 8002 E. Peach Tree Lane, Wichita, KS 67207; David Ephrem, 6502 E. 15th Street N, Wichita, KS 67206; Tom Ephrem, 6502 E. 15th Street N, Wichita, KS 67206 on 7/25/2019.) (Melvin, Greg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
KCI AUTO AUCTION, INC,
Plaintiff,
v.
ALONZO D. ANDERSON, et al.,
Defendants.

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Case No. 5:17-cv-06086-NKL

ORDER
Pending before the Court is Plaintiff KCI Auto Auction, Inc.’s motion to enforce. Doc.
199. For the following reasons, the motion is granted in part.
I.

Background
In January 2018, the Court entered a consent judgment pursuant to a settlement agreement

in the amount of $300,000 against defendants Angelo Jefferson, Barry Ristick, David Ephrem,
Danny Ephrem, Tom Ephrem and Quality Used Cars, LLC, jointly and severally.1 Doc. 94-2
(Settlement Agreement); Doc. 97 (Consent Judgment). Pursuant to the settlement agreement, these
defendants agreed to make monthly payments to KCI, and in exchange, KCI agreed to forbear
enforcing and executing the Consent Judgment. Doc. 94-2. After defendants stopped making
payments in December 2018, KCI sent notices of default, notified the defendants of KCI’s intent
to execute on the Consent Judgment, and served the defendants with post-judgment discovery
requests. Doc. 171-2 (January 16, 2019 Letters); Doc. 171-3 (February 22, 2019 Letters); Doc.

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KCI also voluntarily dismissed two defendants, Default Judgment was entered against another
two, and Summary Judgment was entered against the last defendant. Doc. 100; Doc. 102; Doc.
103; Doc. 115.
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171-4 (February 23, 2019 Letters); Doc. 147 (Certificate of Service).
After defendants failed to respond to KCI’s discovery requests, KCI subpoenaed non-party
Experian Information Solutions, Inc., seeking information about the individual defendants and
another defendant that would aid in execution, see, e.g., Doc. 160 (Notice of intent to Serve
Subpoena on Experian re: Angelo Jefferson), and the Court granted KCI’s subsequent motion to
compel production by Experian, Doc. 187. In granting the motion to compel, the Court permitted
KCI to submit to documentation of the costs and expenses incurred in connection with the motion.
Id. at p. 3. Those costs and expenses were to be assessed against the defendants. Id. KCI also
filed a separate motion to compel Defendants Tom Ephrem, David Ephrem, Danny Ephrem, Barry
Ristick, Angelo Jefferson and Quality Used Cars, LLC to respond to KCI’s discovery requests.
Doc. 188. In granting this second motion, the Court similarly found “it appropriate to order
defendants to pay the reasonable expenses, including attorney fees, incurred by KCI to compel
discovery” and permitted KCI to submit documentation to that end.
II.

Doc. 194, pp. 3–4.

Discussion
KCI seeks attorney’s fees and costs pursuant to these orders. KCI has submitted records

detailing 46.25 hours of work, valued at $295 per hour, performed in connection with KCI’s postjudgment discovery efforts against these defendants or in connection with the two motions. Doc.
199-1. The total fees requested is $13,643.75. KCI also submitted records of postage expenses
that total $206.80. KCI’s documentation is unopposed and the Court concludes that the hourly
rate and number of hours requested are reasonable. Further, the Court concludes that most of the
fees and expenses requested are properly assessed against Defendants Tom Ephrem, David
Ephrem, Danny Ephrem, Barry Ristick, Angelo Jefferson and Quality Used Cars, LLC.
However, the 13 hours spent working on the initial discovery requests on February 27th

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and 28th, and the postage fees associated with sending the initial discovery requests, are not
properly assessed against the defendants. This work was not caused by defendants’ failure to
respond because it would have been necessary even if the defendants had timely responded to
KCI’s discovery requests. Additionally, the time KCI devoted to drafting and compelling Experian
to comply is attributable both to these individual defendants as well as Alonzo Anderson, who is
not a subject of this motion.2 Accordingly, the Court adjusts the time spent on March 11, March
24 and May 3 downward by approximately one sixth, or 3.25 hours, for a total of 16.50 hours
valued at $4,867.50. Similarly, the costs incurred on March 12 and May 3 are adjusted downward
by approximately one sixth to $101.96. The remaining work and expenses are properly assessed
against the individual defendants and Quality Used Cars, LLC. With these adjustments, the Court
finds that $8,850.00 in attorney’s fees and $129.26 in expenses, or $8,979.26, is properly assessed
against the defendants.
KCI requests that the Court order payment by the defendants jointly and severally. “Joint
and several liability for costs is the general rule unless equity otherwise dictates.” Concord Boat
Corp. v. Brunswick Corp., 309 F.3d 494, 497 (8th Cir. 2002) (holding that district court abused its
discretion by apportioning fees and costs). The defendants are jointly and severally liable on the
underlying consent judgment which KCI seeks to enforce, see Doc. 97, ¶ 1, and no party has
opposed this request or presented equitable reasons why it should not be granted. Therefore, the
Court finds the defendants jointly and severally liable for the awarded attorney’s fees and
expenses.

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The Court recognizes that at least some of the time and expenses on March 11, 2019 was likely
incurred in connection with subpoenas directed at the IRS, not Experian. As this work was
similarly necessitated by defendants’ failure to respond to discovery in the first instance, the Court
concludes the award, as modified by the Court, is proper.
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Finally, KCI also requests that the Court “warn the defendants that their failure to comply
with the Court’s order will result in their being held in contempt of court.” Doc. 199, p. 3. Because
the Court declines to speculate as to future proceedings, this request is denied.
III.

Conclusion
For the reasons set forth above, KCI’s motion to enforce, Doc. 199, is granted in part.

Defendants Tom Ephrem, David Ephrem, Danny Ephrem, Barry Ristick, Angelo Jefferson and
Quality Used Cars, LLC, jointly and severally, are ordered to make payment in certified funds to
KCI, within seven (7) days of this Order, in the amount of $8,979.26.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: July 25, 2019
Jefferson City, Missouri

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